People v. Brewster

OPINION OF THE COURT

Bracken, J.

This appeal presents for resolution the question of whether an indictment must be dismissed where the evidence of identity before the Grand Jury was based solely upon prior photographic identifications, and where the grand jurors were not informed of that fact.

The essential facts are not in dispute. As reflected in the opinion of Criminal Term (People v Brewster, 115 Misc 2d 26), no corporeal identification was ever made of any of the defendants by the witnesses in this case. The witnesses, however, did identify defendants from photographs at the police station within several days after the crime. Each witness thereafter testified before the Grand Jury and “was asked, in substance, ‘Did there come a time when you made an identification of the person who committed the crime?’” (People v Brewster, supra, p 27.) Each witness answered affirmatively, but the Grand Jury was never informed that the witnesses had identified only photographs of the defendants. At a subsequent Wade hearing, the testimony disclosed that the sole means of identification of the defendants had been from photographs. Defendants thereupon moved to suppress the identification testimony (CPL 710.20, subd 6) and to dismiss the indictment (CPL 210.35, subd 5). Criminal Term denied the motion to suppress but granted the motion to dismiss, holding that evidence of identity derived from a photographic identification was incompetent, and that introduction of such evidence without any explanation to the grand jurors as to its source impaired the integrity of the Grand Jury and resulted in prejudice to the defendants.

For the reasons that follow, the order must be reversed insofar as appealed from, on the law, the motion to dismiss must be denied, and the indictment reinstated.

While both the United States Constitution and the New York State Constitution require the indictment of a Grand Jury as a prerequisite to a felony prosecution (US Const, 5th Amdt; NY Const, art I, § 6), neither prescribes the kind or quantum of evidence upon which a Grand Jury may act (Costello v United States, 350 US 359; Matter of Miranda v Isseks, 41 AD2d 176). In fact, an indictment based entirely upon hearsay or other incompetent evidence is sufficient for constitutional purposes (Costello v United States, supra). Thus, resolution of the issue before us turns entirely upon construction of the various New York statutes governing the procedures of the Grand Jury and the rules of evidence in criminal proceedings.

The relevant statutes pertaining to Grand Jury practice are found in CPL article 190. CPL 190.65 (subd 1) sets forth the standard of proof required to support an indictment of the Grand Jury: “Subject to the rules prescribing the kinds of offenses which may be charged in an indictment, a grand jury may indict a person for an offense when (a) the evidence before it is legally sufficient to establish that such person committed such offense * * * and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense”. The terms “legally sufficient evidence” and “reasonable cause to believe that such person committed such offense” are further defined in CPL 70.10 as follows:

“Standards of proof; definitions of terms

“The following definitions are applicable to this chapter:

“1. ‘Legally sufficient evidence’ means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof; except that such evidence is not legally sufficient when corroboration required by law is absent.

“2. ‘Reasonable cause to believe that a person has committed an offense’ exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay”. Reading these sections together, an indictment is authorized where (1) competent evidence, accepted as true, establishes each and every element of the offense charged and defendant’s commission thereof, and (2) competent and admissible evidence which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that defendant committed it.

Clearly, evidence of identity derived from a photographic identification may establish, if accepted as true, defendant’s commission of the offense charged, and may furnish reasonable cause to believe that defendant committed the offense. Thus, such evidence may be viewed as legally sufficient to support an indictment under CPL 190.65 (subd 1) if such evidence is competent and admissible.

The term “competent evidence” is defined as relevant evidence which is admissible in a particular action, i.e., relevant evidence which is not subject to the operation of any exclusionary rule (Richardson, Evidence [Prince, 10th ed], § 4; see, also, 1 Bender, NY Evidence, § 1). Thus, for our purposes “competent” evidence is, by definition, “admissible” evidence.

To determine whether evidence of identity based upon a photographic identification is “competent” and “admissible” for Grand Jury purposes within the meaning of CPL 190.65, we must next examine CPL 190.30, which prescribes the rules of evidence applicable to Grand Jury proceedings. CPL 190.30 (subd 1) provides: “Except as otherwise provided in this section, the provisions of article sixty governing rules of evidence and related matters with respect to criminal proceedings in general, are, where appropriate, applicable to grand jury proceedings” (emphasis supplied). Those exceptions as alluded to in subdivision 1 are contained in subdivisions 2 and 3 and allow the reception of scientific reports and affidavits as prima facie evidence of the facts contained therein.

