People v. White

• Decision Date: 09 May 1989
• Parties: , 539 N.E.2d 577 The PEOPLE of the State of New York, Respondent, v. Calvin WHITE, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 749

541 N.Y.S.2d 749

73 N.Y.2d 468, 539 N.E.2d 577

The PEOPLE of the State of New York, Respondent, v. Calvin WHITE, Appellant.

Court of Appeals of New York.

May 9, 1989.

Certiorari Denied Oct. 2, 1989.

See 110 S.Ct. 170.

Joel Atlas, Philip L. Weinstein and Andrea Hirsch, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. (Phyllis A. Monroe, Paul Harnisch and Catherine M. Cook, New York City, of counsel), for respondent.

OPINION OF THE COURT

SIMONS, Judge.

Defendant has been convicted after trial of robbery in the first and second degrees. An earlier prosecution of the charges ended in a mistrial when the jury was unable to agree and this circumstance gives rise to two issues presented on the appeal. First, defendant contends that his conviction must be reversed and a new trial ordered because the People elicited testimony from the victim that he had identified defendant as the robber at the first trial and also because the People had failed to comply with the notice requirements of CPL 710.30. Second, defendant assigns error to the introduction of his postarrest statements after the prosecutor had stated prior to the first trial that she would not use them. In a third, unrelated point, defendant contends that the matter must be remitted to the Appellate Division for reconsideration because it refused to accept his pro se brief. We conclude there was no reversible error and that defendant had no right, constitutional or otherwise, to file a supplemental pro se brief on appeal when represented by counsel who argued nonfrivolous issues on his behalf.

I

On March 5, 1981 defendant and another robbed 63-year-old Edgar Berry in the vestibule of Berry's Manhattan apartment building. The victim knew defendant because he had often noticed him "hanging around" the building before the robbery. He observed defendant during the robbery under good lighting conditions and subsequently identified him to the police. Defendant was arrested four days later at an apartment in the building. Upon his arrest, he protested his innocence, claiming that Berry, the "old man," was "crazy" and that "two other guys" robbed Berry while defendant and his brother were present.

Defendant and his brother, Miles, were indicted for robbery in the first and second degrees. After the People served a timely notice pursuant to CPL 710.30 of their intention to use his postarrest statements at trial, defendant moved to suppress them contending that the statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The People consented to a Huntley hearing, but opposed defendant's suppression motion on the merits. The case was then delayed for approximately nine months to resolve various defense motions. At the conclusion of a hearing on defendant's speedy trial motion, the Justice presiding sent the case to a trial part for a Huntley hearing and for trial. At that point, the assistant prosecutor stated that it would be only for trial because the People would not use defendant's statements. The trial started two days later and ended when the jury failed to reach a verdict.

In September 1982, the People announced ready for the second trial. Due to delays not attributable to them, however, the case was repeatedly adjourned. In July 1984, the People announced their intention to use defendant's statements at the second trial. Defense counsel objected and moved to preclude the evidence. Following extensive colloquy the motion for preclusion was denied and the court held a Huntley hearing to resolve defendant's motion to suppress. It found that defendant's statements were voluntary and spontaneous and could be introduced on the People's case-in-chief. The second trial commenced on October 10. Berry testified that defendant accosted him in the vestibule displaying a handgun, ordered him to freeze and that defendant and his brother then robbed him of two diamond rings. He also testified, over objection, that he had identified defendant as the robber at defendant's first trial. The arresting police officer, Robert Shack, testified that after Berry told him that defendant robbed him, he arrested defendant and informed him of his Miranda rights. Shack said defendant then admitted being at the scene during a robbery committed by "two other guys", Butch and Buzzy, but denied participating in it. Defendant rested without presenting any evidence and the jury convicted him of robbery in the first and second degrees. The Appellate Division affirmed, without opinion.

II

Defendant contends first that it was reversible error for the trial court to permit Berry to testify that he identified defendant as the robber at defendant's first trial. As a substantive matter, prior identification evidence is admissible on the People's case-in-chief, notwithstanding its bolstering effect on the witness's in-court testimony (CPL 60.30). Defendant claims, however, that procedural error occurred because the People did not provide him with notice before the second trial that they were going to introduce Berry's prior identification testimony.

