Opinion
Indictment No. 01412-2021
02-28-2024
The People of the State of New York v. William Hayes, Defendant.
Lawrence P. LaBrew, esq. Assistant District Attorney Neil Greenwell
Unpublished Opinion
Lawrence P. LaBrew, esq.
Assistant District Attorney Neil Greenwell
Miriam R. Best, J.
Defendant is charged here with three counts of Robbery in the First Degree (PL § 160.15[4]) and six counts of Robbery in the Second Degree (PL §§ 160.10[1], [2][a]). The People allege that defendant committed the first robbery on January 9, 2021 and the second one on February 13, 2021. The People seek to permission to admit Police Officer Juan Espinal's opinion testimony that defendant is the person depicted in separate surveillance video clips related to each of the robberies. Defendant has moved to preclude identification evidence based on the People's failure to serve notice pursuant to CPL § 710.30(1)(b). On January 29, 2024, this case was sent to Part 85 for resolution of this pre-trial in limine issue. I heard oral argument on the motion in limine on January 29th and 30th.
For the reasons that follow, this court will not permit the People to ask Espinal to identify defendant from any video surveillance footage offered in evidence at trial, unless defendant opens the door to such testimony.
Background
The January 9, 2021 ("First") Robbery
The People allege that
5. On January 9, 2021, at around 8:30 p.m., three males, wearing distinctive clothing followed two victims (the first and second victims) into the lobby of the apartment building at 41 West 112th Street (Building 8 of the Martin Luther King Jr. Towers development of the New York city Housing Authority) and into an elevator, stopped the elevator door from closing, and pulled the victims out of the elevator. There, one of the males threatened the victims, displaying the butt of a black firearm from his jacket pocket, and demanded property from the victims. The three males then took property from the victims, including one of the victim's car keys and an iPad. In the course of taking the property, the males struck the first victim in the head with the iPad and struck the second victim about the face with their fists, causing bruising to the first victim's face and causing one of the second victim's teeth to chip and a bleeding wound to his face. The first victim later discovered that his black Toyota was missing from the location where he had left it parked in the parking lot outside 41 West 112th Street.
6. Minutes after the robbery, the first victim called 911 to report the robbery and during the call, amid shouting in the background and while clearly excited by the attack against him, stated in substance, "someone just jumped me, they pulled out a gun on me, and took my car," and gave his license plate number and a description of his car to the dispatcher.
7. Numerous police officers responded to the scene, including officers from both PSA 5 and the 28th Precinct, many with body-worn camera activated. The videos capture officers' conversations with the victims including their accounts of the robbery.
8. Video surveillance footage from 41 West 112th Street captures the robbery ("King Towers Building 8 Video"). The victims can be observed entering the apartment building and elevator. Seconds later, the perpetrators run into the building behind the victims, stop the elevator from closing, remove the victims from the elevator, and strike them repeatedly and then leave the building, visibly carrying property taken from the second victim. The group of perpetrators includes one male wearing what appear to be light blue jeans, back sneakers, and a black coat with a fur lining around the hood, a gold metallic emblem on the left sleeve, and a gold metallic zipper ("Fur Hood"); one male wearing what appear to be black sweatpants, black and white sneakers, and a black jacket with purple fabric lining the interior of the hood ("Purple Hood"); and one male wearing what appear to be gray jeans, grey sneakers, a white mask, and a blue puffer jacket with a hood ("Blue Puffer"). Purple Hood enters the lobby first among the perpetrators and is depicting [ sic ] holding his hand inside his chest pocket of his jacket as he approaches the elevator.
9. During the course of their investigation, NYPD officers retrieved license plate reader records maintained by the NYPD related to the license plate readers, which showed that the license plate of the first victim's vehicle was photographed in the vicinity of the robbery on January 10. 2021, at about 2:35 a.m., approximately six hours after the robbery. Specifically, the vehicle was photographed parked on West 11th Street near of [ sic ] 20 Lenox Avenue, which is located at the northeast corner of 20 Lenox Avenue and West 112th Street, approximately a half block from the location of the robbery.
