The People, Respondent,v.Kaity Marshall, Appellant.BriefN.Y.November 17, 2015COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- KAITY MARSHALL, Defendant-Appellant. APL-2014-00196 Kings County Docket Number 2008KN075233 RESPONDENT'S BRIEF IN REPLY TO AMICUS CURIAE BRIEF OF THE INNOCENCE PROJECT, INC. LEONARD JOBLOVE CAMILLE O'HARA GILLESPIE DIANE R. EISNER Assistant District Attorneys of Counsel December 2, 2015 Telephone: 718-250-2489 Facsimile: 718-250-2549 KENNETH P. THOMPSON DISTRICT ATTORNEY KINGS COUNTY RENAISSANCE PLAZA 350 JAY STREET BROOKLYN, NEW YORK 11201-2908 (718) 250-2000 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES .......................................... ii PRELIMINARY STATEMENT .......................................... 1 POINT I - THE ARGUMENTS OF THE AMICUS CURIAE CONCERNING THE PROSECUTOR'S DISPLAY OF A PHOTOGRAPH OF DEFENDANT TO THE COMPLAINANT DURING TRIAL PREPARATION ARE UNPRESERVED AND CONSEQUENTLY MAY NOT BE CONSIDERED ON THIS APPEAL. MOREOVER, THE DISPLAY OF A PHOTOGRAPH OF DEFENDANT DID NOT PRESENT A SIGNIFICANT RISK OF TAINTING THE COMPLAINANT'S IN-COURT IDENTIFICATION OF DEFENDANT, AND THEREFORE DID NOT REQUIRE A SUPPRESSION HEARING, BECAUSE THE COMPLAINANT'S INITIAL IDENTIFICATION OF DEFENDANT WAS SPONTANEOUS AND BECAUSE THE COMPLAINANT DID NOT IDENTIFY DEFENDANT FROM THE PHOTOGRAPH. . ..................................... 2 POINT II - THE ISSUES PRESENTED BY THE AMICUS CURIAE RELATING TO THE IN-COURT IDENTIFICATION OF DEFENDANT BY THE BUS DRIVER MAY NOT BE CONSIDERED ON THIS APPEAL, BECAUSE THOSE ISSUES HAVE NOT BEEN ARGUED BY THE PARTIES AND ARE NOT PRESERVED FOR APPELLATE REVIEW . ................... 7 CONCLUSION - THE ORDER OF THE APPELLATE TERM AFFIRMING DEFENDANT'S JUDGMENT OF CONVICTION SHOULD BE AFFIRMED . ................ 9 TABLE OF AUTHORITIES PAGE CASES In re James H., 34 N. Y.2d 814 (1974) ............................ 4 People v. Angelo, 88 N.Y.2d 217 (1996) ....................... 2, 8 People v. Herner, 85 N.Y.2d 877 (1995) .......................... 4 People v. Johnson, 81 N.Y.2d 828 (1993) ......................... 4 RULES, STATUTES, AND CONSTITUTIONAL PROVISIONS C.P.L. § 470.05 .............................................. 2, 8 N. Y. Canst. art. VI, § 3 ..................................... 3, 8 Rules of Court of Appeals § 500.23 .............................. 7 OTHER AUTHORITIES National Research Council of the National Academies, Identifying the Culprit: Assessing Eyewitness Identification (2014) .................................... 5, 6 ii COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- KAITY MARSHALL, Defendant-Appellant. APL-20l4-00l96 Kings County Docket Number 2008KN075233 RESPONDENT'S BRIEF IN REPLY TO AMICUS CURIAE BRIEF OF THE INNOCENCE PROJECT, INC. PRELIMINARY STATEMENT By order dated November 18, 2015, this Court granted the motion of the Innocence Project, Inc., to file an amicus curiae brief in support of the appeal by defendant Kaity Marshall in this case. The People are submitting this brief in response to that amicus curiae brief. POINT I THE ARGUMENTS OF THE AMICUS CURIAE CONCERNING THE PROSECUTOR'S DISPLAY OF A PHOTOGRAPH OF DEFENDANT TO THE COMPLAINANT DURING TRIAL PREPARATION ARE UNPRESERVED AND CONSEQUENTLY MAY NOT BE CONSIDERED ON THIS APPEAL. MOREOVER, THE DISPLAY OF A PHOTOGRAPH OF DEFENDANT DID NOT PRESENT A SIGNIFICANT RISK OF TAINTING THE COMPLAINANT'S IN-COURT IDENTIFICATION OF DEFENDANT, AND THEREFORE DID NOT REQUIRE A SUPPRESSION HEARING, BECAUSE THE COMPLAINANT'S INITIAL IDENTIFICATION OF DEFENDANT WAS SPONTANEOUS AND BECAUSE THE COMPLAINANT DID NOT IDENTIFY DEFENDANT FROM THE PHOTOGRAPH. The arguments presented in the amicus curiae brief of the Innocence Project, Inc., with respect to the psychological phenomena that allegedly affected the complainant's identification in this case (see Amicus Brief at 