People v Chuyn

[*1] People v Chuyn 2011 NY Slip Op 52228(U) Decided on December 13, 2011 Supreme Court, New York County Kahn, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 13, 2011
Supreme Court, New York County

The People of the State of New York,

against

Manuel Chuyn, Defendant.



2707/2010



For the defendant:

Stephanie Kaplan, Esquire

The Legal Aid Society

49 Thomas Street

New York, New York 10013

For the prosecution:

Nick Viorst, Esquire

Assistant District Attorney

Office of the New York

County District Attorney

One Hogan Place

New York, NY 10013

Marcy L. Kahn, J.

Defendant Manuel Chuyn stands charged with one count of burglary in the second degree (PL §140.25[2]) and two counts of assault in the third degree (PL §120.00[1]). On November 15, 2010, December 8, 2010 and January 13, 2011, this court held a hearing pursuant to United States v. Wade, 388 US 218 (1967), on defendant's motion to suppress show-up identifications of defendant made by three eyewitnesses at the time of his arrest. During the course of that litigation, the court considered and rejected the defendant's request to call the three civilian eyewitnesses to testify. On January 19, 2011, the court denied defendant's motion to suppress identification evidence in an oral ruling. (Transcript of proceedings dated Jan. 19, 2011 [Chuyn [*2]I]).

I.DEFENDANT'S INSTANT APPLICATIONS

Defendant has now moved for an order of this court reopening the Wade hearing pursuant to CPL §710.40(4), based upon newly discovered evidence. He again seeks to call the three civilian eyewitnesses, claiming that there is reason to believe that the identifications made by the two female witnesses at the on-scene show-up 40 minutes after the incident were the product of impermissible suggestiveness in violation of defendant's rights to due process.[FN1] Defendant argues that regardless of whether the suggestive behavior was attributable to the actions of the police or exclusively to those of a civilian, the testimony of the show-up identifications by the complainant's wife and daughter was tainted in violation of his federal and state constitutional rights to due process and must be suppressed.

Specifically, defendant asserts that he is entitled to reopen the hearing based upon newly discovered evidence that was not available to him or to the court at the time of the hearing, namely, material disclosed by the prosecution pursuant to People v. Rosario, 9 NY2d 286 (1961), and People v. Consolazio, 40 NY2d 446 (1976), in the form of the handwritten notes of an assistant district attorney (the ADA) then newly assigned to the case. The ADA's notes, taken during his pre-trial interviews of the three eyewitnesses and subsequent to the court's ruling in Chuyn I, reflect recollections of the two female eyewitnesses regarding a statement made to them by the male eyewitness as he summoned them downstairs at the direction of the police a few moments before the women viewed the show-up. The statement allegedly informed them that he had just identified the individual being detained by police as the perpetrator. (Notes of ADA Nicholas Viorst, attached as Exhibit B to Letter of Stephanie Kaplan, Esq., dated Sept. 8, 2011 [Def. Mot.]).

Defendant also seeks an independent source hearing as to the two female eyewitnesses, in the event that such undue suggestiveness is found. He maintains that, should an independent source hearing be held, this court should apply an expanded standard of assessing the reliability of the eyewitnesses' identifications, taking into account certain "additional factors" beyond those specified by the United States Supreme Court in Neil v. Biggers, 409 US 188 (1972). (Def. Mot.). He also seeks to call an expert on eyewitness identification to testify at any independent source hearing on a broad, unspecified range of matters relating to eyewitness identification. (Letter of Stephanie Kaplan, Esq., dated Oct. 3, 2011, and attached cases [Expert ltr.]).

The People have opposed the reopening of the Wade hearing and the application to call the civilian witnesses, arguing that issues involving civilian conduct are beyond the scope of a Wade hearing, that the considerations applicable to show-up identifications differ from those of a line-up or other formal identification procedures, and that the calling of civilian witnesses to testify at a reopened hearing would amount to an impermissible examination before trial. (Letter of Nick Viorst, Esq., dated Sept. 13, 2011 [Viorst Opp.]). They have also opposed both any independent source hearings, arguing that defendant will have an opportunity to cross-examine the civilian witnesses at trial, and the introduction of expert testimony, contending that defendant will have the benefit of expert testimony at trial. (Id.; Letter of Nicholas Viorst, Esq., dated Nov. [*3]14, 2011 [Viorst Supp.]).[FN2]

In an oral ruling on November 18, 2011, this court granted defendant's motion, to the extent of reopening the Wade hearing solely for the purpose of determining whether defendant's federal or state constitutional rights to due process under the Fourteenth Amendment (US Const. amend. XIV) and the New York Constitution (NY Const. art. I, §6) were violated by police action which resulted in undue suggestiveness influencing the identifications of defendant by the two female eyewitnesses. Defendant was also granted leave to call the three eyewitnesses to testify at the reopened hearing. The court further advised both parties that they should be prepared at the reopened hearing for the possibility that the court may find impermissible suggestiveness attributable to the police, triggering the need for the prosecution to prove by clear and convincing evidence that the identifications made by one or both of the female eyewitnesses emanated from sources independent of any tainted police actions or inactions. Defendant's application to present an expert on eyewitness identification at any independent source hearing was denied, with leave to renew it upon a specific showing of relevance and need as to the particular evidence in question, made in conformity with the standards discussed in this opinion (see sec. II.D.3., infra), and without prejudice to its renewal for purposes of trial. This written decision further details and explains those rulings.



II.DISCUSSION

A.Reopening the Wade Hearing for the Calling of Civilian Eyewitnesses

First, defendant seeks an order renewing his motion to suppress evidence of his pre-trial identification by the two female eyewitnesses and reopening the Wade hearing as to them. He argues that the new evidence of the comments by the complainant, James Juliano, to his family [*4]members, Sandra and Wendy Juliano, as he brought them downstairs to view the show-up at the scene, satisfies the standards this court previously found unmet in Chuyn I and entitles him to call all three witnesses to testify on the issue of undue suggestiveness of the show-ups involving the two women.

Criminal Procedure Law §710.40(4) provides, in pertinent part: If after a pre-trial determination and denial of the motion the court is satisfied, upon a showing by the defendant, that additional pertinent facts have been discovered by the defendant which could not have been discovered with reasonable diligence before the determination of the motion, it may permit him to renew the motion before trial . . . .

On a motion to reopen a Wade hearing, it is not required that the "additional pertinent facts" introduced be such as would "on their face establish the suggestiveness of the original . . . identification." (People v. Clark, 88 NY2d 552, 555-556 [1996]). Rather, the standard requires that the "facts asserted be pertinent' to the issue of official suggestiveness such that they would materially affect or have affected the earlier Wade determination." (Id.).