10. Video surveillance footage from 20 Lenox Avenue shows four males, including Fur Hood, Purple Hood, Blue Puffer, and one unknown male exit a black sedan, appear to wipe down the handles and doors of the black sedan after exiting it and walk towards 21 West 112th Street, which is in the same apartment complex as 41 West 112th Street. That video depicted Fur Hood, Purple Hood, and Blue Puffer all appeared [ sic ] to be wearing the same jackets as in the King Towers Building 8 Video and were otherwise wearing the same clothing, except that Fur Hood and Blue Puffer appeared to be wearing different pants and sneakers than they were wearing during the robbery.
11. Video surveillance footage from inside 21 West 112th Street ("Kings Towers Building 9 video"), which is immediately adjacent to 41 West 112th Street in the Kings Towers complex shows the individuals described above as Fur Hood, Purple Hood, and Blue Puffer entering the building at 21 West 112th Street wearing the same jackets and gathering with other unknown individuals in the lobby of 21 West 112th Street. During that time, the suspects had removed their masks and their faces were clearly visible on the video.
12. Police Officer Juan Espinal, Shield # 10296 of the Field Intelligence Unit, and who was previously a Neighborhood Coordination Officer ("NCO") for PSA 5, which includes the King Towers complex, is familiar with the defendants from numerous interactions with each of them in his role as an NCO, including approximately more than ten (10) interactions with William Hayes and hundreds of interactions on nearly a daily basis with Shamir Doctor and Rameses Smith. On or about January 14, 2021, before officers investigating the robbery had identified any suspects, in the ordinary course of his duty as a Field Intelligence Officer, Officer Espinal viewed wanted fliers depicting the robbery perpetrators' images from the video surveillance footage at 21 West 112th Street and recognized the defendants depicted in the fliers from his prior interactions with them. Officer Espinal subsequently viewed the video surveillance footage described above and again recognized the defendants as the individuals depicted. Specifically, Officer Espinal recognized Fur Hood to be William Hayes, Blue Puffer to be Shamir Doctor, and Purple Hood to be Rameses Smith.(Peo's Aff 11/20/23 ¶¶ 5-12.)
This court understands that the People do not seek to have Espinal testify at trial about seeing the wanted flier or the video surveillance.
The February 13, 2021 ("Second") Robbery
With respect to the second robbery, the People allege that:
13. On the afternoon of February 13, 2021, two other victims (the third and fourth victims) drove a minivan to the corner of Broadway and West 41st Street so that they could purchase newly released Nike Air Jordan 6 Retro sneakers from the Footlocker store located at 1460 Broadway, at the southeast corner of Broadway and West 42nd Street in Manhattan. While the third victim was seated in the driver seat and the fourth victim was seated in the passenger seat of the minivan parked near the corner of Broadway and West 41st Street, at about 2:35 p.m., the third victim observed three Black males approach their vehicle wearing all black clothing. One of the males approached the driver side of the minivan and engaged the third victim in a conversation, offering to sell him the newly released sneakers, and then displayed in his waistband what appeared to be the butt of a black firearm and demanded that the victims give him money. The third victim gave the male who approached the driver side of the van approximately $600 - $700 in cash. At the same time, the other two males approached the passenger side of the minivan, opened the front passenger door, and struck the fourth victim multiple times about the face with closed fists. All three males ran away from the van and, taking the money that the third victim had given them, and fled from the scene of the robbery in a White Volkswagen sedan.
14. NYPD officers recovered video surveillance footage from the Footlocker store located at 1460 Broadway ("Footlocker video") depicts [ sic ] the robbery. The Footlocker video depicts minivan [ sic ] is parked at the northeast corner of Broadway and West 41st Street. A Black male wearing a blue hooded sweatshirt with the hood up, a black facemask, black pants, and a black coat with fur lining around the hood, a gold metal emblem on the left sleeve, and a gold metallic zipper, with the hood of his coat down ("Gold Zipper") is standing next to the driver side of the minivan, holding a shopping bag that appears to contain a shoebox in his left hand while appearing to be engaged in conversation with the driver of the minivan. As Gold Zipper is standing next to the van, the driver of the van places what appears to be disorganized money on the dashboard of the van, and Gold Zipper reaches in to take the money. Two other males approach the front passenger door at the same time, open the door, and appear to strike the person in the front passenger seat multiple times. All three males then flee from the van.
