CA: 710.30 does not require notice of photo array

People v Grajales, 2007 NY Slip Op 01385 [available here]

Section 710.30 of the Criminal Procedure Law requires the People to give notice of any pretrial identification procedure "'intended to be offered' at trial." (Grajales, 2007 NY Slip Op 01385.) If the People do not intend to offer evidence of a certain identification procedure at trial, then no notice is required, even if a subsequent identification procedure is going to be offered against defendant. So holds the Court of Appeals in Grajales. In Grajales, the victim of a robbery was shown a photo array, and identified the defendant as the robber. About a week later, the victim saw defendant on the street and called the police. "When the police arrived, the victim pointed out defendant as one of the men who had robbed him." (Id.) The People gave notice under 710.30 of the "on-the-street point out", but not the identification from the photo array. (Id. at __.) Completely kosher, says the majority: "CPL 710.30[1][b] . . . only mandates preclusion in the absence of timely notice 'specifying' the pretrial identification evidence 'intended to be offered' at trial. Because evidence of a witness's pretrial photographic identification of an accused is not admissible in the prosecution's case in chief, the People could not intend to offer it trial, and therefore the CPL 710.30[1][b] notice was adequate." (Id. at __.)

Judge Ciparick dissented, and would have interpreted section 710.30 more broadly to require the People to give notice of any identification procedure that could potentially have tainted the witness's in-court identification. The dissent argues the majority's "interpretation also leaves open the possibility that notice of other suggestive identification procedures will not be provided to the defendant so long as the People do not intend to introduce them at trial. Such a stunning result is clearly contrary to the spirit and purpose of CPL 710.30." (Id. at __ [CIPARICK, J., dissenting].)

The majority agrees with the dissent that "the customary and better practice is to give defendant notice of all prior police-arranged identifications made by a witness from whom they intend to elicit in-court identification testimony." (Id. at __.) But absent a tweak of the statute by the Legislature, the majority is "unwilling to read the statute more expansively than the Legislature has chosen to write it, especially when the remedy is preclusion." (Id.)