Although a defendant does not have an unqualified right to call an eyewitness at a Wade hearing, a defendant may do so where "the hearing record raises substantial issues as to the constitutionality of the identification procedure . . . , where the People's evidence is notably incomplete . . .' or where the defendant otherwise establishes a need for the witness's testimony." (People v. Cherry, 26 AD3d 342 [2d Dept. 2006], lv. denied, 10 NY3d 839 [2008]). For example, in People v. Ocasio, 134 AD2d 293 (2d Dept. 1987), the Appellate Division, Second Department found that where a detective testified as to a police-arranged viewing by multiple witnesses of a photo array where the witnesses viewed the photographs individually and were instructed not to discuss their identifications with others, but did not testify as to whether the witnesses followed those instructions, he "thereby [left] open the possibility that a witness who had already viewed the array influenced or suggested a subsequent witness's identification of the defendant." (Id., at 294). Under those circumstances, the Appellate Division held that the hearing court "erred in refusing to allow the defendant to call the identifying witnesses to testify in his behalf." (Id.).

In Chuyn I, this court found that the police did not improperly influence Mr. Juliano's identification of defendant at the show-up (Chuyn I, at 120), and concluded that there was no evidence that Mr. Juliano had made any suggestive statements to his wife or daughter prior to their identifications of defendant at the subsequent show-up. I credited the Wade hearing testimony of the officer present inside the building immediately prior to the show-up identification that he followed closely behind the three eyewitnesses as they descended the stairs and that they did not appear to be talking. (Chuyn I, at 104-105). Based upon the officer's testimony and in the absence of evidence to the contrary, I found Ocasio distinguishable, in that there were no gaps in the evidence and that defendant's allegations of suggestiveness were merely speculative. (Id., at 113-114).

On this motion, however, defendant has introduced new evidence, consisting of the statements of the three eyewitnesses as derived from the prosecutors' Consolazio notes, two of [*5]which reflect statements by the male witness to his wife and daughter when he was sent by the police officers to ask them to come downstairs for the show-up with defendant. According to the notes, the daughter's statement was that: "Dad runs up. You're not going to believe this[,] he's downstairs - come down now.'" (Def. Mot., Exh. B). The notes reflect the wife's statement as follows: "Jim calls upstairs. Come downstairs. I think we have the guy.'" (Id.). The notes regarding the male eyewitness' interview reflect that he stated that he "yell[ed] up steps" for his wife and daughter "to come down" but that "[I] don't remember [the] exact words." (Id.).

The male eyewitness' purported statements, as reflected in the notes of the ADA presented on this motion, provide new evidence not present at the initial Wade hearing, and which defendant could not have discovered before this court's determination of the Wade hearing, even with the exercise of due diligence. Moreover, that evidence suggests that here, as in Ocasio, the officer's testimony at the Wade hearing may, in fact, have been incomplete. Specifically, this new evidence raises questions as to what, if any, instruction the male witness was given by the police not to communicate his own identification of the suspect to his wife and daughter as he summoned them downstairs, and whether, if so instructed, he failed to follow those instructions, and, in doing so, unduly influenced the ensuing identifications of defendant by his wife and daughter. Indeed, the Court of Appeals has recently observed, in language pointedly apt in the instant circumstance, that a "trial court err[s] when it denie[s] defendant's motion to reopen the Wade hearing . . . [where subsequently available evidence] fatally undermine[s] the suppression court's rationale for denying that motion." (People v. Delamota, NY3d, 2011 NY Slip Op 08225, 2011 WL 5570765 [Nov. 17, 2011], at 8[FN3]). In Delamota, the Court found that new revelations at trial, when viewed in conjunction with other relevant facts, "considerably strengthened defendant's suggestiveness claim," and, concluding that the identification procedure had been unduly suggestive, reversed the judgment and ordered a new trial, to be preceded by an independent source hearing. (Id., at 9).

Likewise, in this case, defendant's claims of suggestiveness have been materially strengthened by the newly discovered evidence of the women's statements. This court based its suppression decision on its finding, supported by the testimony of the officers, that James Juliano made no suggestive statements to his wife or daughter when he summoned them downstairs. If, however, he made any statements which unduly influenced the identifications made by his wife or daughter, and such statements are attributable to questionable police practice, the ensuing suggestiveness could have violated defendant's rights to due process, even if that consequence had been unintended by police. (People v. Smalls, 12 AD2d 173 [2d Dept. 1985]; see People v. Delamota, supra). Thus, had this evidence been introduced at the time of the Wade hearing, it could have materially affected this court's prior Wade determination, and, therefore, constitutes additional factual material pertinent to the issue of official suggestiveness. (See People v. Clark, [*6]supra, 88 NY2d at 555-556).

Thus, "defendant has a right to explore the circumstances under which the identification . . . was made by the various witnesses rendering the police procedure open to challenge." (People v. Ocasio, supra, 134 AD2d at 294; see People v. Delamota, supra).

Moreover, the substantial issues raised by the evidence as to the suggestiveness of the police-arranged show-up procedure cannot be properly resolved without the testimony of the three eyewitnesses. (People v. Chipp, 75 NY2d 327, 338, cert. denied, 498 US 833 [1990], citing People v. Ocasio, supra, 134 AD2d at 294; People v. Cherry, supra, 26 AD3d at 342). Under these circumstances, the Wade hearing must be reopened to hear the testimony of the three eyewitnesses. (CPL §710.40[4]; People v. Cherry, supra).

The People contend that the hearing ought not be reopened, because the issues involving contact among the civilian eyewitnesses do not implicate due process violations by the state and are, therefore, beyond the scope of a Wade hearing. Their argument is misplaced. Again, the Court of Appeals' recent decision in Delamota is instructive.

There, the police had enlisted the robbery victim's son to serve as a translator when the police presented a photo array to the victim. At the time of the procedure, the police had been advised by the son that he had heard neighborhood gossip that an individual named "Sebastian," who had been shot earlier that year, had been the perpetrator of the robbery of his father. In response to their inquiry, the son assured the officers that he did not know "Sebastian." During his testimony at the trial, however, the son admitted that he had known "Sebastian" for a long time prior to the robbery. The defendant's ensuing application to reopen the Wade hearing was denied. In ordering an independent source hearing, to be followed by a new trial, the Court of Appeals rejected an argument raised by the prosecution and identical to the one the People advance here, namely, that reopening the hearing was unwarranted, because any suggestive conduct had come from the victim's son, a civilian, and thus could not result in suppression of the identification testimony by the victim. Rejecting the argument, the Court stated: In our view, the suggestiveness cannot be attributed to the victim's son, but to the detective's decision to utilize him as the interpreter notwithstanding the possible risks that were involved in this practice (cf. People v. Marte, 12 NY3d 583, 587 [2009], cert. denied, €"US€", 130 SCt 1501 [2010]).

