Citation Numbers： 1 Misc. 3d 880, 768 NYS2d 166, 768 N.Y.S.2d 166, 2003 N.Y. Misc. LEXIS 1396
Judges： Smith
Filed Date： 10/31/2003
Status： Precedential
Modified Date： 10/19/2024
By Indictment No. 03-0845, defendant Edward Hammonds has been accused of one count of robbery in the first degree (Penal Law § 160.15 [3]), one count of criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]), one count of grand larceny in the fourth degree (Penal Law § 155.30 [5]), and one count of menacing in the second degree (Penal Law § 120.14 [1]). The acts allegedly occurred on or about September 5, 2002. The People have moved, by way of an order to show cause, for an order from this court requiring defendant to appear in a lineup pursuant to CPL 240.40 (2) (b) (i). Defendant opposes the People’s motion on the grounds that it is untimely and not supported by good cause. Alternatively, defendant requests that should the lineup be granted, the court impose that the lineup be held in a double-blind and sequential manner to reduce the opportunity for misidentification. In addition, defendant requests that the People be required to provide a stenographer and photographer to record the lineup proceedings. Upon consideration of these papers, the motion for a lineup is disposed of as follows:
Background
The People filed the instant application three days after the court issued its decision and order on defendant’s omnibus motion and at a time when the case should have been ready for trial. The People’s late submission of this application does not go unnoticed and raises some question concerning the strength of the People’s case given the rather lackluster approach law enforcement has taken with regard to their prosecution of defendant to date. Indeed, defendant was not even arrested on the charges underlying this indictment until nine months after the date of the alleged crimes, when he was arrested on an unrelated misdemeanor offense. This late arrest occurred even though the alleged victim identified defendant from a mug shot book eight days after the crimes’ commission. In addition, law enforcement should have been aware of defendant’s whereabouts because he was on probation (and gainfully employed) and, according to defendant, still residing at the Peekskill address that was reflected on his criminal records. The court has ordered a Wade hearing on the noticed identification procedure and notes that to the extent that the identification is suppressed as being unduly suggestive (and there is no independent basis
Standard of Review for CPL 240.40 (2) (b) (i) Application
Pursuant to CPL 240.40 (2) (b) (i), the People may request a court order (postindictment) requiring defendant’s participation in a corporeal lineup. That statute provides: “[u]pon motion of the prosecutor, and subject to constitutional limitation, the court in which an indictment... is pending . . . may order the defendant to provide non-testimonial evidence. Such order may, among other things, require the defendant to . . . [alppear in a line-up.” The court order may also include a protective order which has the effect of “denying, limiting, conditioning, delaying or regulating discovery pursuant to this article for good cause, including constitutional limitations.” (CPL 240.50; see CPL 240.40 [3].)
Because the lineup results in the seizure of defendant’s body, the constitutional requirements of the Fourth Amendment must be satisfied before a court may order defendant’s participation. Thus, “[i]t is well established that a suspect may be ordered to appear in a lineup, or provide other nontestimonial evidence, when ‘the People establish (1) probable cause to believe the suspect has committed the crime, (2) a “clear indication” that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable.’ ” (People v Shields, 155 AD2d 978 [1989], lv denied 75 NY2d 818 [1990], quoting Matter of Abe A., 56 NY2d 288, 291 [1982], and citing People v London, 124 AD2d 254, 256 [1986], lv denied 68 NY2d 1001 [1986]; Matter of Pidgeon v Rubin, 80 AD2d 568 [1981]; see also People v Cassese, 1995 WL 251647 [Nassau County Ct, Mar. 23, 1995, Kowtna, J.].) Thus, “the granting of relief pursuant to CPL 240.40 (subd 2, par [b], cl [i]) is permissive or discretionary . . . [and] the prosecutor is under a burden to demonstrate ‘probable cause’ for the ‘necessity’ of the proposed procedure ... a requirement which is in addition to the demonstration of ‘probable cause’ that a crime has been committed and the defendant has committed it.” (People v Boudin, 114 Misc 2d 523, 525 [1982]; see also People v Handley, 105 Misc 2d 215 [1980].)
