People v. Anthony Perkins

Decided On : 12/20/2016
Issue facing the Court: (1) Whether the lineup was unduly suggestive where only one lineup subject (defendant) had a dreadlock hairstyle, described by some but not all of the identifying witnesses; (2) the denial of an adverse inference charge where the People failed to preserve the tape of a 911 call; (3) the failure of the trial judge to make factual findings before denying the defense Batson challenge at step 3. 
 
Held: There was no record support for the hearing court’s finding that the lineups were not suggestive where Perkins was the only one with visible dreadlocks.    While several Appellate Divisions had applied the rule that a defendant’s distinctive feature does not render a lineup suggestive unless the feature was a  prominent aspect of the witness’s description, the Court of Appeals rejected this rule.  The Court found that a bright line rule in this area would be  unworkable and unwise.  A witness’s prior description is but one factor to consider in determining whether a lineup creates a substantial likelihood that the defendant would be singled out for identification.
 
CAL Observes: Another notable win for the defense in a case that would ordinarily be affirmed because it presented a mixed question of law and fact beyond the Court of Appeals review powers.  Only by finding no record support for the lower court’s finding could the Court reach the issue.  The rule adopted by the Court is contrary to the one recognized by the Second Circuit in Raheem v. Kelly, 257 F.3d 122 (2d Cir. 2001) which found that a lineup can be suggestive as to one witness but not another based on the descriptions each had provided.  The rule announced by the Court of Appeals emphasized the need for flexibility in determining whether an identification procedure was suggestive. 
 
 
AD2 order dated January 28, 2015, affirming judgment of conviction.  Decision below: 124 AD3d 915, 2 NYS3d 220.  Read, J., granted leave July 2, 2015.
 
ISSUES PRESENTED: (1) Whether the lineup was unduly suggestive where only one lineup subject (defendant) had a dreadlock hairstyle, described by some but not all of the identifying witnesses; (2) the denial of an adverse inference charge where the People failed to preserve the tape of a 911 call; (3) the failure of the trial judge to make factual findings before denying the defense Batson challenge at step 3.  (Assigned counsel: Paul Skip Laisure & Lynn W.L. Fahey, Appellate Advocates, 111 John St., 9th Floor, NYC  10038.)
 

Related Information:
People v Perkins