15. Police Officer Brian Wilson, Shield # 27486 of the Patrol Borough Manhattan South evidence Collection team, observed the a above-described Footlocker video surveillance footage, recovered and photographed a shopping bag from the ground in the vicinity of where the robbery occurred and similar in appearance to that Gold Zipper is depicted holding in the Footlocker video, and observed that the bag contained disorganized cash and two receipts from JD Sports located at 1466 Broadway, at the southeast corner of Broadway and West 42nd Street. One receipt documented a transaction on February 13, 2021, at 9:47 a.m., using a debit card with the listed cardholder name of Shakeisha Bishop. A second receipt documented a transaction on the same day at 9:54 a.m., using a debit card with the listed cardholder name of William Hayes.
16. NYPD police databases show that Shakeisha Bishop and William Hayes live at the same address. DMV records show Ms. Bishop is the registered owner of a White Volkswagen Passat with New York license plate number KLC9077.
17. NYPD officers also recovered video surveillance footage from inside of the JD Sports on February 13, 2021, around 10:00 a.m. ("JD Sports video"), which shows Gold Zipper completing a transaction at the same time as that reflected on the receipt from the shopping bag, and wearing the same blue hooded sweatshirt with the hood up, black facemask, and black coat with fur lining around the hood, a gold metallic emblem on the left sleeve, and gold metallic zipper, as depicted in the Footlocker video.
18. Police Officer Juan Espinal observed the Footlocker video and the JD Sports video and, based on his knowledge of William Hayes as described above, identified William Hayes as Gold Zipper, the individual who approached the driver side of the third victim's van during the course of the robbery and took money from the third victim while his accomplices struck the fourth victim in the passenger seat.(Peo's Aff 11/20/23 ¶¶ 5-18.)
This court understands that the People do not seek to have Espinal testify at trial about seeing this video surveillance.
Identification Testimony in the Grand Jury
Police Officer Kevin Earl testified before the grand jury that he spent several hours with defendant after he arrested him and identified him from both his arrest photo and a still photo taken from Grand Jury Exhibit 3A, video surveillance from 41 West 112th Street (Def Motion to Preclude 10/22/23 Exhibit 3, pp 19, 23, 29, 40, 41, 43, 44). Police Officer Espinal testified that he was familiar with defendant and his codefendants, Shamir Doctor and Rameses Smith, because, in his role as an NCO in the Martin Luther King Houses he personally interacted with defendant "a little over 10 times roughly," and on a daily basis, over a hundred or hundreds of times, with Doctor and Smith (id. 48, 49, 50). Espinal identified defendant from a still photo (Grand Jury Exhibit 5B) derived from Grand Jury Exhibit 5A, video recovered from 21 West 112th Street (id. p 37, 50-51, 52). Espinal also testified with respect to the February 13th robbery as follows:
Q. Officer, I want to direct your attention to some time after February 13, of this year. Were you asked to review video in connection with a robbery that was alleged to have occurred on February 13 near the intersection of West 41st and Broadway?
A. Yes.
Q. Did you review that same video before coming into the grand jury today?
A. Yes.(Id. p 90.) Espinal reviewed Exhibit 13B, video from inside a sneaker store in the vicinity of West 41st Street and Broadway (id. p 91), and testified that in his opinion the person depicted in the video was defendant (id. p 92).
Procedural History
On October 3, 2023, the People informed defendant that they intended to present the same evidence of identification at trial that they presented in the grand jury (Def Aff in Support of Motion to Preclude 10/22/23 ¶ 3).
In his omnibus motion before the Honorable Laura Ward, defendant moved to preclude evidence of "any and all police arranged identifications allegedly made of the Defendant, on the grounds that notice was not served on the Defense" pursuant to CPL § 710.30(1)(b) (Def Aff in Support of the Motion to Preclude 10/22/23 ¶ 2a). Defendant also claimed that he "is not familiar with any witness, in this case, within the meaning of People v. Rodriguez, 79 N.Y.2d 445... (1992)," and specifically denied knowing the "victim" in this case (id. ¶ 2b). In a Decision and Order dated December 7, 2021, Judge Ward held
[t]he motions to preclude statements made by the defendant to public servants and identification testimony for which the defendant did not receive notice, which was required to be served, pursuant to CPL § 710.30(1)(a)(b), are granted subject to the "good cause" provision of CPL § 710.30(2).(Decision and Order p 1.)
