| People v McCullough |
| 2015 NY Slip Op 02589 [126 AD3d 1452] |
| March 27, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJamell R. McCullough, Appellant. |
Easton Thompson Kasperek Shiffrin LLP, Rochester (Brian Shiffrin of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D.Valentino, J.), rendered November 3, 2010. The judgment convicted defendant, upon ajury verdict, of murder in the second degree, robbery in the first degree and attemptedrobbery in the first degree.
It is hereby ordered that the judgment so appealed from is reversed on the law and anew trial is granted.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of,inter alia, murder in the second degree (Penal Law § 125.25 [3]) androbbery in the first degree (§ 160.15 [4]), defendant contends that SupremeCourt abused its discretion in precluding him from presenting expert testimony on thereliability of eyewitness identifications. We agree.
"Because mistaken eyewitness identifications play a significant role in manywrongful convictions, and expert testimony on the subject of eyewitness recognitionmemory can educate a jury concerning the circumstances in which an eyewitness is morelikely to make such mistakes, 'courts are encouraged . . . in appropriatecases' to grant defendants' motions to admit expert testimony on this subject" (People v Santiago, 17 NY3d661, 669 [2011], quoting People v Drake, 7 NY3d 28, 31 [2006]). In People v LeGrand (8 NY3d449 [2007]), the Court of Appeals established a two-stage inquiry for considering amotion to admit expert testimony on eyewitness identification (see Santiago, 17NY3d at 669). "The first stage is deciding whether the case 'turns on the accuracy ofeyewitness identifications and there is little or no corroborating evidence connecting thedefendant to the crime' (LeGrand, 8 NY3d at 452). If the trial court finds itselfwith such a case, then it must proceed to the second stage, which involves the applicationof four factors. The court must decide whether the proposed 'testimony is (1) relevant tothe witness's identification of defendant, (2) based on principles that are generallyaccepted within the relevant scientific community, (3) proffered by a qualified expert and(4) on a topic beyond the ken of the average juror' (id.). If, on the other hand,sufficient evidence corroborates an eyewitness's identification of the defendant, thenthere is no obligation on the part of the trial court to proceed to the second stage ofanalysis, because testimony concerning eyewitness identifications is unnecessary"(Santiago, 17 NY3d at 669).
Here, the People concede that this case hinges upon the accuracy of the eyewitness'sidentification of defendant, and we agree with defendant that there was little or nocorroborating evidence connecting him to the crime (see LeGrand, 8 NY3d at452). The eyewitness testified that, on the evening of December 27, 2008, he was withthe victim at the victim's barbershop when a man exited a white Chevy Malibu and askedif he could still get a haircut. The victim said yes, and the man sat down in a barber chair.Shortly thereafter, three men entered the shop. The first two men to enter weredark-skinned, and the first of the two men (hereafter, the shooter) wore a dark coat and ablack winter hat. The third man to enter was lighter-skinned and taller, with a brightorange coat and matching baseball cap, and he tried to lock the door behind him. [*2]The men ordered the victim and the eyewitness to theground, demanding money and drugs. After taking approximately $200 from the victim,the shooter fatally shot the victim, and the assailants fled. The shooter returned briefly,and the eyewitness heard a "clicking sound over his head." The shooter then left the shopand the eyewitness called 911.
Later that evening, a police officer responding to a dispatch about the robberyencountered and pursued a white Chevy Malibu with three men inside. The three menfled on foot, but the officer apprehended the driver, Willie Harvey. The officertransported Harvey back to the crime scene, where a witness who had been waiting for abus near the barber shop when the robbery occurred identified him. A few weeks afterthe robbery, the police showed the eyewitness a photo array containing a photograph ofdefendant. The eyewitness pointed to defendant's photograph and said, "that looks a lotlike the shooter," i.e., the first man to enter the shop. Two months later, the eyewitnessidentified defendant in a lineup as "the last guy who came into the barber shop," and heidentified defendant as such at trial. Defendant was the only individual included in boththe photo array and the lineup.
Contrary to the contention of the dissent, the fact that the eyewitness viewed theperpetrators at relatively close range and in well-lit conditions "does not constitutecorroborating evidence of the identification for purposes of determining whetherexpert testimony regarding the accuracy of an eyewitness identification is admissible" (People v Nazario, 100 AD3d783, 784 [2012], lv denied 20 NY3d 1063 [2013] [emphasis added]; seeSantiago, 17 NY3d at 669). The only testimony corroborating the eyewitness'sidentification of defendant came from Harvey, who even the prosecutor characterized as"a liar." Harvey initially denied any knowledge of the robbery, and thereafter identifiedother individuals as the perpetrators. When shown a photo array containing defendant'sphotograph about a month after the robbery, Harvey told the police that he did notrecognize anyone. Harvey only identified defendant as one of the perpetrators minutesbefore he pleaded guilty to robbery in the first degree in exchange for the minimumsentence of 10 years. In addition to Harvey's dubious credibility, we note that "severalfactors call [his] corroborating identification[ ] into question" (Santiago, 17NY3d at 673). Harvey had never met defendant prior to the robbery, he remained in thevehicle during the robbery, and he had limited opportunities to observe defendant thatnight (cf. People vMuhammad, 17 NY3d 532, 546 [2011]; People v Abney, 13 NY3d 251, 269 [2009]). We thereforeagree with defendant that Harvey's testimony was insufficient to relieve the court of itsobligation to proceed to the second stage of the LeGrand analysis (seeSantiago, 17 NY3d at 673).
