Lead Opinion
OPINION OF THE COURT
This appeal centers on the "confirmatory identification” exception to the notice and hearing requirements of the Criminal Procedure Law for suggestive pretrial identification procedures. We conclude that, where a citizen eyewitness claimed to have seen the defendant numerous times in a store, it was error to deny defendant’s Wade hearing motions summarily, because the witness’ assertion did not establish such familiarity with defendant that the danger of police suggestiveness was eliminated as a matter of law.
I.
On August 22, 1986, David Benito — employed as a clerk in the grocery store across the street from his Manhattan apartment — woke up late for work, looked out his fourth-floor window to see if his boss was waving him down, and noticed a group of about seven people gathered in the street below. Two men were arguing. One shoved the other, whereupon the latter drew a gun, shot the first man to death and fled.
Within two hours Benito reported his observations at the local stationhouse. He was shown two or three photographs, but did not recognize any as the assailant. Three days later, on August 25, a detective presented a single photograph to Benito, and he identified the person depicted — defendant—as the gunman.
Defendant was thereafter arrested in an unrelated incident and charged with the August 22 murder. Shortly after indictment, defendant filed a motion requesting a Wade hearing to explore the suggestiveness of the photo showup. The People opposed the hearing, alleging by affirmation that Benito was "very familiar” with defendant from the neighborhood and suggestiveness therefore was not an issue. In support, the People relied on Benito’s Grand Jury testimony, in which he testified that he had seen defendant "[a]t least four dozen times” as a customer in the grocery store. The court summarily denied defendant’s motion.
Some time thereafter, defendant’s investigator contacted
Defendant later moved a third time for a Wade hearing, supported by his attorney’s affirmation and a memorandum of law. Defendant again denied "personally knowing or having any prior familiarity with the witness,” and added that defense investigators learned that a criminal case pending against Benito had been adjourned in contemplation of dismissal on the day of defendant’s arrest. The memorandum of law distinguished this Court’s confirmatory identification cases. The motion again was summarily denied, and the case proceeded to trial.
At trial, Benito — the sole identification witness — recounted the shooting and made an in-court identification of defendant. In contrast to his Grand Jury testimony, however, Benito testified that he had seen defendant "a few times” prior to the crime as one of the "guys from the block” who "mingled with the fellows.” He also admitted that he was not a friend or acquaintance of defendant. The jury heard testimony about the August 25 photo showup, and the People presented physical evidence connecting defendant to the shooting. Defendant was convicted of second degree murder and weapons possession.
On appeal, defendant argued that the trial court erred in summarily denying his motions for a Wade hearing. The Appellate Division disagreed, holding that Benito’s Grand Jury testimony established that the photo display was "merely confirmatory,” and thus there was no potential suggestiveness in the procedure. We now modify and remit for a hearing.
II.
In criminal investigations, the police employ a variety of identification procedures — including lineups, one-on-one show-ups, photo arrays, and (as in this case) single-photo displays.
The legislative recognition of the importance of testing the reliability of identification testimony before trial is codified in CPL article 710 (see, People v Newball,
Beginning with People v Gissendanner (
Though first articulated in Gissendanner, this "known to one another” exception — the "confirmatory identification”
As we thereafter recognized in Collins, whether the exception applies depends on the extent of the prior relationship, which is necessarily a question of degree. As then-Judge Wachtler wrote:
"When a crime has been committed by a family member, former friend or long-time acquaintance of a witness there is little or no risk that comments by the police, however suggestive, will lead the witness to identify the wrong person. * * * But in cases where the prior relationship is fleeting or distant it would be unrealistic to ignore the possibility that police suggestion may improperly influence the witness in making an identification.” (60 NY2d, at 219 [emphasis added]; see also, People v Newball,76 NY2d 587 , 591.)
A court’s invocation of the "confirmatory identification” exception is thus tantamount to a conclusion that, as a matter of law, the witness is so familiar with the defendant that there is "little or no risk” that police suggestion could lead to a misidentification. This is so because, as a consequence of applying the exception, the defendant will be denied a Wade hearing to explore suggestiveness. In effect, it is a ruling that however suggestive or unfair the identification procedure might be, there is virtually no possibility that the witness could misidentify the defendant.
