Opinion
No. 2707/2010.
2012-04-24
The PEOPLE of the State of New York, v. Manuel CHUYN, Defendant.
Stephanie Kaplan, Esquire, The Legal Aid Society, New York, for the defendant. Nicholas Viorst, Esquire, Assistant District Attorney, New York County District Attorney's Office, New York, for the prosecution.
Stephanie Kaplan, Esquire, The Legal Aid Society, New York, for the defendant. Nicholas Viorst, Esquire, Assistant District Attorney, New York County District Attorney's Office, New York, for the prosecution.
MARCY L. KAHN, J.
Defendant Manuel Chuyn, charged with one count of burglary in the second degree (PL § 140.25[2] ) and two counts of assault in the third degree (PL § 120.00[1] ), moved to re-open the hearing previously held by this court (Tr. of proceedings dated Jan. 19, 2011 [oral ruling] [ Chuyn I ] ) on his motion to suppress identification evidence. Having granted the motion to re-open (oral ruling, Nov. 18, 2011, followed by written decision, People v. Chuyn, 33 Misc.3d 1233(A), 2011 N.Y. slip op. 52228[U] [Sup.Ct. N.Y. County Dec. 13, 2011][ Chuyn II ] ), having conducted the re-opened suppression hearing and having considered extensive submissions by the parties, this court on March 16, 2012, denied the motion to suppress in an oral ruling. This written decision and order explains that ruling, and sets forth amended findings of fact and conclusions of law as indicated below.
I. PROCEDURAL BACKGROUND
On November 15, 2010, December 8, 2010 and January 13, 2011, this court held a hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), on defendant's motion to suppress the identification testimony of three eyewitnesses who had identified defendant at the scene shortly after the occurrence. During the course of that litigation, the court considered and rejected the defendant's request to call the three civilian eyewitnesses to testify. On January 19, 2011, the court denied defendant's motion to suppress identification evidence in an oral ruling. [ Chuyn I ] ).
Familiarity with the evidence at the hearing and the court's findings of fact and conclusions of law as set forth in Chuyn I is presumed.
Based upon statements of the civilians provided to defendant in Rosario/Consolazio material (People v. Rosario, 9 N.Y.2d 286 [1961];People v. Consolazio, 40 N.Y.2d 446 [1976] ) just prior to trial, defendant moved on September 9, 2011 to re-open the Wade hearing to permit the calling of the civilian witnesses. The statements indicated that the male eyewitness, James Juliano, on being dispatched by the police to bring his wife and daughter outside to view the defendant, had called to them to come downstairs, informing them that he had just identified the individual being detained by the officers as the robber. ( See Chuyn II, supra, at *2). Defendant sought at the re-opened hearing to suppress pre-trial and in-court identification testimony from the three complainants based on allegations of impermissibly suggestive conduct either by police or by the civilian eyewitnesses themselves,
which he contended violated his federal and state rights to due process. He also asked the court to “expand the standard of review of any independent source analysis consistent with eyewitness identification research and to permit the presentation of expert testimony on factors relevant to this analysis.” (Letter of Stephanie Kaplan, Esq., dated Oct. 3, 2011, at 3).
Cf. State v. Chen, 208 N.J. 307, 27 A3d 930 (2011)(establishing procedure for preliminary evidentiary hearing on effect of highly suggestive conduct of private actors on eyewitness identification under NJ Rule of Evidence 104).
See State v. Henderson, 208 N.J. 208, 27 A3d 872 (2011)(establishing procedures for courts to assess both system and estimator variables at hearing to suppress eyewitness identification on due process grounds under state constitution).
In Chuyn II, this court granted defendant's motion to re-open the Wade hearing for the purpose of calling the three civilian eyewitnesses in order to determine whether defendant's federal or state constitutional rights to due process under the Fourteenth Amendment (U.S. Const. amend. XIV)
and the New York Constitution ( N.Y. Const. art. I, § 6) were violated by police action which may have resulted in undue suggestiveness influencing the identifications of defendant by the two female eyewitnesses at a show-up at the scene.
Although it had not yet been decided, this court correctly anticipated the decision on this issue of the United States Supreme Court in Perry v. New Hampshire, ––– U.S. ––––, 132 S.Ct. 716, 181 L.Ed.2d 694(Jan. 11, 2012).
In particular, the court stated that the hearing would address “matters relating to the police officers' conduct which may not have been fully explored at the original Wade hearing, such as whether the officers took any steps to avoid the risks inherent in deputizing a civilian to assist in the show-up procedure, and if so, what they were, and whether they were followed by Mr. Juliano.” ( Chuyn II, supra, slip op. at *5). This court further advised both parties that they should be prepared at the re-opened hearing for the possibility of the court finding impermissible suggestiveness attributable to the police, triggering the need for the prosecution to prove by clear and convincing evidence that the identifications made by one or both of the female eyewitnesses emanated from sources independent of any tainted police action or inaction. ( Chuyn II, supra, slip op. at *12–*13, citing People v. Wilson, 5 N.Y.3d 778, 780, 802 N.Y.S.2d 112, 835 N.E.2d 1220 [prosecution is “generally well-advised” to provide independent source evidence at Wade hearing to enable court to rule in alternative] ). Defendant's application to present an expert on eyewitness identification at any independent source hearing was denied, with leave to renew upon a specific showing of relevance and need as to the particular evidence in question, made in conformity with the standards for admission of such evidence at trial ( see Chuyn II, at *15–*18 following People v. LeGrand, 8 N.Y.3d 449 [2007] ),
The point-out identification by the male eyewitness was not to be addressed at the re-opened hearing.
and without prejudice to its renewal for purposes of trial.
