Lead Opinion
Having been convicted after a jury trial of first degree sexual abuse, first degree attempted sodomy, endangering the welfare of a child and fourth degree criminal possession of a weapon, defendant appeals by leave of an Associate Judge of this court, from the Appellate Division order unanimously affirming, without opinion, the judgment of conviction.
I
While on her way to school on April 7, 1986, Shanica F., who was then 10 years old, stopped in front of a building on West 131st Street in Manhattan to tie her shoe. A man, whom she later identified as the defendant, grabbed her from behind, threatened her with a knife and compelled her to accompany him to the roof where he sexually abused her and attempted to sodomize her.
Shanica pushed the defendant and, as he stumbled, she managed to escape by running past him and down the stairs. As she ran down the stairs she cried for help and pounded on apartment doors. Defendant fled down the stairs also. One of the tenants, Shermain Thompson, hearing the screams and the commotion, came out of her apartment, saw Shanica with her clothes in disarray and assisted her while a friend called the police. As Shanica described her attacker to the police who responded, Ms. Thompson realized that Shanica was describing the defendant, whom Ms. Thompson knew to be a friend of her brother, Sherman Thompson, and whom she had encountered in the building a scant half-hour earlier.
Detective Bruno Francisci was assigned to the case. He interviewed Shanica at the hospital where she had been taken. Shanica told him what had happened and gave him a description of her attacker and his knife. She described her attacker as a light-skinned Black male, with short black hair, wearing a black baseball cap with white writing on the front and black-framed glasses. The assailant had told Shanica that his name was "Oscar.” Francisci also interviewed Shermain and Sherman Thompson. Shermain indicated that based on the description she heard Shanica give the police, she recognized the assailant as an acquaintance of her brother and as the person she had seen in the building that morning. Sher
Francisci gave his card to the Thompsons and to Larry Washington, another friend who also knew "Apache”, and instructed them that if the man known as "Apache” should again "come into the area” they were to call 911, describe him and "present themselves” and tell the police that "the guy— was in the building at the time of the incident.”
Two days later, police officers responding to a radio run directing them to the 131st Street building, found a number of civilians holding the defendant. The officers were told that defendant was the man who had "raped” a 10-year-old girl two days before. One of the male civilians gave the officers Detective Francisci’s business card and said that Francisci was handling the case. The officers summoned their supervisor, the sergeant on patrol, who shortly arrived at the scene. The officers informed the sergeant that the people holding defendant had given them Francisci’s business card and had said that defendant had raped a little girl. The sergeant was familiar with the case; he remembered the original police report which indicated that both Shermain Thompson and the victim could identify the perpetrator. He determined that defendant should be taken to the precinct house. Defendant did not resist his detention and transportation, but protested that he had done nothing.
Later that afternoon, after administering Miranda warnings (Miranda v Arizona,
At the combined Huntley-Wade hearing, defense counsel requested that the People be required to produce Shanica to sustain their burden of going forward to establish the propriety of the pretrial identification. Counsel argued that be
The People argued, however, that a bifurcated hearing should be held to determine, initially, whether the lineup procedures were unduly suggestive and, if so, to then proceed to determine whether the complaining witness’s identification was grounded upon an independent basis, free of the taint of the suggestive lineup procedures. The court agreed with the People’s position and ordered a bifurcated hearing.
As the hearing was about to proceed, defense counsel was furnished with a color photograph of the lineup together with a lineup form describing the ages, heights and weights of the stand-ins, who, respectively, were: number 1: 22 years old, 5 feet 8 inches, 140 pounds; number 3: 29, 5 feet 7 inches, 140 pounds; number 4: 17, 5 feet 7 inches, 140 pounds; and number 5: 21, 5 feet 7 inches, 130 pounds.
Counsel argued that because three of the fill-ins had "significantly darker” complexions than defendant, who had been described as a "light-skinned Black male wearing dark clothes” and because the only fill-in arguably of a hue similar to defendant’s complexion was Hispanic and was dressed in light clothes, the lineup was prima facie suggestive, thus necessitating the People having to call Shanica to sustain their burden. The application was summarily denied and the hearing proceeded.
