People v. Tatum

Decision Date09 August 1985
Citation129 Misc.2d 196,492 N.Y.S.2d 999
PartiesThe PEOPLE of the State of New York v. James TATUM, Defendant.
CourtNew York Supreme Court

John J. Santucci, Dist. Atty. by James Hubert, Asst. Dist. Atty., Kew Gardens, for opposition to the motion.

Joseph F. Defelice, Ozone Park, for defendant.

WILLIAM D. FRIEDMANN, Justice.

OPINION OF THE COURT

This suppression motion places in question the propriety of a lineup identification procedure that involves a suspect with a distinctive facial deformity: a glass eye. This motion also challenges the propriety of conducting a lineup in the absence of counsel, prior to the start of adversarial judicial proceedings, when the suspect's counsel in an unrelated case has requested an adjournment of the lineup to the next day.

RELEVANT PROCEEDINGS

The Grand Jury of Queens County by two separate indictments charges the defendant with Robbery in the First Degree (B felony, Indictment number 38 29/84) and with Grand Larceny in the Third Degree (E felony, Indictment number 388 8/84). Defendant moves to suppress evidence of all identification testimony connected to these two indictments which could potentially be offered against him at trial. The court conducted a joint Wade hearing to make findings of fact essential to a determination of that motion. (CPL 710.60, subd 4.)

CONTENTIONS

Defendant, claiming to be aggrieved by the improper and suggestive identification procedure utilized, and having a reasonable belief that the identifications thus obtained will be used against him at trial, seeks an order suppressing all such identification testimony. In particular, he contends that the lineup identifications utilized in both proceedings should be suppressed because they were the "fruit" of an illegal seizure of him. In addition, he contends that because of his uniquely distinguishing facial appearance, the same lineup shown to both complainants, was impermissibly suggestive and conducive to irreparable misidentification. Finally, he argues that the lineup identification testimony must be suppressed since his counsel in another pending case was not given a reasonable opportunity to attend the lineup shown to both complainants.

The People contend that the lineups were not unnecessarily suggestive and did not violate defendant's due process rights. In addition, the People contend that there was no illegal seizure of the defendant and that defendant had no right to counsel at the lineups since they were held prior to the filing of an accusatory instrument. Finally, even if testimony regarding the out-of-court identifications is suppressed, the People contend that the complaining witnesses should be allowed to make in-court identifications of the accused because there are adequate independent sources to make such identifications at trial. In addition, this court will consider the admissibility of testimony concerning an inadvertent viewing of the defendant by the witness in the course of the Wade hearing, although neither party specifically raised this point in their memorandums in this motion.

FINDINGS OF FACT

The People called three witnesses, Felicia Powers, Bibi Singh, and Detective Philip Fehr of the 103rd Precinct. The defense called one witness, George A. Whitley, Esq., of the Legal Aid Society. The court gives credence to their testimony.

Felicia Powers, the complainant in Indictment Number 3888/84, testified that at about 12:30 in the afternoon on November 29, 1983, while she was on her lunch break, she was in the vicinity of 185th Street and Hillside Avenue in Queens County. There she noticed a man standing on the corner of 185th Street. The man told her he was lost. Ms. Powers tried to be helpful to the "lost man" and to assist in finding his way. A "pedestrian" passed by and the "lost man" enlisted this person's aid. The three, Ms. Powers, the "lost man" and the "pedestrian" walked to the next block and encountered a man with a blue car. The three went into the blue car with the driver of the car. While inside, the "lost man" persuaded Ms. Powers to go to her bank and withdraw money from her account. The "lost man" claimed not to trust banks Ms. Powers testified that she went with the three men to her bank and was escorted by the driver of the car into the bank. She withdrew $1,000 from her account and went back to the car with the man. The driver asked her for the money and he wrapped it in a handkerchief with other money. The "lost man" took the bundle and shoved it into her pocketbook. Ms. Powers testified she did not get a chance to check the bundle then. She testified that she was then hurriedly escorted out of the car. When she went back to work, she discovered that the handkerchief was filled with tissues. The whole con-game consumed about a half an hour during daylight hours.

and he offered Ms. Powers $500 to make a demonstration that withdrawals were possible.

The next day at One Police Plaza, New York, N.Y., Ms. Powers looked through books of photographs in an effort to identify any of the con men. Ms. Powers testified that she looked at between 400 and 600 photographs provided to her by the police. She was able to identify one of the men who were in the car: the "pedestrian."

On July 16, 1984, eight months later, Ms. Powers identified the defendant, James Tatum, from a lineup of six men. She viewed it through a one-way glass. A police officer asked her if she could identify the man she had identified in the photographs who was the "pedestrian." After a few seconds, she picked out number two, the defendant, from the lineup.

A photograph of the lineup shows six black men seated behind a table. They are holding signs with numbers on them ranging from one to six. The lineup report indicates that the men ranged in age from 25 to 48. Their heights were around six feet one inch, give or take two inches. The defendant, however, was the only participant with a noticable facial disfigurement: a glass eye. Ms. Powers testified that the description she gave to the police following the con-game was that the "pedestrian" was a man in his early to late forties with dark skin, pock marks, a short afro, glasses, and a crooked eye.