The application was denied in part due to defendant's failure to specify the particular areas of relevance of such testimony to the issues to be addressed at the Wade hearing. On January 6, 2012, after this court issued its written decision in Chuyn II, defendant furnished the court the materials he had previously submitted to the calendar justice in support of his motion to offer expert identification testimony at trial.
Unbeknownst to this court, the calendar justice had already granted defendant's motion to introduce expert testimony on eyewitness identification at trial.
After further consultation with the parties, by letter dated February 7, 2012, this court notified both counsel that the re-opened Wade hearing would be conducted in bifurcated fashion, initially addressing the issue of undue police suggestiveness in the show-up procedure, and, thereafter, addressing the issue of independent source, if necessary. ( See People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608,cert. denied,498 U.S. 833 [1990] [absent a showing of impermissible suggestiveness, no need to demonstrate independent source] ). On February 10, 2012, the re-opened Wade hearing was held, at which the three eyewitnesses testified, solely on the suggestiveness issue as to the show-up presented to Wendy Juliano and Sandra Juliano.
Subsequent to the re-opened hearing, defendant renewed his application to introduce expert testimony at the Wade hearing, specifying particular subject areas of the proposed testimony, and seeking for the first time to introduce such evidence at both the suggestiveness and independent source portions of the hearing. (Letter from Stephanie Kaplan, Esq., dated Feb. 17, 2012 [Kaplan 2/17/12 letter] ).
The People did not respond to this proffer.
For purposes of the suggestiveness hearing, defendant sought to introduce expert testimony on (1) co-witness contamination and (2) correlation between confidence and accuracy/confidence malleability. He renewed those requests for the independent source hearings adding, as factors to be considered only at the independent source hearing, should it held: (3) the nature of memory as relating to ability to recognize faces; (4) the effects of stress and violence; (5) cross-racial identification; (6) the circumstances of the street show-up; (7) the circumstances of the witnesses' precinct viewing of the defendant; and (8) instruction bias. (Kaplan 2/17/12 letter).
Both parties thereafter submitted post-hearing memoranda on the issue of police suggestiveness, focusing on the following issues: the need for a show-up involving Wendy and Sandra Juliano after James Juliano had pointed defendant out to police; the officers' decision to dispatch Mr. Juliano to summon his wife and daughter downstairs without properly instructing him to avoid suggestive comments; the circumstances of the show-up, including defendant being visible from inside the building, wearing handcuffs, being surrounded by three police officers, and being viewed simultaneously by two witnesses; the effect of joint interviews of the witnesses by the police prior to the show-up; and the cumulative effect of all of these factors.
(Defendant's Supplemental Motion to Suppress, filed Mar. 5, 2012; Letter from Nicholas Viorst, Esq., dated Mar. 7, 2012).In a series of subsequent letters to the court, the parties continued to disagree about the weight to be given by the court to the subjective assessments by the civilian witnesses of the influence of comments of their family members in assessing the reliability of their identification testimony. (Letters of Stephanie Kaplan, Esq., Mar. 12 and 15, 2012; Letter of Nicholas Viorst, Esq., Mar. 14, 2012).
This decision and order constitutes this court's amended ruling on the Wade hearing, as well as a resolution of defendant's renewed request to introduce expert testimony on eyewitness identification at both phases of the hearing.
II. THE RE–OPENED WADE HEARING
A. Amended Findings of Fact
Except to the extent that they are amended as indicated below, I adhere to my essential findings of fact in Chuyn I, which are incorporated in this decision by reference. Further, I find all three civilian eyewitnesses who testified at the re-opened Wade hearing to have been credible.
1. Police Officer Carini's instructions to James Juliano on dispatching him to get his wife and daughter
James Juliano's testimony confirms that when Officer Carini dispatched him to summon his wife and daughter, neither Carini nor any other police officer gave Mr. Juliano instructions regarding his communications to his family members. In fact, Mr. Juliano credibly testified that he was sure that the officer said nothing more to him than “Call your wife and daughter” (Tr. Feb. 10, 2012, at 12), and that Carini offered no explanation as to his purpose in having him do so.
The situation was chaotic, with Carini and his partner unable to subdue Mr. Chuyn and requiring Carini to enlist Officer Leier to assist them. He was more likely barking orders in order to dispatch James Juliano immediately in order to get the two witnesses quickly to a show-up, while continuing his own efforts to place Mr. Chuyn in handcuffs, rather than engaging in any discursive explanation of his actions to the witness who had just dramatically contradicted his earlier negative identification of defendant. In any case, I am persuaded that James Juliano did not hear any statement by Carini of his purpose in summoning the two women, and the fact remains uncontroverted that Carini's direction to James Juliano was devoid of any instruction as to what he should tell his wife and daughter.
In Chuyn I, I found that Carini told James Juliano to go upstairs “to get his wife and daughter so that they could make the identification.” ‘ (Tr. Jan. 19, 2011, at 8, quoting Carini, Tr. Dec. 8, 2010, at 45). In light of Mr. Juliano's testimony, I now amend and clarify my earlier finding to find that to the extent that Carini testified that he told Juliano that he “would like to really make sure” and directed Juliano to go get his family members “so that they could make an identification” (Tr. Dec. 8, 2010, at 45), Carini was most probably merely offering the court his own thinking process at the time he dispatched Juliano, rather than reporting the message he gave him.
