People v Gonzalez

[*1] People v Gonzalez 2004 NY Slip Op 51007(U) Decided on September 14, 2004 Supreme Court, Bronx County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 14, 2004
Supreme Court, Bronx County

THE PEOPLE OF THE STATE OF NEW YORK

against

ANGEL GONZALEZ, Defendant.



2989/04



The People are represented by Assistant District Attorney Brian Rudner of the Bronx County District Attorney's Office, 198 E. 161 Street, Bronx, NY 10451. The defendant is represented by Erik Levin of the Bronx Defenders, 860 Courtlandt Avenue, Bronx, NY 10451.

Nicholas Iacovetta, J.

The defense requests a court order requiring a double-blind sequential lineup instead of the traditional lineup sought by the prosecution.[FN1]

The defense asserts that various scientific studies have demonstrated that sequential lineup procedures decrease the potential for false identifications by as much as fifty percent, and that double-blind lineup procedures conclusively reduce rates of error in eyewitness identification. It argues that fundamental fairness requires the court to order a double-blind sequential lineup because it is more reliable than a traditional lineup. The defense argues that the court has the power to grant its request by virtue of the court's inherent authority over its own orders.

The People oppose the defense request by asserting that the above research is flawed and unreliable. They also argue that this court lacks the authority to grant the defense request because to do so would be an impermissible intrusion into the province of the executive and legislative branch.

The indictment alleges that the defendant forcibly stole property from Maribel Caraballo on June 1, 2004, and from Frances Sosa on June 4, 2004.

Ms. Caraballo identified defendant from a photo array on June 18, 2004 after defendant was arrested on June 4, 2004 for the robbery of Ms. Sosa. A positive show-up identification of defendant was conducted on June 4, 2004 with Ms. Sosa. No such procedure was performed with Ms. Caraballo. The People now seek a simultaneous lineup with the defendant to be viewed [*2]by Ms. Caraballo.

Whether this court has the authority to grant defendant's request is an issue which has divided other trial courts (compare People v. M.A., 194 Misc.2d 449, 752 N.Y.S.2d 527 [Crim Ct, New York County 2002, Jaffe, J.]; and People v. Aspinall, 194 Misc.2d 630, 756 N.Y.S.2d 397 [Sup Ct, Richmond County 2003, Rienzi, J.]; and People v. Santiago, NYLJ, Feb. 6, 2004, at 18, col 1 [Sup Ct, New York County, McLaughlin, J.]; and People v. Alcime, NYLJ, Feb. 19, 2002, at 21, col 1 {Sup Ct, Kings County, Douglas, J.]; and People v. Franco, NYLJ, July 5, 2001, at 20, col 5 [Sup Ct, Bronx County, Barrett, J.]; and People v. Martinez and Ogera, NYLJ, Jan. 18, 2002, at 18, col 3 [Sup Ct, New York County, Soloff, J.] each finding the absence of such authority with People v. Hammonds, 1 Misc.3d 880, 768 N.Y.S.2d 166 [Sup Ct, Westchester County 2003, Smith, J.] where court held it was not opposed to finding that it has the power to order that the lineup be held in a particular manner; and People v. Wilson, 191 Misc.2d 224, 741 N.Y.S.2d 831 [Sup Ct, Kings County 2002, Knipel, J.]; and Matter of Thomas, 189 Misc.2d 487, 733 N.Y.S.2d 591 [Sup Ct, Kings County 2001, Kreindler, J.]; and People v. Kirby, NYLJ, Oct. 21, 2002, at 25, col 4 {Sup Ct, Kings County, Tomei, J.].

It is not necessary for this court to decide the issue of its own authority to grant defendant's request. Even if it had the power, it would decline to exercise it under the present circumstances.

This court has reservations about the validity of the scientific research and studies referenced by the defense motion because they are conducted under controlled conditions as opposed to the spontaneous, trauma-laden atmosphere of real-life situations. There is no general scientific agreement on how trauma and other factors impact memory in actual as opposed to staged settings (see Matter of Taylor, NYLJ, Oct. 4, 2002, at 21, col 4 [Sup Ct, Bronx County, Cohen, J.]; and People v. LeGrand, NYLJ, Sept. 17, 2002, at 19, col 3 [Sup Ct, New York County, Fried, J.] for a more thorough discussion of the unsettled scientific debate in this area). Some studies suggest that sequential lineups may even reduce the number of correct identifications (see Kirby, NYLJ, Oct. 21, 2002, at 25, col. 4, citing Stebloy, et al., Eyewitness Accuracy Rates in Sequential and Simultaneous Lineup Presentation: A Meta-Analytic Comparison, 25 Law and Human Behavior 459 {2001}).

The lack of scientific agreement in this area is best illustrated by comparing two of the competing studies cited by the parties.

The defense argues that sequential lineups are more reliable because they encourage the witness to make an absolute judgment by comparing a single face to their memory of the culprit's face instead of as in a simultaneous lineup making a comparative or relative judgment which requires the witness to decide which of several faces most resembles their memory of the culprit's face (see Gary L. Wells, "What Do We Know About Eyewitness Identification?", 48; Am. Psychol. 553, 561 {1993}).

