Wednesday, January 24, 2007

AD4: Wade hearing necessary where showup conducted after fleeting initial encounter

People v Terborg, 2006 NY Slip Op 09750 [available here]

In a decision applying the recent Court of Appeals decision in People v Boyer, the Fourth Department reversed defendant's conviction based on the trial court's refusal to conduct a Wade hearing to test a police officer's identification of the defendant during a showup. The initial police viewing was "fleeting, unreliable and susceptible of misidentification", and therefore the narrow "confirmatory identification exemption" for police officer showups did not apply. (Terborg, 2006 NY Slip Op 09750.)

The Fourth Department also reversed defendant's conviction for criminal mischief as against the weight of the evidence becuase "the jury failed to give the evidence the weight it should be accorded on the issue of defendant's intent. Although defendant may have acted recklessly with respect to the result, i.e. the damage to the victim's car, the evidence weighs heavily in favor of a finding that defendand did not specificallly intend to damage the car." (Id. at __.)