2. James Juliano's calling Wendy and Sandra Juliano downstairs
James Juliano, consistently with Officer Sprunger's earlier testimony, testified that he did not say “I think we have the guy” or anything other than “Wendy, Sandra, come down.”
Sandra Juliano, who was the most excited and upset by the incident, testified that she could not remember her father's exact words, but that he had said something to the effect of “Wendy, Sandra” (Tr. Feb. 10, 2012, at 84), “You've got to come down here” ( id., at 88), and “He's down here.” ( Id., at 81).
She described her father's communication as chaotic and brief, yelling to them to come down, with a sense of emergency. ( Id., at 88). She and her mother did not know what was happening ( id.), but from the excited manner in which her father had called their names, she understood that the perpetrator had been caught and she bolted out of her apartment without waiting for him to finish his statement.
Sandra Juliano's testimony as to her earlier statement to Assistant District Attorney Viorst that her father had said, “You're not going to believe this[,] he's downstairs-comedown now,” as reflected in the Consolazio material, was admitted for impeachment purposes only, pursuant to CPL § 60.35.
Wendy Juliano, similarly, testified that her husband called out: “Wendy, Sandra, come downstairs; I think we have the guy.” ( Id., at 135). She understood that James Juliano and the police believed that they had apprehended the perpetrator.
The testimony of all three witnesses at the re-opened hearing is consistent that Mr. Juliano was inside the building for no more than a few seconds as he called up to the women and then returned outside before they had started down the stairs. And all witnesses agree that neither the suspect's appearance nor the fact that Mr. Juliano had identified defendant were expressly mentioned by him.
From the testimony at the re-opened hearing, I find that James Juliano, in shouting to his wife and daughter to come downstairs, communicated to them that he believed that the police were holding the person who had attacked them. He did not offer any details, either as to the suspect's appearance or as to his own identification of the individual, but the message as received by the women was that their husband and father was announcing that his efforts over the preceding 25 to 30 minutes to assist the police in finding the robber had been successful. In point of fact, given the circumstances of his sudden return from the canvass with police coupled with his excited tone of voice as he yelled upstairs to them, James Juliano's communication to his family members approximately 40 minutes after the attempted robbery most probably could not have been understood any differently by them, regardless of his choice of words. And indeed, the two women understood in those few seconds that he was calling them to identify a person then in police custody whom he, James Juliano, believed was the perpetrator.
3. Sandra and Wendy Juliano's viewing of defendant
Both women testified that they were able to observe defendant standing with police officers through the glass door of the vestibule of the building before they stepped outside, and I so find. But it is also clear that they merely passed through the vestibule for no more than a few seconds as they hurried outside. In fact, the police had no practicable way to conceal defendant from their view, as they were struggling to detain and handcuff him during the fast-paced events then developing, and could neither have instructed the women as to the viewing nor arranged separate viewings for them.
Once outside, Sandra Juliano spoke first, “immediately” saying “That's him.” (Tr. Feb. 10, 2012, at 49, 93, 138). She was followed by Wendy Juliano, who said, “That's him[,]” “[t]hat's the guy.” ( Id., at 49). Then James Juliano said, “That's the dude.” ( Id. at 37). The police had said nothing to any of the witnesses prior to these comments being made.
B. Conclusions of Law
1. Undue Suggestiveness
The issue before the court is whether the show-up identifications by Wendy and Sandra Juliano were the result of undue suggestiveness attributable to the police such that evidence of their out-of-court identifications of defendant must be suppressed, rendering their in-court identifications permissible only upon a finding of an independent source for each of those identifications.
a. Legal Standards
i. Perry v. New Hampshire
Subsequent to this court's decision in Chuyn II, the United States Supreme Court issued its decision in Perry v. New Hampshire, supra. In Perry, the Court confirmed the view expressed by this court in Chuyn II ( Chuyn II, supra, slip op. at *7–*9) that the federal due process limitation on the admission of eyewitness identification testimony applies only to suggestive identification procedures which have been arranged by police (Perry, supra, 132 S.Ct. at 720–721), because the Supreme Court's Wade jurisprudence “aim [s] to deter police from rigging identification procedures” ( id., at 721), and “[a] primary aim of excluding identification evidence obtained under unnecessarily suggestive circumstances ... is to deter law enforcement use of improper lineups, showups, and photo arrays in the first place.” ( Id. at 726 [citing Manson v. Brathwaite, supra, 432 U.S. 98, 112, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) ] ).
Additionally, the Perry Court reaffirmed that “due process concerns arise only when law enforcement officers use an identification procedure that is both suggestive and unnecessary.” (Perry v. New Hampshire, supra, ––– U.S. ––––, 132 S.Ct. at 724, 181 L.Ed.2d 694 [citing Manson v. Brathwaite, 432 U.S. 98, 107, 109, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), and Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) ][emphasis added] ).
The Court further explained that due process precludes admission of eyewitness evidence only when the evidence is “so extremely unfair that its admission violates fundamental conceptions of justice ....“ ( Id. at 723 [quoting Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990) ] ).
Finally, in rejecting the petitioner's claim that due process entitled him to a preliminary judicial inquiry into the reliability of an eyewitness identification made under suggestive circumstances attributable to civilians, the Court in Perry held that the due process check for reliability of an identification is triggered only after a defendant establishes an unnecessarily suggestive procedure conducted by police. (Perry v. New Hampshire, supra, 132 S.Ct. at 726 [citing Manson v. Brathwaite, supra, 432 U.S. at 112–113 (holding that the purpose of the due process reliability check is to determine whether identification evidence may be admitted notwithstanding improper police conduct) ] ). The Court held: “[T]he Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.” (Perry v. New Hampshire, supra, 132 S.Ct. at 730).
ii. Show-up identification standards
In determining whether the police in this case utilized an unnecessarily suggestive identification procedure, this court must consider the established rules governing show-ups in New York.
