| People v Coleman |
| 2010 NY Slip Op 04609 [73 AD3d 1200] |
| May 25, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Sherrod Coleman, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (McKay, J.),rendered March 2, 2006, convicting him of robbery in the third degree and menacing in thesecond degree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, without a hearing, of that branch of the defendant's omnibus motion which was tosuppress identification testimony. By decision and order dated March 31, 2009, this Courtremitted the matter to the Supreme Court, Kings County, to hear and report on that branch of thedefendant's omnibus motion which was to suppress identification testimony and, moreparticularly, on the issue of whether the photographic identifications were merely confirmatoryin nature and, if not, whether the photographic identification procedures employed were undulysuggestive, and held the appeal in abeyance in the interim (see People v Coleman, 60AD3d 1079 [2009]). The Supreme Court, Kings County, has now filed its report.
Ordered that the judgment is reversed, on the law, that branch of the defendant's omnibusmotion which was to suppress identification testimony is granted, and a new trial is Ordered, tobe preceded by a hearing to determine whether an independent source for the identificationsexists.
In People v Coleman (60 AD3d at 1080), we concluded that the Supreme Court erredin determining, without a hearing, that the out-of-court photographic identifications made by thecomplaining witness were confirmatory in nature. We held the appeal in abeyance, and remittedthe matter to the Supreme Court to hear and report on that branch of the defendant's omnibusmotion which was to suppress identification testimony and, more particularly, on the issue ofwhether the photographic identifications were merely confirmatory in nature (see People vRodriguez, 79 NY2d 445 [1992]) and, if not, whether the photographic identificationprocedures employed were unduly suggestive (see United States v Wade, 388 US 218[1967]). On remittitur, the Supreme Court concluded, after a Rodriguez hearing, that theidentifications were confirmatory. The Supreme Court also conducted a Wade hearingand held, in the alternative, that the identification procedures were not unduly suggestive. Wenow reverse and, inter alia, order a new trial.
The People bear the burden at a Rodriguez hearing to demonstrate that theidentification [*2]was merely confirmatory because "the witness[knew the] defendant so well as to be impervious to police suggestion" (People vRodriguez, 79 NY2d at 452; see People v Jacobs, 65 AD3d 594, 595 [2009]).Factors relevant to the issue of prior familiarity include, but are not limited to, the number oftimes the victim viewed the defendant before the crime, the duration and nature of theencounters, the setting, the period of time over which the viewings occurred, the time elapsedbetween the crime and the viewings, and whether the victim and defendant had anyconversations (see People v Rodriguez, 79 NY2d at 451; People v Coleman, 306AD2d 549, 550 [2003]). The confirmatory identification exception requires a case-by-caseanalysis which "rests on the length and quality of prior contacts between [the] witness and [the]defendant, but always requires a relationship which is more than 'fleeting or distant' " (Peoplev Waring, 183 AD2d 271, 274 [1992], quoting People v Collins, 60 NY2d 214, 219[1983]).
Here, the evidence at the Rodriguez hearing, introduced through a police detective,established that the complaining witness saw the defendant in his neighborhood an unknownnumber of times over an approximately three-month period prior to the alleged robbery. Thedetective testified that the complaining witness viewed the defendant "every day"—afrequency which varied from the complaining witness's grand jury testimony that he saw thedefendant "every other day." The detective also testified that the complaining witness providedthe police with an alleged nickname of the defendant. Furthermore, according to the detective,the complaining witness never spoke to, interacted with, or conversed with the defendant. Noevidence was offered as to the length of the viewings, the distance at which they took place, thetime of day, or the lighting conditions. Although no single factor is determinative, under thetotality of the circumstances, we find that the People failed to sustain their burden of establishingthat the defendant was so well known to the complaining witness that he was impervious topolice suggestion (see People v Waring, 183 AD2d at 273-274; see also People vColeman, 306 AD2d at 551).
"While the People have the initial burden of going forward to establish the reasonableness ofthe police conduct and the lack of any undue suggestiveness in a pretrial identificationprocedure, it is the defendant who bears the ultimate burden of proving that the procedure wasunduly suggestive" (People v Chipp, 75 NY2d 327, 335 [1990], cert denied 498US 833 [1990]). However, where the People fail to sustain their initial burden, the burden ofestablishing that the identification was unduly suggestive never shifts to the defendant (seePeople v Ortiz, 90 NY2d 533, 538 [1997]). The requirement that the People come forward atthe Wade hearing rests upon a recognition that "in many instances a defendant simplydoes not know the facts surrounding a pretrial identification procedure and thus cannot makespecific factual allegations" (People v Rodriguez, 79 NY2d at 453; see People vOrtiz, 90 NY2d at 538; People v Dixon, 85 NY2d 218, 222 [1995]).
Here, at the Wade hearing, the People offered only the testimony of a detective whoconducted a photograph identification procedure a few months after the crime (see People vThornton, 236 AD2d 430 [1997]). The detective did not conduct, and was not presentduring, the prior photographic array identification procedure. He could not answer any questionsas to what, if anything, was said before or during the identification procedure, or provide anydetails as to the attendant circumstances. Under these circumstances, we find that the Peoplefailed to meet their initial burden at the Wade hearing (see People v Ortiz, 90NY2d at 538).
Accordingly, the defendant is entitled to a new trial, to be preceded by a hearing todetermine whether an independent source for the identifications exists (see People vRedding, 65 AD3d 1059, 1060 [2009]; see also People v Burts, 78 NY2d 20, 23-24[1991]).
The defendant's remaining contentions are academic in light of the foregoing. Mastro, J.P.,Covello, Eng and Leventhal, JJ., concur.