People v. Vargas

• Decision Date: 25 March 1983
• Citation: 118 Misc.2d 477,461 N.Y.S.2d 678
• Parties: The PEOPLE of the State of New York v. Michael VARGAS, Defendant.
• Court: New York Supreme Court

Page 678

461 N.Y.S.2d 678

118 Misc.2d 477

The PEOPLE of the State of New York v. Michael VARGAS, Defendant.

Supreme Court, Trial Term,

New York County, Part 75.

March 25, 1983.

Robert M. Morgenthau, Dist. Atty., New York County (James Veach, Asst. Dist. Atty., of counsel), for the People.

David Blackstone, New York City, for defendant.

RENA K. UVILLER, Justice:

This motion to suppress identification testimony poses the vexing and recurrent question of whether the People's bare assertion that the identifying witness knew the defendant before the crime is a sufficient basis for denying the defendant a Wade hearing. (388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149.) Also at issue is the significance, if any, of the fact that the witness viewed the defendant photographically rather than corporeally in deciding whether a hearing is warranted.

The defendant was indicted for murder in the second degree. The People alleged that on a summer night on 8th Street and Avenue D, in New York County, he shot the deceased five times at close range in a dispute over drugs.

The People did not serve notice, pursuant to CPL 710.30, of intent to introduce testimony at trial of any pretrial identification of the defendant. But in their voluntary disclosure form they did state that unnamed witnesses to the crime, who knew the defendant beforehand, had been shown a photo array or a single photo of the defendant in order to confirm that defendant was the perpetrator.

Defendant made a motion in the Calendar Part to suppress the witnesses' trial testimony, claiming that "on information and belief, said testimony may be tainted and constitutionally inadmissible because of improperly suggestive pretrial procedures." (Defense counsel's affirmation in support of suppression motion, p. 2.) The People countered that because "the photographic identifications cannot be used at trial ... [t]he People oppose a Wade hearing on these allegations." The People further urged that in the event a hearing was ordered, they not be required to produce the identifying witnesses. The calendar judge simply directed that a hearing be held regarding "the viewing of a photo array."

At that hearing before me the detective in charge of the investigation testified that within a few weeks of the slaying he located four eyewitnesses, identified at the hearing by number only. Witnesses one and two had known the defendant for four and five years, respectively, had seen him frequently, and knew him by his nickname of "Shorty Wop." Witness four had known the defendant since she had begun frequenting the neighborhood (about two weeks before the crime), had seen him on several occasions and also knew him as "Shorty Wop." Witness three did not know the perpetrator's name but had seen him many times in that area and gave a complete physical description of him.

The detective further attested that the two witnesses who had known the defendant for years were separately shown a single photo of him and asked whether they recognized it. Each confirmed that it was of "Shorty Wop." Witnesses three and four were each separately shown a photo array. The latter identified the defendant's photo as being that of "Shorty Wop" and the former selected the defendant's photo as the person she had seen shoot the deceased. In addition, two of these witnesses (one and four) had each reviewed more than 200 photos before looking at the defendant's photo and had recognized nobody from among those 200 photos.

In support of the request that the witnesses not be required to come forward before the trial, the People adduced that in the year preceding this murder there had been 42 homicides in that particular precinct and that 34 of them were drug related. In the year before that, there were 38 homicides of which 75% were drug related. Finally, it was adduced that two years before this murder the 16-year-old defendant had been arrested for an armed robbery within the same precinct; the following year he was arrested for a robbery at 8th Street and Avenue D--the precise location of the instant murder--in which two victims had been shot. As a consequence, the defendant had been committed to a youth detention facility from which he had escaped when the instant homicide occurred.

After the officer's testimony, this court ruled that the People had met their burden of demonstrating that the defendant had not been the subject of a pretrial identification procedure, suggestive or otherwise. The defendant's request that the witnesses' names be revealed to him and that he be permitted to call them as his own witnesses at the hearing was denied.

I. SIGNIFICANCE OF A PHOTOGRAPHIC VIEWING IN GRANTING A WADE HEARING

The fact that the witnesses viewed the defendant from a photo or photo array, rather than corporeally, in no way diminishes his right to challenge the suggestibility of the viewing. The People resisted a pretrial suppression hearing on the theory that because they are not permitted to introduce evidence of a photographic identification at trial (People v. Griffin, 29 N.Y.2d 91, 323 N.Y.S.2d 964, 272 N.E.2d 477; People v. Caserta, 19 N.Y.2d 18, 277 N.Y.S.2d 647, 224 N.E.2d 82), there is no need to test the fairness of the identification procedure at a pretrial hearing.