(People v. Delamota, supra, NY3d at€"-, 2011 NY Slip Op 08225, 2011 WL 5570765, at 9).

Similarly, in the present case, a reopened Wade hearing would not be confined to exploration of the conduct of James Juliano in purportedly speaking to his wife and daughter, and the effect of those statements on the two women. Rather, the hearing would also address matters relating to the police officers' conduct which may not have been fully explored at the original Wade hearing, such as whether the officers took any steps to avoid the risks inherent in deputizing a civilian to assist in the show-up procedure, and if so, what they were, and whether they were followed by Mr. Juliano.

Accordingly, the new evidence provides additional facts pertinent to the issue of police suggestiveness (People v. Clark, supra, 88 NY2d at 555-556) and there is a demonstrated need for the eyewitnesses' testimony to resolve these issues (People v. Cherry, supra, 26 AD3d at 342). [*7]Thus, the Wade hearing must be reopened to explore contact among the civilian eyewitnesses, as well as a more complete record of actions or omissions by the police to enable this court to determine whether due process was violated at the show-up procedure conducted with the two female witnesses. (People v. Ocasio, supra; see People v. Delamota, supra).

Contrary to the prosecution's further contention that the inherently informal nature of show-up identifications warrants a different result than would obtain had the identification been of a line-up or photographic array, none of the standards set forth in Clark, Cherry or Chipp as to the reopening of a Wade hearing and the calling of civilian eyewitnesses limit their applicability solely to such formal identification procedures.

Relying upon People v. Peterkin, 151 AD2d 407 (1st Dept. 1989), aff'd, 75 NY2d 985 (1990), the People next argue that this court should deny defendant's request to call the civilian eyewitnesses because calling the witnesses to testify at a reopened Wade hearing would amount to an impermissible examination before trial. This argument is also misplaced. In Peterkin, the defendant "failed to make any factual demonstration whatever that the identification procedure in question was inherently suggestive" (People v. Peterkin, supra, 151 AD2d at 409), whereas here, defendant has proffered the Consolazio notes reporting Mr. Juliano's purported statements about his own identification of the suspect. Additionally, as will be further discussed below, the scope of the reopened Wade hearing will be significantly circumscribed, thereby avoiding the concerns present in Peterkin.

B.Issues to be Addressed at the Reopened Wade Hearing

Defendant contends that under both federal and state constitutional due process standards (US Const. amend. XIV; NY Const. art. I, §6), suppression of the identification evidence of the two female eyewitnesses is warranted, regardless of whether any undue suggestiveness was the result of state (police) conduct or was merely attributable to behavior by a civilian witness. To address this claim, examination must be made of the purpose, procedure and scope of Wade hearings under the applicable and controlling appellate precedent.

1.Purpose of Wade Hearing

The Fourteenth Amendment to the federal Constitution provides that "[n]o state shall . . . deprive any person of life, liberty, or property, without due process of law." (US Const., amend. XIV, §1 [emphasis added]). In language familiar to every law student, the Supreme Court explained the purpose of the clause as follows: The Due Process Clause of the Fourteenth Amendment protects individuals against state action that either " shocks the conscience,' Rochin v. California, 342 U.S. 165, 172, 72 S. Ct. 205, 96 L. Ed. 183 (1952), or interferes with rights implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325-326, 58 S. Ct. 149, 82 L. Ed. 288 (1937)."

(Chavez v. Martinez, 538 US 760, 787 [2003], quoting United States v. Salerno, 481 US 739, 746 [1987]).

Suggestive identification procedures violate due process. (People v. Delamota, supra, citing People v. Chipp, supra). The Wade hearing is the mechanism for protecting the criminally accused from such transgressions. "The purpose of a Wade hearing is to test identification [*8]testimony for taint arising from official suggestion during ‘police-arranged confrontations between a defendant and an eyewitness'" (People v. Dixon, 85 NY2d 218, 222 [1995], quoting People v. Gissendanner, 48 NY2d 543, 552 [1979]).

In its seminal decision in Manson v. Brathwaite, 432 US 98 (1977), the United States Supreme Court set forth the standard for admissibility of identification evidence for state courts under the due process clause of the Fourteenth Amendment (US Const. art. XIV, §1), announcing that "reliability is the linchpin in determining the admissibility of identification testimony." (Manson v. Brathwaite, supra, 432 US at 114). The Manson Court also recognized, however, that the deterrence of improper police conduct and the effect of exclusion of identification testimony on the administration of justice were also significant interests to be taken into account in considering the admissibility of eyewitness identification evidence. (Id., at 114).

That the Supreme Court has heretofore viewed deterring improper state action as elemental in its Wade jurisprudence was underscored by the Manson Court in its pronouncement that any rule governing the admissibility of identification evidence must have "an influence on police behavior." (Id., at 112). Indeed, in Stovall v. Denno, 388 US 293 (1967), a companion case to Wade, the Court, referring to Wade and its other companion case, Gilbert v. California, 388 US 263 (1967), had observed: [Wade] and [Gilbert] fashion exclusionary rules to deter law enforcement authorities from exhibiting an accused to witnesses before trial for identification purposes without notice to and in the absence of counsel. A conviction which rests on a mistaken identification is a gross miscarriage of justice. The [Wade] and [Gilbert] rules are aimed at minimizing that possibility . . . .

(Stovall v. Denno, supra, 388 US at 297 [emphasis added]).

In New York, our Court of Appeals has similarly recognized that the federal and state constitutional standards respecting due process scrutiny of eyewitness identification testimony "were fashioned to deter improper conduct on the part of law enforcement officials which might lead to mistaken identifications." (People v. Marte, supra, 12 NY3d at 587 [emphasis added]). The federal and state exclusionary rules governing Wade hearings both "assure that [t]he police will guard against unnecessarily suggestive procedures . . . for fear that their actions will lead to the exclusion of identifications as unreliable . . . .'" (People v. Marte, supra, 12 NY3d at 587, quoting Manson v. Brathwaite, 432 US at 112 [footnote omitted]).

In Dixon, the Court of Appeals, in considering whether a victim's neighborhood canvass with police constituted a police-arranged identification procedure, observed that its jurisprudence "does not support a restrictive view of police-arranged procedures'" (People v. Dixon, supra, 85 NY2d at 222), yet nevertheless viewed involvement of state actors in the identification procedure as a prerequisite to invocation of due process review at a Wade hearing. The Court in Dixon held that a Wade hearing was appropriate in the circumstance presented, and "whenever identification procedures . . . come about at the deliberate direction of the State.'" (Id., at 223).

More recently, in Delamota, the Court took pains to note that suppression of the victim's identification testimony was being ordered based upon the impermissibly suggestive conduct by the police, and not purely based upon the conduct of the civilian. (Delamota, supra, at 9, [*9]distinguishing Marte, supra).

