The People, Respondent,v.Otis Boone, Appellant.BriefN.Y.October 17, 2017To be LJ !I HtLL (I ) 111 ill If !eJ) Court of Appeals STATE OF NEW YORK, PEOPLE OF THE STATE OF NEW YORK, OTIS BOONE, I )cji•ndan!~ ·1ppellan!. BRIEF FOR DEFENDANT-APPELLANT ~larch 14, 2016 1 S'-:'-: \X:' l .. I· !I L!!L\ I It LL . \ ttorncn for l)cfendam~. \ ppellant 111 John Street,<)"' 1-loor '-'ew :-\.Y. JOO)K (212) 09.1~00Wi APL - 2016-00015 INDEX T \BJ J ·~OF.\ UTt IORITII ·~S ................................................................................... iii PRI·JX\11~.\RY ST \'1'1·~\IJ·~~T .............................................................................. l QLI·SrJON PRI·~SI·~N'l'I·~D ...................................................................................... 2 SU\L\f.\RY C)l·· \RCU\Il·:N·r ................................................................................ 2 s· L \'I'J ·:\II ~NT c n ·· 1 .. \ < ~· rs ........................................................................................ s Introduction ...................................................................................................... 8 'l'he \ borted Plea Proceeding ....................................................................... 1 0 The People's Case at Trial ............................................................................. 10 The l•'ebruary 16, 2011, Robbery ...................................................... l 0 The l•'ebruary 26, 2011, Robbery ...................................................... 11 The Police Investigation and Lineups .............................................. 13 'fhe <:barge Conference ................................................................................. 14 Sutnn1ations ..................................................................................................... l5 Jury Charge and\' erdict ................................................................................ 15 The . \ ppella te Division's Decision .............................................................. 16 _\1\{;LJi\II~N'l' ............................................................................................................ 18 \\nii~N THI~ Pl·~()PJJ·~'S E\'IDJ·~NCI·~ l·'()R I·~_\CH ROBBERY RESTED ENTIRELY ON _\ SINGLE C\UC\SI \N \VITNESS'S CROSS-R.\CL\L IDENTil'lC\TION Ol•' _\N .\l·'RIC\N .\fl RIC\N SUSPECT, THE COURT DENIED .\PPELL\NT _\ F\IR TRL\L BY REFUSING TO GI\'E .\ CROSS- K\CL\L IDENTIFIC\TION CI-L\RCE, .\S PRO\'IDED l'OR IN NE\X' YORK'S .\IODEL C ~f-1 _ \ 1\(; I·~ ......................................................................................................... 18 . \. The Heightened Risk of \\'rongful Conviction Based on Unreliable Cross-Racial I ~vewitness Identification I ·:vidence .......................................................... 19 B. The \\!eight of Legal .\uthority Nationally Recof,:rnizing Cross-Racial Inaccuracy as a Significant l;actor Undermining the Reliability of Identitlcation J•:vidence ...................................................... 24 C. The Necessity for Proper Jury Instruction in Cross-Racial Identification Cases .......................................... 27 D. The i\lassachusetts and New Jersey Supreme Court Decisions .\Iandating Jury Instructions on c:ross-Racial Identitlcation ............................................... 30 E. The New York State Justice Task Force's Recommendation and the New York .\lode! (:barge's Inclusion of a Cross-Racial Identitlcation Instruction ...................................................... . C. .\ppellant's Entitlement Under .\ny Standard to the Cross-Racial Identification Charge ( =ounscl Requested .............................................................. . (~( )N(] .L'Sl( )N ...................................................................................................... . .. 11 TABLE OF AUTHORITIES CASES Commonwealth ''· BaJtaldo, 32 N. E. 3d 873 (Mass. 201 .................................. pass 1m Commonwealth !J. Go!tJeJ, 22 "\:.E. 3d 897 (\lass. 2015) ............................................ 32 Cltpp ?J. J\.mzghten, 414 U.S. 141 (1973) ................................................................ 8, 19 l!an'it~gtolll'. Rithter, 562 U.S. 86 (2011) .................................................................. 46 ]ackJon !'. Fo~~g, 589 F2d 108 (2d Cir. 1978) ........................................................... 21 People 11. J1bn~y, 13 :'\J.Y.3d 251 (2009) ......................................................... 26, 49 People !f. AkYcmder, 94 :'\J.Y.2d 382 (1999) ............................................ 16, 1 48 People z;. Applewhite, 298 .\.D.2d 136 (1st Dept. 2002) .......................................... 17 People 11. BeJt, 120 \.D.3d 707 (2d Dept. 2014) ...................................................... 17 People''· C1'imminJ, 36 :-.:.Y.2d 230 (1976) .......................................................... 49, 50 People !J. Cronin, 60 N.Y.2d 430 (1983) .................................................................... 43 People 11. Drake, 7 "\:.Y.3d 28 (2006) ........................................................................ . People z1. Knzght, 87 ~.Y.2d 873 (1995) .................................................................... . People JJ. ,\Iar_rball, 26 "\:.Y.3d 495 (201 ................................................................ I() People 11. ~\·on'trand, 35 \lise. 3d 367 (\Ionroe Co. Sup. ( 2011) .................. - li. 196 \fisc. 2d 70 :-.:.Y.2d (1 ...................................................................... 19 111 People zr. Smztit{go, 1 7 i'j. Y. 3d 661 (20 11) ........................................................... passim People z;. [J7aJhiJ~gton, 56 , \.D.3d 258 (1st Dept. 2008) ............................................ 17 People LJ. IFhalen, 59 :..J.Y.2d 273 (1983) ................................................................... 42 People z;. l.FilliamJ, 14 :\lise. 3d 571 (Kings Co. Sup. Ct. 2006) ....................... 27, 50 People zr. }'omzg, 7 N.Y.3d 40 (2006) ............................................................. 26, 43, 49 Selkmvit:::, 7'. Comz(y qfJ\'aJJtlll, 45 N.Y.2d 97 (1978) ............................................... . P.3d 1027 (Ha\v. 201 33, State 11. Copeland, 226 S.\X'.3d 287 (Tenn. 2007) ..................................................... 26 State l'. Cromeqy, 727 . \.2d 457 (N.J. 1999) ....................................................... passim State l'. G!!ilbert, 49 .\.3d 705 (Conn. 2012) ........................................................ 3, 26 State l'. Hender.wn, 27 .\.3d 872 ~.J. 2011) ...................................................... passim State zr. HNnt, 69 P.3d 571 (Kan. 2003) .................................................................... 26 State 1'. LL17JJJO!l, 291 P.3d 673 (Or. 2012) ................................................................ 26 State 1'. LiJ!zg, 721 P.2d 483 (LTtah 1986) ................................................................ .. 11. Ramire:;:;, 817 P.2d 774 (Utah 1991) ............................................................. 26 [ S'tateJ 1'. Bartlett, 567 F3d 901 (7th ( 2009) ................ ........................ 46 United StateJ 11. J1mm~gan, F.3d 890 (3d Cir. 1994) ............................................ 