People v. Tanksley

• Decision Date: 16 December 1983
• Citation: 122 Misc.2d 182,469 N.Y.S.2d 903
• Parties: The PEOPLE of the State of New York v. Kenneth TANKSLEY.
• Court: New York Supreme Court

Page 903

469 N.Y.S.2d 903

122 Misc.2d 182

The PEOPLE of the State of New York v. Kenneth TANKSLEY.

Supreme Court, Criminal Term Kings County, Complex A.

Dec. 16, 1983.

Elizabeth Holtzman, Dist. Atty., Brooklyn, for plaintiff; Robert M. Sullivan, Brooklyn, of counsel.

Caesar D. Cirigliano, The Legal Aid Society, Brooklyn, for defendant; Carolyn S. Klaiman, Brooklyn, of counsel.

MEMORANDUM

GLORIA GOLDSTEIN, Justice.

Defendant Kenneth Tanksley moves to inspect the grand jury minutes and to dismiss the indictment against him on the grounds that the evidence presented was not sufficient to sustain the indictment and that the grand jury proceedings were defective within the meaning of sections 210.20(1)(c) and 210.35(5) of the Criminal Procedure Law.

This court has examined the grand jury minutes and finds that the proceedings were proper and the evidence sufficient to establish a prima facie case.

Defendant is charged with robbery in the first and second degrees, grand larceny in the third degree, and criminal use of a firearm in the first degree for allegedly robbing a cigarette and candy truck on January 25, 1983. During the grand jury presentation, the Assistant District Attorney showed the complaining witness--the victim of the alleged robbery--a group of six photographs and asked him if he could identify anyone. The witness identified a photograph of defendant as the man who had held a shotgun on him while other men emptied his truck of its contents. The Assistant District Attorney then showed the photographs to the next witness--the police officer who had arrested defendant in July 1983. The officer identified the photograph of defendant as the man whom he had arrested for the truck robbery and testified that the photograph was a fair and accurate representation of the defendant's appearance at the time of the arrest. After the officer's testimony, the Assistant District Attorney moved the six photographs into evidence.

Since the photographic identification described herein actually took place in the presence of the grand jury, the issue before this court is not whether a grand jury witness may testify about a prior photographic identification, ^* but whether the identification procedure which the Assistant District Attorney used rendered the testimony inadmissible or the grand jury proceedings defective.

There is no question that corporeal identification is more reliable than photographic identification and that the preferable means of establishing identification in the grand jury is an eyewitness' testimony that he identified the defendant in a lineup. However, when a defendant is not available for a corporeal identification before the convening of the grand jury, the People may have to rely on photographs to establish a prima facie case against the defendant. In such circumstances, the People may offer a photograph of the defendant into evidence as they would offer any photograph of a person, provided the defendant is identified and the photograph fairly represents him (see E. Fisch, Fisch on New York Evidence § 142 [2nd ed.1977] ). The difference is that the use of a photograph for identification purposes in the grand jury raises the same due process issues as does any pretrial photographic identification procedure (See People v. Thomas, 60 A.D.2d 993, 401 N.Y.S.2d 650, 66 A.D.2d 1001, 412 N.Y.S.2d 68 [4th Dept., 1978]; People v. Ramos, 52 A.D.2d 640, 644, 383 N.Y.S.2d 548 [2d Dept., 1976] [concurring opinion by Margett, J.]; People v. Leite, 78 Misc.2d 296, 297-298, 355 N.Y.S.2d 930 [Nassau Co.Ct., 1974] ). The photographic display and the procedure used may not be "so impermissibly suggestive as to create a 'substantial likelihood of ... misidentification' (Simmons v. United States, 390 US 377, 384 [88 S.Ct. 967, 971, 19 L.Ed.2d 1247]; People v. Gonzalez, 27 NY2d 53 [313 N.Y.S.2d 673, 261 N.E.2d 605], cert den 400 US 996 [91 S.Ct. 470, 27 L.Ed.2d 445] )" (...