People v. Mendez
| Decision Date | 30 July 1992 |
| Citation | 155 Misc.2d 368,589 N.Y.S.2d 268 |
| Parties | The PEOPLE of the State of New York v. Angel MENDEZ, Defendant. |
| Court | New York Supreme Court |
Goldstein, Weinstein, and Fuld, Barry A. Weinstein, New York City, for defendant.
Robert M. Morgenthau, Dist. Atty. (Zachary Weiss, New York City, of counsel), for plaintiff.
Is a defendant entitled to a Wade hearing to ascertain the constitutionality of a dying identification procured through a police-arranged hospital showup? If so, are the People required to give notice under CPL 710.30[1][b] that they intend to offer at trial third-party testimony of a dying identification?
Because this court answers both these questions of first impression in the affirmative, a written opinion is filed to explain a ruling that the court made during a recently concluded trial. 1
On October 26, 1990, Mr. Felice Martinez was shot twice during a robbery attempt. On that same day, the police arrested the defendant and brought him to Columbia-Presbyterian Hospital, where Mr. Martinez, in the presence of the police, identified the defendant as his assailant. Mr. Martinez died the next day as a result of the gunshot wounds.
In the middle of the defendant's trial for the murder of Mr. Martinez, the People announced their intention at a bench conference to call a detective who was present at the hospital showup to testify that the victim identified the defendant. No notice under CPL 710.30[1][b] of that prospective testimony was given to the defense. In fact, until the prosecutor began to lay a foundation for the admission of the identification testimony, the court and the defense believed that the People's case was based primarily on a "peephole" identification of the defendant made at the scene of the crime by another witness. The People never mentioned to the court or to the defense during the eighteen months before the trial began, during voir dire, or during their opening statement that they planned to introduce any dying-identification testimony.
In support of their application to admit the dying identification, the People argued during the trial that the testimony was admissible as a dying declaration, which does not require a pre-trial hearing. They further argued that, because the testifying witness, a police detective who was present at the dying identification, did not himself make a prior identification of the defendant, no notice was required to be given to the defense under CPL 710.30[1][b]. 2 In addition, the People asserted that information regarding the dying identification was contained in the Rosario material (see, People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 [1961], which the People turned over timely, thus alerting the defense to the possibility that the dying identification would be used at trial.
The defense, on the other hand, maintained that the victim's identification of the defendant was not a dying declaration but rather the product of a police-arranged identification procedure. According to the defense, the admissibility of the identification evidence was subject to a pre-trial Wade hearing (see, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 [1967]. The defense further contended that because the defendant was entitled to a Wade hearing to determine whether the identification procedure was unduly suggestive and whether the identification was unreliable, the People were required by CPL 710.30 to notify the defense of their intention to use the identification evidence at trial.
The court did not rule on whether the victim's identification met the criteria for admission as a dying declaration. 3 Rather the court assumed for the purpose of its ruling that the victim's identifying statements met the requisite criteria.
A dying identification procured through a police-arranged hospital showup raises Federal and State constitutional concerns (see, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 [1967]. These concerns must be addressed at a Wade hearing, regardless whether the victim or a third party provides the identification testimony at trial. Because a Wade hearing is required before a court may admit a dying identification that is the product of a police-arranged hospital showup, the court holds, moreover, that the People are required to notify the defense under CPL 710.30[1][b] if they intend to offer the identification evidence through the testimony of a third party.
A pre-trial hearing 4 is not required to determine the admissibility of a dying declaration (People v. Nieves, 67 N.Y.2d 125, 136, 501 N.Y.S.2d 1, 492 N.E.2d 109 [1986]; People v. Liccione, 63 A.D.2d 305, 316, 407 N.Y.S.2d 753 [4th Dep't 1978], aff'd 50 N.Y.2d 850, 430 N.Y.S.2d 36, 407 N.E.2d 1333 [1981]. This rule has been applied, however, only when a victim's dying declaration identified an assailant known to the victim and, thus, when no police-arranged identification procedure was conducted (see, e.g., Nieves, 67 N.Y.2d at 129, 501 N.Y.S.2d 1, 492 N.E.2d 109; Liccione, 63 A.D.2d at 310, 407 N.Y.S.2d 753). An identification of a defendant known to the identifying witness 5 is not an identification within the meaning of CPL 710.30 and therefore does not have Sixth Amendment or Due Process implications (see, People v. Collins, 60 N.Y.2d 214, 219, 469 N.Y.S.2d 65, 456 N.E.2d 1188 [1983]; People v. Tas, 51 N.Y.2d 915, 916, 434 N.Y.S.2d 978, 415 N.E.2d 967 [1980]; People v. Gissendanner, 48 N.Y.2d 543, 552, 423 N.Y.S.2d 893, 399 N.E.2d 924 [1979].