25 [TnitedStti!eJ JJ. flarriJ, 995 F2d 532 (4th Cir. 1993) ............................................. . [ [ StateJ ''· ]emzwm, 492 F3d 1050 (9th Cir. 2007) 11. 450 F3d 1117 (lOth 11. Smitb, 621 l'.Supp.2d 1207 (\LD. \la. 2009) n· United StateJ z;. Te(faire, 469 F2d 552 (D.C. Cir. 1972) .......................................... 30 UnitedStateJ z;. lfade, 388 U.S. 218 (1967) .............................................. 2, 18, 19,21 } 'om~g z1. ConWt!)', 698 F3d 69 (2d Cir. 2012) ............................................................ 3 STATUTES C. P.J .. § 300.10 (~fcKinney 2016) .................................................................... 39, 41 (:.PJ". § 470.05(1) ...................................................................................................... 2 OTHER AUTHORITIES Ameriam Bar ./lr.rodation Poli0y 104D: Cro.r.r-Rmialldentfjlcation, 37 S\'C U.J .. RE\'. 917 (2008) ................................................................................................................ 7 Benjamin N. Cardozo School Of Law, Yeshiva University\ Re?JiJiti;~g L.inmp.c r:F~y f£7itneJ.re.r Make ;\li.rtake.r And How To Red11ce Tbe Chance qf/1 A1i.ridentfjlcation, f1nlmzocente Projed Report (2009) ............................................... 21 Brandon I"· Carrett, Co:NVICTI-"i<; T! IE lNNOCE'\iT: \'\'!!FlU: CR!~fl:\.\1. PR<)SECT'IJ()~S (;() \X'R()N(; (2011) .................................................................. . Brian L Cutler e! a!, Improz;i,~g the Reliabi!i(y I dent;jiaJtio n: Cm!le.'\'1 into Conte.'\'/, 72J. .\PPIJLD PSY<:! !C lL. 629 (1 <)87) .......................... 51, C. J. I.2d I"J. Y.] I dcntification One \X'itncss, n.1 . January 2011) ......... passim Christian ,\, \1cissncr & John C. Brigham, Thirty Yeru:r qfhweJlz~atz>Z_~ the Own- Race Bia.r in Alemoryfor Face.r: _A A1eta-/1na/ytic Rez;iew, 7 PSCYI !OL Pn~. PoL & I .. 3 (2011) .................................................. , ............................................... passitn Harvey Gee, CroJJ-Rt:uial I~yewitnesJ Identffiration, }m] lnJtmdion.r, and[11J!ice EJJt?)' Let.r Get l7ree: A Ffip-1--lop Theo!}' qf]uJtice, 11 Rutgers Race & I-· Rev. (2009) .................................................................................................................... 47 rion .. \lex Kozmski, Criminal Llw 2.0, 44 CEO. L.J . Rl . CRT\L PROC. iit (201 ..................................................................................................................... 28 ldentffyit~~ the C11lprit: AJJeJJiJzg I~yewitneJJ Identfjimtion (The 1\Jational \cademies Press, 20 14) .................................................................................................... passin1 John C. Brigham eta!, The h?fluence qfRate on I~yezvitneJJ "\!emory, tn lL\\lDB< )()J, 0!· I ESS PSYCI!OLOCY 256 (Rod C. 1 ,. Lmdsey eta!, cds.) (20 1 :\1clissa Boyce eta!, Beli~lqfl~yewitneJJ Jdentfjimtion E1Jidena. l L\NDBOOk c W EYJ:\\Tl'NESS PSYCHOLOGY: \'OJ.. 2, \{EMORY FOR PEOPLF 501 (Ron C.J .. J jndsay eta!., eds., 2007) ...................................................................................... 27 '\Janey \f. Stehley, /11\leta-/lnajytit Rez1iezv qftbe !Veapon FomJ 16 L\\\. & Hl"i\1. BFIL\\'. 413 (1992) .................................................................................... 51 (~uick l ··acts from the U.S. Census Bureau ............................................................ 3 7 RuommendatioJzJj(Jr !mprrJl!itzg . '\Je\v York J Task h)rcc (February 2011) ................................................................................ - Vl Richard .\. \X'ise & ~lartin .\. Safer, A Alethod q(A11ajy:;fn,~ the Armraq qf E~ye;vilne.r.r TeJtimor!Y in Criminal CaJes, 22 COL'RT REY. 48 (2012) .................... 20 Roy S. i\Ialpass & Jerome Kravitz, Reco,~nitionfor FaceJ q{Oum and Other Rm.·e, 13.4 J. ~g PSYCI!. 115 (2006) ............................................................................................ 4, 28 The Innocence Project, D"\'/1 EYoneree Prqfile.r .................................................... . CONSTITUTIONAL PROVISIONS !\.'{. C=onst., .\rt. I, 6 .................................................................................. . L:.s. Const., .\mend. XI\' .............................................................................. 8, 1 .. Vll COURT OF ,\PPE_\1 ,S THE ST"\TE OF NE\X/ YORK THE PEOPLE 01•' TJ-IE STXI'E OF NE\V YORK, Respondent, -agamst- Defendant- ,\ppellant. PRELIMINARY STATEMENT By permission of the Honorable Jenny Rivera, .\ssociate Judge of the Court of .\ppeals, granted on December 22, 2016, appellant Otis Boone appeals from an order of the "\ppellate Division, Second Department, dated June 25, 2015, modifying a judgment of July 25, 2012, convicting him in the Supreme Court, Kings County, after a jury trial, of two counts of robbery in the first degree (P.L. 160.15(3)), and sentencing him to consecutive determinate prison terms of 10 years and 15 years, with 5 years of post-release (Del Ciudice, J., at trial and sentencing). The ,\ppellate Division modified the sentence to consecutive prison terms of 5 and 10 years followed by post-release supennsion, hut otherwise affirmed the conviction. 1 On l <'cbruary 11, 2016, this Court granted appellant poor person relief and assigned Lynn\'\/. L. l;'ahcy as counsel. ~o stay has been sought. \ppdlant is incarcerated pursuant to the judgment. The Court has jurisdiction to entertain this appeal and to review the issue raised pursuant to C.P.J .. § 450.90(1). The issue is preserved by defense counsel's rC<-JUCSt that the trial court include an instruction on cross-racial identification in its charge to the jury (~\249-50). 1 QUESTION PRESENTED \Xlhethcr when the People's evidence for each robberv rested entirely on a single Caucasian witness's cross-racial identification of an . \frican- " \merican suspect, the court denied appellant a fair trial by refusing to give a cross-racial identification charge, as provided for 111 :\Jew York's model charge. SUMMARY OF ARGUMENT "The vagancs of cvewimcss identification arc \Veil-known" and "the annals of criminal law arc rife with instances of mistaken identification." [ StateJ Z'. !Fade, 388 U.S. 218, 228 (1967). In recent years, the legal and scientific communities have recogni?:cd the particular risk of mistaken identifications, 1 Parenthetical numbers preceded by" refer to pages of the \ppendtx. and therefore convictions of the innocent, posed by cross-racial identifications in which the identifying witness and the suspect arc of different races. In 2014, the National . \cadcmy of Sciences reported that "cross-racial (mis)identificarion" accounted for "42 percent of the cases in which an erroneous identification was made." ldent[jj;il~g tbe C!!lprit: AJ.reJJiJ~g Jdent[fication at 96 (The I\ ational . \cadcmies Press, 2014) (hereinafter "I dentzjj·it~g Culprit"). Over 40 years of robust research have now documented the significant difficulty individuals have in discerning between, and therefore accurately recognizing, the faces of people of a different race from their own. See Christian . \. i\1eissner & John C Brigham, Thirty }TearJ qflm)eJt{gatit~g t!Je Own- Race Bim in AfeJJJOt)' for Fmu: A iV1eta-Ana(ytir Ret)ieJv, 7 PSCY! JOL. PL·n. Poi 'y & L. 3, 15 (2011) (error rate for other-race face identification is approximately 1 times the error rate for own-race faces). This phenomenon has been \Vidch· acknowledged across legal jurisdictions. See, , 1 ·omzg z1. Conwc!r, 698 F3d 69, 81 (2d Cir. (recognizing ample social sctcncc research finding with "considerable consistency" that people arc "significantly more prone to identification error 2 .