The People counter that the above "relative decision strategy model is flawed because it assumes that witnesses examine all of the choices in a simultaneous lineup and then choose the most familiar alternative. Were this the strategy, witnesses would always choose someone from a simultaneous lineup" (see Ebbe B. Ebbesen and Heather D. Flowe, "Simultaneous v. Sequential Lineups: What Do We Really Know?", University of California, San Diego, 2000). Experience, however, demonstrates that witnesses do not always make a selection in a [*3]simultaneous lineup (see, Letters to the Editor, Richard A. Brown, Queens County District Attorney, NYLJ, Mar. 20, 2003 at 2, col 6, noting that forty-six percent of the 691 simultaneous lineups conducted in 2002 resulted in no identification demonstrating that witnesses do not make relative judgments in simultaneous lineups by simply choosing the most familiar alternative).

Even trial courts which have decided they have the authority to order the prosecution to conduct a sequential rather than a simultaneous lineup have declined to do so because of this lack of scientific agreement (see People v. Hammonds, 1 Misc.3d 880, noting the controversy surrounding the validity of studies in this area; Kirby, NYLJ, Oct. 21, 2002, at 25, col 4, concluding that a sequential lineup would not result in a more reliable identification than a simultaneous lineup; People v. Wilson, 191 Misc.2d 224, where the court found that the absolute benefit of sequential lineups remains unclear before declining to order one; but see Thomas, 189 Misc.2d at 494 where after finding authority to do so court ordered a double-blind sequential lineup).

Apart from its concerns about the above continuing scientific debate, this court does not believe that defendant's right to a fair and reliable identification procedure makes it necessary or appropriate for it to mandate what type of lineup the People should employ or how it should be conducted. (see Aspinall, 194 Misc.2d at 632 n [describing the practical pitfalls facing the court once it decides to assume the role of lineup supervisor]; Hammonds, 1 Misc.3d at 887 [where court noted it would be embarking on a "slippery slope" by ordering the prosecution to conduct a double-blind lineup]).

A defendant is not entitled to suppression on the ground that a lineup should have been conducted in sequential fashion (see People v. Robinson, 8 AD3d 95 [1st Dept. 2004]; People v. McLaughlin, 8 AD3d 146 [1st Dept. 2004]). Absent any claim that a simultaneous lineup is per se unconstitutional, this court's function is to determine whether any lineup actually conducted passes constitutional muster (see People v. Chipp, 75 NY2d 327 [1990]).

The proposed lineup order submitted by the defense contains twenty-eight separate conditions, some of which have multiple subdivisions, governing the administration of the lineup. It is inappropriate for this court to supervise the investigation or preparation of the People's case by mandating in advance such criteria (see People v. Aspinall, 194 Misc2d 630, supra, relying on Illinois v. Lafayette, 462 US 640 (1983); United States v. Crouch, 478 F.Supp 867 [1979]); Franco, NYLJ, July 5, 2001, at 20, col 5 (where court declined invitation to perform the legislative or administrative function of prospectively formulating the specific procedures governing law enforcement operations); People v. Hammonds, 1 Misc.3d 880, (where court not willing to usurp law-enforcement discretion in the procedure they chose so long as the procedure has been held to be constitutional); Santiago, NYLJ, Feb. 6, 2004, at 18, col 1, (finding that any decision about reforming

present lineup practices must rest with the elected District Attorneys and others within the Executive Branch).

The benefits perceived by the defense in a sequential lineup over that of a simultaneous one seem conjectural at best in the present case since the witness has already identified defendant in a non-corporeal lineup. If and when science conclusively establishes the superiority of sequential lineups, it is reasonable to expect that the prosecution will adopt them or the [*4]legislature will mandate their use (see e.g. Perrotta, Hynes Endorses Double Blind Police Lineups, NYLJ, Dec. 13, 2002, at 1, col 3). Until then, defense counsel's presence at the lineup and subsequent Wade hearing will insure the fairness and reliability of any identification procedure introduced at trial (see United States v. Wade, 388 US 226 {1967]).

Defendant's motion for a double-blind sequential lineup is, therefore, denied.

Defendant's motion for a Frye hearing is denied as premature with leave to renew before the hearing or trial court if it seeks to elicit expert testimony concerning any suggestive feature allegedly present in a simultaneous lineup caused by alleged deficiencies in that type of procedure (see People v. Lee, 96 NY2d 157 [2001]; Frye v. United States, 293 F. 1013; Franco, NYLJ, July 5, 2001, at 20, col 5; Taylor, NYLJ, Oct. 4, 2002, at 21, col 4).

The prosecution request for a simultaneous lineup is granted based on the presence of the requisite probable cause (see Matter of Abe A., 56 NY2d 288 [1982]).

This opinion shall represent the decision and order of this court.

September 14, 2004 ______________________________

Nicholas Iacovetta, AJSC.

Footnotes

Footnote 1:The witness in a traditional lineup simultaneously views five or six individuals one of whom is the suspect whose identity is known only to the investigator conducting the lineup. A double-blind sequential lineup is one in which all the individuals including the suspect are displayed to the witness one at a time in an attempt to prevent an identification by comparison alone. The investigator conducting the lineup does not know which individual is the suspect which prevents the investigator from intentionally or unintentionally conveying to the witness which individual is the suspect (see generally United States Department of Justice Office of Justice Programs, Eyewitness Evidence: A Guide for Law Enforcement [1999]).