People v Solivera

[*1] People v Solivera 2009 NY Slip Op 51236(U) [24 Misc 3d 1203(A)] Decided on June 17, 2009 Supreme Court, Kings County Del Giudice, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through June 18, 2009; it will not be published in the printed Official Reports.

Decided on June 17, 2009
Supreme Court, Kings County

PEOPLE OF THE STATE OF NEW YORK

against

JOAN SOLIVERA



12078-2007



Attorney for the People:

Charles J. Hynes

District Attorney, Kings County

350 Jay Street

Brooklyn, NY 11201

by ADA Vasantha Rao

Attorney for the defendant:

Jorge Guttlein, Esq.

291 Broadway, Suite 1500

New York, New York 10007

Del Giudice, J.

Following an incident which occurred on November 25, 2007, in which Jaspal Singh was seriously injured after being struck by an automobile, the defendant was arrested and charged with Assault in the First Degree (PL 120.10[1]) et al. The case was sent to this court for pre-trial hearings and to proceed immediately to trial.[FN1]

Prior to the commencement of a Wade hearing, the defendant moved to preclude evidence being introduced of a photographic identification that was made by an eyewitness, Kiran Dave (CPL §710.30 [1][b]). The People conceded that no notice was provided for this witness' identification. This court determined that pursuant to People v Grajales (8 NY3d 861), notice of a photographic array need not be given, since the People did not intend to introduce such evidence at trial. [*2]

After deciding the defendant's preclusion motion, the court conducted a Wade hearing with respect to two photographic identifications. The first photographic identification was conducted on December 1, 2007, at the hospital bed of Jaspal Singh. The second was conducted on December 4, 2007, at the 83rd Precinct, with an eyewitness, Kiran Dave. The defendant was the subject of both photo arrays. A prior arrest photograph of the defendant was used as part of both photo arrays.[FN2]

At the conclusion of the Wade hearing,[FN3] this court found that the photographic identifications were conducted in accordance with all constitutional requirements and defendant's motion to suppress any in court identifications, by either witness, was denied. No pretrial corporal identification procedure was ever conducted.

The court then issued the defendant Parker warnings[FN4] and adjourned the case for trial.

As a result of the defendant's nonappearance, this court issued a bench warrant prior to the commencement of jury selection. The following day, this court conducted a Parker hearing and, at the conclusion of the hearing, determined that the defendant had voluntarily absented himself from the courtroom. Voir dire and trial commenced in the absence of the defendant.

During the course of his trial testimony, the complainant, Jaspal Singh, was shown the photographic array that had previously been displayed to him on December 1, 2007.[FN5] Mr. Singh stated that because of the passage of time, he was no longer able to make an identification of the defendant from the photo array.[FN6] The People then sought, under CPL §60.25, to introduce evidence of a prior photographic identification of the defendant made by Jaspal Singh, on December 1, 2007, through the testimony of Detective Joseph Tallarine,[FN7] to counter the absence of the prosecution's ability to have the complainant identify the defendant in open court or [*3]by confirming his pre-trial photographic identification.[FN8] The defendant's attorney objected.

DISCUSSION ANDCONCLUSIONS OF LAW

The issue presented is: may the prosecutor, by use of CPL §60.25, introduce into evidence, through the testimony of a police detective, a prior photographic identification of a defendant which employed a prior arrest photograph?

Unlike any other state in the union, a prosecutor in New York is ordinarily not permitted to introduce evidence of a pre-trial photographic identification at a defendant's trial (People v Lindsay, 42 NY2d 9, 12; People v Caserta, 19 NY2d 18, 20; People v Cioffi, 1 NY2d 70, 73). This is especially true when the photographs in the array are arrest photographs, commonly referred to as "mug shots", because displaying such photographs might prejudice a jury into believing that the defendant on trial is more inclined to commit the present offense because he had been arrested for a crime in the past (People v Johnson[FN9], 100 AD2d 134, 139, aff'd 63 NY2d 419[FN10] see also People v Edmonson, 75 NY2d 672, 678, rearg denied 76 NY2d 846, cert denied 498 US 1001[rogues gallery of mugshots likely to create inference that identified suspect has had previous trouble with the law]).

This improper inference does not exist, however, when the photos proffered are not "mug shots" but are obtained from some other source, such as a high school yearbook, or other non-arrest photographs (see People v Perkins, 61 AD3d 780, 781-782 [jury advised that photograph of defendant was taken on day of lineup and was not in the People's possession by reason of a previous arrest]).Evidence of pre-trial identifications are also admissible if the images displayed are not photographs, which could be interpreted as being a police mugshot. In Edmonson, the Court of Appeals deemed admissible the pre-trial identification of the defendant from a surveillance videotape, holding that "a videotape, randomly canvassing pedestrians on the street, [*4]imputes no prior criminality to those it depicts, and it reflects their likeness and physical characteristics more uniformly and completely than does an array of still photographs" (Edmonson, 75 NY2d at 678; see also People v Russell, 79 NY2d 1024 [bank surveillance photographs admissible since defendant had changed his appearance]; People v Sampson, 289 AD2d 1022, 1023 [4th Dept 2001], lv denied 97 NY2d 733][testimony of pre-trial identification of video surveillance photo published in media admissible, particularly where defendant has changed his appearance]).

