Second, reference to photographs creates the prejudicial inference that the police had a "mug shot" of the defendant and therefore he must have had a prior arrest record ( People v Caserta, 19 N.Y.2d 18; see, also, People v Christman, 23 N.Y.2d 429; People v Baker, 23 N.Y.2d 307; People v Wright, 21 N.Y.2d 1011; People v Cioffi, 1 N.Y.2d 70; People v Hagedorny, 272 App. Div. 830). The prohibition against the admission of evidence of photographic identifications has continued after enactment of CPL 60.30 ( People v Lindsay, 42 N.Y.2d 9; People v Johnson, 32 N.Y.2d 814; People v Griffin, 29 N.Y.2d 91; see, also, Sobel, Eyewitness Identification [2d ed], § 4.3, subd [c]). Our examination of the history of the rule and of the policies justifying its existence leads us to conclude that it is simply not appropriate to apply the rule to proceedings before the Grand Jury (CPL 190.30, subd 1) and that evidence of identity derived from a photographic identification is therefore competent and admissible for the purpose of supporting an indictment (CPL 190.65, subd 1).
This Court has long considered composite sketches to be hearsay (see People v. Coffey, 11 N.Y.2d 142, 145;see also People v. Peterson, 25 A.D.2d 437, 437-438; People v. Jennings, 23 A.D.2d 621), and thus generally inadmissible against defendants to prove guilt (see e.g. Coffey, at 145; see also People v. Griffin, 29 N.Y.2d 91, 93). Mere mention at trial that an identifying witness cooperated with a police artist to produce a composite sketch is, under most circumstances, impermissibly prejudicial (see People v. Lindsay, 42 N.Y.2d 9, 12; Griffin, at 92; see also Prince, Richardson on Evidence § 8-803, at 673 [Farrell 11th ed]). This is especially true where, as here, the identity of the assailant is in dispute (see Griffin, at 92-93) and the proof rests entirely on identification.
(CPL 190.30, subd 1.) County Court reasoned that because testimony of pretrial photographic identification is not authorized under CPL 60.30 and has always been proscribed for use at trial under case law (see, e.g., People v. Lindsay, 42 N.Y.2d 9, 12), such evidence is incompetent hearsay under the rule of People v. Jung Hing ( 212 N.Y. 393). That reasoning is not without support at nisi prius (see, e.g., People v. Brewster, 115 Misc.2d 26). We disagree.
Under New York law, evidence that an eyewitness identified Wilson from a photograph album on the day of the robbery was inadmissible in the prosecution's case-in-chief, but could be used as rebuttal evidence if defense counsel challenged the adequacy of the investigation. Wilson VII, 2007 WL 952037, at * 13-14, 2007 U.S. Dist. LEXIS 22492, at *48; see also People v. Lindsay, 42 N.Y.2d 9, 12, 396 N.Y.S.2d 610, 364 N.E.2d 1302 (1977) ("It is settled [under the law of New York] . . . that a witness may not testify regarding a photographic identification of the defendant. . . ."); People v. Hamilton, 33 A.D.3d 937, 826 N.Y.S.2d 294, 294 (2d Dep't 2006) ("While a witness is generally not permitted to testify to an extrajudicial identification of a photograph of the defendant, such testimony is appropriate when the defendant opens the door to this type of inquiry during cross-examination of the witness.
Joshua M. Levine, New York City, and Lynn W.L. Fahey for appellant. Permitting the People to elicit the complainant's identification of appellant's picture in a photographic array, based on appellant's original refusal to participate in a lineup, violated due process and the rule prohibiting photographic identification evidence at trial. ( People v Huertas, 75 NY2d 487; People v Caserea, 19 NY2d 18; People v De Martini, 213 NY 203; People v Jung Hing, 212 NY 393; People v Torres, 184 AD2d 605; People v Brewster, 100 AD2d 134, 63 NY2d 419; People v Cioffi, 1 NY2d 70; People v Spinello, 303 NY 193; People v Pleasant, 54 NY2d 972; People v Lindsay, 42 NY2d 9.) Charles J. Hynes, District Attorney, Brooklyn ( Victor Barall and Leonard Joblove of counsel), for respondent. Defendant's claim that the trial court erred in admitting evidence that he had been identified in a photographic array is unpreserved for appellate review.
