People v. Malloy ( 1981 )

Fein, J.

I concur in result. The careful and detailed dissent well portrays ' the pertinent facts' and the problems created by the zeal of the police in setting up the third and fourth photo displays. These impermissible showups did not so taint the identification by the Kopp brothers as to render their in-court identification of defendant inadmissible. The insistence of the Kopp brothers and the other victim, Licciardi, that they could not make a positive identification without a visual confrontation with the defendant is powerful evidence that “under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive” (Neil v Biggers, 409 US 188, 199). The circumstances surrounding the commission of the crime, as carefully described in the dissent, provided the “independent source” required by the guidelines laid down in Neil v Biggers (supra). Measured against those guidelines, the independent identifications by Licciardi and the Kopp brothers possessed “sufficient aspects of reliability” (Manson v Brathwaite, 432 US 98, 106) to render them admissible. The misuse of photographs by the police during the identification procedure is not always fatal (Simmons v United States, 390 US 377, 383-384).