\ppellant has filed an addendum that includes all secondary sources that arc not available online. The addendum also includes a '''1 able of .\uthonties" that lists the URJ ~s for any source cited herein that is available online. 3 when trying to identify someone of a different race"); State z;. G11ilbert, 49 ~\.3d 705, 721 (Conn. 20 12) ("Courts across the country now accept that ... cross-racial identifications arc considerably less accurate than same race idcn tifica tions"). Nevertheless, half of all jurors -the very people tasked with judging the reliability of identification evidence - arc woefully unaware of the heightened risk of misidentification of suspects who happen to be a different race than rhe eyewitness. See Sarah 1 ~. Desmarais & J. Don Reid, /1fter 30 1 -earJ, if'bat do rr·e Know /lbout !%'bat ]mm:r Knm:v? A iV1etacAna!ytic Re11iew qf Ln:v Knowler(ge Re,gardilzg I~yewitneJJ fadon, 35 L\ \\' Hn,r. BElL\ v. 200, 203 (2011) (50 percent of jurors know and understand the unreliability of cross-racial identifications); Tanja R. Benton eta!, E~ye-fVitneJJ ;\1emory ir Still Sot Common SenJe: Cor;zparilzg]Nron, ]!f((geJ and LLzw Enforcement to I~yez:vitneJJ E.xpertJ, 20 . \ PPLI FD C:oG\iiTr\T PSYCH. 115, 120 (2006) (47 percent). The Supreme Courts of \Iassachusctts and ew Jersey have held that trial courts must instruct juries on cross-racial identification idcntit)·ing witness and defendant arc of different races. See CommomJ;ealt!J !'. 13aJtaldo, 32 N.E.3d 873, 877 (\lass. 2015) (cross-racial identification instruction must be given unless all parties agree that it is inapplicable); l'. 4 . \.3d 872, 926 (N.J. 2011) (research justifies giving cross-racial instruction whenever cross-racial identification is in issue at trial). In an effort to properly educate ~ew York JUries on this critically important issue, the Criminal Pattern Jury Instructions ("C.J.I. were revised in 2011 to include a cross-racial identification charge. C.J.I.2d 1~.Y.j Identification - One \'{fitness, n.1 (rev. January 2011 ). The charge states: You mav consider whether there is a difference in race between the defendant and the witness who identified the defendant, and if so, whether that difference affected the accuracv of the witness's identification. Ordinary human experience indicates that some people have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race. \'\/ith respect to this issue, you may consider the nature and extent of the witness's contacts with members of the defendant's race and whether such contacts, or lack thereof, affected the accuracy of the witness's identification. You mav also consider the various factors I have detailed which relate to the circumstances surrounding the identification (and you mav consider whether there is other evidence which supports the accuracy of the identification). Jd. Citing recommendations from the .\merican Bar .\ssociation and the ~ew York State Justice Task Force as well the New Jersey Supreme Court's decision in State 7'. Ffendeno11, 27 .\.3d at 872, the drafters of the model charge recommended that T\ew York trial courts give the instruction '\vhenen:r cross- racial identification is at issue" and "regardless of whether an expert testifies on the top1c of cross-racial identification." C.J.I.2d !N.Y.! Identification - One \'X:'itness, n. 7. 1 n light of the now-undeniable science, its nationwide legal recognition, and New York's own model charge, New York should adopt the same rule as l\.'ew Jersey and ~Iassachusetts: trial courts must include a cross-racial identification charge unless the parties agree that no cross-racial identification has occurred .. \lternanvcly, trial courts must include the charge in that situation when requested by defense counsel. .\t a minimum, the charge must be given if the People's case relics on a cross-racial identification and there is little or no corroboration of it. Under any of these standards, appellant Otis Boone was entitled to the cross-racial identification charge his attorney requested. He was accused of committing two minute-long street muggings 10 days apart in Brooklyn. The People never disputed that their case for each robbery depended on the jury crediting the identification by a Caucasian complainant of appellant, an .\frican-.\merican man, as the person who had robbed him. The People offered no corroborating evidence linking appellant to either robbery. Since the prosecution's case as to each crime rested soldv on the jury crediting a cross-racial identification, appellant was entitled to the 6 requested, contained within the model charge, alerting the jury to the difficulty some face in accurately recognizing individuals of a different race. 1'--:cither of the trial court's reasons- that the defense had not introduced expert testimony or cross-examined the witnesses about the cross-racial nature of their identifications - justified its refusal to gin: the charge. Expert testimony is not required because the unreliability of cross-racial identifications is accepted throughout the legal and scientific communities, as rd1ccted not only in court decisions across the country, but also by its inclusion in ~cw York's model charge. ~Ioreover, such a requirement would unfairly burden defendants, indigent ones in particular, because there arc a limited number of qualit1ed identification experts available nationally. See Amerium Bar /Luodation Po!i~J' 104D: CroJJ-Radal Ident~jiration, 37 S\'C U.L. Rr,:v. 917, 920 (2008) .. \s a result, and as the drafters of the model charge made clear, expert testlmonv should not be required for entitlement to a standard Jury instruction. It is also unnecessarv for counsel to cross-examine a witness about the cross-racial nature of his identification. The People never disputed existence of a cross-racial identification. ~Ioreover, cross-examination is not an effective means of further developing the record because "cn:witncsses sincerely believe their testimony and arc often unaware of the that rna\· contaminated their memories," including their own 7 those of different races. Conwr!y, 698 F3d at 88-89 (citing United StateJ ll. Bartlett, 567 F. 3d 901, 906 (7th C1r. 2009) (the "problem with eyewitness testimony is that \Vitncsscs who think they arc identifying the wrongdoer who are credible because they believe every word they utter on the stand - may be mistaken") . . \nd, because studies have demonstrated that cross-racial contact has a negligible impact on the reliability of a cross-racial identification, there is no justification for requiring the defense to ask about a witness's contact with members of the defendant's race. See Meissner & Brigham, Thii!Y Yearr ~l ImJeJtzgatilzg the Oum-Raa Bim in Aiemory for 1-'rlteJ, at 17 (cross-racial contact accounted for just 2 percent of the variability across participants). Because the record supported defense counsel's request for the cross- racial identification charge, the court's refusal to t-,rive it deprived appellant of his due process right to a fair trial. C.S. Const., .