People v. AbneyPeople v. Abney
Robert M. Morgenthau, District Attorney, New York City (Patrick J. Hynes and Mark Dwyer of counsel), for respondent.
OPINION OF THE COURT
FRIEDMAN, J.
Defendant was convicted of robbing a 13-year-old girl at knifepoint based on the victim‘s eyewitness testimony. Defendant argues that the conviction should be reversed, and the case remanded for a new trial, based on the trial court‘s refusal to permit the defense to present expert testimony on the reliability of eyewitness identifications. We disagree. Even if the proffered expert testimony was relevant to the reliability of the identification at issue, here there was evidence corroborating that identification. Thus, People v LeGrand (8 NY3d 449 [2007]), which requires the admission of expert testimony on the reliability of eyewitness identification under certain circumstances where “there is little or no corroborating evidence connecting the defendant to the crime” (id. at 452), does not mandate admission of the expert testimony in this case. For this reason, and because defendant‘s remaining arguments are also without merit, we affirm the judgment of conviction.
On June 2, 2005, at 3:20 p.m., as 13-year-old Farhana U. walked down the well-lit stairway into the subway station at Essex and Delancey Streets, she saw defendant coming up the stairs toward her. When he was about two feet away from her, and she could clearly see his face, he asked her for some change. Farhana, who at that point was not frightened and did not believe that defendant intended to harm her, told defendant that she had no change. Defendant at first continued walking
Police Detective Samuel DeJesus interviewed Farhana in the presence of her brother. Farhana seemed frightened to DeJesus. She described the person who robbed her as a black male, over six feet tall, with pinkish lips, wearing a blue short-sleeved shirt and a blue bandanna. DeJesus, having worked on the investigation of a robbery committed in the same general area on May 28, recognized a possible connection, and prepared a photographic array that included defendant, who had been arrested for the May 28 robbery.1 Within an hour of the June 2 robbery, Farhana picked defendant out of the photographic array.
Later that month, on June 22, defendant was located and arrested. Detective Ernest Dorvil phoned Farhana, told her that he had a suspect, and asked her to come to the station to view a lineup. Farhana, upon viewing the lineup, selected defendant as the man who robbed her.
At trial, shortly before jury selection, defendant moved to present expert testimony from Dr. Solomon M. Fulero regarding 15 psychological factors of memory and perception that may affect the accuracy of eyewitness identification. Defendant wanted to have Fulero testify about psychological studies showing that several factors present in this case typically affect the accuracy of an eyewitness identification. Supreme Court denied the motion as premature, but gave defendant leave to renew at the close of the People‘s direct case:
“As a threshold matter, the defendant‘s papers fail to appropriately narrow the scope of the expert‘s proposed testimony. The defendant suggests that the expert will address three topics: event factors, investigation factors and witness confidence, as outlined on [p]ages 9 and 10 of the motion.
“But, those headings are really a full-fledged seminar on many of the studies and opinions in the field, any one of which could lead to hours of academic discussion and speculation, which would be inappropriate to present to a jury. . . .
“The defendant may be in a better position to narrow the scope of this application at the close of the People‘s direct case.”
The court also pointed out that
“[u]nlike many lineup situations where photographic identification did not occur before a lineup . . . the victim must have realized here [that] the person whose photo she selected in the photo array would be in the lineup. In such a case, testimony [as to] how police investigation factors could influence a lineup is inappropriate.”
Finally, the court stated that, upon request, it would charge the jury that the fact that a witness claims to be certain of her identification does not mean that the identification is accurate. Ultimately, such a charge was given.
On the People‘s direct case, Farhana testified to her recollection of the robbery and identified defendant as the perpetrator. After the People rested, defendant renewed his motion to admit expert testimony on eyewitness identification. Pointing to Farhana‘s testimony that she screamed during the robbery, Detective DeJesus’ description of Farhana as frightened more than an hour after the robbery, and the inherent stressfulness of the event, defendant sought to introduce expert testimony that stress impairs the accuracy of an identification. Since Farhana testified that the incident took only a few seconds, defendant asserted that his expert should be allowed to testify that the less time an eyewitness has to observe an event the less accurately it will be remembered. Defendant also argued that the expert should be allowed to offer testimony to the effect that the violent circumstances of the robbery, including the use of a knife and the ripping of Farhana‘s chain, would adversely affect
Defendant further argued that the identification was affected by certain investigation techniques that had been used in this case. Thus, defendant contended, the fact that Detective Dorvil told Farhana that the police had a suspect before she viewed the lineup may have impacted her identification. As to lineups in general, defendant wanted to elicit expert testimony on the subject of the relative reliability of sequential, simultaneous and double blind lineups. The deficiency in the lineup conducted here, defendant claimed, lay in the fact that Dorvil knew the suspect‘s identity as he supervised the lineup.