With respect to the second stage of the analysis, we conclude that the proposedtestimony "satisfies the general criteria for the admissibility of expert proof"(Muhammad, 17 NY3d at 546), i.e., it is " '(1) relevant to the witness'sidentification of defendant, (2) based on principles that are generally accepted within therelevant scientific community, (3) proffered by a qualified expert and (4) on a topicbeyond the ken of the average juror' " (Santiago, 17 NY3d at 669,quoting LeGrand, 8 NY3d at 452). Defendant sought to introduce experttestimony from Dr. Nancy Franklin, a psychologist, concerning various factors that affectthe reliability of eyewitness identifications, including "the level of violence of theinteraction [event violence], the length of time of the incident [event duration], [and] thepresence of a weapon or other attention-calling object [weapon focus]." Those factors areclearly relevant to the eyewitness's identification of defendant (see Abney, 13NY3d at 268). With respect to event violence and weapon focus, the eyewitness testifiedthat one of the assailants put a gun to his head, pistol-whipped both him and the victim,and then shot the victim in the chest at close range. At least one of the other assailantsalso displayed a handgun. After the assailants fled, the shooter returned and theeyewitness heard a "clicking sound" over his head. The eyewitness testified that he didnot know how long the robbery lasted. With respect to general acceptance in thescientific community, we "must assume on this record" that Franklin's proposedtestimony is based on principles that are generally accepted in the scientific communitybecause "defendant sought, and was denied, a Frye hearing on that issue" (People v Oddone, 22 NY3d369, 379 [2013]). Finally, we agree with defendant that Franklin is a qualified experton eyewitness identifications (see People v Norstrand, 35 Misc 3d 367, 372 [2011]; People v Abney, 31 Misc 3d1231[A], 2011 NY Slip Op 50919[U], *9-13 [Sup Ct, NY County 2011], onremand from 13 NY3d 251 [2009]), and that the subject of her proposed testimony isbeyond the ken of the average juror (see People v Lee, 96 NY2d 157, 162[2001]).
Because the evidence of defendant's guilt is not overwhelming, the error cannot bedeemed harmless (see Santiago, 17 NY3d at 673-674; Abney, 13 NY3d at268; Nazario, 100 [*3]AD3d at 785). Wetherefore reverse the judgment and grant defendant a new trial.
All concur except Scudder, P.J., and Lindley, J., who dissent and vote to affirm in thefollowing memorandum.
Scudder, P.J., and Lindley, J. (dissenting). We respectfully dissent. We disagree withthe conclusion of the majority that Supreme Court abused its discretion in denyingdefendant's motion seeking to present expert testimony on the reliability of theeyewitness identification of defendant. The court denied the motion in limine, butgranted leave to renew at the close of the People's case. The court denied the motion onrenewal after having the opportunity to hear the detailed testimony of the eyewitness, andto assess the credibility of defendant's accomplice and the reliability of his identificationof defendant, before determining that the testimony of the accomplice provided sufficientcorroboration for the eyewitness testimony (see People v Lee, 96 NY2d 157,162-163 [2001]).
Although "the case turns on the accuracy of [the] eyewitness identification[ ]" (People v LeGrand, 8 NY3d449, 452 [2007]), we conclude that the identification of defendant by the eyewitnesswas corroborated by the reliable testimony of the accomplice, and thus we disagree withthe majority that an analysis of the factors in the second stage of the LeGrandanalysis is necessary (seegenerally People v Santiago, 17 NY3d 661, 669 [2011]). In any event, werespectfully disagree with the majority that expert testimony regarding the impact of"event violence," "event duration," and "weapon focus" on the reliability of eyewitnessidentification is generally accepted in the scientific community. Indeed, the Court ofAppeals has previously concluded that a Frye hearing was required with respectto those precise factors (seePeople v Abney, 13 NY3d 251, 268 [2009]). We also disagree with themajority's conclusion that the court's denial of the request for a Frye hearingconstitutes a determination that the proposed testimony is based on principles that aregenerally accepted in the scientific community. Instead, the court denied the request forthe Frye hearing, which was made in the alternative to the motion to admit theexpert testimony, because it determined that the expert testimony was "not needed."
