People v. Patterson

• Decision Date: 01 April 1999
• Parties: , 710 N.E.2d 665, 1999 N.Y. Slip Op. 2770 The PEOPLE of the State of New York, Respondent, v. Darren PATTERSON, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 101

688 N.Y.S.2d 101

93 N.Y.2d 80, 710 N.E.2d 665, 1999 N.Y. Slip Op. 2770

The PEOPLE of the State of New York, Respondent, v. Darren PATTERSON, Appellant.

Court of Appeals of New York.

April 1, 1999.

Randall D. Unger, Kew Gardens, for appellant.

Richard A. Brown, District Attorney of Queens County, Kew Gardens (Sharon Y. Brodt and John M. Castellano of counsel), for respondent.

OPINION OF THE COURT

BELLACOSA, J.

Defendant contends that three evidentiary trial errors entitle him to a reversal of his robbery conviction and a new trial. The Appellate Division affirmed the judgment of conviction that was based on a jury verdict, and a Judge of this Court granted leave to appeal. We now reverse because, like the dissenting Justices at the Appellate Division, we conclude that the trial court should not have admitted the police officer's testimony as to the grocer's earlier lineup identification of defendant. The trial court ruling is not justified under CPL 60.25, and warrants a new trial, since identification was crucial to the fair resolution of this case.

On March 2, 1993, three men entered a grocery store in Queens and committed a gunpoint robbery of the proprietor, John Cho, and several customers. Several weeks later Cho picked defendant Patterson out of a lineup, as one of the robbers. Before Patterson was brought to trial, Cho died in another unrelated robbery.

At the trial, the People offered the testimony of a police officer who was present at Cho's lineup identification. The People urged that, because of Cho's unavailability as a witness at the trial, CPL 60.25 permitted the officer to testify as to Cho's lineup identification of defendant. The testimony was allowed by the trial court, and the Appellate Division approved. We disagree that the statute may be construed and applied in this fashion.

The authorization contained in CPL 60.25 is specific and limited. By its terms, CPL 60.25 does not allow third-party testimony confirming a pretrial identification by a nontestifying witness. Instead, the statute expressly delineates preconditions and the particular instances for the admission of previous identification evidence, in the absence of trial-present identification.

The witness who made the pretrial identification must have testified to: (1) observing the defendant "either at the time and place of the commission of the offense or upon some other occasion relevant to the case;" (2) observing, under constitutionally permissible circumstances, "a person whom he recognized as the same person whom he had observed on the first or incriminating occasion;" and (3) being "unable at the proceeding to state, on the basis of present recollection, whether or not the defendant is the person in question" (CPL 60.25[a]; see, People v. Gonzalez, 46 N.Y.2d 1011, 1012, 416 N.Y.S.2d 239, 389 N.E.2d 834).

In a novel, unprecedented extension of the explicit terms of the statute, the People argue that because victim Cho was dead at the time of Patterson's trial, and therefore "unavailable," the third prong was satisfied since Cho was unable to state, based on present recollection, whether defendant was the person he previously identified. However, the People misperceive the conjunctive nature of the statutory requirements and recast the literal words of that particular prong to try to hang this case on that exceptional statutory authorization.

The People's interpretative proffer is too facile and is defeated by the plain language of the enactment. The statute presupposes testimony from the identifying witness that establishes, along with the other enumerated requirements, a lack of present recollection of the defendant as the perpetrator (see, CPL 60.25[a][iii]; People v. Quevas, 81 N.Y.2d 41, 45, 595 N.Y.S.2d 721, 611 N.E.2d 760). That requirement is not met here. The testimony of a third person at trial (the police officer)--confirming the pretrial, unsworn lineup identification by the witness (Cho)--can be rendered admissible only after this prerequisite is supplied (see, CPL 60.25[b]; People v. Quevas, supra, at 45-46, 595 N.Y.S.2d 721, 611 N.E.2d 760; People v. Bayron, 66 N.Y.2d 77, 81, 495 N.Y.S.2d 24, 485 N.E.2d 231; People v. Gonzalez, supra ).

Indeed, the testimony of a third party non-identifying witness is allowed as evidence-in-chief under the statute only when coupled with the real identifying witness's testimony as to the prior identification (CPL 60.25 ). It is through this coupling that the testimony of both "witnesses" forms a complementary, reliable chain of evidence, linking the acceptance of the prior identification (see, People v. Nival, 33 N.Y.2d 391, 395-396, 353 N.Y.S.2d 409, 308 N.E.2d 883, appeal dismissed, cert. denied 417 U.S. 903, 94 S.Ct. 2597, 41 L.Ed.2d 208). The testimony of the third party, who witnessed the previous identification but not the crime, standing alone, cannot provide the indispensable safeguards of affording the defendant the benefit of probing cross-examination and the defensive development of reasonable doubt about the identification. The admission of the police officer's proxy-like testimony, giving the jury Cho's lineup identification of Patterson, falls fatally short of the CPL 60.25 authorization. Since identification of defendant was crucial, this is reversible error here and requires a new trial.

We address but do not rule on two additional evidentiary features since further proceedings must occur in this case. They relate to the admission of the store surveillance videotape purportedly showing the unfolding robbery, and a tape recording of a 911 telephone call from the victim reporting the crime.

At the outset, we emphasize that relevant videotapes and technologically generated documentation are ordinarily admissible under standard evidentiary rubrics. Some reliable authentication and foundation (including technically acceptable self-authentication techniques) are, however, also still necessary.

The decision to admit or exclude videotape evidence generally rests, to be sure, within a trial court's founded discretion. Moreover, this type of ruling may be disturbed by this Court only when no legal foundation has been proffered or when an abuse of discretion as a matter of law is demonstrated (Prince, Richardson on Evidence § 4-214 [Farrell 11th ed.] ), and by the intermediate appellate court in the additional circumstance when it exercises its exclusive and plenary interest of...