New York Criminal Attorney Blog
In a recent assault and criminal possession of a weapon case before New York’s highest Court, the New York Court of Appeals, the defendant took issue with the trial court’s decision to let a witness identify him as the perpetrator of a shooting for the first time while she was in court. In its opinion, the court discussed the implications of letting a witness make this kind of identification without significant notice to the defendant. Here, concluded the court, the defendant had sufficient notice of the possible identification, and his conviction would be affirmed.
Facts of the Case
According to the opinion, the defendant shot the victim in the leg at a party in 2017. A neighbor called 911 to make a report, and when calling, the neighbor described the shooter’s race, stature, and clothing. The police subsequently arrested the defendant and the case went to trial.
During trial, the victim took the stand and testified that the defendant was, indeed, the person that shot her. According to her testimony, there was enough light outside of the house to allow her to clearly see the defendant, and she was sure that the defendant and her shooter were the same person. The defendant objected to this testimony on the grounds that the witness had not participated in any identification procedures prior to the trial, and that her identification thus took him by surprise.
The jury later returned a guilty verdict, and the Appellate Division affirmed. The defendant again appealed.
The Decision
On appeal, the defendant’s main issue was that the victim had not participated in any pretrial identification procedures, such as a line-up or photographic array prior to the trial, where the identification would be highly suggestive. She identified the defendant as the perpetrator for the first time during the trial. It’s true, said the higher court, that this can be an issue – defendants must be given proper notice that they will be identified so that they have every opportunity to prepare an adequate defense and perhaps request that the Court either require the witness to participate in a pre-trial identification procedure or take steps to make the in court identification less suggestive.
Here, however, the defendant knew from documents exchanged with the prosecution that the witness might make an in-court identification of him as the perpetrator and the defense lawyer never requested any procedure to ensure that the in Court identification was not overly suggestive. . In addition, the testimony that the witness offered was reliable, and the trial court had no reason to doubt its veracity.
Given these facts, there was no reason to think that the defendant was denied his right to prepare an adequate defense, even with the witness’s in-court identification. The court’s opinion, therefore, affirmed both the defendant’s conviction and his resulting sentence, finding that his appeal lacked merit.
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