People v. Sampson
| Decision Date | 06 January 1997 |
| Citation | 173 Misc.2d 444,654 N.Y.S.2d 555 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Lionel SAMPSON, Defendant. |
| Court | New York Supreme Court |
Thomas Cocuzzi, for defendant.
Howard R. Relin, District Attorney of Monroe County (Richard Keenan of counsel), for plaintiff.
The defendant, who is charged with three counts of Murder in the Second Degree (intentional murder, depraved indifference murder and felony murder) and Burglary in the Second Degree (unlawfully entering a building with intent to commit a crime therein while armed with a loaded handgun), has made an application pursuant to Criminal Procedure Law, Section 710.20(6), to suppress the identification of a photograph of himself by six witnesses.
The incident which was the genesis of these crimes occurred on July 26, 1996, when a store clerk employed by Wilson Farms was killed during the course of a burglary. A surveillance camera in the store recorded the activities of the perpetrator and the victim, and the police secured a frame of the tape depicting the perpetrator. This frame was transformed into a photograph of the perpetrator, and this photograph was displayed in newspapers and on television. Six individuals recognized the individual in the photograph as the defendant, and they contacted the police to report this identification. The police then showed this single photograph to each of the six individuals, and each identified the defendant as the individual in the photograph. The defendant was subsequently arrested and indicted for these four crimes.
The defendant claims that the media, by publicizing the photograph of the perpetrator, became agents of the police; that the six potential witnesses had already viewed one photograph of the perpetrator in the news media before viewing a photograph allegedly of the defendant, so their identifications were tainted; that the police, when interviewing the six witnesses, allegedly informed them of their suspicion that the photograph shown to them was that of the defendant, so this identification procedure was suggestive; and this identification procedure was improper, because the photograph of the perpetrator was not a known photograph of the defendant. The defendant, with much logic, requests a pre-trial hearing on this issue.
The People respond that the release of the perpetrator's photograph to the news media was not an identification procedure conducted by the police; that the six witnesses voluntarily initiated the contact with the police to report their observations of the photograph depicted in the news media; that in essence the displays of the single photograph to the six witnesses by the police were confirmatory identification procedures; 1 that the six witnesses will not identify the defendant at trial but only a photograph of him; and that the defendant's only remedy is to attack the foundation for the admission of the proposed testimony of the six witnesses at trial. The People, with equal logic, oppose the defendant's request for a pre-trial hearing.
CPL Section 710.20 provides, in pertinent part, as follows: (emphasis added)
Thus, the issue is whether a pre-trial hearing should be held, where a witness at trial will presumably identify, not the defendant, but a photograph allegedly of the defendant, after having previously identified a photograph of the defendant, or whether the admissibility of the identification of the photograph by such witness is an evidentiary matter relating to the sufficiency of the foundation reserved for decision at trial.
Almost the exact scenario in this case was present in People v. Russell, 79 N.Y.2d 1024, 584 N.Y.S.2d 428, 594 N.E.2d 922. There, four witnesses, who did not witness a bank robbery, were shown a bank surveillance camera photograph of the robber, and all four identified the individual in the photograph as the defendant. One witness had recognized a composite sketch of the robber in a newspaper, and she advised her son, who was also one of the four witnesses, to inform the police of her and his recognition. 2 The four witnesses also identified the same photographs as that of the defendant at trial, and the Court of Appeals upheld this procedure, rejecting contentions that this constituted improper bolstering or improper opinions about an ultimate fact.
There was no pre-trial hearing conducted in that case relative to the showing of the bank surveillance camera photograph to the four witnesses. The record on appeal indicates that the defendant demanded such a hearing and the People consented to the same, but the hearing was never held. The People's brief mentioned that such hearing was never conducted because there was no police arranged identification and that therefore suggestivity was not a concern. This was not the holding of any court involved in that case, and the appellate decisions did not turn on this point. As a result, that decision is no precedent for denying a pre-trial hearing in this case.
The worst case scenario here would be if the six witnesses were not that knowledgeable about the defendant to identify his photograph, and/or the police in submitting the photograph to those witnesses suggested that it was a photograph of the defendant and they should identify it as such. In the absence of a pre-trial hearing, this information would not be available to the defendant until the trial of this action.
The pre-trial identification procedure employed here was not the usual one where a witness who had observed a defendant commit a crime, was so familiar with the defendant that he would be impervious to police suggestion rendering the display of a single photograph confirmatory (see, e.g., People v. Cotto, 222 A.D.2d 345, 635 N.Y.S.2d...
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People v. Sampson
...of the defendant was that of the individual who committed the crimes charged duplicated on the surveillance tape (People v. Sampson, 173 Misc.2d 444, 654 N.Y.S.2d 555). The identification of the defendant's photograph shown to each witness by the police comports with subdivision (c), in tha......