The court reaffirmed its earlier determination not to allow expert testimony, stating:
“I, having had the benefit of the witness‘[s] testimony, see nothing unique about this case that would present issues that are beyond the ken of the ordinary juror. All these issues were explored adequately on cross-examination and have been brought into question. They can be argued. There will be a charge.”
On defendant‘s case, his counsel presented an alibi defense. It was defendant‘s position that he could not have robbed Farhana at 3:20 p.m. on June 2 at the Essex/Delancey subway station because he had picked up the daughter of his fiancée at 3:00 p.m. that day at a school located at 933 Herkimer Street in Brooklyn. To buttress this claim, defendant offered in evidence a sign-in/sign-out sheet purporting to document, by virtue of his signature thereon, that defendant had in fact made the pickup at the time he claimed. Defendant‘s fiancée, Mary Nimmons, testified that she obtained the sign-in/sign-out sheet from Carolyn Murphy, her daughter‘s assistant teacher.
An issue developed as to when Mary Nimmons picked up the sign-in/sign-out sheet. Although defendant was not arrested for the June 2 robbery of Farhana U. until June 22, Murphy testified that she was sure that defendant signed the sign-in/sign-out sheet on June 2 “[b]ecause the next day [June 3] Mary came to get this document.” Since it is difficult to see any use
Similarly, when defense counsel asked Nimmons on direct examination about when she picked up the sign-in/sign-out sheet, she stated: “But, I didn‘t go there on June 2nd. It was probably about the next day.” On cross-examination, she repeated that she went to pick up the sign-in/sign-out sheet on June 3, but, when asked why she did so, indicated that defendant called her after his arrest. Nevertheless, when cross-examined further, she reiterated the following:
“Q. And this incident occurred on June 2nd?
“A. Yes.
“Q. And you went to the school the following day?
“A. Yes.”
The trial resulted in defendant‘s conviction. Defendant now appeals, arguing, among other things, that, under People v LeGrand (8 NY3d 449 [2007], supra), Supreme Court erred in excluding the expert testimony he proffered on the accuracy of eyewitness identifications. LeGrand held as follows:
“[W]here the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness‘s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror” (id. at 452 [emphasis added]).
The LeGrand Court noted that “not all categories of [eyewitness expert] testimony are applicable or relevant in every case” (id. at 459). Further, “[i]n the event that sufficient corroborating evidence is found to exist, an exercise of discretion excluding eyewitness expert testimony would not be fatal to a jury verdict convicting defendant” (id.).
As stated in LeGrand, a defendant seeking to admit expert testimony on eyewitness identifications must show that the
Before turning to the evidence corroborating defendant‘s guilt, we observe that, of the several decisions over the past two decades in which the Court of Appeals has considered the admis-
“[A] few days after a livery cab driver was stabbed to death [on June 15, 1991], four people who had witnessed the attack collaborated on a composite sketch of the assailant. Two years later, the defendant was identified as a possible suspect after a detective who arrested him for an unrelated burglary concluded that he resembled the 1991 composite sketch; however, because the police were unable to find any of the witnesses to the stabbing, the case remained dormant until 1998 when the defendant was again arrested for burglary in the same precinct and the police again concluded that he resembled the composite sketch. This time the police located the four original witnesses as well as an additional witness who was not identified until 1998. One of the witnesses identified the defendant as the killer in a photo array and a lineup. Two other witnesses were unable to make a positive identification from the photo array, but one of them picked out the defendant‘s photo as a ‘close, if not exact’ match (8 NY3d at 453). A third witness described the defendant‘s photo as ‘similar’ to the assailant and the two remaining witnesses were unable to identify the defendant from the photo array (id.).” (People v Austin, 46 AD3d 195, 200 [2007], lv denied 9 NY3d 1031 [2008].)
To complicate matters further, two of the three identification witnesses at the first LeGrand trial (which was held about 10 years after the crime) “had seen defendant‘s photo array in the district attorney‘s office the night before they were to testify” (8 NY3d at 453).
