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• Title: People State New York v. John Cooper
• Author : Supreme Court of New York
• Release Date : January 03, 1969
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 55 KB

Description

In our opinion, the record establishes that the pretrial identification procedure used in this case was unnecessarily and prejudicially suggestive (People v. Ballott, 20 N.Y.2d 600); and the new trial should be untainted by any testimony regarding it. Not only did the police have the victim view appellant (and a co-defendant) through a ""two way mirror"" in the station house three times in one night while the latter were either alone or in the company of others with whom they could not be confused, but the police also informed the victim beforehand that they had caught the two men he had described as his attackers. Inasmuch as identification by the victim is critical in this case, there being nothing else to connect appellant with the crime, the interests of justice require a reversal even though no objection was made at trial. Moreover, the victim gave contradictory testimony upon the trial as to his opportunity to observe his assailants during the commission of the crime. He stated that he actually saw them well, during that brief but frightening episode, for ""[a] few minutes. Surely twenty seconds, but more."" In addition, he was admittedly somewhat dazed for a time due to the facial blow he had received. He gave the police a physical description of his attackers but it was vague and couched primarily in comparative rather than absolute terms (one man being darker, younger and smaller than the other) except for the coats they had worn. Since we cannot say on the record before us that the in-court identification was not predicated, at least in part, upon the earlier unnecessarily suggestive ""show-up"", the People may introduce the victim's in-court identification upon the retrial only if they establish, by clear and convincing proof, at a hearing to be held by the Judge out of the presence of the jury, that it is based upon observations of the suspect other than the police station identification (People v. Ballott, 20 N.Y.2d 600, 607, supra).

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