\mend. Xl\'; N.Y. Const., .\rt. I,§ 6; C>tpp ll. ]\'m(ghten, 414 U.S. 141,146 (1973). STATEMENT OF FACTS Jntn>ducrion .\ppellant ()tis Boone was indicted for two counts of first-degree robbery and related crimes following his arrest in ,\!arch 2011 in connection 8 with two minute-long street muggings that occurred 10 days apart in February 2011 in Brookh'n, "\ t trial, the People's only evidence against appellant as to either crime was the testimony of a Caucasian complainant identifying him as the ,\frican- _\merican man who robbed him m each separate incident. The court demed defense counsel's request for a cross-racial identification instruction, despite its inclusion in the standard C.J.I. charge, which provides: You may consider whether there is a difference in race between the defendant and the witness who identified the defendant, and if so, whether that difference affected the accuracy of the witness's identification. ( )rdinary human experience indicates that some people have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race. \X'ith respect to this issue, you may consider the nature and extent of the witness's contacts with members of the defendant's race and whether such contacts, or lack thereof, affected the accuracy of the witness's identification. You may also consider the various factors I have detailed which relate to the circumstances surrounding the identification (and you m Drawing from federal and state instructions, the .\R \ proposed the following model jury instruction on cross-racial identification: In this case, the identifying witness is of a different race than the defendant. You may consider, if you think it is appropriate to do so, whether the fact that the defendant is of a different race than the witness has affected the accuracy of the \Vitncss's original perception or the accuracy of a later identification. You should consider that in ordinary human experience, some people may have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race. You mav also consider whether there arc other factors present in this case which overcome any such difficulty of identification. [For example, you may conclude that the witness had sufficient contacts with members of the defendant's race that [heJ [shej would not have greater difficulty in making a reliable identification.] Bar 104D: CroJJ-Rtuial Identffication, . L'.J ,. at 921 (citing United StateJ Z'. Te(faire, 469 F2d 552 (D.C. Cir. 1972), and ''· Cro;:mtfy, 727 \.2d 457 (N.J. 1999)) (bracketing in the orih>1nal). 30 refused to condition a defendant's entitlement to the instruction on the introduction of expert testimony or to impose any additional evidentiary requirement beyond the presence of a cross-racial identification in a given case. In 1999, the :\Jew Jersey Supreme Court had held, in State''· Cromerjy, "\.2d 457 0'J.J. 1999), abro,gated qy HenderJoll, \.3d at 926, that t-,riving a cross- racial instruction was discretionary and required only when "identification is a critical issue in the case" and no corroborating evidence is introduced. By 2011, however, "additional research on own-race bias" led that Court to hold in State 11. [ lenderJon, 27 "\.3d at 926, that judges must give "the charge whenever cross- racial identification is in issue at trial." :\Jotably, the thrust of the Hendenon decision was to mandate enhanced jury instruction on identification in general, but the ( :ourt took the additional step of making a "substantive point" about "cross-racial identification" by holding that a trial court must instruct a jury about it whenever it is at issue in a case. llmder.ron, 27 .\.3d at 926. That directive was indicative of the particular importance that factor held for the Court. Jd The New Jersey Supreme Court also noted that: 31 Jd (citations omitted). Just last year, the ~Iassachusetts Supreme Court held in a pau of cases, Commomvea!t!J z;. GomeJ, 22 N.F.3d 897 (~lass. 2015), and C'ommonwea!tb l'. Basta/do, 32 N.E.3d 873, 877 (:Vfass. 2015) (emphasis added), that "a cross-racial instruction should always be included when giving the model eyewitness identification instruction, unless the parties agree that there was no cross-racial identification," and it authorized "judges in their discretion" to give "cross- ethnic eyewitness identification instructions in appropriate circumstances." In Gomes, 22 N.E.3d at 897 (Appendix), the Court revised the standard model jury instruction to educate juries about scientific principles of eyewitness identification, including cross-racial identification. In Basta/do, 32 N .E.3d at 883, it clarified the evidentiary threshold for givmg the charge, explaining: lhJecause differences in race based on facial appearance lie in the eye of the beholder, we shall not ask judges to determine whether a reasonable juror would perceive the identification to be cross-racial. Rather, we shall direct that a cross-racial instruction be given unless all parties agree that there was no cross-racial identification (emphasis added). The Basta/do Court also concluded that this straightforward rule obviates any need for the judge to decide whether the ~-- 1 c~--d-~fi,-a+-~ ............. \'.'l'"" '"'C .. "a11·- .. ---~('S's" +-r;r~,~J. '"""" ''trh('•l"'£\ ...... ). 11 .,.(""+"'•"" 1U ill! J.Ll Ll\Jll Vt i:" lt lUi 1 ,.\ Ll )..._ "-Ld.L.Ul., \_11 W 1 ,l 1Ll LU. Jl ,"'\ 32 might perceive 1t to be. If the jury receive such an instruction but do not think the identification was cross- racial, they may simply treat the instruction as irrelevant to their deliberations. Consequently, ... the [cross- racial instruction! should be included when giving the model eyewitness identification instruction, unless all . . parties agree to Its om1ss1on. I d; w .ree a!w Caba'"r,b~g, 277 P.3d at 1039 (Hawaii Supreme Court mandating that a cross-racial identification instruction be given when requested if identification is at issue); State l'. L..oncg, 721 P.2d 483, 492 (Ctah 1986) (abandoning the discretionary approach and requiring that trial courts give a cross-racial identification instruction whenever eyewitness identification is a central issue at trial). "\Jotably, the Court in Bmtaldo, 32 N.E.3d at 884-85, distinguished between cross-racial identification, as to which there is ncar universal scientific agreement, and cross-ethnic identification. It left whether to give a cross-ethic identification instruction to the discretion of the trial court because "there is not yet a ncar consensus in the relevant scientific community that people arc 111 The Massachusetts cross-racial identification instruction states: If the witness and the person identified appear to be of different races, you should consider that people may have greater difficulty in identifying someone of a different race than someone of their own race. Commonwealth 11. BaJtaldo, 32 N.I ~.3d 873, 883 (.\lass. 201 33 generally less accurate at recogmzmg the face of someone of a different cthnicity than the face of someone of their own cthnicity." Jd These state court decisions arc especially instructive as they arc grounded firmly in reasoning that, to fulfill its duty to instruct juries on material principles, a trial court must charge on potential cross-racial identification maccuracv given the widely accepted conclusion that it poses a significant danger of wrongful conviction if jurors arc not made aware of that unreliability . .