CA: no Wharton exception to 710.30 notice where "initial police viewing . . . was fleeting,unreliable and susceptible of misidentification"

People v Boyer, __ NY3d __, 2006 N.Y. Slip Op. 02290 [2006] [available here]

In the other criminal decision of note from the Court of Appeals this week, Hon. Chief Judge Kaye writes for the majority and refuses to exempt a showup identification procedure from the notice requirements of CPL 710.30 where the showup involved a police officer eyewitness and "the initial encounter . . .[was] at night, while defendant [was] stopped for a few seconds on a fire escape some 40-to-50 feet above the ground"; based on that brief encounter, the Court could "not conclude that the circumstances of [the officer's] initial viewing were such that, as a matter of law, the subsequent identification could not have been the product or undue suggestiveness." (People v Boyer, __ NY3d at __.)

The People in this case were asking the Court of Appeals to extend the Court's prior decision in People v Wharton (74 NY2d 921 [1989]), where the Court ruled that the identification of defendant by a trained undercover officer within moments of participating in a drug sale with defendant was not subject to the notice requirements of CPL 710.30 because there was virtually no chance of the identification being the product of undue suggestion. (See Wharton, 74 NY2d at 922-923.) The Court in Boyer refused to extend Wharton, instead clarifying that Wharton only applies "when the identifying officer's observation of the defendant is so clear that the identification could not be mistaken." (Boyer, __ NY3d at __.) As the Court explains, "the quality of the officer's initial viewing must be a critical factor in any Wharton-type analysis", and where the initial opportunity to observe is sketchy, the People must put the defense on notice of the identification procedure under 710.30 (and thereby give the defense an opportunity to request a Wade hearing to challenge the identification procedure). (Id. at __.)

Hon. Judge R.S. Smith dissented because (in his words) "I think that requiring a Wade hearing in cases like this one, where the chance that the hearing will lead to the suppression of evidence is vanishingly small, is a waste of time and puts an unjustified burden on the criminal justice system." (Id. at __.) Essentially, Judge Smith argues that, while police officers may conduct identification procedures in an unduly suggestive manner when dealing with civilians, in no case would an police officer due anything unduly suggestive when the showup identification procedure involved a fellow officer as the eyewitness. According to Judge Smith, "[t]he difference between police officers and civilians is significant here. An officer is much less likely than a civilian to be swayed by the assumption that a suspect who is in police custody must be guilty." (Id. at __.)

Nicole at Sui Generis has an extensive post on this decision here.