The unusual fact pattern presented in LeGrand raises a genuine question as to whether that case‘s rule concerning admissibility of eyewitness expert testimony applies in cases, like this one, where the circumstances create much less doubt about the reliability of the identification testimony.5 We need not answer this question today, however, because, as previously stated, the record of the instant appeal includes evidence providing significant corroboration of defendant‘s guilt. Thus, by the terms of the LeGrand rule itself, the exclusion of the proffered expert testimony was within Supreme Court‘s discretion.
Defendant, implicitly recognizing how damaging the testimony of Murphy and Nimmons is to his position, asserts that these witnesses were confused by poor acoustics in the courtroom. The record belies this explanation. Whatever defendant may say about the confusion of dates in Nimmons’ testimony, Murphy‘s testimony was clear. Indeed, it is obvious that defendant immediately realized how much damage Murphy had done to his defense by referring to June 3, since his counsel promptly sought to get her to change her answer, an effort to which Supreme Court appropriately put a stop.
Defendant nonetheless asserts, and the dissent agrees, that the testimony of Murphy and Nimmons cannot be used as corroboration under LeGrand because it does not constitute physical or forensic evidence directly tying him to the crime. While it is true that LeGrand speaks of the absence of such evidence, nothing in LeGrand indicates that only such evidence qualifies as corroboration for purposes of deciding whether expert testimony on the reliability of eyewitness identification should be permitted. LeGrand states that where “there is little or no corroborating evidence connecting the defendant to the crime” (8 NY3d at 452), expert testimony on the reliability of eyewitness identifications should be admitted under appropriate circumstances. Contrary to the dissent‘s contention, LeGrand simply does not state that only forensic or physical evidence constitutes corroboration for these purposes.
Defendant deprecates the value of the testimony of Murphy and Nimmons on the ground that it is not direct evidence of criminality, but he does not dispute that the testimony in question may be considered as evidencing consciousness of guilt. While consciousness-of-guilt evidence is sometimes characterized as weak, it seems to us that, under the circumstances of
We recognize that, based upon LeGrand, the trial court may very well have erred in refusing to permit the expert testimony when defendant renewed his application at the close of the People‘s case. Defendant, however, does not dispute that the People‘s case against him was legally sufficient, and, after the People rested, as defendant‘s case unfolded, it emerged that the eyewitness identification on which the prosecution was based found corroboration in the testimony of defendant‘s own witnesses, who described conduct by him that could logically be explained only by consciousness of guilt. In light of this corroboration (which, to reiterate, was unnecessary to entitle the People to take their case to the jury), it is apparent that any initial error in the exclusion of the expert testimony was ultimately revealed not to be error as the evidence unfolded at trial, or, considered otherwise, was harmless (cf. People v Kello, 96 NY2d 740, 744 [2001] [stating the harmlessness standard for errors in the admission of proscribed evidence]). LeGrand sets forth a rule of evidence and procedure and, given the undisputed legal sufficiency of the People‘s case, this Court may take account of the record as a whole in determining whether any error occurred.
With regard to the subject of defendant‘s alibi defense, and the dissent‘s observation that such defense was “by no means conclusively disproved,” it seems to us that the dissent loses sight of the fact that there is no question that it always remained the People‘s burden to disprove the alibi, not conclusively, but beyond a reasonable doubt, to the jury‘s satisfaction. It also bears noting that the alibi defense further disintegrated in this case because it emerged (as more fully discussed below) that there were two versions of the very sign-in/sign-out sheet on which the alibi was based. While the dissent seems to believe that the redundancy of sign-in/sign-out sheets did not diminish the alibi defense, the jury was entitled to disagree. However, neither the People‘s burden to disprove the alibi defense, nor the self-destruction of that defense at trial, is truly pertinent to the question presented on this appeal, which is whether the eyewitness identification testimony was so lacking in corroboration as to render the exclusion of the expert
Defendant also argues that his rights were violated when the court admitted into evidence as People‘s exhibit 6 (People‘s 6) a logbook of original school sign-in/sign-out sheets, which included a sheet for June 2, 2005 (the day of the robbery) that was different from the one defendant had previously introduced into evidence through Carolyn Murphy, the teaching assistant, in support of his alibi defense.8 For the reasons discussed below, this argument is unavailing.
