Opinion
145/2006.
Decided October 18, 2006.
This Court reserved decision on the issue of preclusion of identification testimony in the defendant's omnibus motion. In that decision it was determined that the CPL 710.30(1)(b) notice previously served by the People was not sufficiently specific as to the type of identification procedure employed and in fact appears to erroneously refer to Det. Hughes as the identifying witness. The Court directed the People to amplify their position that this was a confirmatory identification.
On September 26, 2006, the People responded with further information on this issue. They now state, contrary to the initial CPL 710.30(1)(b) notice, that it was the complainant, Taksim Chowdhury, who confirmed the identity of the five defendants through Poloroid photographs to Detective Justin Hughes and Detective Puleo of the 105 Detective Squad.
The People indicate in their supplemental answer that on January 8, 2006, at 3:15 am, the complainant, Chowdhury informed the Police Department, of the first names of all five defendants who assaulted him. The same day the complainant's sister provided the Police Department with photos of all five defendants. The eyewitness, Jaison Philipose, provided additional photographs of all five defendants to the Police Department. Later that day, at 8:30 p.m., while still at the hospital, the complainant, confirmed the identity of four of the five defendants — Jaspreet Singh, Simarjeet Singh, Faseeh Katel and Arsalan Khawaja — via Polaroid photographs of each of the above named defendants. Almost a week later, on January 14, 2006, Chowdhury confirmed the identity of the defendant, Amandeep Singh to Detective Puleo of the 105 Detective Squad, via a Polaroid photograph of that defendant.
CPL § 710.30(1)(b) states in pertinent part that "Whenever the people intend to offer at a trial testimony regarding an observation of the defendant either at the time or place of 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, they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered." In this case, the People did not give satisfactory notice of complainant's identification of the defendants within the statutory time frame. "The statutory remedy for the People's failure to comply with the statute is preclusion . . ." ( People v. Lopez, 84 NY2d 425, 428). However, preclusion is not necessary if the People were not under obligation to serve CPL 710.30 notice initially. (See People v. Kahley, 214 AD2d 960, 961).
There are certain instances where CPL 710.30(1)(b) notice is not required. When a complainant and defendant are known to one another prior to the alleged incident, evidence of the complainant's identification of the defendant is admissible without notice by the People, as there was no "identification" within the meaning of the statute requiring prior notice (see People v. Tas, 51 NY2d 915). As concisely stated in People v. Kahey, supra at 961 "Where, as a matter of law, the witness is so familiar with the defendant that there is no risk that police suggestion could lead to a misidentification, the identification procedure is deemed confirmatory', and the notice and hearing requirements of CPL 710.30 are inapplicable (see People v. Rodriguez, supra, at 450, 452)."
In this case, the People's supplemental omnibus response states that the complainant informed the Police Department of the first names of the five defendants who assaulted him on January 8, 2006. The complainant testified before the Grand Jury that he knew the five individuals previous to the night they assaulted him. Specifically, the complainant stated that he knew the defendants, Amandeep Singh and Faseeh Katel from a neighborhood basketball court in Bellerose. He further stated he knew the other three defendants, Arsalan Khawaja, Simarjeet Singh and Jaspreet Singh, from parties. Additionally the complainant stated that he knew them because he had seen their pictures and information about them on the internet, specifically My Space.com and Friendster. (GJ pages 14-15). As the complainant was sufficiently familiar with the defendants, so as to know their first names, and to supply such information to the police and insofar as such familiarity is corroborated by the complainant's Grand Jury testimony, the identifications he made from the Polaroid photos shown to him by the Police were merely confirmatory. As such, no CPL § 710.30(1)(b) notice or hearing is required. (See People v. Gilette, 292 AD2d 250 [1st Dept. 2002]), lv denied, 98 NY2d 675.
Accordingly, this Court agrees with defendant's position that the CPL 710.30(1)(b) notice of an identification made by Det. Hughes is erroneous. However, preclusion of testimony as to the identification made by the complainant, Taksim Chowdhury, of the defendant, is not warranted insofar as it was confirmatory in nature, exempt from CPL 710.30(1)(b) notice.
The foregoing constitutes the order, opinion and decision of this court.