People v. Rodriguez

Decision Date07 May 1992
Citation583 N.Y.S.2d 814,593 N.E.2d 268,79 N.Y.2d 445
Parties, 593 N.E.2d 268 The PEOPLE of the State of New York, Respondent, v. Felix RODRIGUEZ, also known as Francisco Jaurequi, Appellant.
CourtNew York Court of Appeals Court of Appeals

Alexandra E. Trinkoff and E. Joshua Rosenkranz, for appellant.

Robert M. Morgenthau, Dist. Atty. (Eleanor J. Ostrow and Mark Dwyer, of counsel), for respondent.


KAYE, Judge.

This appeal centers on the "confirmatory identification" exception to the notice and hearing requirements of the Criminal Procedure Law for suggestive pretrial identification procedures. We conclude that, where a citizen eyewitness claimed to have seen the defendant numerous times in a store, it was error to deny defendant's Wade hearing motions summarily, because the witness' assertion did not establish such familiarity with defendant that the danger of police suggestiveness was eliminated as a matter of law.


On August 22, 1986, David Benito--employed as a clerk in the grocery store across the street from his Manhattan apartment--woke up late for work, looked out his fourth-floor window to see if his boss was waving him down, and noticed a group of about seven people gathered in the street below. Two men were arguing. One shoved the other, whereupon the latter drew a gun, shot the first man to death and fled.

Within two hours Benito reported his observations at the local stationhouse. He was shown two or three photographs, but did not recognize any as the assailant. Three days later, on August 25, a detective presented a single photograph to Benito, and he identified the person depicted--defendant--as the gunman.

Defendant was thereafter arrested in an unrelated incident and charged with the August 22 murder. Shortly after indictment, defendant filed a motion requesting a Wade hearing to explore the suggestiveness of the photo showup. The People opposed the hearing, alleging by affirmation that Benito was "very familiar" with defendant from the neighborhood and suggestiveness therefore was not an issue. In support, the People relied on Benito's Grand Jury testimony, in which he testified that he had seen defendant "[a]t least four dozen times" as a customer in the grocery store. The court summarily denied defendant's motion.

Some time thereafter, defendant's investigator contacted Benito. At the conclusion of a pretrial Mapp hearing, defense counsel orally renewed the application for a Wade hearing, stating that he had questioned his client and that his client was "not familiar with" Benito, and moreover that it appeared Benito was a longtime police informant. The People conceded that Benito did not have a "relationship familiarity" with defendant, but claimed that nevertheless, as demonstrated by the Grand Jury testimony, there was sufficient prior familiarity to justify summary denial of the motion. The court agreed.

Defendant later moved a third time for a Wade hearing, supported by his attorney's affirmation and a memorandum of law. Defendant again denied "personally knowing or having any prior familiarity with the witness," and added that defense investigators learned that a criminal case pending against Benito had been adjourned in contemplation of dismissal on the day of defendant's arrest. The memorandum of law distinguished this Court's confirmatory identification cases. The motion again was summarily denied, and the case proceeded to trial.

At trial, Benito--the sole identification witness--recounted the shooting and made an in-court identification of defendant. In contrast to his Grand Jury testimony, however, Benito testified that he had seen defendant "a few times" prior to the crime as one of the "guys from the block" who "mingled with the fellows." He also admitted that he was not a friend or acquaintance of defendant. The jury heard testimony about the August 25 photo showup, and the People presented physical evidence connecting defendant to the shooting. Defendant was convicted of second degree murder and weapons possession.

On appeal, defendant argued that the trial court erred in summarily denying his motions for a Wade hearing. The Appellate Division disagreed, holding that Benito's Grand Jury testimony established that the photo display was "merely confirmatory," and thus there was no potential suggestiveness in the procedure. 167 A.D.2d 146, 561 N.Y.S.2d 456. We now modify and remit for a hearing.


In criminal investigations, the police employ a variety of identification procedures--including lineups, one-on-one showups, photo arrays, and (as in this case) single-photo displays. While such techniques help assure that the right person has been or will be arrested, if tainted by suggestion they can lead to irreparable misidentification. "The influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor--perhaps it is responsible for more such errors than all other factors combined." (Wall, Eye-Witness Identification in Criminal Cases, at 26; see also, United States v. Wade, 388 U.S. 218, 229, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149.)