“Showup identifications, by their nature suggestive, are strongly disfavored but are permissible if exigent circumstances require immediate identification ... or if the suspects are captured at or near the crime scene and can be viewed by the witness immediately....” (People v. Riley, 70 N.Y.2d 523, 529 [1987][citing People v. Rivera, 22 N.Y.2d 453, 455, 293 N.Y.S.2d 271, 239 N.E.2d 873 (1968), cert. denied,395 U.S. 964, 89 S.Ct. 2107, 23 L.Ed.2d 750 (1969) ]; People v. Love, 57 N.Y.2d 1023, 1024–1025 [1982] ). Where exigent circumstances are present or where show-ups are conducted in close temporal and spatial proximity to the crime, the procedures are not presumptively infirm, and, in fact, have generally been deemed reasonable under the circumstances (People v. Ortiz, 90 N.Y.2d 533, 537 [1997];People v. Duuvon, 77 N.Y.2d 541, 544 [1991] ), especially where the show-up is part of an “unbroken chain of events,” following shortly after the defendant's apprehension at or near the scene soon after the crime. (People v. Duuvon, supra, 77 N.Y.2d at 544–545, 569 N.Y.S.2d 346, 571 N.E.2d 654). Although show-up identifications are disfavored, particularly where there has been no effort to resort to less suggestive procedures, due process may tolerate “less than ideal” procedures when “the interests of prompt identification” are served or other exigent circumstances exist. (People v. Adams, 53 N.Y.2d 241, 249 [1981] ).
iii. Burden of proof
At the suggestiveness phase of a Wade hearing, under the federal standard, “the defendant has the burden of showing that the eyewitness identification was derived through impermissibly suggestive' means.” (Perry v. New Hampshire, supra, ––– U.S. ––––, 132 S.Ct. at 733, 181 L.Ed.2d 694). Under the New York standard, “[w]hile the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive.” (People v. Chipp, supra, 75 N.Y.2d at 335, 553 N.Y.S.2d 72, 552 N.E.2d 608;see People v. Delamota, 18 N.Y.3d 107, 118 [2011] ).
b. Unnecessarily Suggestive Police Conduct
In applying these standards to determine whether the officers' conduct in this case was unnecessarily suggestive, the court must assess whether their conduct was reasonable under all the circumstances, including an assessment of whether less suggestive procedures were reasonably available to them at the time. ( See People v. Duuvon, supra, at 77 N.Y.2d at 544–45, 569 N.Y.S.2d 346, 571 N.E.2d 654). As shown below, on the facts presented, the actions of the police in this case were within acceptable limits of reasonable conduct under the circumstances, and defendant has failed to carry his burden of demonstrating that the procedures used were unnecessarily suggestive.
i. “Second” show-up
Defendant claims that the show-up procedure involving Wendy and Sandra Juliano was both suggestive and unnecessary, because he had already been identified as the perpetrator by James Juliano prior to the show-up with the female witnesses. This argument is not persuasive on the facts presented.
In Duuvon, the Court of Appeals made clear that a show-up arranged by police after the suspect had been identified on the street was not, per se, violative of due process:
The judicial toleration of promptly conducted at-the-scene showups rests on our objective that the police have reasonable assurances that they have arrested or detained the right person. That societal interest should not be deemed automatically cast aside by the existence of a prior identification in this fast-moving, uninterrupted array of activity.
(People v. Duuvon, supra, 77 N.Y.2d at 545, 569 N.Y.S.2d 346, 571 N.E.2d 654 [citation omitted] ).
In Duuvon, albeit a case which “presses judicial tolerance to its limits” ( id.), an eyewitness had followed the robber after the crime and on finding him stopped by police a block from the crime, had positively identified him. The officers then placed the suspect under arrest, handcuffed him and put him into the police car, which was then backed around the corner where a second eyewitness identified him. The Court of Appeals upheld the second identification as supported by exigent circumstances. ( Id.).
In the instant case, far from testing the limits of judicial tolerance, the facts warranted the officers' actions in conducting a show-up, notwithstanding the prior identification by James Juliano. Here, the police faced a situation in which the eyewitness, James Juliano, had failed to identify defendant when viewing him on the bench during the canvass twenty-five minutes after the crime, but then, five minutes later, spontaneously pointed him out as the robber. The point-out was not police-arranged, and in fact, was a surprise to the police, who had not seen defendant approaching them and did not consider him a suspect at that moment. Under these circumstances, Officer Carini told James Juliano that he “would like to really make sure” that defendant was the perpetrator and instructed Mr. Juliano to go inside and call his wife and daughter to come down. Because the police needed probable cause in order to effect defendant's arrest, and because Mr. Juliano had given conflicting views on defendant's involvement in the crime, they needed confirmation of defendant's identification as the robber before subjecting him to arrest. It was, therefore, not only reasonable, but necessary, for them to present defendant in a show-up to the other two eyewitnesses, who were still present at the scene and could view him within less than a minute. (People v. Duuvon, supra, 77 N.Y.2d at 545, 569 N.Y.S.2d 346, 571 N.E.2d 654 [show-up for second witness held acceptable in order to provide police “reasonable assurances that they have arrested or detained the right person”]; People v. Cannon, 306 A.D.2d 130, 131, 761 N.Y.S.2d 46 [1st Dept.], lv. denied,1 N.Y.3d 539 [2003] [show-up 30 to 40 minutes after crime and twelve blocks away and immediately following show-up with another witness held part of a continuous investigation and not inappropriate]; People v. Junco, 223 A.D.2d 927, 928, 636 N.Y.S.2d 928 [3d Dept.], lv. denied,88 N.Y.2d 880 [1996] [procedure upheld, where, following joint show-up to two witnesses, defendant was handcuffed and transported in patrol car to crime scene and removed from car in front of victim, who identified him]; People v. McKenzie, 220 A.D.2d 228, 632 N.Y.S.2d 67 [1st Dept.1995] [holding that “prior spontaneous identification in a fast-moving, uninterrupted array of activity' should not preclude a second, police-arranged identification if necessary” to assure that right person has been arrested]; People v. Johnson, 220 A.D.2d 775, 633 N.Y.S.2d 195 [2d Dept.1995], lv. denied,87 N.Y.2d 1021 [1996][show-up at crime scene held appropriate as based on exigent circumstances where it followed point-out one-quarter mile away by complainant who could not speak English] ).
