36 Misc. 3d 381
N.Y. Sup. Ct.2012Background
- Witness identified defendant from NYPD photo manager; identification repeated in an investigative lineup conducted without defendant's counsel.
- Defense counsel notified detective of representation on Nov. 4, 2010; lineup occurred Nov. 12, 2010 without counsel notice.
- Defendant charged with second-degree robbery and related crimes for alleged November 1, 2010 theft and assault.
- People moved for CPL 240.40(2)(b)(i) order to force a second postindictment lineup after suppression of the first lineup.
- Court will hold a hearing to determine whether the prior lineup was unduly suggestive and whether witness has an independent source for a second lineup.
- If the first lineup was not unduly suggestive and an independent source exists, the court may grant a second lineup before trial; otherwise, suppression stands and alternatives are considered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a second lineup may be ordered after suppression of the first | People argue for a pretrial lineup to secure an independent source. | Marcus argues that a second lineup is unnecessary and riskily suggestive after prior exposure. | Second lineup may be ordered if prior lineup not unduly suggestive and independent source shown. |
| Whether the first lineup was unduly suggestive | People contend the first lineup’s lack of counsel does not, by itself, render it unduly suggestive. | Marcus asserts the pretrial lineup was unduly suggestive and tainted identification. | Undue suggestiveness of the first lineup has not yet been determined; hearing ordered. |
| Whether witness has an independent source for an in-court identification | People must show independent source to permit in-court ID at trial. | Marcus contends any in-court ID would be unreliable absent independent source. | Hearing required to assess independent source and admissibility at in-court identification. |
| Whether CPL 240.40(2)(b)(i) authorizes a second lineup before trial | People rely on statutory authority to order a pretrial lineup given potential reliability benefits. | Marcus challenges procedural propriety and potential prejudice of a second lineup. | CPL 240.40(2)(b)(i) permits a pretrial lineup under constitutional limits if conditions met. |
| Impact of counsel presence at lineups on admissibility | People emphasize limited but permissible role of counsel and aim to preserve reliability. | Marcus relies on Crawford-era concerns about suggestiveness and confrontation. | Counsel presence is not required for investigatory lineups; significance weighed but does not bar second lineup. |
Key Cases Cited
- People v Chipp, 75 N.Y.2d 327 (1990) (right to counsel not required at prearraignment lineups; reliability of corporeal lineup despite no counsel present)
- People v LaClere, 76 N.Y.2d 670 (1990) (notice to attorney triggered by representation; automatic suppression where absent)
- People v Wilson, 89 N.Y.2d 754 (1997) (counsel's role at lineup is relatively passive but notice obligation exists when represented)
- People v Blake, 35 N.Y.2d 331 (1974) (counsel’s presence at lineup considered limited importance compared to benefits of timely lineup)
- People v Hawkins, 55 N.Y.2d 474 (1982) (counsel's presence at interrogations; lineup conduct considered in weighing rights vs. interests)
- People v Jones, 2 N.Y.3d 235 (2004) (lineups after warrantless arrest analyzed for reliability when counsel presence is limited)
- Foster v. California, 394 U.S. 440 (1969) (identification procedures not unduly suggestive absent certain features; multiple procedures differ in reliability)
- People v Mitchell, 2 N.Y.3d 272 (2004) (right to counsel at investigatory lineup attaches when counsel enters the matter)
- People v Robles, 17 A.D.3d 136 (2005) (recognizes counsel notification principles at early-stage proceedings)
- People v Chipp, 75 N.Y.2d 327 (1990) (foundational standard for counsel and lineup procedures)