People v. Santiago

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: BUCKLEY
• Citation: People v. Santiago, 900 N.Y.S.2d 273, 75 A.D.3d 163 (N.Y. App. Div. 2010)
• Decision Date: 06 May 2010
• Parties: The PEOPLE of the State of New York, Respondent, v. Edwin SANTIAGO, Defendant-Appellant.

900 N.Y.S.2d 273

75 A.D.3d 163

The PEOPLE of the State of New York, Respondent,

v.Edwin SANTIAGO, Defendant-Appellant.

Supreme Court, Appellate Division, First Department, New York.

May 6, 2010.

Steven Banks, The Legal Aid Society, New York (Jeffrey Dellheim of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Patrick J. Hynes of counsel), for respondent.

DAVID B. SAXE, J.P., JOHN T. BUCKLEY, JAMES M. McGUIRE, KARLA MOSKOWITZ, ROLANDO T. ACOSTA, JJ.

BUCKLEY, J.

Based on the identification testimony of the victim and two witnesses, a jury convicted defendant of assault in the first degree for repeatedly slashing a woman with a box cutter in a subway station.

In the early morning hours of January 10, 2003, the victim was standing on a well-lit subway platform with 5 to 10 other people, when she noticed defendant make eye contact with her, step behind a pillar, and reappear closer to her. Defendant repeated the sequence, during the course of which he passed by Pablo Alarcon, who also made eye contact with him. Both the victim and Alarcon took particular note of defendant, due to his strange behavior andmultiple layers of clothing, including a red hood, dark jacket, and jeans. Although defendant's face was partially covered by the hood, Alarcon could see that he was an Hispanic of slightly darker complexion than Alarcon himself, had a dark goatee and eyebrows, and appeared to be in his mid-20s; Alarcon considered defendant's facial expression to be suspicious and frightening.

Edwin Rios entered the station and walked past the victim and defendant, who by then were conversing. Rios's attention was first drawn to the victim, an attractive young lady wearing a short skirt, but he also observed defendant's face and clothing.

Defendant, now arm's length distant from the victim, paced in front of her for a few seconds and then asked if she was "working." She did not understand the question, and requested clarification. He asked if she was "an escort." When the victim replied in the negative, defendant began to slash at her head repeatedly with a box cutter, causing her to bleed profusely and severing her thumb. From about 15 feet away, Rios turned to see defendant attacking the victim, who was attempting to defend herself. Hearing screaming, Alarcon also looked to see the assault. Defendant then broke off his attack and ran past Rios, who saw his face again, as well as an orange box cutter inhis hand, and Alarcon, who observed defendant put in his pocket what appeared to be a "construction knife" used "to cut sheet rock." Defendant jumped onto the tracks and escaped down the tunnel, while the victim, calling for help, went up the station stairwell.

The victim was taken to the hospital, where she described her assailant to the police as a tan-skinned Hispanic man, about 5-feet, 8-inches tall, in his late 20s or early 30s, with a mustache that continued down his chin. The next day, she worked with a police artist to create a sketch of the assailant. Two days after that, the police went to the subway station as part of an investigation and spoke with Rios, who described the assailant as a light-skinned Hispanic with a goatee similar to Rios's own, in his late 20s, about 5-feet, 8-inches tall, of medium build, and wearing blue jeans, a dark blue sweater, and a hood. Rios believed that the police sketch accurately portrayed the assailant.

On January 23rd, 13 days after the incident, Alarcon looked at a photo array, but did not recognize anyone. The next day, the victim identified defendant from a photo array. On January 25th, defendant was taken into custody, and the day after that the victim and Alarcon separately viewed a lineup. The victim immediately identified defendant as her attacker. Although Alarcon was "eighty percent" certain that defendant was the assailant, he told the police that he did not recognize anyone, because he harbored trepidations regarding his immigration status. The day after the lineup, Alarcon saw a photograph in a newspaper depicting defendant in handcuffs and accompanied by two police officers. Alarcon showed the photograph to his supervisor, but still did not mention anything to the authorities. In December 2003, 11 months after the attack, an ADA telephoned Alarcon, who admitted that he had recognized someone in the lineup and in the newspaper. Upon being shown a photograph of the lineup, Alarcon identified defendant.

In January 2004, Rios, who had not previously been shown any photographs, viewed a lineup. Even though defendant had shaved off most of his goatee by then, Rios identified him.

