Opinion
December 11, 1969
Appeal from the Erie County Court.
Present — Del Vecchio, J.P., Marsh, Gabrielli, Moule and Bastow, JJ.
Order unanimously reversed and matter remitted to Erie County Court for further proceedings in accordance with the following memorandum: Petitioner alleges circumstances testified to at his trial surrounding a pretrial identification which he asserts constituted a denial of due process of law, and that the in-court identification on the trial was based upon and tainted by such pretrial identification. As to the retroactivity of the essential fairness doctrine expounded in Stovall v. Denno ( 388 U.S. 293) and the availability to petitioner of relief through coram nobis, we would apply the test laid down in Roberts v. Russell ( 392 U.S. 292, 294) wherein the court held the ruling of Bruton v. United States ( 391 U.S. 123) with regard to the violation of a defendant's Sixth Amendment rights, retroactive since: "The error `went to the basis of fair hearing and trial because the procedural apparatus never assured the [defendant] a fair determination' of his guilt or innocence". (See People v. Pohl, 23 N.Y.2d 290; 44 St. John's L. Rev., 76, 77.) The alleged error affecting as it does the fairness of the trial and the integrity of the fact finding process, in accordance with Stovall v. Denno, ( supra) and Palmer v. Peyton ( 359 F.2d 199) we hold that the petitioner is entitled to a determination by the trial court of the issues presented in his application for coram nobis relief, and specifically as to whether the pretrial identification procedure followed constituted a denial of due process of law and as to whether such procedures tainted the in-court identification. Such a determination may be made upon the trial record as in People v. Brown ( 20 N.Y.2d 238) and People v. Rivera ( 22 N.Y.2d 453) or, if the record, revealing a prejudicial pretrial identification procedure does not permit "an informed judgment" whether the in-court identification had an independent source, the People should be afforded the opportunity to establish by clear and convincing proof at a hearing conducted by the court, that the in-court identification was based on a source other than the proscribed lineup procedure. ( Gilbert v. California, 388 U.S. 263; People v. Ballott, 20 N.Y.2d 600.) If such a finding cannot be made, then the court must determine whether the introduction of the in-court identification constituted harmless error. (See Chapman v. California, 386 U.S. 18.)