The People concede that they did not serve notice on defendant of any identification procedure (Peo'sAff 11/20/23 ¶ 20). The People have also informed this court that no identification procedures were conducted with any of the victims, who are strangers to the defendant, and that they do not expect any of the victims to identify defendant at trial as the perpetrator (H 34). The People seek permission to admit Espinal's opinion testimony that defendant is the person depicted in two separate surveillance video clips related to the first and second robberies, respectively, and argue that notice of the Espinal's previous viewings of defendant was not required. Accordingly, the first question presented is whether the People were required to serve CPL § 710.30(1)(b) notice with respect to Espinal's prior, out of court viewings of the wanted poster and video surveillance relevant to the first robbery and the video surveillance relevant to the second robbery.
Parenthetical references preceded by an "H" refer to the minutes of oral argument before this court on January 29, 2024 and January 30, 2024.
Analysis
Pursuant to CPL § 710.30(1)(b):
Whenever the people intend to offer at trial... testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him or her or a pictorial, photographic, electronic, filmed or video recorded reproduction of him or her as such, they must serve upon defendant a notice of such intention, specifying the evidence intended to be offered.
CPL § 710.30(3) provides that if the People fail to comply with their notice obligation, then "no evidence of a kind specified in [CPL § 710.30(1)(b)] may be received" at trial, mandating preclusion of both the out-of-court identification as well as the in-court identification. People v. Bernier, 73 N.Y.2d 1006, 1008 (1989).
In support of the motion to preclude for failure to serve timely CPL § 710.30(1)(b) notice, defendant cites People v. Moss, 80 N.Y.2d 857 (1992), People v. Bernier, 73 N.Y.2d 1006 (1989) and People v. Perez, 177 A.D.2d 657 (2nd Dept 1991). None of these cases is relevant to the specific issue before this court, however, because in each case the identification procedure concerned an actual witness to the crime itself. Defendant concedes that the police officers who recognized defendant on the video surveillance in this case had no first hand knowledge of the crime (Def Aff in Support of Motion to Preclude 10/22/23 ¶ 3).
Relying on People v. Gee, 99 N.Y.2d 158 (2002), the People argue that notice of an identification procedure is required when "the police arrange for a witness to a crime or related event to see the person suspected of committing the crime, in order to determine whether the witness recognizes the suspect from the prior encounter" (Peo's Aff 11/20/23 p 13).
The People Were Not Required to Serve Notice of Espinal's Observations of Defendant in the Wanted Poster and January 11th Video Surveillance
In People v. Peterson, 194 A.D.2d 124 (3d Dept 1993), the Appellate Division, Third Department, rejected the defendant's claims that the lower court should have precluded two undercover police officers from making an in-court identification based on the People's failure to serve CPL § 710.30(1)(b) notice of prior identifications by those witnesses. There, Investigator Williams was present inside a bar when Peterson acted in concert with another person to sell cocaine to an undercover police officer, Torres. Investigator Kushner recognized Peterson when he entered the bar based on the description given by Torres. Approximately three weeks later, Williams, acting as an undercover police officer, recognized Peterson as the person who had previously sold drugs to Torres and purchased cocaine from Peterson. After hearing the description provided by Williams of the suspect, Kushner drove by the location and identified Peterson. The lower court held that none of the observations of Peterson by Torres, Kushner or Williams constituted an identification procedure. 194 A.D.2d at 127. The Appellate Division, Third Department affirmed, holding that
CPL 710.30(1)(b) requires notice of "testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such." Fundamentally, the statute contemplates (and is literally meaningless in the absence of) two distinct pretrial "viewings" of a defendant by an eyewitness. First is the witness's actual observation of a defendant either at the time or place of commission of the crime or some other occasion relevant to the case. This is the observation, relevant to and probative of a defendant's guilt or innocence, which forms the basis for the witness's prospective trial testimony. Second, there is a separate, police-initiated, identification procedure, such as a lineup, showup or photographic array, which takes place subsequent to the observation forming the basis for the witness's trial testimony prior to trial [citations omitted]. Stated in the simplest terms, this is the occasion where the witness points at a defendant and says, "That's the one" [citation omitted]. In clear contrast to the prior observation, this "viewing" is not itself probative of defendant's guilt or innocence but is intended merely to "establish[] the identity of the criminal actor" [citation omitted].
