People v. McRae

• Decision Date: 03 February 1994
• Citation: 607 N.Y.S.2d 624,195 A.D.2d 180
• Parties: The PEOPLE of the State of New York, Respondent, v. Saleem McRAE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 624

607 N.Y.S.2d 624

195 A.D.2d 180

The PEOPLE of the State of New York, Respondent, v. Saleem McRAE, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Feb. 3, 1994.

Jane Levitt, New York City, of counsel (Philip L. Weinstein, attorney), for defendant-appellant.

Alan Gadlin, New York City, of counsel (Norman Barclay with him on the brief Robert M. Morgenthau, Dist. Atty. of New York County, attorney), for respondent.

Before SULLIVAN, J.P., and ELLERIN, KUPFERMAN and NARDELLI, JJ.

ELLERIN, Justice.

At issue on this appeal is the propriety of police conduct in arranging the lineups at which defendant was identified as the culprit in two knifepoint robberies.

Defendant was arrested on February 13, 1990 and charged with having robbed, in separate incidents, complainants Nichols and Chevalier. Defense counsel was timely served with notice pursuant to CPL 710.30 informing him that the prosecution intended to introduce evidence at trial showing that defendant had been identified in lineups. Counsel thereupon moved to suppress, and the court granted the motion to the extent of ordering a Wade hearing.

At the hearing, Police Officer Robert Newham testified that, on the morning of February 13, 1990, complainant Nichols, who had been robbed a few days earlier, selected defendant's photo from an array. Newham immediately went to Brooklyn Supreme Court, where he knew that defendant and one Al Green were to be arraigned that day on unrelated charges. Newham testified that after he learned that defendant was to be released on his own recognizance on the Brooklyn charges, he informed defendant's and Green's attorneys that he was taking the defendants to Manhattan where they would be placed in seven to ten lineups commencing at 4 p.m. Counsel indicated that they would attend. According to Newham's recollection, defendant's attorney was male and Green was represented by a female Legal Aid attorney.

According to Legal Aid attorney Alicia Fagan, it was she who represented defendant and a male attorney who represented Green. Fagan testified that she was told by one of the officers who removed the defendant from the Brooklyn courthouse that a lineup would be held. When Fagan gave the officer her card, the officer asked her if she intended to attend the lineup and she indicated that a Manhattan Legal Aid attorney would attend and that the lineup should not take place until that attorney arrived. The officer did not tell her the time that the lineup would take place but told her to "hurry up" and arrange to have counsel there. She then called a supervisor who agreed to make the arrangements for an attorney to attend. That was her final contact with the matter.

The officers left Brooklyn at about 1 p.m. and brought defendant and Green to the 13th Precinct, where Newham informed Officer Michael Kennedy that defendant's and Green's counsel would attend the lineup. Various complainants in a number of separate robberies in which it was thought defendant might have been involved, including complainants Nichols and Chevalier, were contacted and told to be at the precinct. According to Newham, when the person he recalled as being defendant's attorney called, Newham told him that a number of complainants were making arrangements to attend and that the lineups would be held shortly after 4 p.m. Counsel indicated that he would be there.

Between 3:30 and 4:00 p.m., Kennedy was informed by a sergeant that defendant's attorney had called again. The arrangements for the lineups were completed by 4 p.m. and, as Green's attorney had arrived but defendant's had not, the lineups for Green were held first. Defendant informed the officers that he did not wish to proceed without counsel. At 5 p.m., Kennedy took a call from a man identifying himself as defendant's counsel, who stated that he could not attend the lineup that day and requested a postponement until the next day. Kennedy explained that the complainants and fillers had already been assembled for hours and that some of the complainants could become unavailable by the next day. Counsel stated that he nevertheless objected to the lineup going forward without his presence.

The lineups were held and complainant Nichols made an immediate and positive identification of defendant. However, according to Officer Joseph Riley, during the lineup held for complainant Chevalier, she tentatively selected defendant but said that she was not sure. Officer Riley asked why she was not sure and she responded, "Maybe if I heard him speak I can be 100% sure." Riley then wrote out a few phrases, i.e., "Give me all your money. Do you have anything else? Do you have a car?" and had each participant approach the window and read them. After they were finished, Chevalier positively identified defendant as the man who had robbed her.