CPL 710.30 requires that within 15 days of a defendant's arraignment the prosecutor must serve notice of the intention to offer at trial any "testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such". An exception to the 15-day requirement is authorized provided the People establish good cause for the late service of the notice. The issue presented is whether the requirements of CPL 710.30 apply to judicially supervised identifications which occur when defendant is represented by counsel. Relying on the literal language of the statute and a line of cases in the Second Department, defendant claims that it does (see, People v. Mole, 147 A.D.2d 714, 538 N.Y.S.2d 325; People v. Magazine, 106 A.D.2d 473, 482 N.Y.S.2d 569; People v. James, 100 A.D.2d 552, 473 N.Y.S.2d 252; People v. Cruz, 88 A.D.2d 621, 450 N.Y.S.2d 37; but see, People v. Jones, 99 A.D.2d 471, 470 N.Y.S.2d 178). We disagree.

The controlling principle in interpreting statutes is the legislative intent (Ferres v. City of New Rochelle, 68 N.Y.2d 446, 451, 510 N.Y.S.2d 57, 502 N.E.2d 972; Matter of Albano v. Kirby, 36 N.Y.2d 526, 529-530, 369 N.Y.S.2d 655, 330 N.E.2d 615; Matter of Petterson v. Daystrom Corp., 17 N.Y.2d 32, 38, 268 N.Y.S.2d 1, 215 N.E.2d 329). Obviously, evidence of it is first sought in the words the Legislature has used (Sega v. State of New York, 60 N.Y.2d 183, 191, 469 N.Y.S.2d 51, 456 N.E.2d 1174; Riegert Apts. Corp. v. Planning Bd., 57 N.Y.2d 206, 209, 455 N.Y.S.2d 558, 441 N.E.2d 1076; People v. Graham, 55 N.Y.2d 144, 151, 447 N.Y.S.2d 918, 432 N.E.2d 790). But we may not stop there; the spirit and purpose of the act and the objects to be accomplished must also be considered (New York State Bankers Assn. v. Albright, 38 N.Y.2d 430, 436, 381 N.Y.S.2d 17, 343 N.E.2d 735; Ferres v. City of New Rochelle, supra, 68 N.Y.2d at 446, 510 N.Y.S.2d 57, 502 N.E.2d 972; Uniformed Firefighters Assn. v. Beekman, 52 N.Y.2d 463, 471, 438 N.Y.S.2d 746, 420 N.E.2d 938). ¹ Although a literal interpretation of the language of CPL 710.30 might suggest that an in-court identification at a Wade hearing or a previous trial constitutes a "previous identification", and thus should be covered by its provisions, there is no suggestion in the legislative history or in the background surrounding the statute that it was intended to cover previous in-court identifications.

Historically, CPL 710.30 "was * * * a legislative response to the problem of suggestive and misleading pretrial identification procedures treated by the Supreme Court in Gilbert v California (388 US 263 [87 S.Ct. 1951, 18 L.Ed.2d 1178], United States v Wade (388 US 218 [87 S.Ct. 1926, 18 L.Ed.2d 1149] and Stovall v Denno (388 US 293 [87 S.Ct. 1967, 18 L.Ed.2d 1199]". ( People v. Gissendanner, 48 N.Y.2d 543, 552, 423 N.Y.S.2d 893, 399 N.E.2d 924.) In each of those cases, the court was concerned with trial identifications predicated on earlier confrontations between an uncounselled defendant and an eyewitness involving lineups, showups or photographs for the purpose of establishing the identity of the criminal actor. CPL 710.30 sets forth a procedure to provide notice to a defendant who might otherwise be unaware that the People are in possession of such evidence and thus allows the defendant to test the reliability of the identification before trial.

However, at a prior in-court identification, a Wade hearing, preliminary felony hearing or previous trial, for example, defendant knows of the identification and the notice purpose of the statute is not implicated. More importantly, defense counsel is present and has the ability to challenge the suggestive nature of the identification at the time it is taking place. Thus, it is of no moment that courts have recognized that in-court identifications may be prompted by suggestive procedures (see, People v. James, 100 A.D.2d 552, 553, 473 N.Y.S.2d 252, supra; People v. Banks, 73 A.D.2d 907, 424 N.Y.S.2d 439, affd. 53 N.Y.2d 819, 439 N.Y.S.2d 916, 422 N.E.2d 576; People v. Huggler, 50 A.D.2d 471, 474, 378 N.Y.S.2d 493; Boyd v. Henderson, 2 Cir., 555 F.2d 56, 59-60, cert. denied 434 U.S. 927, 98 S.Ct. 410, 54 L.Ed.2d 286). The critical point is that there is no need for a separate hearing to enable defense counsel to make an argument that more appropriately should be made at the time the problem arises (see, e.g., People v. Powell, 67 N.Y.2d 661, 662, 499 N.Y.S.2d 669, 490 N.E.2d 536). Defendant was represented by counsel at his first trial and counsel did not object to Berry's identification of defendant or suggest that it should be precluded as unnecessarily suggestive. Indeed, he does not now claim that the identification was unfair...