Here, the probable cause that a crime has been committed and that defendant committed it has been satisfied by the grand jury’s return of a true bill against defendant. The court has al
Pros/Cons of the Double-Blind/Sequential Lineup
From the facts of the case known to date, it is the court’s understanding that the reliability of the victim’s identification of defendant may well determine the outcome of this case. At the determination of trial readiness conference held on October 14, 2003, defendant insisted on addressing the court and, in the course of his protestations of innocence, defendant raised a couple of salient points — i.e., law enforcement’s failure to arrest him for nine months following the crimes and the serious discrepancies between the victim’s description of the perpetrator to the police versus the defendant’s physical characteristics. According to the People, defendant was identified by the victim from a mug shot book, but again there has been no determination regarding whether that identification procedure was unduly suggestive and, if so, whether there exists an independent basis for an in-court identification. That decision is left to the sound discretion of the Wade hearing court.
Because the reliability of the victim’s identification may well be the pivotal issue in this case (the District Attorney having identified little other evidence linking defendant to the crime), defendant has requested that if the court grants the People’s lineup application, the court should also require that certain methodologies be used in the lineup. Thus, defendant asserts that the current procedure employed — a simultaneous lineup where the law enforcement personnel charged with conducting the lineup have knowledge of the true suspect’s identity — is flawed and cannot produce reliable identifications. Rather, it is defendant’s contention that the court should order a method that has been winning favor in the scientific community known
Nevertheless, while there is disagreement over the validity of the results of the sequential lineup studies, there appears to be no disagreement over the benefit of having a double-blind lineup. Thus “[njumerous scientific studies suggest that officers who know the identity of a true suspect in a lineup might influence the decision of a witness, even unintentionally, through suggestive words or movements.” (Perrotta, Hynes Endorses Double-Blind Police Lineups, NYLJ, Dec. 13, 2002, at 1, col 3.) As noted by one court when describing a submission made by the District Attorney’s expert: “while there may not be ‘100 percent agreement among all experts’ on the desirability of sequential lineups under all circumstances ‘[t]he same is not true of double-blind testing,’ which he describes as ‘something for which there is no disagreement among experts at all.’ ” (People v Wilson, 191 Misc 2d 224, 228 [2002].) In addition, unlike the impact associated with the implementation of the sequential lineup, the use of a double-blind lineup would not appear to pose a significant drain on law enforcement manpower. (See id.)
Whether to Order a Double-Blind Sequential Lineup
The court’s authority to order that the District Attorney employ the sequential and/or double-blind lineup, however, is unsettled. There is currently a split at the trial court level (with apparently no appellate court decisions to date) over a court’s power to order double-blind and/or sequential lineups. Some courts hold the doctrine of separation of powers between the judicial, legislative and executive branches of government requires judicial deference. Therefore, these courts hold that it would be an improper infringement on law enforcement (and without a legal basis) for courts to order such lineups, especially since the simultaneous lineup procedure has been upheld by the New York Court of Appeals in People v Chipp (75 NY2d 327 [1990], cert denied 498 US 833 [1990]) as constitutional.
By contrast, a number of courts order double-blind and/or sequential lineups finding that “[t]he doctrine of separation of powers does not require courts to turn a blind eye to the social science research and wait passively for the legislature or the police to decide to adopt new procedures that enhance the fairness of judicial proceedings, but may rule upon the propriety of and necessity for such procedures as the issues are raised.” (People v Kirby, NYLJ, Oct. 21, 2002, at 25, col 4, citing People v Wilson, 191 Misc 2d 224 [2002]; Matter of Thomas, 189 Misc 2d 487 [2001].) The legal basis for these orders emanates from different theories. Some courts find authority within their inherent authority to control the content of their orders. (See Matter of Thomas, 189 Misc 2d at 493.) Other courts find authority in the New York Court of Appeals decision in Matter of Abe A. (56 NY2d 288, 298 [1982]), which holds that in determining whether
While the court is not opposed to finding that it has the power to order that the lineup be held in a particular manner, it will not utilize such power for a number of reasons. First, while it would seem self-evident that the sequential method might provide more reliable results, given the amount of controversy surrounding the validity of the studies (both with regard to their inability to replicate the impact on memory recall of a real world crime victim and with regard to the results which suggest that sequential lineups may reduce the number of correct identifications), the court is not willing to usurp law enforcement’s discretion in the procedure they choose so long as the procedure has been held to be constitutional. Second, while there is no such controversy surrounding the double-blind method, if the court were to order that it be employed in this lineup, the court would be embarking on a “slippery slope” and
Finally, it is unfortunate but given the circumstances of this case, the use of a double-blind sequential lineup would most likely have no impact whatsoever on the reliability of the identification procedure employed in this case. To tjhe extent there has been a misidentification, the damage is irreparable since the alleged victim has already chosen defendant’s photo from a mug shot book and that picture is forever imprinted on his mind. This phenomenon has been described as follows:
“Worse yet, after a misidentification occurs, the witness’s sense of recall can become impaired— perhaps irreparably — as the defendant’s im¡age tends to supplant the image of the actual criminal. The Supreme Court made this point in its first photographic identity case [Simmons v United States, 390 US 377, 383-384 (1968)], when it stated that ‘[r]egardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph ratiher than of the person actually seen, reducing ithe trustworthiness of subsequent lineup or courtroom identification.” (People v Gee, 99 NY2d 158, 163 [2002].)