In sum, the currently controlling decisions of the United States Supreme Court and the New York Court of Appeals make clear that the purpose of the inquiry at a Wade hearing under federal and New York state constitutional law is to limit the conduct of the state, in conformity with constitutional due process requirements, and that the objects of the court's scrutiny are the representatives of the state.[FN4]

2.Wade Hearing Procedure

The Supreme Court has established procedures for evaluation of the reliability of identification evidence and the suppression of evidence of pretrial identification procedures which do not comport with due process. As explained by the United States Court of Appeals for the Second Circuit, Wade hearing procedures under the federal constitutional standard are as follows: Reliability is generally evaluated through a two-step process. First, a court determines whether the challenged identification procedure was, in fact, suggestive. If not, there is "no due process obstacle to admissibility." But if there was suggestivity, a court "must then determine whether the identification was nonetheless independently reliable." That determination turns on an assessment of the totality of the circumstances, particularly those factors identified in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), specifically, (1) a witness's opportunity to view a criminal during the crime, (2) the witness's degree of attention, (3) the accuracy of any prior description of the criminal by the witness, (4) the level of certainty demonstrated by the witness at the time of the confrontation, and (5) the length of time between the crime and the confrontation.

(Wiggins v. Greiner, 132 FedAppx 861, 864-865 [2d Cir. 2005], cert. denied, 546 US 986 [2005][citing Manson v. Brathwaite, supra] [other citations omitted]). Each case must be evaluated on its own facts, and under the federal standard, viewed in light of the totality of the circumstances. (Neil v. Biggers, supra, 409 US at 196, citing Stovall v. Denno, 388 US 293, 301-302 [1967]).

In practical terms, at a Wade hearing, the People have the initial burden of showing that the identification procedure was not "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification" (Neil v. Biggers, supra, 409 US at 197, quoting Simmons v. United States, 390 US 377, 384 [1968]), or, that any suggestiveness was necessary or justified. (People v. Riley, 70 NY2d 523, 529-531 [1987]). Once the People have gone forward in demonstrating the lack of any undue suggestiveness and/or the reasonableness of the police conduct, the defendant bears the ultimate burden of proving that the police identification procedure was unduly suggestive. (People v. Delamota, supra, NY3d at€"-, 2011 [*10]NY Slip Op 08225, 2011 WL 5570765, at 8; People v. Chipp, supra, 75 NY2d at 335). Should the court find that the defendant has met this burden, court may conduct an independent source hearing for the purpose of evaluating the reliability of the testimony. At that hearing, the prosecution must demonstrate by clear and convincing evidence that the witness had a basis for identification of the defendant independent of the tainted evidence in order to proffer the witness' in-court identification testimony to the jury. (Wade v. United States, supra, 388 US at 240; People v. Young, 7 NY3d 40, 44 [2006], citing Wade and People v. Ballott, 20 NY2d 600, 606 [1967]).While under the federal constitutional scheme, pretrial identification evidence resulting from an unnecessarily suggestive police-arranged procedure will not be automatically excluded, but will be evaluated for its reliability under the totality of the circumstances standard (Manson v. Brathwaite, supra, 432 US at 110, 114), under New York law, improper identification procedures and evidence derived from them must be suppressed, but in-court identifications may nevertheless be allowed, where based upon an independent source. (People v. Marte, supra, 12 NY3d at 586, citing People v. Adams, 53 NY2d 241, 250-51 [1981]).

3.Scope of Issues at Wade Hearing

Defendant contends that at the reopened Wade hearing, this court must address two distinct issues relating to the suggestiveness of the show-up identifications. He first argues that the court should inquire into the extent and effect of the suggestiveness of Mr. Juliano's conduct, independent of any action or inaction by the police. His second area of inquiry would involve the court's determination of any impermissibly suggestive conduct by the police which resulted in Mr. Juliano's alleged unduly suggestive statements to his family members.

a.Suggestive civilian conduct

With respect to defendant's claim that the scope of the Wade hearing may include inquiry into whether the conduct of a civilian witness was unduly suggestive, notwithstanding a lack of undue suggestive procedures employed by the police, defendant relies principally on recent legal developments in other jurisdictions.

Defendant first reasons that because a due process violation does not arise from any undue suggestiveness related to pre-trial identification procedures themselves, but from the state's use of an unreliable identification at trial, there is no logical justification for limiting the suppression of identification evidence to cases involving unduly suggestive police procedures as opposed to cases involving suggestiveness arising from purely civilian conduct. He notes that this is the position of the petitioner before the United States Supreme Court in Perry v. New Hampshire, cert. granted, US, 131 SCt 2932 (May 31, 2011), which is scheduled for decision by the Court this term. The question presented in Perry is whether "the due process protections [of the federal constitution] against unreliable identification evidence apply to all identifications made under suggestive circumstances, . . . or only when the suggestive circumstances were orchestrated by the police." (See Perry v. New Hampshire, Appellate Petition, Motion and Filing, 2011 WL 2135032 [Feb. 11, 2011], at *1).

At this writing, Perry has not yet been decided. While the oral argument held recently was robust, and speculation as to the Court's decision currently runs high, the petitioner's view that no concerted action by police is required to trigger due process protections is not currently the law. Rather, under the currently governing federal and state standards already discussed, admission of identification evidence may not be found violative of due process in the absence of [*11]a finding of a very substantial likelihood of misidentification (Neil v. Biggers, supra, 409 US at 197; People v. Marte, supra, 12 NY2d at 587) which is attributable to an unduly suggestive procedure by the police or other state authority. (See Manson v. Brathwaite, supra, 432 US at 112, 114; People v. Adams, supra, 53 NY2d at 251-252).

Chuyn next claims that when the Court of Appeals in People v. Marte, in assessing the purpose of a Wade hearing, focused on the need to deter unlawful police conduct, the Court impermissibly deviated from the Supreme Court's articulation of the standard in Manson, in which reliability was described as the "linchpin" of Wade analysis, and he predicts that the Supreme Court will announce as much in its forthcoming decision in Perry. He also points to decisions of other jurisdictions which he claims support his position that civilian conduct alone may comprise the basis of a Wade due process analysis. (See, e.g., Dunnigan v. Keane, 137 F3d 117 [2d Cir. 1998]; United States v. Bouthot, 878 F2d 1506 [1st Cir. 1989]).