\Iorcovcr, these decisions reflect the position of legal commentators who have called for "clear and concise jury instructions" as a means of "conveying information regarding the factors that the jury should consider." Irlent~fj;i1~g the Cltlp!it, at 7, 42, 112. Because the existence of a cross-racial identification is sufficient to place the matter at issue, in neither 1-lenrlerJon nor Ba.rta!do do those ( ~ourts impose additional evidentiary burdens upon the defendant. E. The New York State Justice Task Force's Recommendation and The New York Model Charge's Inclusion of a Cross-Racial Identification Instruction. In 2011, the New York State Justice Task Force ("New York Task Force") and the drafters of the Criminal Patterned Jury Instructions ("C.J.I.") took specific action on cross-racial jury instructions. 34 In its report, "Recommendations for Improving Eyewitness Identifications," the New York Task h)rcc endorsed the usc of an instruction to alert jurors to the dangers of cross-racial identification. RemmmendationJfor Improz;ing F~yewitmJJ Ident~fii"ationJ, New York State Justice Task h)rce (February 2011), at 5, available at http:/ /www.nyjusticctaskforcc.com/2011_02_01_ Report_ID_Rcform.pdf Oast visited l;ebruary 4, 2016) ("?\iew York Task h)rcc Recommendations"). The charge it proposed, which largely tracked the language the "\R\ had suggested in 2008, stated: If you think it is appropriate to do so, you may consider whether the fact that the defendant is of a different race than the witness has affected the accuracy of the witness's original perception or the accuracv of a later identification. You should consider that some people may have greater difficulty in accurately identifying members of a different race than in identifying members of their own race. Id. at 5. It did not include any mention of cross-racial contact, which the .\R\ suggested as optional additional language. Allmican Bar AJJociatton Policy 104D: Cro.r.r-Ratia! Identfficatioll, 37 S\\·. C.L. RE\'. at 921. Like the .\1-L\, the ::-\ew York Task Uorce recommended that "[tjhis instruction should be given in cases in which cross-racial identification is an issue, regardless of whether an expert " I d. 35 Likewise, in 2011, the drafters of the C.J.I. revised New York's standard one-witness identification charge to address the difficulty people face in correctly identifying individuals of a different race. C.J. I.2d [N. Y.]ldentification - One \'{'itness, n.1 (rev. January 2011 ). The model charge states: You may consider whether there is a difference in race between the defendant and the witness who identified the defendant, and if so, whether that difference affected the accuracv of the witness's identification. ( )rdinary human expenence indicates that some people have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race. With respect to this issue, you may consider the nature and extent of the witness's contacts with members of the defendant's race and whether such contacts, or lack thereof, affected the accuracy of the witness's identification. You may also consider the various factors I have detailed which relate to the circumstances surrounding the identification (and you mav consider whether there is other evidence which supports the accuracy of the identification). C.J.I.2d [1\;.Y.] Identification One \X/'itness. The model instruction departs from the Task h>rce's proposed language by more clearly vesting the decision of whether a cross-racial identification has occurred with the jury. In an explanatory footnote, the C:.J.I. drafters cited the .\R\'s and the New York Task h>rce's recommendations, as well as the ::-Je\v Jersey Supreme Court's holdmgs in Cromeqy, 727 _\.2d at 459, and Hendenon, 27 .\.3d at 926. They stated that courts "should" give the instruction to alert juries to pay close 36 attention to the int1ucncc of race. I d. n. 7. \lorcovcr, the C.J.I. drafters noted that, under Henderson, such a charge 1s "required" "whenever cross-racial identification is in issue," and that the .\B.\ and ::--.Jew York Task hHcc had both recommended "that an instruction be given regardless of whether an expert testifies on the topic of cross-racial identification." I d. The C.J.I. model charge's inclusion of a cross-racial 1nstrucnon acknowledges the immense diversity of New York State .. \ccording to the United States Census report, the population of New York State is 65.7 percent Caucasian, 15.9 percent .\frican-.\mcrican, 17.6 percent Hispanic or Latino, and 7.3 percent .\sian. See Quick l;'acts from the U.S. Census Bureau (New York), available at http:/ /quickfacts.ccnsus.gov/qfd/statcs/36/3651000.html (last visited licb. 10, 2016). New York City is even more diverse: 44 percent of its residents arc Caucasian, 25.5 percent arc .\frican-.\mcrican, 28.6 percent arc Hispanic or Latino, and 12.7 percent arc of .\sian descent. Id In Kings County, where appellant's case arose, 49.3 percent of the population arc Caucasian, 35.2 percent arc .\frican- \merican, 19.5 percent are Hispanic or l.atino, and 12.1 percent arc .\sian. Id Our State's diversity is rightly a source of great pride. lt also means that occur the 37 should take particular care to ensure sufficient rcliabilitr and confidence 1n convictions that turn on such evidence. F. The Appropriate Standard for Giving a Cross-Racial Identification Charge in New York. :\Sew York's model charge reflects the national consensus that cross- racial identifications present a serious danger of mistake that juries must consider when weighing eyewitness identification evidence. Roughly half of jurors arc wholly unaware of that danger. .\s courts and legal commentators have emphasized, a clear and concise jury instruction that alerts jurors to the potential problem 1s an easy, straightforward solution. 1\cutral and dispassionate instructions can also dispel jurors' concerns about raising such a politically and socially sensitive subject as race during deliberations. C ;iving such an instruction also alleviates the need to rely exclusively on expert testimony, which is costly and of limited availability especially to the indigent, due to the small number of qualified identification experts available to testify. For these reasons, New York should adopt the rule the ~Iassachusetts Supreme Court set forth in BaJta!do, 32 N.E.3d at 877, 883, that trial courts must include a cross-racial instruction unless both sides agree that no cross- racial identification occurred. The of bright-line rule arc numerous. I •'irst, it is arc 38 properly educated about a material principle they must understand in order ro decide whether such evidence is reliable. See CP.L. § 300.1 0(2) (\IcKinney 2016) (trial court must charge the Jury on "the material legal principles applicable to the particular case"). Second, tn light of the signitlcant role unreliable cross-racial identitlcations have played in many wrongful convlCtlons, g1v111g this instruction as a matter of course, unless the parties agree that it 1s not an issue, would strengthen contldence in convictions stemming from eyewitness identitlcation evidence. Reducing the risk of wrongful convictions at trial through comprehensive jury instructions is sound public policy. It is far better to empower jurors to make informed decisions in the first place than to discover years later, through costly and time consuming post-conviction litigation, that an innocent person has been imprisoned for a crime he did not commit and that the true perpetrator remains at Iibert\'. See /1merican Bar /hrodation Poli~)! 