At the hearing, Bibi Singh, the complainant in Indictment Number 3829/84, testified that at 1:30 in the afternoon on July 3, 1984, she was in the vicinity of 159-12 Hillside Avenue in Queens County. She was taking her jewelry to the bank. She was accosted by a man who put his hand around her neck. She testified that the man had a gun in a paper bag and put it under her arm. He took her into a car and told her, "Don't say anything." In the car was a black man in the back seat. The man forced her into the car ordered her to remove everything she had in her pocketbook. She removed $110, her jewelry, and a bankbook indicating that she had $450 in her account. Ms. Singh testified that she was in the car thirty minutes with the two men. The man who had grabbed her on the street sat in the front seat of the car and drove while Ms. Singh sat in the back with the other man. The driver drove very slowly, however, and kept turning around to the back seat to face Ms. Singh. They drove to her bank and the driver accompanied her into the bank. While saying, "Don't say anything," the driver hugged and kissed her neck as they waited on line in the bank. She took her money out of the bank and they left. The incident in the bank took thirty minutes. The men drove around with Ms. Singh for another thirty minutes and then they let her out. Ms. Singh testified she had an unobstructed view of the man who accosted her on the street in broad daylight, drove her around in the car, escorted her into the bank, and then drove her around again until she was released. She testified that she recalled he had a "funny" eye.

When Ms. Singh arrived at home she called the police, and she told them what had happened. The next day she went to Manhattan and viewed photographs in an attempt to identify the men who had robbed her. She viewed twenty books of photographs, each with many photographs. She picked out a photograph of the man who had first accosted her on the street.

On July 16, 1984, almost two weeks after the incident, Ms. Singh viewed a lineup that had the same composition as the lineup viewed by Ms. Powers that same day. Ms. Singh immediately identified the defendant, James Tatum.

The defendant had been picked up by the police while he was before a Judge in Manhattan Criminal Court on an unrelated matter. Mr. Tatum had counsel on that charge: Mr. George Whitley. When the police came to arrange for the defendant to appear in a lineup on July 16, 1984, the attorney representing the defendant at that time requested to appear at the lineup. The police told him it would be held that night and the Manhattan Judge emphasized that the attorney was on notice to go out to Queens for the lineup. The attorney, a Legal Aid Society attorney, however, was working night arraignments in Manhattan and could not get away to Queens that night. The attorney was unable to get anyone from either Manhattan or Queens branches of the Legal Aid Society to view the lineup in his stead. Consequently, the defendant was placed in the lineup, viewed by both Ms. Powers and Ms. Singh on July 16, 1984, without counsel present.

On March 12, 1985, during a continued Wade hearing, the complainant, Bibi Singh was in the courtroom while the defendant was present. Defendant's attorney then, Joseph DeFelice, prior to the start of any questioning of the witness, approached the bench and requested that the witness be excused. The attorney, after the witness had been escorted from the room, informed the court that the defendant did not wish to be in the courtroom while the witness testified. The attorney was unaware of this wish until the witness and the defendant were already in the courtroom together for a short while. The court complied with the defendant's...

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  • Com. v. Johnson
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
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    ...498 U.S. 1001, 111 S.Ct. 563, 112 L.Ed.2d 570 (1990); People v. Sapp, 98 A.D.2d 784, 469 N.Y.S.2d 803 (1983); People v. Tatum, 129 Misc.2d 196, 492 N.Y.S.2d 999 (1985). In addition, Utah, while applying a "reliability" test, does not explicitly follow Brathwaite and Biggers because it has c......
  • People v. Krel
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    • New York City Court
    • December 20, 1991
    ...of the circumstances." Defendant in this case maintains that he "fairly leaps out" as a participant in the crime. In People v. Tatum, 129 Misc.2d 196, 492 N.Y.S.2d 999 (Sup.Ct., Queens County, 1985) a case cited by the defendant, a sitting line up was unnecessarily suggestive where the defe......
  • People v. Stephens
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    • October 3, 1988
    ...accused (see, People v. Diaz, 138 A.D.2d 728, 526 N.Y.S.2d 540; People v. Bunting, 134 A.D.2d 646, 521 N.Y.S.2d 330; People v. Tatum, 129 Misc.2d 196, 492 N.Y.S.2d 999). In any event, the police took reasonable steps to conceal the defendant's braided hair by requiring that the lineup parti......
  • People v. McEachern
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    ...also People v. Brewster, 100 A.D.2d 134, 141, 473 N.Y.S.2d 984, affd. 63 N.Y.2d 419, 482 N.Y.S.2d 724, 472 N.E.2d 686; People v. Tatum, 129 Misc.2d 196, 492 N.Y.S.2d 999; People v. Middleton, 125 Misc.2d 634, 480 N.Y.S.2d 76. Any doubt that the arresting officer may have had based on Seling......
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1 books & journal articles
  • C. Identification Procedures
    • United States
    • Invalid date
    ...People v. Williams, 177 A.D.3d 536, 110 N.Y.S.3d 842 (1st Dep't 2019).[329] Foster v. California, 394 U.S. 440 (1969); People v. Tatum, 129 Misc. 2d 196, 492 N.Y.S.2d 999 (Sup. Ct., Queens Co. 1985). [330] See generally People v. Stephens, 143 A.D.2d 692, 532 N.Y.S.2d 928 (2d Dep't 1988); P......

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