These arguments are similarly unpersuasive. In People v. Marte, the Court of Appeals addressed the issue of whether the per se exclusionary rule for identification evidence derived from unduly suggestive police procedures set forth in People v. Adams (People v. Adams, supra, 53 NY2d at 251-252) also applied to suggestive behavior solely on the part of private citizens. (People v. Marte, supra, 12 NY3d at 585). In Marte, without any involvement of police, the sister of a shooting victim had told the victim (her brother) that she thought that she knew who had shot him and she showed him a picture of the defendant. (People v. Marte, supra, 12 NY3d at 585). The victim's sister reinforced that idea with a letter to her brother saying that the defendant told her that he "actually shot someone on this block," and describing the defendant as "[t]he kid that everyone thinks shot you." (Id.). The victim later identified the defendant as his attacker. (Id., at 586).

The Marte Court, addressing both the Manson v. Brathwaite and New York constitutional standards, held the sister's behavior to be outside the scope of suppression at a Wade hearing. The Court of Appeals cited the deterrent purpose served by application of both the federal and state exclusionary rules to police misconduct, contrasting it with the absence of any similar effect achieved by suppressing a civilian's suggestive identification procedure. (People v. Marte, supra, 12 NY3d at 587). The Court expressly considered cases from other jurisdictions, including two of those cited by defendant here, Dunnigan v. Keane, supra, and United States v. Bouthot, supra, but found their reasoning unpersuasive. (People v. Marte, supra, 12 NY3d at 588).

As defendant concedes, the Marte Court rejected the very argument raised by defendant here. Whether its interpretation of the Supreme Court's holding in Manson is correct or will be overruled by the Supreme Court's ruling in Perry is not a matter for this court's determination or speculation. This court is bound to apply the New York Court of Appeals' holding in Marte.

Accordingly, because defendant's contention that Wade suppression review should entail consideration of procedures which are entirely devoid of governmental action does not reflect current federal or New York State constitutional law, it is rejected.

b.Police suggestiveness

Defendant next contends that the manner in which the police arranged the identification procedure was unduly suggestive in that the police officers asked Mr. Juliano to summon his [*12]wife and daughter to come down to view defendant immediately after he had made his own identification, and without taking requisite care to assure that Mr. Juliano did nothing to influence the women's responses to the show-up.

The People maintain that even if Mr. Juliano made suggestive remarks which were heard by one or both of the other civilian eyewitnesses, he was neither acting as an agent of the police nor at their instruction, and his conduct is immaterial to the court's due process analysis and thus beyond the scope of review at any reopened Wade hearing. At this juncture, however, the People's argument is rejected. Under the broad view of "police-arranged procedures" taken by the Court of Appeals in Dixon, defendant's claimed improprieties may have been every bit as much "undertaken at the deliberate direction of the State'" and subject to Wade scrutiny as the canvass and point-out involved in Dixon. (See People v. Dixon, supra, 85 NY2d at 220, 222, 223; see People v. Delamota, supra, and the discussion of Delamota in this opinion, at sec. II.A., supra). To the extent defendant has raised a claim of suggestiveness pertaining to whether Mr. Juliano's alleged statement is attributable to an unduly suggestive police procedure, analogous to the one found to have been employed by police in Delamota, his claim is appropriate for consideration by this court at the reopened Wade hearing.

Accordingly, at the reopened Wade hearing, the issue before the court will be whether police action in the course of arranging the show-up identification procedure for the female witnesses resulted in undue suggestiveness which impermissibly influenced their identifications of defendant. In reviewing the issue presented at the reopened hearing, this court will apply both the federal and state constitutional due process standards governing admissibility of identification evidence. In conformity with both standards, the inquiry will focus not only on the conduct of Mr. Juliano and its effect on the female witnesses' identifications of defendant, but also, in the first instance, on whether Mr. Juliano's conduct was attributable to police action or inaction in ensuring that he would do nothing to taint the reliability of any identifications made by his wife or daughter.

C.Request for Independent Source Hearings

Should this court find that police action resulting in undue suggestiveness influenced one or both of the female eyewitnesses' identification of defendant, it will hold an independent source hearing on such identification(s). (People v. Marte, supra, 12 NY3d at 586; see also People v. Peterkin, supra, 151 AD2d at 409, quoting People v. Tweedy, 134 AD2d 467, 468 [2d Dept. 1987], lv. denied, 70 NY2d 1011 [1988]["it is only when the defense has established that a pretrial identification procedure was unduly suggestive, after the prosecution has met its initial burden of going forward to demonstrate reasonableness and the lack of suggestiveness, that evidence concerning an independent source for the in-court identification must be elicited from the complainant"]).

Accordingly, the People should be prepared for the possibility of an independent source hearing at which they would establish by clear and convincing evidence a basis independent of the show-ups for any subsequent in-court identifications made by the wife and daughter, in the event that defendant meets his burden of establishing that police action in arranging the show-up identification procedure resulted in undue suggestiveness which impermissibly influenced the identifications by the two female eyewitness. (People v. Chipp, supra, 75 NY2d at 335; People v. Rahming, 26 NY2d at 411, 416 [1970]). Indeed, the Court of Appeals has suggested that "[t]he [*13]People are generally well-advised to come forward with any independent source evidence at a Wade hearing so that the suppression court may, where appropriate, rule in the alternative." (People v. Wilson, 5 NY3d 778, 780 [2005]).

Defendant also urges this court to expand the standard governing what evidence of the reliability of an identification it may consider at an independent source hearing beyond the factors set forth in Neil v. Biggers, supra, to include additional factors, most of which are known as "estimator variables," i.e., factors affecting the reliability of eyewitness identification over which the state has no control. Defendant is apparently referencing State v. Henderson, 208 NJ 208 (2011), in which the New Jersey Supreme Court overruled its own longstanding precedent and announced new standards for evaluating the trustworthiness of identification evidence under the New Jersey Constitution. In doing so, the court reviewed its special master's report evaluating testimony from seven experts and spanning more than 2000 pages, as well as the results of hundreds of scientific and sociological studies on human memory and the accuracy of eyewitness testimony. The Henderson court concluded: We are convinced from the scientific evidence in the record that memory is malleable, and that an array of variables can affect and dilute memory and lead to misidentifications. Those factors include system variables like lineup procedures, which are within the control of the criminal justice system, and estimator variables, like lighting conditions or the presence of a weapon, over which the legal system has no control.

(State v. Henderson, supra, 208 NJ at 218)(emphasis added).

