People v. Black

Sandler, J. P.,

dissents in a memorandum as follows: I agree that it was improper to admit the defendant’s arrest photographs on the ground that the District Attorney, concerned that the defendant’s apparently impeccable attire during the trial contrasted favorably with the complaining witness’ "slovenly” appearance, wanted "the jury to know the defendant at the time of the crime wasn’t necessarily prim and proper either and it makes it more likely that a man could commit such a crime.”

My difficulty with the court memorandum is that the arrest photographs do not in fact disclose that the defendant was "dirty” or "disheveled”, even if I could accept the doubtful hypothesis that such an appearance could realistically have led to the improper inference of a propensity to commit the crime charged. I find nothing in the appearance or attire of the defendant depicted in the arrest photographs that could possibly have led the jury to infer a propensity to commit the charged crime, or that would in any way have prejudicially affected the outcome of the trial. The inescapable reality is that the defendant was convicted because the jury quite sensibly found reliable , his identification by a complaining witness who had kept him in view, with only a few seconds’ interruption, from the time the crime occurred until the defendant was arrested, and was in no way contributed to by any aspect of the defendant’s appearance as portrayed in the photographs.

At the risk of complicating the relatively simple issue of prejudice that divides me from the court, I should add my view that the photographs would have been properly admissible in evidence for a reason not stated by the trial assistant. Realistically, the single issue presented was the reliability of the defendant’s identification by a complaining witness who had kept him in view from the time of the crime, with only a few seconds’ interruption, until his arrest. Among the various factors appropriately considered by a jury in evaluating the reliability of the identification, it was surely pertinent for the jury to consider whether the defendant’s appearance was that of someone who could easily be mistaken for another. The photographs disclose the defendant attired in a light sport jacket, a white and black sport shirt, dark, apparently blue, slacks, and what appears to be blue suede shoes. Taken together with his facial features, which the jury could observe in the courtroom during the course of the trial, I believe that the distinctive nature of the defendant’s attire, although in no way suggestive of a propensity to commit a crime, could properly have been considered by the jury in evaluating the possibility that there had been an erroneous identification.

By any realistic standard, the defendant’s guilt was established by overwhelming evidence, and the introduction of the arrest photographs for the erroneous reason given presented no "significant probability * * * that the jury would have acquitted the defendant had it not been for the error * * * which occurred.” (People v Crimmins, 36 NY2d 230, 242.)