The legislative recognition of the importance of testing the reliability of identification testimony before trial is codified in CPL article 710 (see, People v. Newball, 76 N.Y.2d 587, 590-591, 561 N.Y.S.2d 898, 563 N.E.2d 269; People v. Gissendanner, 48 N.Y.2d 543, 552, 423 N.Y.S.2d 893, 399 N.E.2d 924). Under CPL 710.20(6), a defendant may move to suppress identification testimony on the ground that it is tainted by "an improperly made previous identification." CPL 710.30 requires the People to inform defendant that they intend to offer identification testimony at trial, putting defendant on notice of the potential need to make a motion to suppress. And CPL 710.60 governs the procedure for initiating the motion, specifying when the court may summarily dispose of such a motion without a hearing.

Beginning with People v. Gissendanner, (48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924), this Court carved out a narrow exception to the notice and hearing requirements of article 710 for suggestive pretrial identification procedures. "In cases in which the defendant's identity is not in issue, or those in which the protagonists are known to one another, 'suggestiveness' is not a concern and, hence, [CPL 710.30] does not come into play" (People v. Gissendanner, 48 N.Y.2d, at 552, 423 N.Y.S.2d 893, 399 N.E.2d 924, supra [emphasis added]; see also, People v. Tas, 51 N.Y.2d 915, 434 N.Y.S.2d 978, 415 N.E.2d 967; People v. Collins, 60 N.Y.2d 214, 469 N.Y.S.2d 65, 456 N.E.2d 1188).

Though first articulated in Gissendanner, this "known to one another" exception--the "confirmatory identification" * exception--was not applied in that case because identity was not an issue, nor was there a police-arranged identification procedure (48 N.Y.2d, at 552, 423 N.Y.S.2d 893, 399 N.E.2d 924). Our first actual application of the exception was in Tas, where we concluded that there was no CPL 710.30 violation because the victim and the perpetrators "were known to each other," having resided together as inmates in the same cell tier for at least one month (51 N.Y.2d, at 916, 434 N.Y.S.2d 978, 415 N.E.2d 967 [emphasis added], citing People v. Gissendanner ).

As we thereafter recognized in Collins, whether the exception applies depends on the extent of the prior relationship, which is necessarily a question of degree. As then-Judge Wachtler wrote:

"When a crime has been committed by a family member, former friend or long-time acquaintance of a witness there is little or no risk that comments by the police, however suggestive, will lead the witness to identify the wrong person. * * * But in cases where the prior relationship is fleeting or distant it would be unrealistic to ignore the possibility that police suggestion may improperly influence the witness in making an identification." (60 N.Y.2d, at 219, 469 N.Y.S.2d 65, 456 N.E.2d 1188 [emphasis added]; see also, People v. Newball, 76 N.Y.2d 587, 591, 561 N.Y.S.2d 898, 563 N.E.2d 269.)

A court's invocation of the "confirmatory identification" exception is thus tantamount to a conclusion that, as a matter of law, the witness is so familiar with the defendant that there is "little or no risk" that police suggestion could lead to a misidentification. This is so because, as a consequence of applying the exception, the defendant will be denied a Wade hearing to explore suggestiveness. In effect, it is a ruling that however suggestive or unfair the identification procedure might be, there is virtually no possibility that the witness could misidentify the defendant.

The exception may be confidently applied where the protagonists are family members, friends or acquaintances (People v. Collins, supra ) or have lived together for a time (People v. Tas, supra ). At the other extreme, it clearly does not apply where the familiarity emanates from a brief encounter (see, People v. Newball, 76 N.Y.2d 587, 591-592, 561 N.Y.S.2d 898, 563 N.E.2d 269, supra ).

Benito's alleged prior familiarity with defendant falls within these two extremes. It is indeed possible that a store clerk, having seen a customer "four dozen" times, would be immune to police suggestion. It is also conceivable, however, that such a witness could be influenced by suggestiveness to make a misidentification. Without more information, the trial court had no basis for ruling, in essence, that this witness was impervious to suggestion. The court therefore should have granted defendant's request for a hearing, at least to explore Benito's alleged prior familiarity with him.

We recently emphasized the importance of adversary testing of claims that an identification was "merely confirmatory." In People v. Williamson, (79 N.Y.2d 799, 580 N.Y.S.2d 170, 588 N.E.2d 68 supra ), the trial court held a hearing to determine whether a Wade hearing was necessary. The complainant, a...

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