The Henderson court went on to specify numerous estimator variables which New Jersey courts must consider under its revised framework for evaluating the reliability of eyewitness identification evidence.[FN5] In doing so, the New Jersey Supreme Court announced that it was setting aside its previous state constitutional standard, which had followed the test established by the United States Supreme Court in Manson v. Brathwaite, supra, and had required a showing of impermissibly suggestive police procedures as a precondition to a court at a Wade hearing [*14]considering the effect of the reliability factors set forth in Biggers (system variables) on the identification. (State v. Henderson, supra, 208 NJ at 238-39; 285-86). The Henderson court expressed concern that even where estimator variables had an overarching impact on the identification, they would not be considered by the hearing court under its existing state constitutional standard. Henceforth, the court declared, the New Jersey state constitutional framework would "allow all relevant system and estimator variables to be explored and weighed at pretrial hearings when there is some actual evidence of suggestiveness . . . ." (Id., at 288)(emphasis in original). In order to obtain a pretrial Wade hearing addressing due process considerations, a defendant would have an initial burden to show "some evidence" of suggestiveness which, "in general, must be tied to a system€"-and not an estimatorvariable;"[FN6] the court would then conduct a hearing at which the State would have to offer proof of the reliability of the identification, weighing both system and estimator variables; and the defendant would then have to carry the ultimate burden of demonstrating "a very substantial likelihood of irreparable misidentification." (Id., at 288-89). [*15]

Groundbreaking as its decision was, the New Jersey Supreme Court acknowledged expressly in Henderson that it had "no authority, of course, to modify Manson," and that the expanded protections it was announcing emanated from its state constitution (NJ Const. art. I, §1). (Henderson, supra, 208 NJ at 287 n.10). The due process clause of the United States Constitution, it observed, was limited in its reach to the actions of agents of the state. (Id., citing US Const. amend. XIV, §1; see Chen, supra, at 317-18, citing Colorado v. Connolly, 479 US 157, 166 [1986]). Even with respect to its new state constitutional rule, moreover, the Henderson court continued to require a showing of some evidence of suggestiveness by the police in order to obtain a hearing on due process grounds, warning that "concerns regarding estimator variables alone cannot trigger a hearing." (See Henderson, supra, 208 NJ at 293; Chen, supra, 208 NJ at 326-27).

As was the Henderson court, this court is bound by Manson-Biggers in evaluating federal constitutional due process violations at a Wade or independent source hearing. Further, because the New York Court of Appeals has not adopted the approach of Henderson in interpreting the New York State Constitution, but rather, under Dixon, Marte and Delamota, has consistently declined to recognize any due process violation under our state Constitution in the absence of state action, this court must first find that the police engaged in impermissibly suggestive procedures before it can undertake an independent source hearing. Premised on such a finding, however, there appears to be no legal impediment, at least under the New York constitutional framework, to this court considering both systemic and estimator variables at any subsequent independent source hearing. Indeed, our Court of Appeals has acknowledged the need for courts to be cognizant of the rapidly evolving nature of scientific knowledge of factors affecting the accuracy of eyewitness identification in its decisions in People v. Lee, 96 NY2d 157, 162 (2001), in noting the need for Frye hearings (Frye v. United States, 293 F 1013 [DC Cir. 1923]) to determine whether novel scientific theories on eyewitness identification are generally accepted in the relevant scientific community sufficiently to warrant admission of expert testimony on them, and in People v. LeGrand, 8 NY3d 449 (2007), in concluding that exclusion of expert testimony on the reliability of eyewitness identification may, in some cases, constitute an abuse of discretion.[FN7]

In the instant case, however, defendant has failed to specify which of the Henderson court's estimator variables he would have this court evaluate. Certainly, some of them, e.g., weapon focus, age of eyewitness and use of disguises, are plainly irrelevant here, under any view. Absent a particularized request, this court has no basis to evaluate, much less grant, defendant's [*16]application. Nonetheless, should this court make a finding of impermissible police suggestiveness and order an independent source hearing, defendant will be permitted to renew his application upon a showing of specific estimator variables which are relevant to the facts of this case.

D.Expert Testimony at Independent Source Hearing

Defendant also seeks an order permitting him to call an expert on eyewitness identification at any independent source hearing. His current application suffers from numerous fatal deficiencies, however.

1.Failure to Establish Specificity and Relevance

In seeking to have an expert testify at the independent source hearing, defendant has failed to identify either his proposed expert or the nature of the expert witness's testimony. Expert testimony is not necessarily a prerequisite to the establishment of estimator variables which defendant may seek to introduce at the independent source hearing (e.g., a lay witness could establish poor lighting conditions), and on this motion, defendant has failed to demonstrate either a need for such testimony, given the limited issues to be addressed at the hearing, or the relevance of the proposed expert testimony to those limited issues. For these reasons alone, defendant's motion to introduce expert testimony at the independent source hearing is denied.

2.Failure to Proffer Applicable Standard

Additionally, defendant has failed to proffer any authority which would entitle him to introduce such evidence at the hearing. Neither the New York case law he cites, People v. Greene, 223 AD2d 474 (1st Dept.), lv. denied, 88 NY2d 879 (1996), Matter of Royan D., 2 Misc 3d 1009(A)(Fam. Ct., Kings County 2004) and People v. Brown, 117 Misc 2d 587 (County Ct., Westchester County 1983), nor the decisions he has provided from other jurisdictions,[FN8] identify any standard for requiring a suppression court to admit such evidence, nor do they even address the issue.

Although the court relied heavily upon expert testimony at the Wade hearing in Matter of Kashawn B., NYLJ, Mar. 18, 2002 (Fam. Ct., Kings County), aff'd, 4 AD3d 469 (2nd Dept.), lv. denied, 2 NY3d 707 (2004), its thoughtful decision, similarly, does not provide guidance as to when a suppression court must, or should, admit expert testimony on eyewitness identification at a Wade or an independent source hearing. The court's reliance on the expert testimony in that case, in any event, must certainly be viewed in light of the specific proffers of expert evidence before it, and the fact that the case involved novel police procedures employed in a highly unusual factual setting, where the victim of the crime and its sole eyewitness was a police officer.

Here, neither party has offered any authoritative standard governing the admissibility of expert testimony at a Wade or independent source hearing, nor has this court's own research [*17]revealed any. Nevertheless, this court shares the view of a leading commentator[FN9] that there may be circumstances in which a judicial factfinder can benefit from expert testimony reflecting the progression of scientific thought on issues of memory and perception in eyewitness identification which are relevant to the issues before it, and believes that a court may exercise its sound discretion in deciding when to admit such evidence. Accordingly, this court will review defendant's application as guided by the pronouncements of our Court of Appeals with respect to the admission of expert eyewitness testimony at trial set forth in People v. Lee, supra, 96 NY2d at 160 (allowing trial testimony by expert on eyewitness identification in court's discretion), and People v. LeGrand, supra, 8 NY3d at 452 (setting standards for admissibility of trial testimony by expert on eyewitness identification). (See Hibel, supra, at §7.03[3][c]).