The fundamental purpose of CPL 710.30(1)(b) is to permit a defendant an opportunity to raise the issue of whether the identification procedure was unduly suggestive and, if so, whether it is likely to affect the witness's ability to make an accurate in-court identification of the defendant as the person initially observed [citation omitted]. A failure to appreciate this fundamental purpose, and, particularly, the distinction between an observation and an identification procedure may result in the erroneous invocation of CPL 710.30(1)(b) any time a witness sees a defendant on more than one occasion prior to trial [citations omitted].194 A.D.2d at 544. See also People v. Anderson, 149 A.D.3d 1407 (3d Dept 2017) (to the same effect).
Espinal was not an eyewitness to either the first or the second robbery. Moreover, Espinal viewed the photo in the wanted poster and video surveillance from the first robbery on January 14, 2021, before officers investigating the robbery had identified any suspects, in the ordinary course of his duty as a Field Intelligence Officer. These observations of defendant were therefore not the result of any police-arranged identification procedure and defendant's motion to preclude Espinal's in-court identification of him from video relating to the first robbery because of the People's failure to serve CPL § 710.30(1)(b) notice is denied. People v. Womack, 77 Misc.3d 624 (Sup Ct, Queens County 2022) (Kirschner, J.) (officer's identification of defendant as the person he had spoken to several days earlier, made from wanted poster on officer's department e-mail, was not a police-arranged identification procedure and defendant was not entitled to CPL § 710.30[1][b] notice); People v. Patoir, 72 Misc.3d 858 (Sup Ct, Kings County 2021) (Cesare, J.) (People were not required to serve CPL § 710.30(1)(b) notice, where two police officers identified defendant in a video in the grand jury, where neither officer was a witness to the alleged crime but rather recognized defendant based on their prior interactions with him on some other date; there was no identification procedure within the meaning of CPL § 710.30[1][b] and no identification that could be suppressed); People v. Reyes, 69 Misc.3d 963 (Sup Ct, New York County 2020) (Dwyer, J.) (where detective, who was not a witness to the crime, recognized Reyes as the person in security camera footage after studying Reyes's arrest photo from a previous arrest, there was no identification procedure and no identification of defendant that could be suppressed; "Such a viewing may or may not produce a reliable recognition, depending on such factors as distance and lighting. But it is impossible for the procedure to be conducive to an erroneous suggestion that the person viewed is the criminal").
The Court Need Not Decide Whether Notice Should Have Been Given Regarding Espinal's Identification From the Second Robbery Video, Because He May Not Make Such An Identification At Trial In Any Event
The People concede that the circumstances Espinal's viewing of the video surveillance from the second robbery were different from those as to the first robbery, in that
"[i]t came to his attention differently. It was more of like a People versus Gee observation of the video.
...
MR. GREENWELL: Meaning that it wasn't in the ordinary course of his duties that he viewed the wanted flyer. He was asked, and actually having already identified or ventured an opinion about the identity of someone depicted in the January 9th video surveillance footage, gave his opinion that the defendant is the person depicted in the February 13th.
...
MR. GREENWELL: And was asked in such a way that hhe knew what he was being asked, I guess I would say, whereas with respect to the January robbery, he did not. You know, it wasn't as though there was a suspect identified and he was asked.(H 16, 17.) The People later stated,
MR. GREENWELL: To my knowledge, and I'd have to look at the DD5s again, I don't think he was shown a video and asked to offer an opinion about [the second robbery] until I showed him a video in preparation of his testimony in the Grand Jury.(H 44). Later, the court asked,
So Mr. Greenwell, just to clarify, do we understand correctly that the first time Espinal saw a video from February 13th was when you showed it to him before he testified in the Grand Jury?
MR. GREENWELL: That is the first time that I am aware of. I don't know if the detective investigating that incident also may have shown him a video because at some point the detectives understood the cases to be linked.(H 60-61.) The court ultimately adjourned the case to have the prosecutor speak with Espinal to find out whether he had seen the video of the second robbery before he was shown it in the grand jury, and also whether anyone else had asked Espinal to make an identification from that video (H 62). The following day, the following colloquy took place,
THE COURT: All right.
Mr. Greenwell, can you supplement the record from yesterday with respect to Detective Espinal coming to identifying Mr. Hayes from various forms of surveillance?
...