We agree with the court that, here, expert testimony on eyewitness recognitionmemory was "not needed" to assist the jury because the record establishes that theeyewitness provided very detailed testimony regarding the events, including a descriptionof defendant and his actions, which was sufficiently corroborated by the identification ofdefendant by one of his accomplices. Contrary to the assertion of the majority, we do notconclude that the conditions under which the eyewitness viewed defendantcorroborate his identification of defendant but, instead, we conclude that thoseconditions support the reliability of that testimony (see generally People v Young, 7 NY3d 40, 45 [2006]). Theeyewitness testified that he observed a man exit a white Chevy Malibu at the victim'sbarbershop on the evening of December 27, 2008 at approximately 10:00 p.m. and theman asked the victim whether he could still get a haircut. The eyewitness testified thatwhile the man was seated in the barber chair, he was seated in another barber chair, ninefeet from the door in the well-lit room, with an unobstructed view of the door. Heobserved three men enter the barber shop, and each of the men looked directly at theeyewitness. The third man, whom he identified as defendant, was described by theeyewitness as "lighter than the rest of them" and "tall . . . The other two thatcame in were short, shorter." The eyewitness described defendant as wearing dark jeansand an orange coat with a baseball cap that matched his coat. He testified that defendant"looked at [him] before he turned to lock the door" and that the deadbolt lock did notwork. Defendant's face was not concealed in any manner (cf. Santiago, 17 NY3dat 664; Young, 7 NY3d at 42). "It does not require scientific research. . . to establish that an identification is more reliable when the witness'soriginal opportunity to observe was good" (Young, 7 NY3d at 45).
The eyewitness also described the other participants by the clothing they wore, theirskin tone, and the order in which they entered the barber shop. He explained that the firstman (hereafter the shooter) asked "where's the bud at," meaning marihuana. Theeyewitness described the events as they unfolded in detail; he described what specificparticipants said and how the shooter shot the victim, and he testified that the shooterheld a gun to his head, that the man in the barber chair produced a gun, that a third manalso had a gun, that the men, including defendant, searched the barbershop for drugs, andthat the man in the barber chair exited the barber shop first and the shooter exited last.Thus, we conclude that the opportunity for the eyewitness to observe defendant was notbrief (cf. Santiago, 17 NY3d at 664), or "fleeting" (Abney, 13 NY3d at257).
[*4] The court also did not abuse itsdiscretion in determining that the eyewitness's testimony was corroborated by thetestimony of defendant's accomplice, Willie Harvey (see Abney, 13 NY3d at269). Harvey testified that he and his brother met his cousin and two men he did notknow at his cousin's house. He observed his cousin and the two men enter a vehicle, andhe and his brother drove to the barber shop in a white Chevy Malibu, which his brotherexited to enter the barber shop. Harvey testified that he parked the Malibu to wait for theothers. He estimated that he waited 10 to 15 minutes, based on the fact that he made twotelephone calls while he waited. He observed his brother, cousin and the other two menwalk towards his car and the men traveled in two cars to his cousin's house. At hiscousin's house, while still seated in the driver's seat, Harvey observed the four men placemarihuana and "two or three" handguns on the hood of the Malibu. Although Harvey didnot know defendant personally before the night in question, the record establishes that heobserved defendant before and after the crime (see generally People v Muhammad, 17 NY3d 532, 546[2011]). We therefore conclude that Harvey's testimony "harmonize[d] with the[eyewitness's] testimony in such a manner as to furnish the necessary connection betweenthe defendant and the crime" (People v Nazario, 100 AD3d 783, 784 [2012], lv denied20 NY3d 1063 [2013]).
Although the majority properly notes that Harvey failed to identify defendant in aphoto array, Harvey explained on redirect examination that he recognized defendant butdid not identify him because he did not know at that time what part his brother played inthe crimes. The majority also properly notes that Harvey was characterized by theprosecutor as "a liar." We nevertheless disagree with the majority's conclusion thatHarvey's "dubious credibility" with respect to portions of his testimony renders hisidentification of defendant unreliable for the purpose of providing corroborativeevidence of the eyewitness identification. Instead, we conclude that the court, whichobserved Harvey and heard his testimony, is in the best position to determine whether thetestimony with respect to Harvey's ability to identify defendant was sufficient to establishthe reliability of that identification, and thus to constitute sufficient corroboratingevidence of the eyewitness identification (see generally Allen, 13 NY3d at 269;Lee, 96 NY2d at 163).
"A trial court may, in its discretion, admit, limit, or deny the testimony of an experton the reliability of eyewitness identification, weighing a request to introduce such experttestimony 'against other relevant factors, such as the centrality of the identification issueand the existence of corroborating evidence' " (Santiago, 17 NY3d at668-669, quoting Lee, 96 NY2d at 163). Because we conclude that the court didnot abuse its sound discretion in denying the motion to present expert testimony on thereliability of the eyewitness identification (see Lee, 96 NY2d at 163), we wouldaffirm the judgment. Present—Scudder, P.J., Centra, Peradotto, Lindley andWhalen, JJ.