People v Williams, 2006 NY Slip Op 08353 [available here]
In People v Williams, the Fourth Department reversed defendant's conviction and remanded for a Wade hearing where the People's 710.30 notice, while giving generic notice of a photo array identification procedure where the witness failed to pick out defendant, failed to disclose that the police detective administering the photo array informed the witness which photograph in the array was the defendant after the procedure was finished. Perhaps the most important part of the decision is the Fourth Department's characterization of the giving of this positive post-array feedback as "improper" police conduct that could potentially taint the reliability of subsequent in-court identification testimony. From the decision:
We agree with defendant that he is entitled to a Wade hearing and a new trial. Here, the People disclosed to defendant in their CPL 710.30 notice that the victim was shown a photo array on one occasion and failed to identify defendant in that array, and County Court refused to conduct a pretrial Wade hearing. At trial, however, the victim testified that she was shown a photo array a second time and, after she failed to identify defendant in that array, a detective informed her which photograph was that of defendant. The victim identified defendant as the perpetrator at trial. Because the People failed to disclose the detective's identification of defendant to the victim in their CPL 710.30 notice, defendant was denied the opportunity, before trial, to test the admissibility of the victim's identification testimony. "The main concern motivating [CPL 710.30] was the possibility, recognized in three [United States] Supreme Court decisions, that pretrial identification procedures could be so suggestive or misleading as to compromise a defendant's constitutional right to due process of law. The danger sought to be avoided is, and always has been, the risk of convicting the innocent through tainted identification procedures". It cannot be gainsaid that the act of the detective in informing the victim which photograph in the array was that of defendant constitutes a tainted identification procedure. We reach this issue as a matter of discretion in the interest of justice despite defendant's failure to seek a midtrial Wade hearing following the victim's testimony regarding the second photo array, particularly in view of the fact that defendant sought a pretrial Wade hearing, and we conclude that defendant is "entitled to a hearing concerning whether the improper [conduct of the detective] affect[ed] the reliability of the victim's in-court identification and render[ed] it inadmissible.' "
(People v Williams, 2006 NY Slip Op 08353 [citations omitted].)
I love this issue--the research is clear the giving a witness post-identification feedback after a photo array (i.e. telling the witness he or she picked the right guy) destroys the reliability of any subsequent identification, and the conduct at issue is completely gratuitous and easily avoided. I posted on the this topic at length here. This is a great issue for trial defense counsel, because police officers do not yet know that this is a live issue, and (if asked) will usually freely admit that they gave positive post-identification feedback.