MR. GREENWELL: So my information - - I spoke with [Espinal] yesterday. My information from him was that he viewed the video, some portion of the video, he thinks from the February robbery when Detective, now Detective Earl, who is the investigating detective assigned to the 28th Precinct robbery, assigned to the January robbery, had, in essence, told him there had been probable cause developed to arrest Mr. Hayes for another robbery. He wasn't asked to provide an identification by Detective Donellan, D-O-N-E-L-L-A-N, who is the investigator assigned to the Midtown South precinct robbery, in order to establish probable cause. He wasn't involved in the investigation of the February robbery in that sense, but he was able to view the video and form an opinion that that was Mr. Hayes depicted in that video.(H 67, 68.)
The mere fact that a non-eyewitness's recognition of a defendant is based solely on prior encounters with the defendant alone does not mean that such an observation can never be unduly suggestive. In People v. Gambale, 150 A.D.3d 1667 (4th Dept 2017), a police investigator who was investigating an armed robbery of a hotel, which was captured on surveillance video, confirmed Gambale's parole officer's prior familiarity with Gambale before asking her to come to the police station to view the hotel surveillance video. 150 A.D.3d at 1667. The parole officer subsequently identified Gambale as the person committing the robbery. Id. The lower court denied Gambale's motion to suppress the parole officer's identification, holding that "'[t]here was no influence or suggestion' by the investigator." Id. at 1668. On appeal, the Fourth Department reversed. It noted that
"'[T]here is nothing inherently suggestive' in showing a witness a surveillance video depicting the defendant and other individuals, provided that the 'defendant was not singled-out, portrayed unfavorably, or in any other manner prejudiced by police conduct or comment or by the setting in which [the defendant] was taped'" [citations omitted]. As the Court of Appeals has explained, however, when the police employ an identification procedure whereby a noneyewitness is confronted with a recording for the purpose of determining whether the noneyewitness is able to identify the perpetrator as a person with whom he or she is familiar, "[t]he only apparent risk with such a witness [is] that the police might suggest that the voice [or person depicted] on the recording [is] that of a particular acquaintance" [citation omitted].People v. Gambale, id. The Fourth Department held that the lower court erred in denying Gambale's motion to suppress his parole officer's identification because the investigator suggested to the parole officer, prior to her identification, that the person depicted committing the robbery was Gambale. The court remitted the case for decision on whether the parole officer's identification was confirmatory. Id. at 1670.
Similarly, in People v. Jones, 173 A.D.3d 1062 (2d Dept), lv denied, 34 N.Y.3d 933 (2019), the Second Department vacated Jones's conviction for Robbery in the Second Degree and remanded for a new trial. After the victim, Fisher, failed to identify Jones in a photo array, the detective showed Fisher, who had been threatened with a taser during the robbery, a cellphone and told Fisher that it had been recovered from the scene of the robbery. He asked Fisher if the cellphone was his (id. at 1062-1063). After Fisher told the detective that the phone was not his, the detective showed Fisher a video on that cellphone which showed a man tasing another person (id. at 1063). Fisher identified the person with the taser in the cellphone video as the person who robbed him. The detective prepared another photo array which included the same picture of Jones that had been included in the previous photo array from which Fisher had failed to identify him, and this time Fisher identified Jones as the person who robbed him (id.). Thereafter, Fisher also identified Jones in a lineup (id.). The Second Department held that the lower court erred in denying Jones's motion to suppress the identification by Fisher and rejected the lower court's holding that the viewing of the cellphone video was not a police-arranged identification procedure, concluding that the "procedure by which Fisher viewed the videos occurred at the 'deliberate direction of the State," and not as a result of mere happenstance [citation omitted]" (id. at 1065). The Court also concluded that the People failed to establish a lack of undue suggestiveness; where the detective told Fisher that the cellphone was recovered from the scene of the robbery, he suggested that it may have belonged to one of the robbers (id.). See also People v. Cole, 162 A.D.3d 1219 (2d Dept) (lower court erroneously denied Cole's motion to preclude identification evidence, where witness identified Cole after she went to the police station, asked a police officer about the identity of the person who had broken into her home, and an officer provided Cole's name and said that his photo was available on the Albany Police Department's Facebook page, which the witness then accessed), lv denied, 33 N.Y.3d 1002 (2018), habeas denied, 2021 WL 1267802 (NDNY 2021).