Thus, it would appear that the benefits of a double-blind sequential lineup would be lost in a case where the victim has already identified the defendant from a photograph because it is more likely than not that the victim will again identify defendant in the lineup (whether it be sequential or simultaneous) based on his recollection of the defendant’s photograph.
The simultaneous, non-double-blind lineup has not been attacked as constitutionally infirm. In the end, courts must review the identification procedure employed to determine if it was unduly suggestive and, if so, whether there exists an independent basis for an in-court identification.
Nevertheless, given the critical nature of the identification evidence in this case, as well as the apparent weaknesses in the
Based on the foregoing, the People’s application is granted to the extent that a lineup is hereby ordered. The court further orders the People to provide defense counsel with notice seven days in advance of the date on which the lineup is scheduled to be held, and furnish the services of a stenographer and photographer to memorialize the lineup proceedings. Defendant’s application for a double-blind, sequential lineup is denied, but the court does agree and joins other courts that have recommended to their district attorneys’ offices that the offices “do justice” by employing the double-blind methodology in their lineups. (See People v M.A., 194 Misc 2d 449.)
. The double-blind aspect simply means that the law enforcement officers conducting the lineup have no knowledge as to which of the participants is a filler or the true suspect. ¡
. The court in Matter of Thomas (189 Misc 2d 487 [2001]) explained the phenomenon as follows: “Psychologists speculate that in a simultaneous lineup the viewer subconsciously believes that he or she should select the person that most resembles the perpetrator . . . Since the viewer believes that the alleged perpetrator is in the lineup, the viewer will in all likelihood select a person from the lineup based upon the person who most closely depicts tjhe perpetrator rather than from a recollection that the person is in fact the!perpetrator. In a sequential lineup, the viewer performs a ‘recall oriented function’ in that the viewer compares the person being viewed by him or her at the lineup with the person that he or she recalls as being involved in the incident, . . .” (Matter of Thomas, 189 Misc 2d at 489-490.)
. However, if law enforcement personnel permit a witness to have a second bite at the apple by allowing a second sequential lineup using the same potential suspects, the sequential lineup becomes indistinguishable from the simultaneous lineup. (See People v M.A., 194 Misc 2d 449, 457 n 9 [2002].)
. There are also issues concerning the studies’ validity because many (if not all) use photographs rather than live people in their stagedl sequential/ simultaneous lineups.
. Clearly, if the simultaneous non-double-blind methodology was determined to be unconstitutional, the court would be empowered to order
. These courts draw from the United States Supreme Court’s holding in Illinois v Lafayette (462 US 640 [1983]), which was a case in which the Supreme Court declined to find power in the judiciary under the Fourth Amendment to direct that a particular procedure be used in an inventory search because “the real question is not what ‘could have been achieved,’ but whether the Fourth Amendment requires such steps; it is not our function to write a manual on administering routine, neutral procedures of the station house. Our role is to assure against violations of the Constitution.” (Illinois v Lafayette, 462 US at 647.) Another court denied defendant’s request that a blank lineup be conducted holding that such a request was “not within the ambit of judicial discretion.” (See People v Guerea, 78 Misc 2d 907, 910 [1974].)
. At least one defendant has argued that “the greater accuracy of the double-blind, sequential lineup procedure constitutes a lesser intrusion on his right to be free from unreasonable searches and seizures.” (People v M.A., 194 Misc 2d 449, 451 [2002].) This argument is flawed since the intrusion on defendant in submitting to a simultaneous lineup is indistinguishable from the intrusion incurred as a result of his submitting to a double-blind sequential lineup. (See id. at 456.)