At the outset, no constitutional issue has been preserved for our review with regard to the admission of People‘s 6, as defendant did not raise any constitutional argument in that connection at trial (see People v Kello, 96 NY2d at 743-744). As an evi-
It should also be noted that the confusion over the school logbook was entirely the fault of the defense, which had not given the prosecutor the required pretrial notice that it would call a school employee (Carolyn Murphy) as an alibi witness to establish defendant‘s presence at the school at 3:00 p.m. on June 2. When the court nonetheless gave defendant leave to call Murphy, the People were forced to make a rushed, last-minute effort to obtain the logbook from the school, and the documents comprising People‘s 6 did not arrive at court until defense counsel was giving her summation. We further observe that the June 2 sheet in People‘s 6 also supports defendant‘s alibi. Contrary to defendant‘s contention, the court gave a sufficient clarifying instruction in response to the jury‘s note pointing out the presence of “two time in/time out sheets with the same date but different information.”
The court properly denied defendant‘s motion to suppress the complainant‘s identification of him, as the lineup procedure did not involve any violation of defendant‘s rights. Defense counsel was present at the lineup and viewed it before the complainant did, but there was no requirement that defense counsel be given an opportunity to participate in setting up the identification procedure (see People v Hawkins, 55 NY2d 474, 485 [1982], cert denied 459 US 846 [1982] [“during a lineup counsel plays the relatively passive role of an observer“]). Defendant does not identify any unfairness in the lineup procedure that was used.
Finally, the court acted within its discretion in precluding the defense from calling two alibi witnesses of whom the People did not receive the requisite pretrial notice.
MOSKOWITZ, J. (dissenting). This appeal involves a core issue: whether the trial court abused its discretion by refusing to allow an expert to testify about factors that affect reliability of eyewitness identifications in light of the Court of Appeals’ decision in People v LeGrand (8 NY3d 449 [2007]). The trial evidence shows that on June 2, 2005, at approximately 3:20 p.m., 13-year-old Farhana U. was accosted on a staircase at the Delancey Street subway station in lower Manhattan. A curved knife was held to her neck and, when she refused to surrender the necklace she wore, the necklace was ripped from her. While Farhana U. testified that at moments during the encounter she was able to view the perpetrator clearly, she also testified that the robbery lasted only seconds, that she was very scared and that she had never seen the perpetrator before.
Some three weeks subsequent to the robbery, after having selected defendant‘s picture in a photo array shown to her in the near aftermath of the crime and after a detective informed her that the police had a suspect, Farhana U. picked defendant out of a lineup.
In a detailed pretrial motion, that the People did not oppose, defendant sought permission to present expert testimony as to “psychological factors of memory and perception that may affect the accuracy of witness identifications.” The court initially denied the motion, for the most part as premature, but also, in part, because the court found, without holding a Frye hearing, that certain proposed areas of expert testimony relied on theories not generally accepted as scientifically valid. The defense renewed the motion at the close of the People‘s case.1 The People again offered no opposition. The court again denied the motion, this time solely upon the ground that the matters the expert‘s testimony proposed to cover were not beyond the ken of
In People v LeGrand (8 NY3d 449 [2007]), which the Court of Appeals decided subsequent to the trial of this matter but is nonetheless applicable in determining this appeal (see People v Vasquez, 88 NY2d 561, 573 [1996]; and see e.g. People v Gonzalez, 47 AD3d 831 [2008], lv denied 10 NY3d 863 [2008]), the Court held that
“where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is: (1) relevant to the witness‘s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror” (LeGrand at 452).
There is no dispute that this case “turns on the accuracy of [an] eyewitness identification[ ],” and that at the time the trial court ruled upon defendant‘s motion there was not a scintilla of “corroborating evidence connecting the defendant to the crime.” Indeed, there was at that juncture not even the prospect of that evidence. Plainly, then, the denial of the motion constituted an abuse of discretion, unless the proffered evidence failed to meet LeGrand‘s four enumerated conditions. No issue is raised as to whether the proffer satisfied conditions one and three. Nor does it seem debatable that the proffer satisfied, at least in part, conditions two and four. LeGrand expressly found several of the proposed subjects of defendant‘s expert‘s testimony to have general acceptance in the scientific community (8 NY3d at 458): namely the correlation between confidence and accuracy of identification, confidence malleability, and the effect of postevent information on accuracy of identification. To the extent the others are not already recognized as proper subjects for expert explication, given the detailed nature of defendant‘s proffer and the obvious relevance of the proposed testimony to the reliability of the incriminating identification, the court should not have summarily rejected them without a Frye hearing.