The exception may be confidently applied where the protagonists are family members, friends or acquaintances (People v Collins, supra) or have lived together for a time (People v Tas, supra). At the other extreme, it clearly does not apply where the familiarity emanates from a brief encounter (see, People v Newball,
Benito’s alleged prior familiarity with defendant falls within these two extremes. It is indeed possible that a store clerk, having seen a customer "four dozen” times, would be immune to police suggestion. It is also conceivable, however, that such a witness could be influenced by suggestiveness to
We recently emphasized the importance of adversary testing of claims that an identification was "merely confirmatory.” In People v Williamson (
"The issue central to the hearing was the extent of the complainant’s prior familiarity with the defendant and that issue became crucial at trial in this single-witness identification case. Thus, the preclusion of an adequate opportunity to cross-examine on that key issue eliminated any supportable basis upon which to find that the photo identification was the product of prior familiarity and, therefore, merely confirmatory” (79 NY2d, at 800-801 ).
Benito’s Grand Jury testimony was strikingly like the Williamson complainant’s hearing testimony: both were sworn accounts of having seen the defendant on numerous occasions in a grocery store where each respective witness worked, and both assertions were untested by cross-examination. The trial court in Williamson had no basis for summarily concluding that the identification procedure was "merely confirmatory,” and the trial court had no basis for reaching that same conclusion here. As in Williamson, we therefore remit for an evidentiary hearing on this issue.
At a hearing, the court might consider factors such as the number of times Benito viewed defendant prior to the crime, the duration and nature of the encounters, the setting, the period of time over which the viewings occurred, the time elapsed between the crime and the previous viewings, and whether the two had any conversations. Whether Benito told the police prior to being shown defendant’s photograph that he recognized the shooter from the grocery store might also be relevant.
Contrary to the People’s argument, prior familiarity should not be resolved at trial in the first instance. The Legislature mandates pretrial resolution of the admissibility of identification testimony where it is alleged that an improper procedure occurred (see, CPL 710.20 [6]; 710.60). Moreover, when the defendant’s theory at trial is mistaken identity, the exploration of prior familiarity on cross-examination may actually bolster the People’s case (compare, People v Dodt,
III.
The People contend that defendant was not entitled to a hearing because, as a pleading matter, he did not create a factual issue as to Benito’s familiarity with him. True, defendant did not deny being seen by Benito four dozen times — that would have been impossible for anyone who had frequented the grocery store or neighborhood; it is also true that defendant did not concede the People’s point. Defendant argues that in this posture, and in view of his specific allegations that he did not know Benito, a hearing should have been held. We conclude that given the facts, a hearing was required before the trial court could rule, as a matter of law, that Benito’s identification was merely confirmatory.
CPL 710.60 governs the procedure for initiating and deciding motions to suppress evidence. It clearly and explicitly provides that the court must hold a hearing unless it summarily grants or denies the motion in accordance with subdivision (2) or (3) of CPL 710.60 (CPL 710.60 [4]; People v Weaver,
As originally enacted, however, the Criminal Procedure Law
In 1986, the Legislature extended this special pleading rule to Wade motions (L 1986, ch 776, amending CPL 710.60 [3] [b]), likely for the reason that in many instances a defendant simply does not know the facts surrounding a pretrial identification procedure and thus cannot make specific factual allegations (see, Preiser, 1986 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, 1992 Pocket Part, CPL 710.60, at 132). The effect of the amendment was to eliminate summary denial of Wade hearings on the ground that defendant had not pleaded sufficient facts.
The People here seek to do just this. Defendant was presumptively entitled to the Wade hearing on alleging that the police display of a single photo to Benito was suggestive. The People then invoked the confirmatory identification exception to the hearing requirement, but did not allege that Benito and the defendant were known to one another; the People merely alleged that the witness had seen defendant numerous times in a grocery store. Defendant responded by specifically denying "personally knowing or having any prior familiarity” with Benito.
