People v. Russell

• Decision Date: 25 March 1991
• Citation: 567 N.Y.S.2d 548,165 A.D.2d 327
• Parties: The PEOPLE, etc., Respondent, v. Saul RUSSELL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 548

567 N.Y.S.2d 548

165 A.D.2d 327

The PEOPLE, etc., Respondent, v. Saul RUSSELL, Appellant.

Supreme Court, Appellate Division,

Second Department.

March 25, 1991.

Petito & LaRose, Poughkeepsie (Bruce A. Petito, of counsel), for appellant.

William V. Grady, Dist. Atty., Poughkeepsie (Bridget Rahilly Steller, of counsel), for respondent.

Before KOOPER, J.P., and SULLIVAN, HARWOOD and BALLETTA, JJ.

BALLETTA, Justice.

On the morning of August 14, 1987, the Main-Innis branch of Barclay's Bank in Poughkeepsie was robbed of over $10,000. During the course of the robbery, one of the bank tellers activated the bank's surveillance camera which took photographs of the robber as he left the bank. At the trial, the court permitted a number of lay witnesses, who were not eyewitnesses to the robbery but who were acquaintances of the defendant, to give their opinion that the individual in the bank surveillance photographs was the defendant. The defendant contends that the admission of this testimony was error. However, we disagree and affirm the judgment of conviction.

The bank opened for business at 9 A.M. on August 14, 1987, and a gentleman of medium height, dressed in a white hat with a black rim and a white linen jacket, entered and walked over to Ann Barnes Colangelo's teller station. The man handed her a note demanding money, gave her a paper bag, and then opened his jacket to show her what she believed to be a gun.

The bank was equipped with a surveillance camera which could be activated by removing certain bills from the drawers. Colangelo activated this camera as she proceeded to fill the bag with money from her drawer. Two other tellers, Bernice Dingee and Doreen LaGuardia, came out of the vault with more money which, pursuant to the robber's directions, Colangelo gave to him. He then placed the money into the bag and walked swiftly out of the bank. At that point, Colangelo sounded the alarm.

While all three tellers testified that the bank surveillance photographs taken during the robbery accurately portrayed the robber, none of them directly identified the defendant as being the individual in the pictures. However, all three did make in-court identifications of the defendant.

Andre Duncan, who had been living with the defendant for about eight months prior to the time of the robbery, testified that when the defendant had dropped him off at work at 7:20 A.M. on August 14, 1987, the defendant was sporting a stubby-haired beard. However, when the defendant picked him up from work at 4:00 P.M. that same day, the defendant was clean-shaven. After stopping to pay the rent to the landlord, they drove to Atlantic City.

During the drive to Atlantic City, the defendant showed Duncan a stack of twenties, bragging that he had over $10,000 in the paper bag. Despite the fact that the defendant had left his job in July 1987, in Atlantic City, the defendant began playing blackjack at $500 a hand and probably lost $4,000 or $5,000.

Duncan was shown the two bank surveillance camera photographs and identified the person shown in those photographs as the defendant. Duncan stated that the beard shown in the pictures was the same beard which the defendant had when he had dropped Duncan off at work. He also recognized the hat and the jacket as belonging to the defendant.

Two barbers, Robert and Eric McRae, testified that the defendant was a regular customer of their barbershop and that he had come into the shop sometime one morning in August with an uncharacteristic growth of facial hair. The defendant asked for a haircut and shave, which Eric provided. Neither Robert nor Eric could be definite as to the actual date on which the defendant had come in with the beard.

Regina Duncan, the mother of Andre Duncan, had recognized a composite sketch of the robber in the Poughkeepsie Journal as that of the defendant and had advised her son to go to the police. She identified the defendant as the person portrayed in the bank photographs.

Luigi Spidalieri, the defendant's landlord, saw the defendant in early August, at which time the defendant had a small beard. Spidalieri saw him again on August 14, 1987, at about 4:15 P.M., when the defendant paid him $500 in cash for the rent. At that time, the defendant was clean-shaven. Spidalieri also identified the defendant as the person depicted in one of the bank's pictures.

Darlene Jackson, a good friend of the defendant, had known the defendant for about three and one-half years, seeing him about three times a week. Jackson was shown the bank surveillance photographs and identified the person therein as the defendant. She had no doubt about her identification.

The jury subsequently returned a verdict of guilty of robbery in the first degree.