Nor did the testimony of the four noneyewitnesses constitute improper bolstering or an improper opinion about an ultimate fact. The challenged testimony did not concern a previous extrajudicial identification of defendant (see, People v Bonnet, 134 A.D.2d 436, 437, lv denied 70 N.Y.2d 953) or of the photographs of defendant (see, People v Lindsay, 42 N.Y.2d 9, 12). Rather, given the personal knowledge these witnesses had of defendant's appearance as of the time when the photographs were taken, their testimony served to aid the jury in making an independent assessment regarding whether the man in the bank photographs was indeed the defendant, a task made more onerous by defendant's altering his appearance after commission of the crime (see, e.g., United States v Robinson, 804 F.2d 280, 282 [4th Cir 1986]; United States v Farnsworth, 729 F.2d 1158, 1160 [8th Cir 1984]). Also unavailing are defendant's arguments that the four noneyewitnesses' photograph identifications should have been excluded because they were unduly cumulative and duplicative of the bank tellers' eyewitness testimony.
With regard to the pretrial identifications from the photographic array, the People do not argue for their admissibility. Such an identification is, of course, inadmissible as a matter of State law (People v Lindsay, 42 N.Y.2d 9; People v Caserta, 19 N.Y.2d 18). We note, however, that these identifications from the photographic array were not an exploitation of the antecedent illegality, as defendant's photograph was obtained from a source independent of the unlawful arrest (see Bynum v United States, 274 F.2d 767), and such identifications proceeded from the witnesses' independent recollections.
In any event, we conclude that the issue lacks merit. Defendant's cross-examination of that witness could have left the jury with the impression that, when the witness testified at the grand jury, he was unable to identify defendant as the perpetrator of the crimes, and thus the evidence introduced by the People was "appropriate [because it was] introduced to remedy [the] misapprehension created by the defense upon cross-examination" ( People v. Jackson, 240 A.D.2d 680, 680, 659 N.Y.S.2d 479 [2d Dept. 1997], lv denied 90 N.Y.2d 1012, 666 N.Y.S.2d 107, 688 N.E.2d 1390 [1997] ; see generallyPeople v. Lindsay, 42 N.Y.2d 9, 12, 396 N.Y.S.2d 610, 364 N.E.2d 1302 [1977] ). Defendant further contends that he was deprived of a fair trial because the jury was permitted to take certain objects that had not been admitted in evidence into the jury room during deliberations.
In any event, we conclude that the issue lacks merit. Defendant's cross-examination of that witness could have left the jury with the impression that, when the witness testified at the grand jury, he was unable to identify defendant as the perpetrator of the crimes, and thus the evidence introduced by the People was "appropriate [because it was] introduced to remedy [the] misapprehension created by the defense upon cross-examination" (People v Jackson, 240 AD2d 680, 680 [2d Dept 1997], lv denied 90 NY2d 1012 [1997]; see generally People v Lindsay, 42 NY2d 9, 12 [1977]). Defendant further contends that he was deprived of a fair trial because the jury was permitted to take certain objects that had not been admitted in evidence into the jury room during deliberations.
Prior to the start of the second trial, the People moved in limine to preclude defense counsel from making that argument. The prosecutor contended that the witness had actually identified defendant from a photo array prior to trial, but the People were precluded from introducing such evidence on their direct case (see People v. Lindsay, 42 N.Y.2d 9, 12, 396 N.Y.S.2d 610, 364 N.E.2d 1302 ; People v. Ofield, 280 A.D.2d 978, 978, 720 N.Y.S.2d 678, lv. denied 96 N.Y.2d 832, 729 N.Y.S.2d 453, 754 N.E.2d 213 ), and defense counsel therefore was creating a misimpression that the witness had not previously identified defendant. In the alternative, the People sought permission to reopen their case-in-chief if defense counsel reiterated his argument from the first trial. The court denied the motion, stating that it would not, prior to trial, preclude defense counsel from making that argument.