Detective Francisci and Officers Burns and Dibisceglio, the two officers who had responded on April 9, testified to the facts as outlined above. Defense counsel renewed his application to call Shanica, this time as a defense witness, "for the purpose of determining whether there was any such activity [of suggestiveness] regarding the police arranged confrontation between [defendant] and Shanica F[]”. He again remarked upon the fact that he had not been present at the lineup and
Defense counsel then proffered two additional bases upon which he claimed to be entitled to call Shanica as a witness: that defendant had been deprived of his right to counsel at the lineup by virtue of an unreasonable 40-hour delay between arrest and arraignment
In a written decision the court denied suppression of defendant’s statements
The Appellate Division affirmed defendant’s conviction, without opinion. We now also affirm.
II
Recognizing that he has no right to compel the People to produce the complaining witness at the Wade hearing (People v Blue,
Contrary to defendant’s assertions, suppression was not required on any of the grounds advanced.
A
We note at the outset that, since this was a prearraignment lineup occurring before the filing of an accusatory instrument, defendant’s right to counsel had not attached (People v Hawkins,
It is firmly established in our jurisprudence that unduly suggestive pretrial identification procedures violate due process and therefore are not admissible to determine the guilt or innocence of an accused (United States v Wade,
Contrary to defendant’s contention, the hearing evidence does not establish, prima facie, that the lineup was unduly suggestive as a matter of law. Defendant premises his argument solely upon the fact that three of the fill-ins had complexions "considerably darker” than that of the defendant, who had been described as a "light-skinned Black male”, and that only one of the fill-ins, whom defendant contends was Hispanic, had a complexion reasonably close to his own. There is no requirement, however, that a defendant in a lineup be surrounded by people nearly identical in appearance (People v Mason,
B
Defendant argues that the lineup identification must be suppressed in any event because the court erred in precluding him from calling the 10-year-old complainant as his witness and therefore denied him a constitutional and statutory right to present relevant evidence. This argument must be rejected.
The right of compulsory process is essentially a trial right, enabling an accused to present his own version of the facts to the trial jury (Chambers v Mississippi,
Similarly, while CPL 60.15 (1) affords defendant, as well as the prosecution, a right to call witnesses at a criminal proceeding, that right is not absolute, and nothing in the language of the statute warrants construing it, in the circumstances of this case, as conferring on defendant a right of compulsory process broader than that accorded by the Federal Constitution.
Here, defendant does not assert a trial right of compulsory process, but rather an unqualified right to present relevant evidence at a Wade hearing which, although properly characterized as a criminal proceeding, concededly does not involve a determination of his guilt or innocence (see People v Berzups,
Defendant offers no persuasive authority for the proposition that an absolute right to compulsory process attaches to a Wade hearing. Rather, as at trial, any right of compulsory process at a Wade hearing may be outweighed by countervailing policy concerns, properly within the discretion and control of the hearing Judge. To hold otherwise would, in our view, only encourage the misuse of Wade hearings. To accord every defendant an absolute right to call an identifying witness at a Wade hearing would enable defendants to harass identifying witnesses and to transform the hearing into a discovery proceeding neither authorized nor contemplated by the Legislature (see, People v Hodge,
Indeed we have held in respect to pretrial hearings more directly addressing the guilt or innocence of an accused that a defendant’s right to require the production of a witness with relevant testimony could be outweighed by countervailing policy considerations (People v Petralia,
Similar policy considerations, as already noted, militate against a rule that would render the identifying witness subject to compulsory process at the behest of the defendant absent some indication that the pretrial identification procedure was suggestive. This is not to say, however, that an identification witness’s testimony may never be required. Such a witness’s testimony might become necessary if the hearing evidence raises substantial issues as to the constitutionality of the lineup, the resolution of which could not be properly resolved without testimony from the identification witness. Thus, in People v Ocasio (
The dissent’s concern that defendant was unfairly precluded from questioning the complainant about the possibility of suggestiveness at the Wade hearing (dissenting opn, at 341) overlooks the fact that defendant will be able to examine the witness and explore issues relevant to identification at trial. Due process does not require that in every case a hearing be conducted outside the presence of the jury to determine the admissibility of identification evidence (Watkins v Sowders,
Here, no indicia of suggestiveness was presented to the hearing court, nor indeed even at trial. Defendant’s primary contention was that the complainant might offer testimony that the varied complexions of the subjects of the lineup rendered the procedure unduly suggestive. As the court already had a photograph of the lineup before it, the complainant’s testimony on this point could only have been cumulative and it was therefore within the discretion of the hearing Judge to exclude it. Defendant’s additional contentions that the complainant might have revealed that something improper was said to her during the procedure are, on the record before the hearing Judge, purely speculative. Thus, in the circumstances of this case, the court did not abuse its discretion in denying defendant’s request to call the complainant at the Wade hearing.