To summarily deny a Wade hearing, the trial court had to conclude that, as a matter of law, Benito knew defendant so well that no amount of police suggestiveness could possibly taint the identification. Under the circumstances presented— the People did not allege a mutual relationship, and defendant specifically denied having any familiarity with Benito — the court should not have applied the Gissendanner-Tas exception without first having had a hearing.
Thus, the case should be remitted to Supreme Court for a hearing to determine whether the identification procedure was confirmatory. If, after that hearing, the court concludes that the People have not sustained their burden, a Wade hearing should be held and further proceedings, including a new trial, should be had as the circumstances may warrant. If the court concludes that a Wade hearing is not required, the judgments should be amended to reflect that result.
Accordingly, the order of the Appellate Division should be
Notes
There are actually two very different classes of identifications that have been labeled "merely confirmatory”: those made by an undercover officer in a buy-and-bust operation to confirm that the backup team apprehended the right suspect (see, People v Wharton,
Dissenting Opinion
(dissenting). I vote to affirm the order of the Appellate Division upholding this murder and weapons possession conviction, because the trial court’s denial of defendant’s motion for a Wade hearing was proper under CPL 710.60 (3) and this Court’s governing precedents. The Court, in my view, extends the governing procedural protections too far based on an unsupportable interpretation of this record.
The grocery store clerk, whose testimony is at issue, witnessed a murder. He promptly and voluntarily reported the crime to the local police precinct, and eventually identified defendant as the shooter based on a photograph shown to him by an investigating detective. The eyewitness thereafter testified before the Grand Jury that he had previously seen defendant "[a]t least four dozen times” as a customer in the grocery store where the eyewitness worked.
Defendant, conclusorily asserting suggestiveness of the out-of-court identification, sought a pretrial Wade hearing based on his counsel’s oral representations and affidavit. Defense counsel claimed that the eyewitness’s assertion of familiarity with defendant was unfounded because defendant did not “personally know * * * or hav[e] any prior familiarity with” the eyewitness.
This inversion of who knew or did not know whom, asserted secondhand by the defense lawyer, does not, standing alone, create an issue entitling defendant to a pretrial hearing on suggestiveness (see, People v Collins,
The Court’s rule in this case not only rewards defendant for procedural cleverness but, in addition, charts a pro forma pleadings guide to unnecessary, unwarranted and automatic pretrial hearings. Henceforth, a defendant’s unsubstantiated and sophistic claim, solely through counsel, of unfamiliarity with an eyewitness who uncontrovertedly asserts extensive familiarity with the defendant will nevertheless require a hearing. The unfortunate practical consequence for a host of cases and unnecessarily harassed voluntary witnesses is evident (contrast, People v Gruden,
The Court also appears to tender an equally untenable alternative dispositional rationale. The People are found to have failed to meet a new, amorphous, initial burden of showing, in the context of a case such as this, that "the witness knows defendant so well as to be impervious to police suggestion” (majority opn, at 452 [emphasis added]). If four dozen viewings by a disinterested store clerk who voluntarily went to the police after witnessing a murder do not qualify as sufficiently "impervious to police suggestion”, I cannot imagine any circumstances that will. So the rule in this respect is really no rule at all. What emerges instead is an artificially rigid requirement that the People must establish either mutuality of "protagonists” (majority opn, at 452) or an unquantified and undefined kind of close, prior relationship (majority opn, at 450). Our precedents to date have not so restricted the scope of the "confirmatory identification” exception, and I see no reason to do so in this case and under these circumstances. Moreover, the witness’s assertions were searchingly explored in cross-examination at the trial, where the witness also made
It is precisely because the pretrial matters at issue here turn on numerous "factors” (majority opn, at 451) and reduce to a "question of degree” (majority opn, at 450) that the better course and rule in these kinds of circumstances and cases would be for this Court to allow a sensible exercise of discretion and judgment, under the prevailing precedents, concerning the need for a pre-Wade or Wade hearing (compare, People v Williamson,
Chief Judge Wachtler and Judges Simons, Titone and Hancock, Jr., concur with Judge Kaye; Judge Bellacosa dissents and votes to affirm in a separate opinion.
Order modified and case remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.