The circumstances here were exigent, not only because the officers were detaining a civilian who had been the subject of conflicting identifications, but also because Mr. Chuyn was trying to free himself and flee. ( See, e.g., People v. Duuvon, supra, 77 N.Y.2d at 544, 569 N.Y.S.2d 346, 571 N.E.2d 654). It occurred within 40 minutes of the crime, at the scene, and was neither unnecessary nor unreasonable.
ii. Employment of James Juliano without proper instruction
Next, defendant contends that the police conduct in arranging the show-up was unduly suggestive because the police officers sent James Juliano to get his wife and daughter without instructing him not to speak to them about the show-up or his own identification of defendant, resulting in his communicating to them that police were holding the man he had identified as the perpetrator. His having done so, defendant claims, unalterably tainted the women's viewing of defendant immediately thereafter. He further contends that James Juliano's comments to his family members could have been avoided, had the police properly instructed him, radioed or shouted for Officer Sprunger to bring the female witnesses down, or gone to summon Wendy and Sandra Juliano themselves. These arguments are unpersuasive.
At the time that the show-up was arranged, defendant was so aggressively resisting being restrained by the police that it took three officers to hold him and place handcuffs on him. For that reason, none of the officers could be redeployed to contact Sprunger or go upstairs to summon the women themselves. Under these circumstances, the action of the officers in sending James Juliano upstairs, while not optimal, was reasonable.
Certainly the better practice on enlisting a civilian crime victim to facilitate a show-up would have been for the officers to have instructed James Juliano not to say anything suggestive to the other two witnesses. Again, however, the officers were struggling to detain Mr. Chuyn, and sought to have the identification procedure held as quickly as possible to determine whether James Juliano's positive identification could be confirmed by the other complainants. The officers' failure to provide proper instructions has to be considered in light of the developing situation in which they found themselves.
Furthermore, even had the officers instructed Mr. Juliano or waited until an officer was available to contact Sprunger or go upstairs and get the women, it is most probable that the message would have nonetheless been communicated, at least implicitly, that the women were coming downstairs to view a suspect being detained by police. “Inherent in any show-up is the likelihood that an identifying witness will realize that the police are displaying a person they suspect of committing the crime, rather than a person selected at random.” (People v. Caesar, 91 A.D.3d 503, 936 N.Y.S.2d 200 [1st Dept.2012][quoting People v. Gatling, 38 A.D.3d 239, 240, 831 N.Y.S.2d 157 (1st Dept.), lv. denied,9 N.Y.3d 865, 840 N.Y.S.2d 894, 872 N.E.2d 1200 (2007) ]; People v. Jamison [McCorkle], 272 A.D.2d 273, 274, 709 N.Y.S.2d 519 [1st Dept.], lv. denied,95 N.Y.2d 936 [2000][show-up “not rendered unduly suggestive ... by the complainant's awareness of [its] purpose ... since the show-up was the culmination of an unbroken chain of fast-paced events” (citing Duuvon ) ] ).
Given that Wendy and Sandra Juliano had last seen James Juliano leaving the apartment to go on the canvass in search of the robber, his sudden return to the building twenty minutes later, excitedly yelling for them to come down (Tr. Feb. 10, 2012, at 84, 88) could only have conveyed to them that he and the police believed they had found the perpetrator, regardless of his word choice. ( Id., at 84–85, 569 N.Y.S.2d 346, 571 N.E.2d 654). Indeed, Sandra Juliano acknowledged that as soon as she heard her father open the door and call their names in an excited tone, she knew “[o]bviously, he was yelling for us for a reason” and, she understood, without having to hear anything else, that he and the police believed that they had caught the robber. ( Id., at 84, 87, 569 N.Y.S.2d 346, 571 N.E.2d 654). She and her mother immediately ran down the stairs to see what was going on ( id., at 87–88, 569 N.Y.S.2d 346, 571 N.E.2d 654), and, as Wendy Juliano testified, to see whether they could identify the individual who was with the police ( id. at 140, 569 N.Y.S.2d 346, 571 N.E.2d 654).
Accordingly, the police officers' decision to send James Juliano to bring his wife and daughter downstairs without instructing him not to say anything of a suggestive nature was reasonable under the circumstances, and did not create undue suggestiveness in the ensuing show-up.
iii. Having Sandra Juliano and Wendy Juliano brought to show-up
Defendant next complains that the show-up was impermissibly suggestive because the two witnesses had to be brought to the scene of the show-up. This argument is meritless.