It is true that the facts in LeGrand were extreme, and that the circumstances at bar are less extreme. However, it is also true that no reasonable reading of LeGrand could engender the highly artificial notion that the Court intended to tether the application of its holding to the particular circumstances of that case. Rather, LeGrand recognizes that there is now persuasive scientific evidence that, under certain circumstances, eyewitness identification testimony, even while apparently convincing and certain, is fraught with error (see LeGrand, 8 NY3d at 454-455). We should not limit LeGrand, then, to its facts, and thus effectively consign it to jurisprudential oblivion. Instead, we should apply LeGrand in accordance with its broadly articulated holding and remedial purpose, that is, to enhance the quality of the deliberative process as well as the reliability of its outcome where a prosecution depends entirely on substantially uncorroborated eyewitness testimony and the introduction of expert testimony is otherwise warranted. Obviously, this does not mean that in every case turning on eyewitness identification testimony, a court must admit expert testimony bearing on the reliability of the identification (People v Mooney, 76 NY2d at 833). It is a relatively infrequent case in which there is no other evidence of a defendant‘s connection to the charged crime, and the particu-
The majority‘s contention that the court properly rejected defendant‘s proffer under LeGrand because there was corroborative evidence is simply incorrect. As noted, at the time of the trial court‘s denial of defendant‘s motion, there was absolutely no corroborative evidence before the court. The court denied defendant‘s motion at the close of the People‘s direct case. The purportedly corroborative evidence, upon which the People and the majority now rely, did not surface until well into defendant‘s case, emerging as it did altogether unexpectedly during the cross-examination of two of defendant‘s witnesses he called as part of an alibi defense. We have, of course, held that a court may not grant a motion to introduce expert testimony bearing upon the accuracy of an eyewitness identification on the basis of subsequently received evidence (see People v Austin, 46 AD3d 195, 198 [2007], lv denied 9 NY3d 1031 [2008]),2 and it would be no less offensive to fairness, orderly procedure and, indeed, logic, retrospectively to permit the denial of such a motion upon
The majority stresses evidence that in no way actually connects defendant to the charged crime, but is at best some evidence of consciousness of guilt. It fails to realize that the course of this trial could well have been different had the court not excluded the proffered expert testimony. Defendant‘s conviction was not, and could not have been, premised upon whether the prosecution disproved his alibi; rather it was necessarily premised upon whether the complainant correctly identified him. Ultimately, it was the jury‘s decision to credit the complainant‘s identification, not the rejection of defendant‘s alibi, that dictated the trial‘s outcome. Had the court permitted defendant to challenge the reliability of the identification by means of the proffered expert testimony, it is entirely possible that the jury would not have believed the accuracy of the inculpatory identification, and it is also entirely possible that the jury would, in that event, have credited defendant‘s alibi (although it would not have had to do so to reach a verdict of acquittal).
While it is true that there was some evidence that defendant sought to establish an alibi prior to his arrest, the timing of defendant‘s request for the sign-out sheet indicating that he had been at Herkimer Street in Brooklyn some 20 minutes prior to the charged crime at Delancey Street in lower Manhattan3 was by no means definitively established. Ms. Nimmons clarified that defendant did not request her to retrieve the sign-out sheet until after his arrest, and although Ms. Murphy did testify that Ms. Nimmons requested a copy of the sign-out sheet the day after the robbery, it is noteworthy that Ms. Murphy, upon whose testimony the majority places such reliance, also specifi-
The majority‘s conclusion that the jury‘s rejection of the alibi drove the outcome of this trial, even had the court accepted defendant‘s expert proffer, is thus speculative on two counts: first for its supposition that the jury would, in that alternative scenario, have rejected the alibi and second for its additional supposition that the alibi defense and the evidence related to it, both for and against, would, in that scenario ultimately have played any role at all in the jury‘s determination. As noted, the jury could have acquitted the defendant solely upon the determination that the complainant‘s identification was insufficiently reliable. On this record it cannot be said that it would not have done so.
Saxe and Catterson, JJ., concur with Friedman, J.; Lippman, P.J., and Moskowitz, J., dissent in a separate opinion by Moskowitz, J.
Judgment, Supreme Court, New York County, rendered March 20, 2006, affirmed.