AT2 order dated February 7, 2014, affirming judgment of conviction. Decision below: 42 Misc.3d 141(A), 990 NYS2d 439, 2014 WL 683893. Pigott, J., granted leave July 21, 2014. Argued November 17, 2015.

ISSUES PRESENTED: Whether a trial court correctly determined, after a limited hearing, that the single photo ID procedure that the trial assistant conducted with the complainant one year after the incident was permissible as proper “trial preparation,” as opposed to impermissibly suggestive. (Assigned counsel: Seymour James, Legal Aid Society, Criminal Appeals Bureau, 199 Water Street, NYC 10038.)

 

Issue before the Court: The defendant was charged with having been involved in an assault on a New York City bus. Although the police were initially unable to locate a suspect, the complainant encountered the defendant in a drug store, and called the police identifying defendant as the woman that had assaulted her. Defendant was arrested. Sixteen months later, the prosecutor met with the complainant and showed her a photograph of defendant taken on the day of her arrest. The following day, the prosecutor informed defense counsel that the complainant had been shown the photograph “in order to aid him in understanding her description of defendant’s hairstyles on the day of the attack and when she was arrested.” Defense counsel requested a hearing, pursuant to People v. Herner, to show that the photographic display was an identification procedure under CPL 710.30, that warranted a Wade hearing to determine whether the display was unduly suggestive. The court granted the hearing, but denied a request by defense counsel to call the ADA who was present during the procedure. Following the hearing, the court found that no Wade hearing was necessary because the photographic display was part of trial preparation and exempt, and also concluded that the brief viewing would not taint any in-court identification. On appeal, defendant challenged whether a Herner hearing was sufficient to protect a defendant against the dangers of an unduly suggestive police-arranged identification procedure, when the procedure was alleged to have been for the purpose of trial preparation, rather than for the purpose of identifying the offender. 

 

Held: Abrogating People v. Herner, 85 N.Y.2d 877 (1995), the Court held that, upon a defendant’s motion, the court must hold a Wade hearing to determine whether a pretrial identification procedure exposed a witness to the defendant’s identity in an unduly suggestive manner, regardless of whether the police or the district attorney conducted the identification procedure as trial preparation. 

 

CAL Observes: In a majority opinion written by Judge Rivera, the Court concluded that, regardless of whether a pretrial photographic identification is motivated by trial preparation or to identify a suspect, the danger of undue suggestion is the same. A Wade hearing was necessary in either case, dispensing with the expedient of a Herner hearing. The Court took the opportunity to advocate for addressing independent source at every Wade hearing, regardless of whether the court finds that the identification procedure is unduly suggestive. Even though the majority concluded that defendant was erroneously denied a Wade hearing, it concluded that the error was harmless, resorting to the evidence that came out at trial, and the judge’s finding in her verdict that “there was no substantial likelihood that complainant misidentified defendant and thus concluded that the photo did not taint the in-court identification” In an opinion that is replete with quotable language addressing the dangers of unduly suggestive identification procedures and the possibility of mistaken identification, it is surprising that the majority would resort to the unorthodox remedy of finding the denial of a Wade hearing harmless on the basis of trial evidence. Judge Lippman, in one of his final dissents, recognized this problem, concluding that, because independent source was never established below, the Court did not have the power affirm on the ground that there was independent source.