C
Defendant’s contention that the lineup identification was erroneously admitted because the police lacked probable cause to arrest him must also be rejected. A finding that probable cause existed for defendant’s arrest is implicit in the court’s ruling inasmuch as the court held the lineup identification admissible despite defendant’s argument that the arresting officers lacked probable cause. That implicit finding, affirmed by the Appellate Division, is entitled to no less deference than an express finding (People v Bell,
On a careful review of this record, we cannot say that the evidence before the court was insufficient as a matter of law to support the finding of probable cause. That the hearing testimony did not establish conclusively that the arresting officers knew the basis of Shermain Thompson’s knowledge is not fatal to a determination of probable cause. She was an average citizen who by happenstance was a witness able to
Defendant’s contention that the court’s charge regarding his failure to testify tended to ^undermine his privilege against self-incrimination is unpreserved for our review (see, People v Autry,
Accordingly, the order of the Appellate Division should be affirmed.
Notes
. Defendant who had selected number 2, was 24 years old, 5 feet 7 inches tall and weighed 130 pounds. All lineup participants were Black males with short black hair, similar to defendant’s.
. This argument has been abandoned and is not before us on this appeal.
. The People had stipulated that they would not introduce the defendant’s statements at trial.
Dissenting Opinion
(dissenting). The court today holds that it was permissible summarily to deny defendant the opportunity to call the complainant — the only civilian witness, and the witness who picked defendant out of a lineup — as a defense witness at the hearing on defendant’s Wade motion. In reaching this result, the court does not deny that the complainant had relevant testimony to present, or that defendant had a right to call witnesses at this adversarial hearing (see, CPL 60.15 [1]), but relies on "policy concerns,” and ultimately on defendant’s inability to make a concrete offer of proof concerning the complainant’s testimony. Inasmuch as defendant could hardly be expected to make a concrete offer of proof about the testimony of a witness who had refused, allegedly under police instructions, to speak with defense counsel, and inasmuch as the policy considerations advanced by the majority do not in my view warrant the blanket denial of defense access to relevant, potentially crucial testimony, I respectfully dissent.
As the United States Supreme Court noted in determining that the presence of counsel was required at a postarraignment lineup, "the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.” (United States v Wade,
Now the majority goes a step further, and declares in sweeping terms that not only was defendant not entitled to have his attorney present, but also there was no impropriety and no unfairness in an "adversarial” hearing at which defendant was effectively forced to take his chances that any defect in the identification proceedings would be revealed based solely on the testimony of the police officers who had arranged and conducted the lineup.
To be sure, there is no due process right to a separate pretrial hearing to determine the admissibility of identification evidence. But denial of a motion to suppress " 'may often spell the difference between conviction or acquittal’ ” (see, People v Anderson,
I do not dispute that there may be sound policy reasons for limiting a defendant’s statutory right to call witnesses, and specifically the complainant, in particular cases. On this record, however, none have been established, and I cannot concur in the majority’s willingness to establish a presumption against the defendant’s right to call the complainant. Relegating the defendant to uncover Wade hearing improprieties during cross-examination of the complainant at trial is by no means the equivalent of a fair pretrial hearing on these issues.
Chief Judge Wachtler and Judges Simons, Titone, Hancock, Jr., and Bellacosa concur with Judge Alexander; Judge Kaye dissents and votes to reverse in a separate opinion.
Order affirmed.