The language of subdivision 1 makes the provisions of CPL article 60 applicable to Grand Jury proceedings, subject to two separate and distinct qualifications: “[e]xcept as otherwise provided in this section” and “where appropriate”. The first qualification (“[e]xcept as otherwise provided in this section”) establishes that the rules of evidence governing criminal proceedings contained in CPL article 60 shall apply to Grand Jury proceedings except to the extent that CPL 190.30 (subds 2, 3) (proof by report and/or affidavit) provide otherwise. The second qualification (“where appropriate”) establishes that even where the provisions of CPL 190.30 do not pre-empt the general evidentiary rules of CPL article 60, the rules of CPL article 60 shall only be applied to Grand Jury proceedings insofar as it is appropriate to do so. We must therefore consider the general rules of CPL article 60 governing admissibility of identification evidence in criminal proceedings, and determine the extent to which it is “appropriate” to apply those rules to proceedings before the Grand Jury.

CPL 60.30 governs the extent to which a witness in a criminal proceeding who had identified a defendant may testify to a previous identification:

“Rules of evidence; identification by means of previous recognition, in addition to present identification

“In any criminal proceeding in which the defendant’s commission of an offense is in issue, a witness who testifies that (a) he observed the person claimed by the people to be the defendant either at the time and place of the commission of the offense or upon some other occasion relevant to the case, and (b) on the basis of present recollection, the defendant is the person in question and (c) on a subsequent occasion he observed the defendant, under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States, and then also recognized him as the same person whom he had observed on the first or incriminating occasion, may, in addition to making an identification of the defendant at the criminal proceeding on the basis of present recollection as the person whom he observed on the first or incriminating occasion, also describe his previous recognition of the defendant and testify that the person whom he observed on such second occasion is the same person whom he had observed on the first or incriminating occasion. Such testimony constitutes evidence in chief”.

This section was enacted in 1970 (L 1970, ch 996, § 1, amd by L 1977, ch 479, § 2) and was derived from section 393-b of the Code of Criminal Procedure. Prior to the enactment of section 393-b in 1927 (L1927, ch 336), it had been held to be reversible error to admit testimony of a witness that he had previously identified the accused, regardless of whether the prior identification had been corporeal or photographic, since such testimony constituted a prior consistent statement and thus hearsay (see, e.g., People v Jung Hing, 212 NY 393). Section 393-b was enacted in 1927 and provided as follows: “§ 393-b. Testimony of previous identification. When identification of any person is in issue, a witness who has on a previous occasion identified such person may testify to such previous identification”. The statute as enacted was construed to have relaxed the prior rule only to the extent of permitting a witness to testify as to a previous corporeal identification made by the witness himself (see, e.g., People v Spinello, 303 NY 193). Thus, under section 393-b, testimony concerning a previous photographic identification continued to be precluded, not because it was incompetent hearsay, but because of two principal policy grounds. First, photographs are subject to ready distortion affecting the accuracy of an identification. Second, reference to photographs creates the prejudicial inference that the police had a “mug shot” of the defendant and therefore he must have had a prior arrest record (People v Caserta, 19 NY2d 18; see, also, People v Christman, 23 NY2d 429; People v Baker, 23 NY2d 307; People v Wright, 21 NY2d 1011; People v Cioffi, 1 NY2d 70; People v Hagedorny, 272 App Div 830). The prohibition against the admission of evidence of photographic identifications has continued after enactment of CPL 60.30 (People v Lindsay, 42 NY2d 9; People v Johnson, 32 NY2d 814; People v Griffin, 29 NY2d 91; see, also, Sobel, Eyewitness Identification [2d ed], § 4.3, subd [c]).

Our examination of the history of the rule and of the policies justifying its existence leads us to conclude that it is simply not appropriate to apply the rule to proceedings before the Grand Jury (CPL 190.30, subd 1) and that evidence of identity derived from a photographic identification is therefore competent and admissible for the purpose of supporting an indictment (CPL 190.65, subd 1).