Wendy and Sandra Juliano bounded out of the apartment and down one flight of stairs to view defendant in front of the building, within one minute of the officers' decision to present defendant to them at a show-up. They were already on the scene, and did not have to be transported to it. A decision not to have them view the suspect at that time would have made little sense. The officers' decision resulted in a prompt, on-the-scene viewing, in close spatial and temporal proximity to the crime, eliminating the need to transport the defendant anywhere for an identification procedure.
The cases cited by defendant in support of his argument are distinguishable. In People v. Rojas, 213 A.D.2d 56, 630 N.Y.S.2d 28 [1st Dept.], lv. denied,87 N.Y.2d 907, 641 N.Y.S.2d 236, 663 N.E.2d 1266 (1995), the Appellate Division, First Department found no need for an investigatory on-the-scene show-up conducted after an identification and arrest had already been made. In People v. Styles, 156 A.D.2d 223, 548 N.Y.S.2d 486 (1989), lv. denied,75 N.Y.2d 872, 553 N.Y.S.2d 303, 552 N.E.2d 882 (1990), the First Department held that a stationhouse show-up not founded on any exigency was highly improper.
Accordingly, the decision to call the female witnesses outside for an immediate viewing was the least intrusive course of action in terms of defendant's rights to due process, and did not render the procedure unnecessarily suggestive.
iv. Manner of show-up
Defendant challenges the manner in which he was displayed to Wendy and Sandra Juliano in several respects. First, he contends that the show-up procedure was unduly suggestive because he could be seen by the witnesses through the glass door in the vestibule of the building, in handcuffs, surrounded by police officers, resulting in the witnesses' immediate identification of him as the perpetrator and eliminating any opportunity for the police to follow proper procedure by instructing both witnesses that the man they were about to see before them may or may not be the perpetrator.
Again, given the fast-paced, unbroken chain of events and exigent circumstances under which the show-up identification procedure took place, where the witnesses emerged from the building within seconds after being summoned and were shouting, the police could have mitigated neither the eyewitnesses' viewing of defendant through the glass door nor their immediate, near-simultaneous identifications of him. Although it would have been preferable for the police to have provided a warning to Wendy and Sandra Juliano that the man they were about to see “may or may not” have been the perpetrator, given the unbroken chain of events, their failure to do so does not render the show-up unduly suggestive.
Similarly, Wendy and Sandra Juliano's viewing of defendant in handcuffs and surrounded by police officers was not unreasonable under the circumstances. ( See People v. Duuvon, supra, 77 N.Y.2d at 544, 569 N.Y.S.2d 346, 571 N.E.2d 654 [defendant handcuffed and seated in back of patrol car]; People v. Cannon, supra, 306 A.D.2d at 131, 761 N.Y.S.2d 46 [“the fact that defendant was handcuffed and under police guard did not render the identification unduly suggestive” (citing Duuvon ) ] ).
Defendant also argues that the simultaneous viewing of him by both eyewitnesses at the show-up rendered the procedure unduly suggestive, as one identification influenced the other. Simultaneous viewings by multiple witnesses are tolerable in the interest of prompt identification, however, particularly where the identification is in close temporal and spatial proximity to the crime. (People v. Love, supra, 57 N.Y.2d at 1024–1025, 457 N.Y.S.2d 474, 443 N.E.2d 948;People v. Adams, supra, 53 N.Y.2d at 249, 440 N.Y.S.2d 902, 423 N.E.2d 379). Here, the simultaneous viewing took place within 30 to 40 minutes of the commission of the crime, at the scene, as part of a continuous chain of events and under circumstances where a prompt identification of defendant was needed. ( People v. Riley, supra ).
Accordingly, under the circumstances presented, the manner in which the show-up occurred was not unduly suggestive.
v. Joint interviews of witnesses by police after incident
Defendant further argues that both the police interview with the three eyewitnesses jointly upon the officers' initial arrival at the apartment and Wendy and Sandra Juliano's subsequent joint interview with Officer Sprunger during which they jointly described the perpetrator tainted their identifications of defendant at the show-up. Defendant maintains that the police should have interviewed each of the eyewitnesses separately on both occasions, in order to avoid post-event contamination. He further contends that the impact of these interviews should be taken into account in determining whether a due process violation occurred, citing People v. Santiago, 17 N.Y.3d 661, 934 N.Y.S.2d 746, 958 N.E.2d 874 (2011), and People v. LeGrand, 8 N.Y.3d 449, 835 N.Y.S.2d 523, 867 N.E.2d 374 (2007).
At the outset, the interviews were conducted under the constraints of the location where police encountered the witnesses, in Sandra Juliano's small townhouse apartment, upon the officers response to the family's 911 call shortly after the crime occurred. As to the first interview, all three victims were traumatized by the incident, and the officers were acting quickly to assess the situation, in the confines of the location where the crime occurred and with all of the witnesses present, before commencing a canvass to try to locate the perpetrator. Under these circumstances, it would have been impractical to separate the witnesses and interview them in different locations. Officer Sprunger's subsequent joint interview of Wendy and Sandra Juliano, while James Juliano was participating in the canvass with officers Vacaar and Carini, involved only a brief discussion of the description of the perpetrator, which was never conveyed by Officer Sprunger to his colleagues prior to the show-up. The two joint interviews, therefore, were conducted for expedience sake, with traumatized witnesses, in confined quarters at the scene, in an effort to inform a prompt police canvass, and were not impermissibly suggestive under the circumstances presented.