While here Espinal was not asked to identify defendant with respect to the second robbery until after he had been arrested based on probable cause developed independently of Espinal's ability to recognize him, Espinal was told that other officers had developed probable cause to arrest defendant for another robbery and was permitted to view some portion of the video from that robbery before being asked by the prosecutor if he could identify anyone during his testimony in the grand jury. These facts are reminiscent of what happened in Gambale, supra, where the police confirmed the parole officer's prior familiarity with Gambale before asking her to view the surveillance video and make an identification. This court takes the People's point that Espinal was not asked to make any identification the first time he viewed the video related to the second robbery and that no identification procedure took place within the meaning of CPL § 710.30(1)(b) at that time. However, as Gambale makes clear, the fact that Espinal was told that other officers had developed probable cause to arrest defendant for a second robbery before Espinal viewed the relevant video and before he was asked by the prosecutor to offer his opinion as to the identity of anyone depicted in video related to the second robbery certainly had the potential to influence Espinal's opinion.
Moreover, the People's reliance on People v. Gee, supra, to describe the circumstances under which Espinal identified defendant from the video of the second robbery is misplaced, because the facts there are distinguishable. In Gee, the Court of Appeals held that the People were not required to serve CPL § 710.30(1)(b) notice where the victim of an armed robbery inside of a convenience store reviewed the surveillance video of the crime several hours after the robbery and said, "'[t]hat's them,'" concluding that "in viewing the videotape the clerk did not 'previously identif[y] [defendant] as such'" within the meaning of CPL § 710.30(1) (id. at 161, 162). The Court noted that the
videotape depicted the actual robbery, and... the only persons shown in the videotape were the clerk and the robbers. When the police showed the tape to the clerk, they had no suspects and had not even begun to search for any.... [T]he clerk was not presented with a group of individuals (one of whom the police suspected of the crime) and asked to make an identification.... Here, the only person the clerk could possibly confirm to be the robber was the person on the videotape who was concededly in the process of robbing her. There were no other choices, and there was nothing resembling a selection process. Although she said "[t]hat's them" when she viewed the tape, the clerk was simply ratifying the events as revealed in the videotape, without identifying any known individual as the robber. In short, there was no issue or inquiry as to defendant's identity - - or even his existence - - when the clerk viewed the videotape.(Id. at 162.) In stark contrast, here, when Espinal was asked by the prosecutor to view video related to the second robbery defendant had already been arrested for both the first and second robberies and Espinal was present to testify in the grand jury against him.
The People's reliance on People v. Price, 109 A.D.3d 1189, (4th Dept), lv denied, 22 N.Y.3d 1043 (2013), is also misplaced. There, the Fourth Department affirmed the lower court's denial of Price's motion for a Wade hearing. The identifications of Price by four police officers in the grand jury were confirmatory: each of the four police officers was involved in Price's arrest and apprehension, and two had accompanied him for medical treatment (id. at 1190-1191). Here, by contrast, the grand jury minutes establish only that Espinal had personally interacted with defendant "a little over 10 times roughly," which is plainly insufficient for this court to conclude that Espinal's identification of the defendant in the grand jury was merely confirmatory.
If Espinal's identification of defendant were merely confirmatory, CPL § 710.30 notice is not required (People v. Boyer, 6 N.Y.3d 427 [2006]). Rather than ordering a Rodriguez hearing, however, I conclude for the reasons that follow that Espinal should not be permitted to identify defendant at trial, unless defendant opens the door to such an identification.
Allowing Espinal To Identify Defendant At Trial Would Be Unduly Prejudicial
It is well established that
[a] lay witness may give an opinion concerning the identity of a person depicted in a video "if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the [video] than the jury" [citations omitted].People v. Polanco, 219 A.D.3d 1232, 1232 (1ST Dept), lv denied, 40 N.Y.3d 1040 (2023).
The admissibility of such testimony is a matter addressed to the sound discretion of the trial court which must determine whether the probative value of the testimony outweighs any prejudicial effect that it may have.People v. Russell, 165 A.D.2d 327, 333 (2nd Dept 1991), aff'd, 79 N.Y.2d 1024 (1992). While "[s]uch testimony is most commonly allowed in cases where the defendant has changed his or her appearance since being photographed or taped, and the witness knew the defendant before that change of appearance," People v. Coleman, 78 A.D.3d 457, 458 (1st Dept 2010), a change in defendant's appearance is not a prerequisite to the admission of such testimony. See Matter of Sidy T., 223 A.D.3d 545, 545 (1st Dept 2024) ("There is no requirement that a defendant's appearance has changed for opinion testimony on a defendant's identity in a video, as long as there is 'some basis for concluding that the witness is more likely to correctly identify the defendant from the video than is the jury' [citations omitted]"); People v. Mosely, 200 A.D.3d 1658 (4th Dept 2021) (lower court properly concluded that "police detective would be more likely to identify defendant in the surveillance video, '[n]otwithstanding the fact that defendant [] had not changed [his] appearance subsequent to having been videotaped,' because of the 'poor quality of the surveillance [video]' [citation omitted]").