18-26) are, like the appellate arguments presented by defendant concerning such phenomena, unpreserved for appellate review because defendant did not raise those arguments in the Criminal Court (see Respondent's Brief at 38-39) . See C.P.L. § 470.05(2); People v. Angelo, 88 N.Y.2d 217, 223 (1996). Defendant did not argue at the pretrial hearing or at trial that "mugshot exposure effect" (Amicus Brief at 18-20) or "confirming feedback" (Amicus Brief at 23-25) tainted the complainant's in-court identification. Nor did defendant seek to introduce -- at the hearing or at the trial -- the testimony of an expert witness concerning such psychological phenomena that the amicus now claims may have affected the complainant's in-court identification following the brief display of a blurry photograph 2 of defendant that the complainant did not recognize. Because these arguments are not preserved for appellate review, they cannot be considered by this Court. § 3 (a) . See N. Y. Const. art. VI, In any event, contrary to the suggestion in the amicus brief that simply viewing defendant's photograph would contaminate the complainant's original memory, whether or not the complainant made an identification (Amicus Brief at 18), it is highly improbable that the complainant's momentary glance at a blurry photograph of defendant, whom the complainant did not recognize, would have contaminated the complainant's initial memory of her assailant or otherwise influenced the complainant's identification of defendant at trial months after the display of the photograph. This is not a situation in which the witness examined a clear photograph of a defendant for a significant period of time or identified the defendant from the photograph. In light of the substantial amount of time during which the complainant viewed and interacted with her assailant (Rison: A66-73) and the fact that the complainant's initial identification of defendant at the hospital was spontaneous (Rison: A74-79, A92-95), the later brief display of a photograph that the complainant did not recognize does not warrant the conclusion that there was a sufficient risk that the display 3 of the photograph tainted the complainant's in-court identification so as to require a suppression hearing." In addition, contrary to the suggestion of the amicus (Amicus Brief at 27), the display of the photograph to the complainant in this case, as in People v. Herner, 85 N.Y.2d 877 (1995), cannot be equated with the police-arranged showup that resulted in the defendant's initial identification and arrest in People v. Johnson, 81 N.Y.2d 828 (1993). In this case, unlike in Johnson (see id. at 830-31), the initial identification by the complainant that resulted in the defendant's arrest was spontaneous and not police-arranged, because the complainant, on her own, recognized defendant at the hospital and, after summoning the police, pointed out defendant to the police. Furthermore, unlike in In re James H., 34 N.Y.2d 814 (1974) (cited in Amicus Brief at 27), the defense in this case was not precluded from exploring whether the photographic viewing tainted the complainant's identification. To the contrary, in this case, the defense had the opportunity to explore at the pretrial hearing (and at trial, if the defense had chosen to do so) any alleged suggestiveness in the display of the photograph by the prosecutor. 1 Numbers in parentheses preceded by "An defendant's appendix. Names preceding the witnesses whose testimony is cited. 