No pre-trial Wade hearing is necessary when evidence of an identification of an assailant unknown to the identifying witness is offered under the excited-utterance exception to hearsay rule through the testimony of a third party (see, People v. Nalty, 141 Misc.2d 90, 91, 532 N.Y.S.2d 657 [Crim.Ct.Kings Co.1988], aff'd, 160 A.D.2d 958, 554 N.Y.S.2d 935 [2d Dep't 1990]. The excited-utterance rule is nevertheless applicable only when no police-arranged identification procedure preceded the identification (see, Nalty, 141 Misc.2d at 91, 532 N.Y.S.2d 657 [].
When no police-arranged procedure is used to procure an identification, the possibility of unduly suggestive activity by the police is not a concern. Therefore, no pre-trial Wade hearing is required to ascertain the reliability of an identification that is not the product of police-arranged procedures (see, People v. Rodriguez, 79 N.Y.2d 445, 450, 583 N.Y.S.2d 814, 593 N.E.2d 268 [1992]; Gissendanner, 48 N.Y.2d at 552, 423 N.Y.S.2d 893, 399 N.E.2d 924).
In the present case, the identifying witness did not know the defendant. Moreover, the defendant was brought to the hospital by detectives to obtain an identification from the victim. Although a hospital showup for an injured victim is permissible and not inherently suggestive (see, Stovall, 388 U.S. at 302, 87 S.Ct. at 1972; People v. Rivera, 22 N.Y.2d 453, 455, 293 N.Y.S.2d 271, 239 N.E.2d 873 [1968], a court must look at the "totality of the circumstances" to insure that the identification is reliable (see, Stovall, 388 U.S. at 302, 87 S.Ct. at 1972; Rivera, 22 N.Y.2d at 455, 293 N.Y.S.2d 271, 239 N.E.2d 873). This determination, which is made at a Wade hearing, requires a court to examine a broader range of factors than would be necessary when that court must simply decide whether a statement meets the criteria for admission as a dying declaration.
A finding that a statement is admissible as a dying declaration satisfies the Confrontation Clause, or reliability concerns that arise whenever a third party rather than a declarant testifies. Nevertheless, the Due Process concerns that emerge when police-arranged identifications are involved cannot be satisfied unless a Wade hearing is held.
Thus, a Wade hearing is required before evidence of a hospital-showup identification may be admitted at trial. Nothing justifies dispensing with conducting that hearing when a third party, rather than the identifying witness, plans to testify at trial. The same constitutional safeguards exist regardless of who ultimately testifies and regardless whether the person who initially identified the defendant is alive or deceased when the trial is finally underway.
This court therefore holds that the defendant was entitled to move for a pre-trial Wade hearing to determine the reliability of the dying identification obtained through a police-arranged hospital showup.
To advance the spirit that underlies CPL 710.30, this court finds that notice is required before a third party testifies regarding a dying identification procured through a police-arranged hospital showup. 6
A literal interpretation of CPL 710.30[1][b] would appear to mandate notice only when "testimony regarding an observation of the defendant ... [is] to be given by a witness who previously identified him." Under this plain-meaning interpretation, no notice would be required when a third party who did not previously identify the defendant testifies about an identification made by a victim.
The Court of Appeals has stated, however, that emphasis on the literal language of CPL 710.30 should be avoided when that emphasis "would produce results plainly at odds with the policy of the legislation as a whole" (People v. White, 73 N.Y.2d 468, 474 n. 1, 541 N.Y.S.2d 749, 539 N.E.2d 577 [1989]; see also, People v. Tas, 51 N.Y.2d 915, 434 N.Y.S.2d 978, 415 N.E.2d 967 [1980].
The purpose of the notice requirement is to protect a defendant by providing a pre-trial ruling at a Wade hearing on the admissibility of identification evidence (People v. Laing, 79 N.Y.2d 166, 170, 581 N.Y.S.2d 149, 589 N.E.2d 372 [1992]; ...
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People v. Patterson
...People v. Nalty, 141 Misc.2d 90, 532 N.Y.S.2d 657, affd. on other grounds 160 A.D.2d 958, 554 N.Y.S.2d 935; cf., People v. Mendez, 155 Misc.2d 368, 370 n. 3, 589 N.Y.S.2d 268). The statute, however, creates no exception for an "unavailable" witness. In order for CPL 60.25 to apply, proof mu......