The prosecution is permitted to display the defendant's arrest photograph for the purpose of an in-court identification by a victim or eyewitness if the defendant has absconded prior to trial (People v Gonzalez, 61 AD3d 775[FN11]; see also People v Thompson, 306 AD2d 758, lv denied 1 NY3d 581 [use of defendant's photograph to identify him as the person observed by trial witness was reasonable and necessitated by his voluntary absence from proceedings]; People v Waithe, 163 AD2d 347, lv denied 76 NY2d 897 [redacted arrest photograph properly used to identify absent defendant at trial]; People v Seabrooks, 120 AD2d 691 [arrest photograph properly used to identify absent defendant at trial]).

As stated earlier, the issue herein is whether the prosecution can introduce evidence of a victim's prior out-of-court identification of an absconded defendant's mugshot through the testimony of a police detective.

Under certain circumstances, CPL§ 60.25 permits evidence of a previous out-of-court identification to be introduced at trial. The statute permits the People to introduce evidence of a previous identification, either at the time and place of the crime, or upon some other occasion relevant to the case, when, on a subsequent occasion, the witness observed the person previously identified but was unable, on the basis of present recollection, to identify the previously identified individual. Under such limited circumstances, a third person can testify to the facts and circumstances regarding the initial identification (CPL 60.25 [1][b]; People v Polite, 228 AD2d 705, lv denied 89 NY2d 867; People v Hudson, 201 AD2d 503, lv denied 83 NY2d 872; People v Hernandez, 154 AD2d 197, lv denied 76 NY2d 736) and such testimony constitutes evidence-in-chief on the issue of identification (People v Bayron, 66 NY2d 77, 81).

The decision to admit testimony concerning a prior identification of an arrest photo to prove the identity of an absconded defendant appears to be a case of first impression in this judicial department. In 1997, the Third Department, citing CPL §60.25, admitted a prior out-of-court photographic identification when a subsequent [*5]in-court identification could not be made because the suspect had changed his physical appearance (People v Murphy, 235 AD2d 933, 934-935 [3rd Dept 1997], lv denied 90 NY2d 896).

In the case before this court, the People seek to introduce evidence of a prior photographic identification of the defendant by the complainant, not only because the passage of time has dimmed the witness' ability to make an identification, but because of the inability of the complainant to make a present corporal identification due to the defendant's flight from his trial.

It is axiomatic that the People are required to prove, beyond a reasonable doubt, the identity of the accused on trial (People v Whalen, 59 NY2d 273, 279; People v Love, 244 AD2d 431, 431, lv denied 91 NY2d 876).

It would defy logic and any sense of justice to enable a defendant to prevent the People from proving his identity by his deliberate flight. His flight precludes any claim of prejudice. Thus, defendant's flight allows the People to prove his identity by use of CPL §60.25 testimony regarding a prior out of court photographic identification.

In addition, whereas in the past, arrest photographs were distinctive and clearly indicated that the subject was under arrest, the photographs displayed in this case had no such indicia of criminality[FN12] and thus, their display would not prejudice the trial jury against the defendant.

For the reasons set forth herein, I will allow Detective Tallarine to testify that on December 1, 2007, the complainant, Jaspal Singh, identified the defendant from a photographic array, as the person who injured him on the night of November 25, 2007. The court will issue a curative instruction, informing the jury that photographs come into the possession of law enforcement as a result of many different reasons and that no adverse inference can be taken against the defendant on the basis of law enforcement's possession of said photograph.

This constitutes the decision and order of the court (CPL 440.30 [7]).

___________________________________

Vincent M. Del Giudice

Judge of the Court of Claims [*6]

Acting Supreme Court Justice

Dated: June 17, 2009

Brooklyn, New York Footnotes

Footnote 1:The defendant was ultimately acquitted of Assault in the First Degree (PL 120.10[1]) and Assault in the Second Degree (PL 120.05[4]), but was convicted of Leaving the Scene of an Incident Without Reporting (VTL 600[2]).

Footnote 2:The police used the most recent arrest photograph in the arrays shown to the witnesses.

Footnote 3:United States v Wade, 388 US 218 (1967); CPL §710.40.

Footnote 4:People v Parker, 57 NY2d 136 (1982); CPL §340.50.

Footnote 5:People's 2 for identification.

Footnote 6:Since the defendant was not in the courtroom, Mr. Singh was unable to attempt an in-court identification.

Footnote 7:People's exhibit 6 in evidence.

Footnote 8:Even though the eyewitness, Kiran Davis, was also precluded from making an in-court identification of the absent defendant, the People did not request admission of his out-of-court photographic identification because they hadn't provided the defense with statutory notice, as required by CPL §710.30 (1)(b).

Footnote 9:This case is also referred to by the name of the co-defendant, Brewster.

Footnote 10:Unless otherwise indicated, all Appellate Division decisions are from the Second Judicial Department.

Footnote 11:I was the trial judge in Gonzalez.

Footnote 12:The prior arrest photograph of the defendant was a color photo, with no numbers, markings, writings or height scales. It was simply a full facial color photo with a neutral background.