3.Application of LeGrand Standards Governing Admissibility of Expert Testimony at Trial

In People v. LeGrand, the Court of Appeals set forth a two-stage inquiry to be undertaken by a court considering a motion to admit expert testimony on eyewitness identification at trial. The first stage of the inquiry involves assessing whether the case "turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime." (People v. LeGrand, supra, 8 NY3d at 452). If the first stage considerations are present, the court must proceed to the second stage of the inquiry, deciding whether the proposed testimony is "(1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror. . . ." (Id.). To the extent these considerations can be applied to the pretrial Wade or independent source hearing context, they will each be considered in turn.

a.Stage One: Role of Eyewitness Testimony and Existence of Corroboration

The first stage inquiry in considering admission of expert testimony at trial, the degree of prominence the eyewitness testimony plays in the case, would seem less useful in the context of evaluating the reliability of eyewitness identification and the role of the state in improperly influencing such evidence than in the context of determination of [*18]guilt or innocence, but may still have some utility in the suppression hearing context. Under the LeGrand standard, the existence of physical or circumstantial evidence corroborating the defendant's guilt will obviate the need for the court to permit admission of expert identification testimony at trial. Such corroborating evidence has been found in the defendant's apprehension close in time and proximity to the occurrence of the crime (People v. Zohri, 82 AD3d 493, 494 [1st Dept. 2011]), the fact that the defendant was identified by a second eyewitness and was known to both eyewitnesses (People v. Abney (Allen), 13 NY3d 251, 269 [2009]), and in the defendant's flight and his making of incriminatory statements (People v. Fernandez, 78 AD3d 726, 727 [2d Dept. 2010]).

Moreover, even where the evidence against a defendant consists solely of eyewitness testimony, the first stage of the LeGrand inquiry may not necessarily be satisfied. (People v. Santiago, 17 NY3d 661, 2011 NY Slip Op 07303, 2011 WL 4972074 [Oct. 20, 2011], at 9[FN10] ["even when the evidence that a defendant was the perpetrator of a crime consists entirely of eyewitness identifications, the case is not necessarily one in which there is little or no corroborating evidence'"]). Thus, the testimony of a single eyewitness can be sufficiently reliable that testimony on the issues of memory formation and recollection are largely irrelevant. (People v. Muhammad, -NY3d-, 2011 WL 4972062 [Oct. 20, 2011][affirming denial of expert testimony where victim knew defendant for years prior to shooting because such testimony would only be relevant as to victim's ability to perceive his attacker]; People v. Austin, 46 AD3d 195, 200 [1st Dept. 2007], lv. denied, 9 NY3d 1031 [affirming denial of expert testimony where sole witness observed defendant in a well-lit area, chased him for two blocks, and later called the police when he recognized him on the street]).

Here, assuming its relevance, the stage one inquiry does not result in a finding that expert testimony is required. Defendant was identified within 30 minutes of the incident, at the scene of the crime, upon his approaching the alleged victim. Those facts constitute corroboration for LeGrand stage one purposes. (People v. Zohri, supra; People v. Fernandez, supra). Further, he was identified by three eyewitnesses, one of whom, James Juliano, pointed the defendant out to police without any suggestion by them. (Chuyn I). Thus, defendant has not shown that the case against him turns on the identifications of the two [*19]eyewitnesses in question and has failed to satisfy the first stage of the LeGrand inquiry.

b.Stage Two: (1) Relevance of Proposed Testimony to Identification at Issue

Even were defendant able to satisfy the first stage of the LeGrand inquiry, however, he would still be unable to meet any of the criteria of the second stage. With regard to the relevance of the proposed expert testimony to the eyewitnesses' identification of defendant, as noted above (see discussion at sec. II.C., supra), defendant fails to specify the particular factors or estimator variables to which he refers, how they would be relevant to the limited issues to be considered in the reopened Wade or independent source hearings, or what the nature of the expert testimony concerning them would be. Therefore, were defendant's claim to be considered under the first factor of the second stage of the inquiry, it would fail, as lacking a relevance nexus.

c.Stage Two: (2) General Acceptance of the Proffered Evidence

With respect to whether the principles about which the expert would testify are generally accepted in the scientific community, this court is bound by the rulings of the Court of Appeals that certain findings, such as the lack of correlation between witness confidence and accuracy of identification, are generally accepted in the scientific community. (People v. LeGrand, supra, 8 NY3d at 453; see People v. Santiago, 17 NY3d 661, 2011 NY Slip Op 07303, 2011 WL 4972074 [Oct. 20, 2011], at 9). Nevertheless, because defendant has failed to specify the principles upon which his expert would opine, other than that it would pertain to the general topic of eyewitness identification, he has thwarted this court's ability to determine the admissibility of any such testimony under Lee, LeGrand and Santiago, or the necessity for holding a Frye hearing (People v. LeGrand, supra, 8 NY3d at 457-458) regarding such proposed testimony. The second factor under stage two of LeGrand is, therefore, unsatisfied.

d.Stage Two: (3) Qualifications of the Proposed Expert

Furthermore, because defendant has not disclosed the identity of his proposed expert(s), the court is unable to evaluate the qualifications of such person(s) to provide expert identification testimony. Therefore, Chuyn has failed to satisfy this aspect of the LeGrand test, as well.

e.Stage Two: (4) Information Beyond the Ken of the Factfinder

Finally, while this court is aware that eyewitness identification issues have often been found to be beyond the ken of the average juror, defendant has failed to show the need for expert testimony in this case in light of the limited issues presented at the reopened Wade hearing, or at any independent source hearing(s), at which this court will be the finder of fact. Indeed, as [*20]defendant himself submits, "[j]udges under[stand] the research [showing little correlation between witness confidence and accuracy of their identification] substantially better than jurors," with 64% of judges, as contrasted with 38% of jurors, understanding the finding. (Def. Motion in Limine, at 20 n.15, citing Benton, et al., Eyewitness Memory Is Still Not a Common Sense: Comparing Jurors, Judge and Law Enforcement to Experts, Appl. Cognit. Psychol. 20:115-129 [2006]). Thus, in the context of a hearing before the court, the need for expert elucidation is greatly diminished. This is particularly true here, where the facts surrounding the women's only viewing of the perpetrator are seemingly limited to a viewing of the burglar for a few seconds, in a surprise confrontation, late at night, on a narrow stairway, from the landing above, while he was struggling with the male complainant below, all constituting apparent key estimator variables easily susceptible of understanding by a lay juror, let alone a judicial factfinder.

Therefore, to the extent that LeGrand and its progeny provide guidance to the court on this issue, defendant has failed entirely to meet the criteria for the admissibility of expert testimony set forth in those cases. Accordingly, his application to present expert testimony at an independent source hearing, should one be held, is denied.[FN11] This ruling is made without prejudice to renewal of the application upon a specific showing of relevance and need as to particular evidence in question at any independent source hearing, made in accordance with the LeGrand standards discussed above. This ruling is also made without prejudice to any application for introduction of expert eyewitness identification testimony at trial.

