New York Criminal Attorney Blog
Recently, a state appellate court issued an opinion in a New York burglary case discussing the defendant’s motion to suppress evidence of an identification made by a law enforcement officer. Ultimately, the court concluded that the procedures used by police to conduct the identification were “unduly suggestive,” agreeing with the defendant. Thus, the court reversed the lower court’s ruling, granted the defendant’s motion to suppress, and ordered a new trial. In the subsequent trial, the prosecution will not be permitted to use evidence of the complaining witness’s identification unless there is an independent source for the identification.
The Facts of the Case
According to the court’s written opinion, the defendant was arrested for residential burglary. During the investigation, without prompting from the police, the complaining witness found a Facebook picture of the defendant and told police that’s who had burglarized their home. Based on this information, police officers located an old arrest photo of the defendant and asked the complaining witness if it was the same person. The complaining witness made a positive identification.
The defendant filed a pre-trial motion to suppress the identification testimony, claiming it was unduly suggestive. The trial court disagreed, denying the defendant’s motion. The trial court denied the defendant’s motion on the basis that any suggestiveness in the identification procedure was not the result of any improper conduct of law enforcement. The defendant was convicted by a jury. He then appealed.
The Appellate Court’s Decision
On appeal, the defendant claimed that the lower court improperly denied his motion to suppress. The court found that the single-photo “lineup” of the defendant was indeed unduly suggestive. Generally, police officers cannot use single-photo line-ups except in situations where the complaining witness personally knew the defendant, such as in a domestic violence case. The idea behind this is that witnesses may feel as though the police officers have some knowledge the witness doesn’t have and may feel compelled to make a positive identification despite having doubts about whether the person in the photo was actually the person who committed the crime.
The court also held that it was not important that the complaining witness first located the Facebook picture. In the court’s mind, the suggestiveness arose not from the Facebook picture, but from the single-photo line-up conducted afterward.
Incidentally and unrelated to the pain point of this case. The defendant was also convicted of Assault in the Second Degree for punching a police Detective while he was being placed in a lineup. That conviction was overturned on appeal based upon the prosecutions’ failure to prove physical injury. When the Detective was taken to the hospital he told them that his pain level was a 3 out of 10 and the hospital noted an abrasion on his lip. The Court ruled that this was insufficient to establish the element of physical injury.
Have You Been Arrested After a Questionable Identification Procedure?
If you or a loved one was arrested following a questionable identification procedure, you may be able to suppress any evidence of the identification. At the law firm of Tilem & Associates, we aggressively defend clients facing all types of serious crimes, including New York theft cases, assaults, sex crimes, and more. We have decades of experience defending the rights of clients throughout the New York City area and have what it takes to create a compelling defense in even the toughest cases. To learn more, and to schedule a free consultation, contact Tilem & Associates at 877-377-8666. You can also reach us through our online contact form.