Additionally, neither of the interviews affected the show-up procedure, as the officers did not select defendant for identification based upon the descriptions given by the victims during either interview. Rather, the show-up was initiated as a result of defendant having approached James Juliano on the sidewalk in front of the building some 30 minutes after the incident and James Juliano having pointed him out to police.
The witnesses' participation in joint interviews prior to James Juliano's point-out identification of defendant, therefore, was of minimal effect on the suggestiveness of the show-up identification, and did not violate due process.
Defendant's reliance for his argument on Santiago and LeGrand is misplaced. Both of those cases are distinguishable, as they involved witnesses who did not identify the defendant immediately after the crime, but did so much later, after having seen likenesses of the defendant and/or having been subject to other possible post-event influences. ( See People v. LeGrand, supra, 8 N.Y.3d at 452–453, 835 N.Y.S.2d 523, 867 N.E.2d 374 [four eyewitnesses collaborated on composite sketch immediately following crime, identifications were not made until pre-trial viewings nearly seven years after the crime; in-court identifications by two witnesses followed their viewing of photo array the night before testifying, nearly ten years after the crime]; People v. Santiago, 17 N.Y.3d at 673, 934 N.Y.S.2d 746, 958 N.E.2d 874 [eyewitness failed to identify defendant in photo array or line-up within days of crime, but then saw defendant in newspaper photograph in handcuffs and identified him eleven months later from photograph of same line-up; second eyewitness was shown police artist's composite sketch of perpetrator shortly after crime, and identified defendant in line-up one year later] ). In contrast, in this case, the post-event activity in question consisted of the brief joint interviews of the witnesses, which followed the crime immediately and preceded the identification procedure by a matter of minutes. They were part of a continuous investigation process and, unlike the situations in LeGrand and Santiago, did not involve any significant role of police or prosecutors in selecting the defendant for viewing by the witnesses.
In sum, in this case, the joint interviews of the witnesses conducted by police immediately after the crime did not have an unduly suggestive effect on the show-up identifications.
vi. Cumulative police errors
Defendant also contends that the alleged police errors, when considered cumulatively, impermissibly tainted the show-up identification. Even taken together, however, the factors of which defendant complains were less troublesome than in many cases in which show-ups have been approved ( see, e.g., Duuvon, Cannon, Junco and Johnson, all supra, and discussion at section II . B.1.b.i, supra ), and did not render the show-up here unduly suggestive. Although the procedures employed were less than ideal, they were reasonable, given the rapidly unfolding sequence of events during an ongoing investigation taking place at the scene, within 40 minutes of the crime. Adherence to preferable practices would largely have been impracticable, and, in any event, would likely have made little difference in the outcome.
Accordingly, under the circumstances presented, this court concludes that taken together, none of the errors attributable to the police officers nor their failures to adhere to better practices rendered the show-up unnecessarily suggestive, i.e., “so extremely unfair that its admission violates fundamental conceptions of justice ....“ (Perry v. New Hampshire, supra, ––– U.S. ––––, 132 S.Ct. at 723, 181 L.Ed.2d 694 [quoting Dowling v. United States, supra, 493 U.S. at 352] ).
At the February 10 hearing, James Juliano testified that after the show-ups at the scene of the crime, the Julianos were taken to the police precinct. (Tr. Feb. 10, 2012, at 51). As they sat inside the entrance lobby of the station-house, across from the front door, they soon observed defendant being escorted in handcuffs into the precinct by police officers. ( Id.). This court sustained the People's objection to further questioning by defense counsel on this subject. As this viewing at the stationhouse was not the subject of the prosecution's pretrial CPL § 710.30(1)(b)notice ( see Voluntary Disclosure Form, ¶ B.2), and because the viewing has not been examined at defendant's Wade hearing, this court would entertain a motion by defendant to preclude the introduction at trial of any evidence of the viewing of defendant at the precinct by any of the complainants. Should the People not intend to elicit evidence of that viewing, they should advise counsel and the court immediately.
To the extent that the defense wishes to address the effect of this viewing on the reliability of the complainants' in-court identifications of defendant, it may supplement its currently pending motion in limine on reliability of the in-court identifications accordingly.The precinct viewing would not, of course, affect the admissibility of the previously occurring point-out and show-up (both noticed pursuant to CPL § 710.30 and considered at the Wade hearing).
Thus, the court concludes that defendant has failed to meet his burden of showing that the eyewitness identification was derived through impermissibly suggestive means under the federal standard. (Perry v. New Hampshire, supra, ––– U.S. ––––, 132 S.Ct. at 733, 181 L.Ed.2d 694). The court further concludes that while the People have met their initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness, defendant has failed to meet his ultimate burden of proving that the show-up procedure in this case was unduly suggestive under the New York constitutional standard. (People v. Chipp, supra, 75 N.Y.2d at 335, 553 N.Y.S.2d 72, 552 N.E.2d 608).
Therefore, I adhere to my holding in Chuyn I that no unnecessary police suggestiveness tainted Wendy or Sandra Juliano's show-up identifications of defendant. Accordingly, no independent source hearing is required.
2. Application for Expert Testimony at Suggestiveness Hearing
Defendant next contends that the suggestiveness phase of the Wade hearing should be continued to permit him to introduce expert testimony at the hearing on the issues of the suggestive effects of co-witness contamination on eyewitness identification, and the lack of correlation between eyewitness confidence and identification accuracy, or confidence malleability. He maintains that without such expert testimony, this court might attach undue weight to the civilian witnesses' hearing testimony that they were confident in their identification of the defendant, which was unaffected by either the comments of James Juliano or the manner of presentation of the defendant by police. Defendant claims that the only effective way to rebut such a self-assessment of the nature and extent of any influence by suggestive comments or conduct is by proffering expert testimony. Defendant's request is rejected for several reasons.