III.CONCLUSION

For the reasons stated, defendant's motion to reopen the Wade hearing on the issue of suppression of the identification testimony of the two female eyewitnesses is granted, solely for the purpose of determining whether defendant's rights to due process under the Fourteenth Amendment to the United States Constitution and under article I, section 6 of the New York Constitution were violated by police action or inaction resulting in impermissible suggestiveness affecting the identifications of the defendant by one or both of the female witnesses. The identification by the male eyewitness will not be the subject of the reopened hearing. At the reopened hearing, unless the People withdraw notice of their intent to offer identification testimony under CPL §710.30(1)(b) as to one or both of the female eyewitnesses, defendant will be permitted to call the three civilian eyewitnesses. The prosecution is directed to be prepared at [*21]the reopened hearing for possible independent source hearings as to the two female witnesses.

Defendant's application to present expert eyewitness identification testimony at the independent source hearings is denied, with leave to renew it upon a specific showing of relevance and need as to the particular evidence in question at such hearing, in conformity with the standards set forth in this opinion following People v. LeGrand, supra, and without prejudice to any application for introduction of expert eyewitness identification testimony at trial.

The foregoing constitutes the decision and order of this

court.

E N T E R:

Marcy L. Kahn, J.S.C.

Dated: New York, New York

December 13, 2011 Footnotes

Footnote 1: Familiarity with the factual and procedural background of

this case, as reflected in Chuyn I, is presumed.

Footnote 2: On September 9, 2011, defendant also filed a motion in

limine with this court (Def. Motion in Limine) seeking a

pretrial determination of the reliability of the

identification testimony of the People's eyewitnesses, based

upon estimator variables not necessarily related to police

suggestiveness. The practice in Supreme Court, Criminal

Term, New York County is to refer in limine evidentiary

motions, including those which may require pretrial

hearings, to the judge assigned to the trial of the case.

As that assignment has yet to be made, defendant's Motion in

Limine will be reserved for the trial judge and will not be

resolved in this decision. To the extent that defendant has

incorporated certain arguments from his Motion in Limine in

his instant applications, they will be addressed insofar as

they have relevance to the matters now before the court.

Footnote 3: At time of issuance of this decision, the Delamota

decision, as published electronically, has not been edited

to include references to the slip opinion pages of its text.Accordingly, wherever Delamota is cited in this decision,the pinpoint citations refer to the pages of thedecision as published by Westlaw.

Footnote 4: Issues as to the admissibility of evidence havingdiminished reliability due to the conduct of civilians maybe addressed by means of a pretrial motion in limine. (Seediscussion infra, at note 6).

Footnote 5: In Henderson, the New Jersey Supreme Court recognized

that, in addition to the factors set forth in Neil v.

Biggers, supra, the court's evaluation must take into

account, as factors of equal importance, such estimator

variables as stress of the event; weapon focus; duration of

incident; distance of eyewitness from perpetrator; lighting

conditions; witness characteristics, including age and

possibility of intoxication; characteristics of perpetrator,

including use of disguises or other facial alteration;

memory decay; and racial bias, while acknowledging that the

"scientific research relating to the reliability of

eyewitness identification is dynamic" and that its list was

neither exhaustive nor exclusive. (State v. Henderson,

supra, 208 NJ at 291-92).

Footnote 6: The court contrasted this standard with that announced in

its decision in State v. Chen, 208 NJ 307 (2011), the

companion case to Henderson, which established the right to

a pre-trial evidentiary hearing to determine reliability of

identification testimony affected by suggestive conduct of

private actors under the New Jersey Rules of Evidence. Chen

expressly acknowledged that it was dealing neither with the

need to deter police conduct, as was the case in Manson, nor

with due process considerations, but only with the court's

gatekeeper role as to evidentiary issues to assure that

unreliable or misleading evidence is not admitted. (Id., at

317-19, citing NJRE 403 [permitting the court to exclude

evidence if "the risk of undue prejudice, confusion of

issues, or misleading the jury" substantially outweighs its

probative value] and 104 [authorizing preliminary hearings

for court to determine that only sufficiently reliable

evidence is considered by the jury]). The Chen court

therefore modified the Henderson standard for the showing

needed to trigger the right to a pretrial Rule 104

evidentiary hearing in cases in which the suggestive conduct

did not involve state actors. (Id., at 326-27). Although

New York has not codified an evidentiary rule on the trial

court's gatekeeping function comparable to New Jersey's Rule

104, consideration of the probative value and prejudicial or

confusing nature of evidence is generally available at a

pretrial hearing on motions in limine. (See note 4, supra).In any event, even the New Jersey Supreme Court, upon whose

rulings defendant so heavily relies, has stopped short of

holding that a Wade hearing may be used to test the

reliability of an identification marred solely by civilian

behavior.

Footnote 7: While the recent decisions of our Court of Appeals in

these and other cases may be signs that New York willsomeday adopt a state constitutional rule similar to that

chosen by New Jersey in Henderson, it has not yet expressly

done so. In recognition of the developing scientific

findings on the fallibility of eyewitness identification,

however, and the likely de facto practice of its courts in

considering estimator factors along with, or in lieu of, the

Biggers factors, our state may be on an inexorable path to

the same result. (See, e.g., People v. LeGrand, supra).

Footnote 8: See United States v. Holt, 2005 WL 2807169 (W.D. Pa.,

2005); United States v. Lester, 254 FSupp2d 602 (E.D. Va.,

2003); Stephenson v. State, 226 SW3d 622 (Tex. Crim. App.

2007); State v. Hollen, 44 P3d 794 (Utah 2002); State v.

Ramirez, 817 P2d 774 (Utah 1991).

Footnote 9: See Miriam Hibel, New York Identification Law: The Wade

Hearing/The Trial (Lexis-Nexis, 2010 ed.) (Hibel) at§7.03(3)(c) ("[T]he admissibility of expert testimony at theWade hearing is a matter within the court's discretion,judged under the standards governing expert testimonygenerally. . . . [W]hether the court hears from the expertor accepts written submissions of the data, the Wade hearingcan be a forum for a court to gain familiarity with thecurrent scientific literature on eyewitnessidentification.").

Footnote 10: At time of issuance of this decision, the Santiago

decision, as published electronically, has not been edited

to include references to the official reporter or slipopinion pages. Accordingly, wherever Santiago is cited inthis decision, the pinpoint citations refer to the pages ofthe version of the Santiago decision published by Westlaw.

Footnote 11: To the extent that defendant seeks to present expert

testimony on the reliability of the identification of

defendant by James Juliano, there is no basis for doing so,

as this court held that his identification of the defendant

was untainted by any suggestive police conduct. (Chuyn I).