That assertion fails to perceive the dual purpose of a so-called Wade hearing. The function of the hearing is not only to test the fairness of the pretrial identification procedure in order to determine whether there may be trial testimony of the procedure itself. The hearing also resolves whether--if the pretrial identification was unfair--the witness has an independent basis for testifying at trial that the defendant is the perpetrator.

The risk of a trial misidentification where the witness has seen the defendant corporeally in a suggestive pretrial setting is well recognized. (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Wall, Eye Witness Identification in Criminal Cases [Charles C. Thomas, 1965].) The risk of erroneous trial identification is at least as great where the witness has been shown the defendant's photograph in a suggestive manner. (Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; People v. Bryant, 39 A.D.2d 80, 332 N.Y.S.2d 143, aff'd 31 N.Y.2d 744, 338 N.Y.S.2d 115, 290 N.E.2d 152.) In the typical police investigation where a witness is shown numerous "mug" shots, the defendant will have no claim of suggestiveness. But if the witness has been shown but a single photo or a highly suggestive array, the defendant must have an opportunity to challenge the witness' ability to identify him free of that suggestive photo identification. Thus, even where the procedure itself is per se inadmissible, as in the case of a photo identification, the fairness of the identification procedure must be established in any event.

Significantly, the statute describing identification testimony that is subject to suppression due to an "improperly made previous identification of the defendant" (CPL 710.20[5] ), does not confine that improper "previous identification" to a corporeal one. Indeed, although there is some dispute as to the People's obligation to notify the defendant that he has been identified from photos (CPL 710.30), the better practice is to give such notice. (Compare, People v. Abraham, 74 Misc.2d 544, 344 N.Y.S.2d 792; People v. Slater, 53 A.D.2d 41, 386 N.Y.S.2d 134 [4th Dept., 1976].)

In any event, there is nothing to prevent the defendant from learning through discovery that he has been the subject of a photographic selection (CPL 240.10 et seq.; People v. Abraham, supra). Once he learns of it, he must have an opportunity to challenge its fairness. Thus, the fact that the viewing was from a photo of the defendant rather than his person is, of itself, irrelevant in determining whether a hearing is required.

II. SIGNIFICANCE OF THE WITNESS' PRIOR FAMILIARITY WITH THE DEFENDANT

The real inquiry is whether the viewing of the defendant was an "identification" at all. Where the defendant is known to and is a familiar figure to the witness before the crime, there is virtually no danger of a trial misidentification owing to a pretrial viewing, whether corporeal or by photo. Where the witness--either the victim or some other eyewitness--knows the defendant, suggestiveness is irrelevant (People v. Tas, 51 N.Y.2d 915, 434 N.Y.S.2d 978, 415 N.E.2d 967; People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924).

In cases of prior familiarity, the due process concern for avoidance of trial misidentification does not require a hearing to prove either suggestiveness or taint. In a word, a viewing of the defendant, either corporeally or by photo, by a witness who knew him anyway is not an "identification" at all. Such a viewing is merely a recognition--a confirmation that the person whom the witness saw commit the crime is the same person the police intend to arrest (People v. Tas; People v. Gissendanner, both supra).

Characterizing such a viewing as a "non-identification" or as a "recognition" or "confirmation" is not, however, dispositive of the defendant's right to a hearing (see People v. Collins, 84 A.D.2d 35, 445 N.Y.S.2d 168). Suppose the defendant denies that he knows the witness. Or suppose, as here, that the defendant does not know who the identifying witnesses are. Must there be a pretrial hearing to determine whether or not the witnesses really do know him? Thus, the crux of the issue posed by this and similar cases arising with regularity in our courts is as follows: Is the prosecutor's bare assertion that the witness knew the defendant sufficient to characterize the viewing as a "non-identification," thereby dispensing with the need for a hearing to probe suggestiveness and/or taint? Or must the People's assertion of prior familiarity itself be tested at a hearing before trial?

In this case, the defendant was not in a position to challenge the claim...