104D: CroJJ-1\aaal !dent!flcation, 37 S\\. U.L. Rn·. at 91 19 ("There is a need to take prophylactic action on the front-end rather than take action manv years down the road when mistakenly identitled persons have served time in prison"). Third, rule ltto , as finder, to whether this facrur is relevant to their deliberations. This is no different, for 39 example, than telling jurors to consider, if they find it relevant, whether lighting, distance, or the degree to which a witness's view was obstructed meant that an eyewitness's identification is unreliable. See C.J.l.2d !N.Y.] Identification - One \X/itness Oisting these factors as ones the jury may consider); Jee a!ro liendenon, 27 ;\.3d at 926 (judges arc now required to give "the charge whenever cross-racial identification is at issue at trial"). \s a result, judges will not have to "decide whether the identification was actually cross-racial, or whether jurors might perceive 1t to be." Bmta!do, 32 N.E.3d at 883. This comports with the language of the cross-racial identification instruction itself, which tells the jury that it "ill..!!..):: consider whether there is a difference in race between the defendant and the witness who identified the defendant, and if so, whether that difference affected the accuracy of the witness's identification." See C.J.I.2d !N.Y.] Identiflcation One \X/itncss. In other words, the charge itself vests in the jury the power to decide whether this factor is present in a case, and obviates any need for the court to act as a gatekeeper. In the alternative, this Court could hold that trial courts must gtve the charge upon the defense's request. See Cabr~f!,bc~g, 277 P.3d at 1039 (IIawaii Supreme Court mandating that a cross-racial identiflcation instruction be requested if identification is at · 40 a clear, non-burdensome rule that would be easy to apply, but would place the onus on the defense to make the request. It would guarantee that, so long as the request is made, juries arc properly educated about how to judge the accuracy of a cross-raoal identification, as provided for by the language in the model charge . . \t a minimum, the Court should hold that a trial court must t--,rive the charge upon request in any case in which a cross-racial identification has occurred and there is little or no corroboration of that identification. See Crome4y, 727 ~\.2d at 457 (in New Jersey, charge must be given when case rests on a cross-racial identification), abrogated l~y Hender..ron, 27 ~\.3d at 926. Under none of these appropriate standards would a court's decision whether to give a cross-racial identification charge be discretionary. ::\ew York Crirninal Procedural Law § 300.1 0(2) (McKinney 2016) requires a trial court to charge a jury on "the fundamental legal principles applicable to criminal cases in general" as well as the "material legal principles applicable to the particular case, and, so far as practicable, explain the application of the law to the facts." "\s explatned in subsections .\ and B, ante, the science showing the heightened unreliability of cross-raoal identifications is now clear, and courts natiom.vide accepted of that rnust a aspect of assessing rhc reliability of such evidence. Yet, many jurors mistakenly 41 believe that such evidence is inherently reliable, making it essential to disabuse them of that misconception. The very real danger of that misconception leading to unjust results requires the court to give a cross-racial identification instruction when appropriate; it is insufficient to make givmg advice of this material legal principle discretionary. This Court's decades-old holdings in People l'. U?'balen, 59 N.Y.2d 273, 279 (1983), and People!!. Knzgbt, 87 :'\J.Y.2d 873, 874 (1995), that it is within the trial court's discretion whether to give an expanded identification instruction or to explicitly inform the jury that identification must be proven beyond a reasonable doubt, should not control this issue. rFhalen and Knzgbt pre-dated much of the science demonstrating what may render identification evidence unreliable and its general acceptance in the law. \~'hat might have constituted a "material principle" in 1983 or 1995, clearly docs not now. That is precisely why the :1\jew Jersey Supreme Court in Henderson, 27 "\.3d at 926, departed from its decision 12 years earlier in Cromeqy, 727 .\.2d at 457, to hold that giving a cross-racial instruction is no longer discretionary. ~or is it dispositive that allowing expert identification testimony mav rest in the trial court's discretion. See, , People z;. L.eGrand, 8 l\'.Y.3d 449, ;S 17 .Y.3d at 672; l'. 1om(~, 7 N.Y.3d 40, 46 (r,(\(\f\ \..C.VVUJ. 42 13 .Y 3d 1' Instructing the jury on material principles, such as the potential unreliability of cross-racial identification, docs not require the same factual inquiry needed before admitting expert testimony. The "admission and bounds of expert testimony" arc a matter for the trial court's discretion because they necessitate several findings of fact, including whether the proposed expert is qualified, whether his or her opinion is accepted in the scientific community, and whether the subject matter is beyond the ken of an ordinary juror. People tJ. Cronin, 60 N.Y.2d 430, 433 (1983); aamr:l Selkowitz z;. Cozm(y ~(1\;aJJau, 45 N.Y.2d 97, 101-02 (1978). The decision to f-,r:ivc a standard jury instruction requires consideration of none of these "mixed qucstionlsl of law and fact." Selkowit~? 45 N.Y. at 101. i\Iorcover, when deciding whether to admit expert testimony, trial courts must contend with other concerns like "cost," delay, and avoiding the possible "confusion to jurors created by dueling experts." lienderJon, 27 . \.3d at 925. Such concerns arc not implicated in the f-,r:iving of brief, cost-free, neutral, and clear jury instructions about a material principle that is virtually universally accepted. Such instructions, as the New York Task Force and the C.J.I. both recognize, can only serve to provide greater confidence in trial court outcomes when cross-racial identification testimonv is involved. 43 G. Appellant's Entitlement Under Any Standard to the Cross- Racial Identification Charge Counsel Requested. Under any of the above-mentioned standards, appellant was entitled to the charge defense counsel requested. Cross-racial identification was at issue simply based on the complainants' and appellant's different races. The People never disputed counsel's statement on the record at the charge conference that Ben Zeitlin and I·:. I·:. were Caucasian men who each identified appellant, an .\frican-,\merican man, as his assailant (\249-50). See Santiago, 17 N.Y.3d at 672 (cross-racial identification was at issue when that the People never disputed the "victim is a non-Hispanic Caucasian" who identified an Hispanic suspect) .. \nd, as to each robbery, appellant's guilt or innocence depended solely on the jury's assessment of the one witness's cross-racial identification. Indeed, the People introduced no other evidence of appellant's guilt, and the court gave the expanded one-witness C.JI. charge, although it omitted the one portion of that charge the defense explicitly requested. Neither of the court's reasons for refusing to gtve the cross-racial portion of the identification charge was justified. Contrary to the trial court's ruling, the defense \vas not rec1uired to introduce testimony, presumably from an expert, about the "lack of reliability of cross racial identification" to obtatn 44 the charge (.