Initially, the rule heretofore has been applied to the introduction of such evidence at trial only¹, and the policies articulated by the courts as supporting the rule simply do not justify its extension to the Grand Jury. Since a conviction by verdict after trial must be supported by proof beyond a reasonable doubt (CPL 70.20), the importance of the rule at trial is apparent: the trier of fact should not be permitted to convict based upon a mistaken identification and should not be permitted to infer that the accused had a prior arrest record (People v Caserta, supra). However, the Grand Jury is an accusatory body whose function is to determine only whether sufficient evidence exists to hold the accused for trial (People v Calbud, Inc., 49 NY2d 389, 394) and not whether there exists proof beyond a reasonable doubt to support a conviction (People v Porter, 75 AD2d 901). Under these circumstances, the dangers justifying the rule prohibiting evidence of photographic identification are greatly diminished, since a defendant may still challenge the circumstances, accuracy and veracity of an identification at a Wade hearing (see United States v Wade, 388 US 218) and/or at trial.

In fact, the Court of Appeals has recognized the reduced risk of permitting the use before the Grand Jury of identification evidence which would be inadmissible at trial. In People v Oakley (28 NY2d 309), the issue was whether an indictment was invalid where the identification evidence before the Grand Jury had been based upon a showup, and where that evidence had been properly suppressed as unduly suggestive at a subsequent Wade hearing. The court held that because the identification evidence was prima facie competent until found to be otherwise at the postindictment suppression hearing, the evidence before the Grand Jury was legally sufficient². The court distinguished between evidence which is incompetent when presented to the Grand Jury and evidence which is prima facie competent until rendered incompetent by subsequent extrinsic proof at a suppression hearing. For purposes of the Grand Jury, the latter was held to supply a necessary element of a prima facie ease. The court stated: “Nor is it essential, as the prosecutor believes, that to save the indictment the victim must be able to testify to a proper in-court identification. If on the trial there had been no reliable identification or inculpation from some source, defendant would, of course, be acquitted, by direction of a verdict if need be. There would be no need circuitously to dismiss the indictment for insufficiency of evidence before the Grand Jury. If on the trial, however, there had been other reliable proof of identification or inculpation, then of course it would make no difference how the trial proof compared with the Grand Jury proof. It would suffice that the indictment had performed its office and had been obtained on what was at the time prima facie legally competent evidence rendered inadmissible only by subsequent challenge and other proof” (People v Oakley, supra, p 313).

In our view, the rationale of Oakley (supra) lends support to our conclusion that photographic identification evidence is competent and admissible at the Grand Jury level. Indeed, it would be incongruous to permit an indictment based upon a blatantly suggestive corporeal identification to stand, while requiring dismissal of an indictment based on a photographic identification without any regard to its fairness.

Further, the law permits the use of photographic identification evidence in other accusatory phases of criminal prosecutions. For example, probable cause for a valid arrest may be provided by a photographic identification, even if that identification would not be admissible at trial (People v Nelson, 79 AD2d 171, cert den sub nom. Usher v New York, 454 US 869). It follows that, at least in cases of prosecution by information, an accusation based upon a photographic identification will be sufficient to require an accused to stand trial. That being the case, we perceive no basis for requiring a more restrictive standard in cases of prosecution by indictment.

Moreover, the Court of Appeals has implicitly approved of the use of photographic identification evidence before the Grand Jury. In People v Baker (23 NY2d 307, supra), a witness identified defendant at trial as one of the persons she had seen running from the crime scene. She also testified at trial that she had identified a photograph of defendant before the Grand Jury. The court held that the latter testimony was admissible at trial; because it had been brought out on cross-examination that the witness had testified before the Grand Jury that she did not recognize some of the persons she had seen running from the scene, the prosecution could properly bring out on redirect that portion of her Grand Jury testimony in which she had identified defendant photographically (under the rule that a party may always read another portion of a statement used for impeachment to correct a false impression and to show that there was, in fact, no contradiction). In so holding, the court did not question the propriety of the introduction of photographic identification evidence before the Grand Jury in the first instance. If the court had in fact viewed admission of such evidence before the Grand Jury as improper, it is unlikely that the use of such Grand Jury testimony would have been sustained at trial.

In any case, the New York prohibition against use of photographic identification evidence at trial is the minority rule (Sobel, Eyewitness Identification [2d ed], § 4.3, subd [c]), and its continued vitality in this State is in question. The New York State Law Revision Commission’s proposed Code of Evidence was submitted to the 1982 session of the Legislature and is presently under consideration. Under section 803 (subd [a], par [3]) of the proposed code, a witness would be permitted to testify that he had previously identified a person from a photograph. The Law Revision Commission’s Comment on this section states in pertinent part: “Restriction of the paragraph to corporeal identification is unwarranted since no reason appears for differentiating between prior photographic or sketch and corporeal identifications” (NY Law Rev Comm, A Code of Evidence for the State of NY [1982], Comment, p 185).