The main contention of the defendant on appeal is that the court committed prejudicial error when it allowed the witnesses who knew the defendant, but who were not eyewitnesses to the robbery, to identify the defendant from the photographs taken by the bank's security camera. The People contend that the procedure was proper and cite People v. Byrnes, 33 N.Y.2d 343, 352 N.Y.S.2d 913, 308 N.E.2d 435 as their principal authority in support of this contention.

As the defendant correctly points out, Byrnes is not directly on point. In Byrnes, the defendant was convicted of rape, sodomy and incest after a trial at which his 11-year-old daughter, the complainant, testified that on two occasions she and her father had gone to the home of a man who had photographed her and her father in the nude engaging in various sexual acts. A number of the photographs, printed from the negatives seized at the man's home, were admitted into evidence after a photographic expert had testified that the negatives and the prints had not been altered in any manner. The girl then identified herself and her father in 10 of the photographs and testified that they fairly represented what had occurred. Her mother identified the defendant and the daughter in six of the photographs and identified either the defendant or the daughter in seven others. In several of the photographs, in which she identified her daughter only, she noted that the male, whose facial features were not visible, wore a sleeveless knit shirt of the type in evidence and which she recognized as belonging to her husband.

The question before the Court of Appeals was whether there was sufficient corroborative evidence of the complainant's testimony. The court's sole concern, in its own words, was whether "the objective evidence--the photographs--authenticated in part by the complainant, are insufficient corroboration in law for her testimony as to the occurrence of acts of rape, sodomy and incest" (People v. Byrnes, 33 N.Y.2d 343, 346, 352 N.Y.S.2d 913, 308 N.E.2d 435, supra ). The court concluded "that the source of the authentication was sufficiently independent of the complainant's testimony and that the corroborative value of the photographs was properly submitted to the jury" (People v. Byrnes, supra, at 348, 352 N.Y.S.2d 913, 308 N.E.2d 435).

Thus, the Court of Appeals in Byrnes was not called upon to directly address the issue of whether the mother, who was not an eyewitness, should have been allowed to identify the defendant in the photographs which had already been authenticated as showing the crime. However, by allowing the mother to corroborate her daughter's testimony by identifying her daughter and the defendant in the photographs, the court implicitly acknowledged that the identification testimony was proper.

Other than by implication in Byrnes, no New York case has been found which expressly decides the point. The defendant herein offers two bases for rejecting such testimony, namely, that it constitutes illegal bolstering as well as improper opinion testimony as to the ultimate fact in issue.

The defendant's first contention that the identification of the defendant as the person depicted in the photographs constituted bolstering under Trowbridge (see, People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841) is without merit. Under the principles established by Trowbridge, the testimony of third parties concerning a complainant's prior out-of-court identification of a defendant is generally deemed to be improper bolstering and is inadmissible to establish the identity of the defendant as the perpetrator of the crime (see, People v. Hernandez, 154 A.D.2d 197, 552 N.Y.S.2d 649; People v. Bonnet, 134 A.D.2d 436, 437, 521 N.Y.S.2d 59). The rationale behind the Trowbridge rule is two-fold: first, such evidence is hearsay, and, second, "[t]he mere repetition of the identification by a third party has the potential of placing disproportionate emphasis on the identification and to influence the jury unduly with respect to its reliability" (People v. Rosario, 127 A.D.2d 209, 214, 514 N.Y.S.2d 362; see, People v. Caserta, 19 N.Y.2d 18, 21, 277 N.Y.S.2d 647, 224 N.E.2d 82).

In this case, there was no hearsay violation since none of the witnesses who were not eyewitnesses to the crime testified as to any prior out-of-court statements of the bank tellers. Moreover, the testimony of the non-eyewitnesses was not duplicative of the testimony of the eyewitnesses. The three bank tellers never stated that the defendant was the person in the photographs; rather, they merely authenticated the photographs as being accurate depictions of the crime scene and the robbery. The non-eyewitnesses' testimony identifying the person depicted in the photographs as the defendant, therefore, was not duplicative or repetitive of the eyewitnesses' testimony. The photographs constituted objective, independent evidence. Once a foundation was laid for their admission into evidence (see, People v. Byrnes, 33 N.Y.2d 343, 352 N.Y.S.2d 913, 308 N.E.2d 435, supra ), it was for the jury to determine whether they depicted the defendant.

The defendant further contends that the statement of opinion by witnesses as to whether the...