Defendant' appearance is different now from what it was in 2021. Defendant was 18 years old at the time of these alleged robberies. Three years have passed and defendant appears before this court, no longer a teenager but a twenty-one year old man. In addition, defendant now wears his hair in braids and has facial hair on his upper lip and chin (H 30). Defense counsel has stated that should this court conclude that the defendant's facial hair provides a basis to conclude that there has been a change in defendant's appearance, defendant "[w]ill shave all of that off... and, that way, he looks just the same as he did before" (H 78-79). Moreover, defendant's arrest photo will provide the jury with an accurate depiction of what defendant looked like in 2021, mere months after the alleged robberies.
Here, the evidence of defendant's identity as the alleged perpetrator is entirely circumstantial. The People concede that none of the four victims can identify defendant as one of the robbers (H 34). Regarding the first robbery, the People seek to prove defendant's identity as the perpetrator through video in which he is "distinguished by the coat he is wearing that has gold snaps and zippers. It's also the coat he was wearing on the February 13th robbery and social media posts that were obtained from his account" (H 19). It is also the coat the People allege defendant was wearing in video surveillance from 41 West 112th Street, on January 10, 2021 at approximately 3:00 AM, six and one-half to seven hours after the first robbery, where the People contend that the hood of his jacket is down, his face mask is off and his face is clearly visible (H 20, 26). With respect to the second robbery, the People have video of what they contend is defendant inside a JD Sports Store "conduct[ing] a few transactions" shortly before the second robbery (H 32). The People seek to prove, based on their claim that defendant is "wearing the same black coat with the distinctive gold insignia on the left shoulder and a blue hooded sweatshirt which is the same clothing he is depicted wearing inside the JD Sports" (H 36, 37), that defendant is the perpetrator depicted in the surveillance video of the second robbery. In addition, defendant's debit card receipt from JD Sports was found in a shopping bag dropped on the ground near the car in which the third and fourth victim were robbed.
In People v. Challenger, 200 A.D.3d 500, 500 (1st Dept 2021), the First Department reversed the defendant's convictions for Robbery in the Second Degree and Assault in the Second Degree and remanded the case for a new trial, holding that the trial court should not have permitted the arresting detective to "give lay opinion testimony that defendant was the person depicted in two surveillance videos." The court described the fact that Challenger now wore glasses as a de minimis change in his appearance and noted that the jury had access to photos of him without eyeglasses (id.). Moreover, there was "'no other circumstance [which] suggested that the jury, which had amble opportunity to view defendant, would be any less able than the [officer] to determine whether [Challenger] was seen in the videotape' [citation omitted]" (id. at 501). The court also held that the probative value of the detective's testimony did not outweigh its prejudicial effect: the detective was a 20-year veteran of the police force who had 14 years' experience investigating robberies on the Lower East Side of Manhattan, and "[s]tating twice that the perpetrator in this case was defendant carried significant weight in the eyes of the jury" (id. at 501). Finally, the court held that this error was not harmless because the case turned on identification. The victim, who did not testify at trial, could not identify defendant as the perpetrator, and
the jury would not have been able to convict without determining that defendant's appearance matched that of the perpetrator. In short, there [was] a significant probability that the arresting officer's testimony influenced the jury in its task, which was to view the security camera footage and determine if the attacker visible in that footage was defendant.(Id. at 501, 502.) Defendant makes the same argument here (H 54-55).
In this court's opinion, the First Department's decision in Challenger is directly on point. I therefore conclude that Espinal's opinion testimony must be excluded as a matter of this court's discretion because it would be unduly prejudicial to defendant. It will be up to the jury in this case to view all of the relevant, admissible evidence to determine whether the People have proven defendant's identity as the perpetrator of either or both of the charged crimes beyond a reasonable doubt.
Conclusion
For all of these reasons, the People's motion to permit Espinal to give opinion testimony about who is shown in surveillance footage from the two charged crimes is denied.
This opinion constitutes the decision and order of the court.