4 refer to pages of numbers refer to Finally, the hazards of jumping to conclusions in the absence of an appropriate record, and of relying on a collection of social science writings that have been cherry-picked on appeal by one of the parties or by an amicus, are obvious. Those hazards are underscored by the observations of the National Research Council of the National Academies regarding quantitative reviews of studies concerning psychological phenomena of the sort cited by the amicus, including post-identification feedback and prior mugshot exposure. In its report, after examining "quantitative reviews that covered decades of research" on both estimator and system variables cited in eyewitness identification studies, the National Research Council's committee found that, although "[m]any of these quantitative reviews were published recently, with more than one-third published since 2010," none of those reviews "met all current standards for conducting and reporting systematic reviews, and few met even a majority of these standards, making assessment of the credibility of their findings problematic." National Research Council of the National Academies, Identifying the Culprit: Assessing Eyewitness Identification 74-76 (2014) (footnote omitted) (included in unpaginated bound volume of materials filed by amicus in support of defendant's appeal; article begins at unnumbered p. 137 of bound volume). The Council's report further concluded "that the findings [of such 5 reviews] may be subject to unintended biases and that the conclusions are less credible than was hoped. H Id. at 76. Defendant could have sought to present expert testimony at the hearing and trial concerning the psychological phenomena on which the amicus now relies, but defendant did not do so. Simply accepting the arguments advanced by the amicus on appeal concerning these phenomena, on the basis of selected writings on the subject, would lead to premature judicial endorsement of psychological theories of uncertain validity or application. Under these circumstances, and for the reasons set forth in the People's main brief on this appeal, this Court should affirm the order of the Appellate Term affirming the judgment of conviction. 6 POINT II THE ISSUES PRESENTED BY THE AMICUS CURIAE RELATING TO THE IN-COURT IDENTIFICATION OF DEFENDANT BY THE BUS DRIVER MAY NOT BE CONSIDERED ON THIS APPEAL, BECAUSE THOSE ISSUES HAVE NOT BEEN ARGUED BY THE PARTIES AND ARE NOT PRESERVED FOR APPELLATE REVIEW. In its amicus curiae brief, the Innocence Project, Inc., argues that the in-court identification of defendant by the eyewitness bus driver, Mr. Joseph, was unreliable, and that this Court should adopt a sweeping new rule from Massachusetts that would bar, absent Rgood reason," any in-court identification of a defendant by a witness who has not previously made a positive identification of the defendant in an identification procedure arranged by law enforcement officials (see Amicus Brief at 31-46). But Rule 500.23(4) of this Court's rules specifies that R[mlovant [for amicus curiae relief in the Court of Appeals 1 shall not present issues not raised before the courts below." In this case, defendant did not raise in the Criminal Court or in the Appellate Term any argument concerning the admissibility of the bus driver's in-court identification, nor, for that matter, has defendant raised any such argument on her appeal to this Court. Therefore, the arguments raised in the amicus brief concerning the bus driver's identification may not be considered on this appeal. In addition, the arguments now raised by the amicus concerning the bus driver's identification are unpreserved for appellate review, and consequently are not reviewable by this 7 Court, because defendant did not raise those arguments in the Criminal Court. See N.Y. Canst. art. VI, § 3(a); C.P.L. § 470.05(2); People v. Angelo, 88 N.Y.2d 2l7, 223 (1996). 8 CONCLUSION THE ORDER OF THE APPELLATE TERM AFFIRMING DEFENDANT'S JUDGMENT OF CONVICTION SHOULD BE AFFIRMED. Dated: Brooklyn, New York December 2, 2015 LEONARD JOBLOVE CAMILLE O'HARA GILLESPIE DIANE R. EISNER Assistant District Attorneys of Counsel Respectfully submitted, KENNETH P. THOMPSON District Attorney Kings County 9