Defendant argues on appeal that identification testimony should have been suppressed on various grounds. As to the final, positive identification by Chevalier, he contends that it should be precluded because the notice he received pursuant to CPL 710.30 failed to inform him that he had been identified by voice, and, in the alternative, that it should be suppressed because the prosecution failed to come forward with evidence that the voice identification procedures were not unduly suggestive. Additionally, as to both lineups, he argues that testimony concerning them should be suppressed in its entirety because he was deprived of his right to counsel.

The purpose of CPL 710.30 is to provide a defendant with the information needed to timely move to suppress evidence which the prosecution intends to use against defendant (People v. O'Doherty, 70 N.Y.2d 479, 488, 522 N.Y.S.2d 498, 517 N.E.2d 213). It applies to both statements and identification evidence and, as to the latter, applies regardless of whether the identification was made visually or by voice (People v. Anthony, 172 A.D.2d 322, 323, 568 N.Y.S.2d 395, lv. denied 77 N.Y.2d 991, 571 N.Y.S.2d 917, 575 N.E.2d 403). Specifically, it requires that, within 15 days of a defendant's arraignment, if the prosecution "intend[s] to offer at a trial ... (b) testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such, they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered." (CPL 710.30[1][b].)

While failure to provide such notice, absent good cause, generally requires preclusion (People v. McMullin, 70 N.Y.2d 855, 856-857, 523 N.Y.S.2d 455, 517 N.E.2d 1341), if a defendant moves to suppress without protesting a lack of notice, any objection to its absence is waived (CPL 710.30[3]. However, a defendant may preserve his or her objection by protesting the lack of notice before moving to suppress (People v. Bernier, 73 N.Y.2d 1006, 1008, 541 N.Y.S.2d 760, 539 N.E.2d 588; People v. St. Martine, 160 A.D.2d 35, 39-40, 559 N.Y.S.2d 697, lv. denied 76 N.Y.2d 990, 563 N.Y.S.2d 779, 565 N.E.2d 528). In this case, after it emerged at the Wade hearing that complainant Chevalier had heard the voices of the lineup participants before making her identification, counsel protested the lack of CPL 710.30 notice as to that part of the procedure. Defendant's argument that he was entitled to separate notice of the vocal aspect of the identification is therefore preserved for review.

Defendant argues that the statute requires specificity as to the manner in which the complainant identified the defendant and that the statement in the notice that a lineup had taken place was inadequate to inform him that the witness had had an opportunity to hear the participants as well as see them before making her identification. However, CPL 710.30 notice is not a discovery device. The prosecution's obligation under the statute is to provide the defendant with sufficient information concerning the police-arranged identification so that he or she may move to suppress (see, People v. O'Doherty, supra ). Just as defendant need not make any specific factual allegations in order to obtain a Wade hearing (see, CPL 710.60[3][b], there is no necessity that the notice provide details of the factual circumstances of the identification. Such factual details, if relevant, may be explored at the hearing. In this case, it is clear that the fact that the witness was allowed to hear the lineup participants as well as see them was merely a factual circumstance which did not impact on counsel's decision or ability to move to suppress and obtain a hearing at which counsel would be able to explore the circumstances of the identification. Thus, the prosecution was not required to include such information in the notice.

Defendant next argues that evidence of the vocal portion of complainant Chevalier's identification should have been suppressed because the prosecution failed to come forward with evidence establishing that the police conduct was reasonable or that the voice identification procedures were not unduly suggestive.

Voice identifications are subject to the same constitutional safeguards as visual identifications (People v. Collins, 60 N.Y.2d 214, 218, 469 N.Y.S.2d 65, 456 N.E.2d 1188; People v. Shepard, 162 A.D.2d 226, 556 N.Y.S.2d 594, lv. denied 76 N.Y.2d 944, 563 N.Y.S.2d 73, 564 N.E.2d 683). Thus, upon a motion to suppress, it is the prosecution's obligation to come forward with evidence establishing that the police conduct was reasonable and that the procedures used were not unduly suggestive. Once that burden is met, the defense bears the ultimate burden of proving that the procedure was unduly suggestive (see, generally, People v. Chipp, 75 N.Y.2d 327, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70; People v. Gonzalez, 173 A.D.2d 48, 55-56, 578 N.Y.S.2d 890, lv. denied 79...