\249-50). The fact that the C.]. I. was revised in 2011, a full year before appellant's trial, to include this instruction reflected :New York's recognition that the heightened unreliability of cross-racial identification ts \vidcly accepted in the scientific and legal communities. See a!Jo Subsections "\ & B, ante. ;\loreover, the C.J .I. and the ~ ew York Task l iorce both explicitly endorsed the position that the instruction should "be given regardless of whether an expert testifies on the toptc." See C.J.I.2d [N.Y.[ Identification - One Witness, n.7. This ts conststent with the position among legal commentators that a cross-racial identification instruction need not depend on expert testimony. See American Bar AJJodation Po!iq 104D: CroJJ-Rada! ldentffimtion, 37 S\V U.L. RE\'. at 920 (opposing exclusive reliance on expert testimony); Iden!ffyinJ!, !1:1e CN!prit, at 42 (noting that expert testimony 1s not always available and jury instructions can be a "preferable alternative means to inform the jury"). In fact, conditioning the instruction on expert testtmony, when the phenomenon has been so widely accepted, would unfairly burden defendants, particularly indigent ones, because the number of qualified experts available to 1S Bar 104D: 37 . C.J '· RJ . at 920. \Vhilc it certainly may be strategically advantageous 45 for the defense to call an expert in a particular case, Jee lfmTilz~ton l'. RidJter, 562 U.S. 86, 111 (2011) (calling an expert is a stratq.,Jic decision for counsel to decide), the failure or practical inability to do so should not bar a defendant from receiving a standard jury instmction. .\ccordingly, the lower court incorrectly found that the defense needed to present expert testimony in order to place cross-racial identification "at issue." Nor, as the trial court further suggested (.\250), was counsel reqmred to cross-examine the People's witnesses about their cross-racial identification to place the matter at issue. While cross-examination can test credibility and veracity, it cannot test reliability when people are unaware of their own bias. Cross-examination is not an effective means of developing a record about own- race bias "]b]ecausc eyewitnesses sincerely believe their testimony and are often unaware of the factors that may have contaminated their memories" and, therefore, remain "certain" regardless of whether they arc right or wrong. 1'omz~, 698 F. 3d at 88-89 (citing United StateJ l'. Bartlett, 567 F3d 901, 906 (7th Cir. 2009) (the "problem with eyewitness testimony is that witnesses who think they arc identifying the wrongdoer who arc credible because thev believe every word they utter on the stand may be mistaken"). P.foreover, because cross-racial inaccuracy is not caused by racial n.- t)f"Ciuall. rt• a '-.. / L J .l J \..- "-~., ( 46 '~".](""l ;l'r('"''' 1l .. L1~""!1 ~lt\...1 } l IL~""i' into mistaking that witness's lack of bias for reliability. See }~omz,g, 698 F3d at 88 witness's mistaken confidence in an unreliable identification can mislead the jury); Harvey Gee, CroJJ-&zda! ByeJvitneJJ Identffimtion, ]11~y fnJtmdionJ, and ]11Jtia Rez;ieJv BHqy L.et'J Get Free: A f-lip-Hop Theory qf Jmiice, I 1 Rutgers Race & 1 ,. Rev. 70, 101 (2009) ("Since there is no known and commonly understood correlation for the own-race effect, ordinary cross-examination will never elicit facts from which the jury can infer the impamnent"); ~lcissner & Bngham, Thirty YearJ qfl!weJt~gatiJzg the Own-Race Bim in A1emoryfor f'ateJ, at 7 ("more recent studies have consistently failed to find a relationship between racial attitudes and memory for other race faces"). Likewise, because studies have demonstrated that cross-racial contact has a negligible tmpact on the reliability of a cross-racial identification, testlmonv about the degree of a witness's contact with members of the defendant's race should not be a prerequisite for gtving the charge. See \leissner & Brigham, Thirty )'earJ qfJm;eJt~atilzg the Own-Race BiaJ in A1emo~yfor FaceJ, at 17 (cross-racial contact accounted for only 2 percent of the variabilitv across participants). Requiring the defense to cross-examine witnesses about rhe nature and frequency of this contact \.Vith people of another race would risk no appreciable purpose. 47 This Court's decision in People z;. Alexander, 94 T\.Y.2d 382 (1999), on which the ,\ppdlate Division relied, is irrelevant to appellant's entitlement to the charge in this case. In _Aiex{mder, this Court faulted the prosecutor for arguing in summation that the case involved a "good strong identification" because it was "intraracial" and, therefore, "more reliable." !d. at 385. The Court held that, by raising this subject "for the first time during closing argument, the prosecutor had the final, inapt word on the subject," an error compounded by the court's failure to hl1vc an instruction or othenvise cure the error. Id. at 385 (emphasis added). That defense counsel had no opportunity to address the subject in summation was plainly this Court's pnmary concern m Alexander. 11 .\nd, after noting the split of authorin· nationwide at that time regarding the admissibilitv of expert testtmony to challenge cross-racial identifications, this Court further observed that "only the propriety of the prosecutor's summation" was before it. Id. That is not the issue in this case, however. 11 The prosecutor's comment was "inapt" because no scientific studies JUstified the that an identification was "good" and "strong" it cross-racial. People z;. /11exander, 94 :\J.Y.2d 382, 385 (1999) ("The psychol< studtes, and the cases that have relied on them, do nor JUStify the prosecutor's summation in this case"). 48 Here, defense counsel requested a cross-racial identification charge before summations. Had the court granted that request, as it should have, both parties, on notice as to the charge the jury would hear, would have had the opportunity to comment in summation about the relevance of the cross-racial aspect of the identifications at issue, and then the court itself would have adv1sed the jury on the subject. In the more than 16 vcars since Alexander was decided, moreover, not only has the scientitlc communitv reached ncar consensus that cross-racial identifications present an enormous risk of inaccuracy but, with the recommendation of the ,\R\ and other legal entities, New York and other states have adopted legal instructions to address this identitlcation factor, which is placed "in issue" by virtue of there being an identitlcation that is, or might be found by the jury to be, cross-racial. I '~vcn if this Court determines that whether to give the charge 1s a discretionary decision, the trial court 1n appellant's case abused its discretion as a matter of law. In LeGrand, 8 :-.J.Y.3d at the Court held that it is an abuse of discretion as a matter of law to exclude the testimony of a quahfied identitlcation expert when a case "turns on the accurac\· of eYewitness identifications" and "there is little or no corroborating eYidencc connecting the defendant to the crime." 