First, although it is a close question, defendant still does not appear to have satisfied stage one of the LeGrand standard by demonstrating that the case would turn on the accuracy of the testimony of an eyewitness uncorroborated by any other evidence connecting the defendant to the crime. ( See LeGrand, supra, 8 N.Y.3d at 452, 835 N.Y.S.2d 523, 867 N.E.2d 374;Chuyn II, at *16). Specifically, within 30 minutes of the crime, defendant put himself in close spatial and temporal proximity to the crime by walking toward James Juliano, who then pointed him out to the police without any suggestion by them. ( Chuyn II, at *16). The identifications by the women then followed. ( Id.) As stated in Chuyn II, therefore, to the extent the applicable standard of review of defendant's application is the one set forth in LeGrand, his application should be denied.
More to the point, expert testimony on eyewitness identification is not relevant to the issue before the court in a suggestiveness phase of a Wade hearing. The court's inquiry at the suggestiveness hearing is not the reliability of the eyewitness' identification, but rather whether the police arranged a procedure that unnecessarily drew the witness's attention to the defendant, and whether they should be considered for sanction by the deterrent force of suppression of the evidence. Under the federal constitutional standard, as Perry reminds us, “[t]he due process check for reliability, Brathwaite made plain, comes into play only after the defendant establishes improper police conduct.” (Perry v. New Hampshire, supra, 132 S.Ct. at 719). “The very purpose of the check, the [ Brathwaite ] Court noted, was to avoid depriving the jury of identification evidence that is reliable, notwithstanding improper police conduct.” ( Id. at 726 [citing Manson v. Brathwaite, supra, 432 U.S. at 112–113][emphasis in original] ).
Similarly, the state constitutional procedure involves a narrow focus:
[Under New York law,] the sole inquiry as to theadmissibility of a pre-trial identification is whether the procedure used to obtain it was unnecessarily suggestive. An evaluation of the reliability of the resulting identification is inappropriate. Reliability comes into play only after the pre-trial identification is ruled inadmissible, and, then, only to determine whether the prospective in-court identification ... is admissible.
(Miriam Hibel, New York Identification Law: The Wade Hearing/The Trial [Lexis–Nexis, 2010 ed.] § 4.02, at 4–6 [emphasis in original] ).
Psychological studies on the issues sought to be introduced at the suggestiveness hearing by defendant pertain to the reliability of eyewitness identification, not to the suggestiveness of police conduct. Accordingly, they are not relevant to the issues before the court at the suggestiveness hearing. Further, this court has, in fact, considered the effect of co-witness contamination due to the joint interviews conducted by police in assessing the suggestiveness of the show-up ( see section II.B.1.b.v., supra ), without having the need to resort to expert testimony, which, in any even, would likely have addressed reliability, rather than police suggestiveness. And virtually no consideration has been given at this suggestiveness hearing to the degree of confidence of the witnesses in the accuracy of their identifications, an issue with potential implications for the reliability of their evidence, but completely immaterial to the extent of the officers' compliance with the due process considerations limiting suggestiveness in the show-up identification procedures they employed. Accordingly, defendant's application to introduce expert testimony at the suggestiveness phase of the Wade hearing is denied.
3. Renewal of Application for Expert Testimony at Independent Source Hearing
Defendant also seeks to introduce expert testimony at the independent source phase of the hearing in eight areas. Two of those areas are the same as those for which defendant seeks leave to introduce expert testimony at the suggestiveness phase of the hearing, namely, the effects of co-witness contamination on eyewitness identification and the lack of correlation between eyewitness confidence and identification accuracy, or confidence malleability. In addition, he seeks to introduce expert testimony at the independent source phase of the hearing on the following areas: the nature of memory as it relates to the ability to recognize faces; the effects of stress and violence; the effect of the cross-racial nature of an identification; the circumstances of the street show-up and its effect on reliability and choosing bias; the circumstances of the precinct viewing and its effect on reliability and choosing bias; and instruction bias.
As this court has found that there was no unnecessary suggestiveness attributable to the police with respect to the show-up identifications of defendant by Wendy and Sandra Juliano, there will be no independent source phase of the Wade hearing. (Perry v. New Hampshire, supra, ––– U.S. ––––, 132 S.Ct. at 724, 181 L.Ed.2d 694;People v. Adams, supra, 53 N.Y.2d at 251, 440 N.Y.S.2d 902, 423 N.E.2d 379). Therefore, defendant's request for expert testimony at that phase of the hearing is denied, as moot.
In any event, defendant has still not satisfied stage one of the LeGrand standard for the reasons stated in Chuyn II and in section II.B.2, supra. ( See Chuyn II, at *16).
III. CONCLUSION
For the reasons stated, on the re-opening of defendant's Wade hearing, his motion to suppress the evidence of the pre-trial and in-court eyewitness identifications of defendant by Wendy Juliano and Sandra Juliano on the ground of undue police suggestiveness violative of due process is denied. Defendant's request to offer expert testimony at the suggestiveness phase of the Wade hearing is denied as unnecessary and irrelevant. Defendant's request to admit expert testimony at the independent source phase of the hearing is denied as moot.
The foregoing constitutes the decision and order of this court.