Finally, strong policy considerations militate against an extension of the banning of photographic identification evidence to Grand Jury proceedings. Such an extension would have the effect of requiring a corporeal identification procedure (e.g., lineup) in every felony prosecution prior to Grand Jury presentation (except in those cases where the defendant was previously known to the victim or witnesses). In view of the ever-increasing case loads of prosecutors throughout the State, this requirement would prove burdensome and perhaps unmanageable, particularly where expeditious Grand Jury action is required to keep a defendant in custody (CPL 180.80). Moreover, imposition of such a requirement would effectively preclude Grand Jury action in all cases in which the accused was not in custody and not otherwise available for corporeal identification (People v Ball, 89 AD2d 353, 355; People v White, 115 Misc 2d 304, 306). We are mindful also of the additional burden that would be placed upon victims and witnesses were they required to view a lineup in all cases prior to appearing before the Grand Jury. In the absence of any meaningful protection to the accused, the imposition of such a burden is to be avoided (see United States v Hasting, 461 US 499, _, 103 S Ct 1974, 1979; Morris v Slappy, 461 US 1, _, 103 S Ct 1610,1617-1618).

In sum, we conclude that the rule precluding use of photographic identification evidence, which has heretofore been applied only at trial, ought not be extended to the proceedings of the Grand Jury, as the policies supporting such a rule are far outweighed by the policies favoring use of such evidence before that body. Accordingly, we hold that the exclusion of photographic identification evidence from Grand Jury proceedings is not appropriate, and that use of such evidence before the Grand Jury is therefore permitted under CPL 190.30. That being the case, photographic identification evidence is both competent and admissible within the meaning of CPL 190.65 (subd 1) and is legally sufficient to support an indictment of the Grand Jury.

In light of our holding, it cannot be said that the Grand Jury proceeding in the case at bar failed to conform to the requirements of CPL article 190 to such a degree that the integrity of the proceeding was impaired (CPL 210.35, subd 5). The prosecutor complied with CPL article 190 by presenting witnesses who testified that they had identified defendants as the persons who had committed the crimes. This testimony was competent; it established, if believed, the fact of defendants’ commission of those crimes; and it established reasonable cause to believe that defendants had committed such crimes (CPL 190.30, subd 1; 190.65, subd 1). This is all that the statute requires, and the fact that the Grand Jury was not apprised of the nature of the identification is not a controlling fact. To read into CPL article 190 a requirement that the prosecutor inform the Grand Jury of the basis for a witness’ identification would necessarily impose upon the Grand Jury the obligation of determining the reliability and accuracy of the particular identification. This, in turn, would necessitate a determination of whether the photographic identification procedure was unduly suggestive and, if so, whether there existed an independent basis for the identification. Witnesses before the Grand Jury are not subjected to cross-examination, and in the absence of complex instructions from the prosecutor regarding the principles of law applicable to eyewitness identification, the Grand Jury is illsuited to make such determinations. As we have previously noted, the Grand Jury’s function is to determine only whether sufficient evidence exists to hold the accused for trial (CPL 190.65, subd 1; People v Calbud, Inc., 49 NY2d 389, 394, supra), and determinations regarding the reliability of eyewitness identifications, involving questions of law and fact, are better left to the court presiding at the Wade hearing, and, ultimately, to the trier of fact. Accordingly, the order dismissing the indictment upon the ground that the Grand Jury proceeding was defective (CPL 210.20, subd 1, par [c]) must be reversed and the indictment reinstated.

1 . Actually, the rule prohibiting evidence of photographic identification is not absolute, even at trial. Such evidence is admissible if adduced by the defense (People v Brown, 62 AD2d 715, affd 48 NY2d 921; People v Whipset, 80 AD2d 986), or if introduced by the prosecution to rebut a claim that the witness’ identification of the defendant at trial is a recent fabrication (People v Lindsay, 42 NY2d 9; People v Baker, 23 NY2d 307). It may be argued that since the defendant can introduce such evidence, it is therefore to be considered competent and admissible (People v White, 115 Misc 2d 304, 305).

2 , The Oakley (People v Oakley, 28 NY2d 309) rule has been extended by this court to cover admissions and physical evidence as well (People v Vega, 80 AD2d 867; People v Mauceri, 74 AD2d 833).