17 ~.Y.3d at 699; 13 ~ .3d at 268; l 7011f(_f!,, 7 ~.Y.3d at 46. 49 guilt for either offense beyond a single cross-racial identification .. \s a result, it was an abuse of discretion as a matter of law not to give the requested instruction, when the case indisputably "turn[edj on the accuracy of eyewitness identification" and the People offered no corroborating evidence of appellant's guilt. A!m~y, 13 N .Y.3d at 268 (reversing judge's exercise of discretion when the case depended on the eyewitness testimony at issue); L.eGmnd, 8 N.Y.3d at 452 (reversing for abuse of discretion as a matter of law because "there is little or no corroborating evidence connecting the defendant to the crime"). The court's erroneous denial of appellant's request was not harmless. See People JJ. CritJzmim, 36 N.Y.2d 230,241-42 (1976) .. \ "[t]rial error is onlv harmless when there is overwhelming proof of the defendant's guilt and no significant probability that the jury would have acquitted the defendant were it not for the error." Santzc~go, 17 N.Y.3d at 673-74 (citing Cn>mtzinJ, 36 N.Y2d at 241-42). The eyewitness evidence, which by its very nature was of suspect unreliability, Jee subsection .\, ante, was obviously far from overwhelming. These frantic and frightening, minute-long, knife-point robberies were, moreover, precisely the type of street encounters that t-,rive rise to unreliable identifications, making a proper and In 50 instance, the complainant lacked a meaningful opportunity to observe and properly remember his assailant's face. Ben Zeitlin was listening to music when the robber approached and tapped his wrist, causing him to look at his phone, not the man's face. The theft of his phone was sudden and the robber promptly took off running, giving Zeitlin little time to observe his face. \!though the man turned around briefly during Zeitlin's pursuit and flashed a knife, Zeitlin's focus likclv shifted to the weapon at that point. See Hender.ron, 27 .\.3d at 904-05 ("when a visible weapon is used during a crime it can distract a witness and draw his or her attennon away from the culprit," undermining the "rclia bility of an identification and the accuracy of a witness's description of the perpetrator"); lf7il!iartJJ, 14 .\lise. 3d at 578 (recognizing scientific consensus that, "when a witness is exposed to a weapon during the course of a crime, she has a tendency to focus her attention on that weapon and not the perpetrator's face"). Nancy I\L Stebley, A A1eta-Ana!ytit Rel;iew qf the L17 eapon J-'oatJ Efler:t, 16 1 •. \ \\. & Hl.i\L BElL\ Y. 413, 41 17 (1992) (reviewing the findings of 19 weapon- focus studies involving over 2,000 identifications and Ending an average decrease in accuracy of about 10 percent when a weapon is involved). I\loreover, Zeitlin's assailant wore a baseball cap until he fled and have found a substantial decrease 1n the abilitY to differentiate among faces 51 when a person's head and hairline arc obscured. See Brian I .. Cutler et a!, ImprO?Jit~g the Reliability of F~yewitneJs Identffication: Putti;zg Context into Context, 72 J . . \PPJ JFD PSYCI IOL. 629 (1987) (identification accuracy decreased from 45 percent to only percent when perpetrator wore a hat covering his hair and hairline). E.E.'s opportunity to observe was even more problematic because the robbery occurred at night, with the only available lighting across the street. .\pproachcd from behind, E.E. faced away from the robber throughout the encounter, which lasted less than a minute; he glanced backward twice and only brid1y looked at the man's face. The robber wore a "Russian-style" hat with flaps covering his cars and a brim falling to his mid-forehead, obscuring his hairline, and making a reliable identification more difficult. See lfendersoJz, 27 .\.3d at 904-05; Stcblcy, A lv1eta·Ana!ytic Rez!iew qft!Je lf7eapon Foots I~ffed, 16 J •. \ \'r & fln,r. BFIL\V. at 415-17; Cutler eta!, Improz;i,~g t!Je Reliability qf f~yewitness ldent~fication: P11tti1~g Context into Context, 72 J. .\PPLIED PSYU !OJ.. at 629. That both men were under stress also undermined their abilitv to accurately observe their assailant's faces. Scientific research has shown that, "[cjven under the best viewing conditions," eyewitnesses under high levels of stress arc less likely to make an accurate identification and to details of the crime. I le!ider.ron, 27 . \.3d at 904 ("robust evidence that 52 memory for persons encountered during events that arc personally relevant, highly stressful, and realistic in nature may be subject to substantial error"); Jee aLro People ?J. j\'onlrand, 35 l\1isc. 3d 367, 370 (\lonroc Co. Sup. Ct. 2011) ("27 studies have focused on stress and identification, showing that heightened stress makes identification worse"). E.E.'s extreme stress was apparent from his admission that the description he gave the police was limited because, even after the event, he was "panicking" (59-60, 70). Neither complainant gave the police a detailed description that contained anv truly distinctive feature that could eliminate concern about a possible misidentification. See Cromedy, :\.2d at 116 (description of , \frican- American man in late 20's to early 30's, full-faced, about 5'5," medium build, mustache, and unkempt hair insufficient to justify refusal to give an instruction); Jee a!Jo Santiago, 17 N.Y.3d at 664 (description of "a Hispanic male, late 20s or early 30s," 5'8" to 5'9", with a mustache and a goatee insufficient to justify preclusion of identification expert testimony). l •'inally, both I '~.1 ·~. and Zeitlin identified appellant when he was presented, roughly a month after the incidents, among a group of suspects, \vhich studies have shown increases the likelihood of a mistaken cross-racial identification. at 97 is further impaired when faces are presented in a group 53 opposed to one at a tmle . . ) ") ,\lso, E.E. admitted at the lineup he was not entirely sure that appellant was h1s assailant, and only became certain after Detective Sheehan told him that she "wantfedl" him "to be sure" and he heard each lineup participant speak (E.I · "\131-32). On this record, had the jurors received proper instruction on how to consider the complainants' cross-racial identifications, they might well have concluded that the People had failed to prove appellant's identity as the robber in each case bevond a reasonable doubt. - Counsel's specific request for a cross-racial identification charge preserved the issue for appellate review, as did the court's express ruling setting forth its basis for denying that request ("\249-50). See C.P.1 .. § 470.05(2). 1n sum, the court's refusal to charge the jury regarding cross-racial identification deprived appellant of his due process right to a fair trial. U.S. Const., .\mend. :XIV; N.Y. Const., .\rt. I,§ 6 .. \ccordingly, appellant is entitled to reversal and a new triaL 54 CONCLUSION FOR TIIE RE"\SONS ST\TED \BO\'E, "\PPELL\NT'S CONVICTION :\JUST BE REVERSED :\ND .\ NE\V TRL\L ORDERED. Respectfully submitted, LYNN \V L. F\HEY .\ttorney for Dcfendant-.\ppellam 111 John Street, 9th Floor New York, Ne\v York 10038 (212) 693-0085 By: Leila Hull cy Com?Je I l\farch 14,2016 New York, New York