The victim and Rios positively identified defendant in the courtroom, while Alarcon identified him with 80% certainty.

The hearing court properly denied defendant's motion to suppress the identification testimony. The record, including the lineup photographs, establishes that the composition of the lineups was not unduly suggestive ( see People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ). The differences between defendant and the fillers in facial hair and apparent age were not so distinguishing as to single out defendant ( see id; People v. Amuso, 39 A.D.3d 425, 835 N.Y.S.2d 114 [2007], lv. denied 9 N.Y.3d 862, 840 N.Y.S.2d 892, 872 N.E.2d 1198 [2007]; People v. Evans, 202 A.D.2d 377, 610 N.Y.S.2d 192 [1994], lv. denied 83 N.Y.2d 966, 616 N.Y.S.2d 19, 639 N.E.2d 759 [1994] ). Any disparities in height and weight were minimized by the fact that the lineup participants were viewed while seated and holding large numbered cards in front of their torsos ( see Amuso, 39 A.D.3d at 425-426, 835 N.Y.S.2d 114). There is no basis for disturbing the court's credibility findings that Alarcon recognized defendant at the initial lineup but told the police otherwise out of fear concerning his immigration status, and that his identification was not the result of postlineup events ( see People v. Garcia, 284 A.D.2d 106, 107, 726 N.Y.S.2d 27 [2001], lv. denied 97 N.Y.2d 641, 735 N.Y.S.2d 497, 761 N.E.2d 2 [2001] ). Since defendant himself elicited at trial Alarcon's photographic identification, he cannot be heard to complain now of its introduction ( see People v. Cuiman, 229 A.D.2d 280, 282, 656 N.Y.S.2d 243 [1997], lv. denied 90 N.Y.2d 903, 663 N.Y.S.2d 515, 686 N.E.2d 227 [1997] ).

The only preserved challenge to the prosecutor's summation concerns a remark to which defendant objected as not supported by testimony; however, we reject that claim. Defendant's remaining objections to the prosecutor's closing statement are unpreserved for review, and we decline to review them in the interest of justice. As an alternative holding, none of the cited comments exceeded the broad latitude accorded on summation ( see People v. D'Alessandro, 184 A.D.2d 114, 119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).

Defendant's argument regarding the jury charge on unanimity is also unpreserved ( see People v. Parra, 58 A.D.3d 479, 870 N.Y.S.2d 335 [2009], lv. denied 12 N.Y.3d 820, 881 N.Y.S.2d 27, 908 N.E.2d 935 [2009] ), and we decline to review it in the interest of justice. As an alternative holding, we find that the charge, as a whole, conveyed the proper legal principles ( see People v. Drake, 7 N.Y.3d 28, 34, 817 N.Y.S.2d 583, 850 N.E.2d 630 [2006] ), and a jury poll confirmed that the verdict was, in fact, unanimous.

The verdict was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). The sentence was not excessive, and we decline to reduce it in the interest of justice.

The remaining issue is whether the court should have allowed defendant to present expert testimony regarding identifications or ordered a Frye hearing on the matter. Initially, defendant's assertion that the trial court was bound by the law of the case doctrine to conduct a Frye hearing is belied by the plainlanguage of the earlier Justice's preliminary ruling on the matter.

Defendant's motion to permit expert testimony set forth three groups of factors purportedly affecting the accuracy of witness identification: (1) event factors (exposure time to an event and cross-racial accuracy); (2) investigative factors (similarity of lineup participants, lineup instructions,rate of memory loss, influence of information acquired after the event, wording of questions to witnesses, unconscious transference to the crime scene of a person from elsewhere, preexisting attitudes and expectations of witnesses, and simultaneous versus sequential lineups); and (3) witness confidence (correlation of confidence level with accuracy and weapon focus). The trial court determined that, under the circumstances of this case, the proposed topics were either inapplicable, within the common understanding of the jury, or not warranted.

In People v. LeGrand, 8 N.Y.3d 449, 452, 835 N.Y.S.2d 523, 867 N.E.2d 374 [2007] the Court of Appeals stated that, although the decision whether to admit expert testimony regarding eyewitness identification ordinarily rests within the trial court's discretion,

"where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror."

The Court of Appeals has recognized that expert testimony is "a kind of authorized encroachment" into the jury's otherwise exclusive province of drawing conclusions from the facts ( People v. Lee, 96 N.Y.2d 157, 162, 726 N.Y.S.2d 361...