There does not appear to be any reported New York case

In this Criminal case, this suppression motion places in question the propriety of a lineup identification procedure that involves a suspect with a distinctive facial deformity: a glass eye. This motion also challenges the propriety of conducting a lineup in the absence of counsel, prior to the start of adversarial judicial proceedings, when the suspect’s counsel in an unrelated case has requested an adjournment of the lineup to the next day.

The Grand Jury of Queens County by two separate indictments charges the defendant with Robbery in the First Degree and with Grand Larceny in the Third Degree. Defendant moves to suppress evidence of all identification testimony connected to these two indictments which could potentially be offered against him at trial. The court conducted a joint Wade hearing to make findings of fact essential to a determination of that motion.

Defendant, claiming to be aggrieved by the improper and suggestive identification procedure utilized, and having a reasonable belief that the identifications thus obtained will be used against him at trial, seeks an order suppressing all such identification testimony. In particular, he contends that the lineup identifications utilized in both proceedings should be suppressed because they were the “fruit” of an illegal seizure of him. In addition, he contends that because of his uniquely distinguishing facial appearance, the same lineup shown to both complainants, was impermissibly suggestive and conducive to irreparable misidentification. Finally, he argues that the lineup identification testimony must be suppressed since his counsel in another pending case was not given a reasonable opportunity to attend the lineup shown to both complainants.

The People contend that the lineups were not unnecessarily suggestive and did not violate criminal defendant’s due process rights. In addition, the People contend that there was no illegal seizure of the defendant and that defendant had no right to counsel at the lineups since they were held prior to the filing of an accusatory instrument. Finally, even if testimony regarding the out-of-court identifications is suppressed, the People contend that the complaining witnesses should be allowed to make in-court identifications of the accused because there are adequate independent sources to make such identifications at trial. In addition, this court will consider the admissibility of testimony concerning an inadvertent viewing of the criminal defendant by the witness in the course of the Wade hearing, although neither party specifically raised this point in their memorandums in this motion.

The criminal defendant seeks to suppress all identification testimony. With respect to the suppression of identification testimony, the People bear the burden of going forward to show that there has not been a violation of due process. The burden of proving a violation of due process is on the defendant. Should the defendant establish a violation of due process, the burden shifts to the People to show, by “clear and convincing” evidence, that the in-court identification has an independent source.

Defendant argues that because of his unique appearance the lineup was inherently unfair and unduly suggestive and improper. To support this proposition the criminal defendant directs the court to a case that case involved a defendant who was the only one in a lineup wearing a “lamb jacket” that had figured prominently in the witness’ description of the perpetrator. In another case, the lineup was deemed unnecessarily suggestive and conducive to irreparable misidentification, and the evidence of the identification was suppressed. The case at bar, however, is distinguishable from both cases because the distinctive characteristic of the defendant is not an article of clothing that can be removed. Instead, it is a facial deformity.

The case law of New York does not require that all of the stand-ins or fillers in a lineup be obvious fraternal twins of a suspect. The stand-ins, however, must appear reasonably similar to the defendant in their physical characteristics.

“A critical issue presented in this, and many other Wade hearings, is whether or not the appearances of the defendant and the stand-ins were reasonably similar so as to avoid undue suggestion.” When the stand-ins have been so hastily chosen so that only one other person could possibly fit the description given to the police, the lineup will be considered unduly suggestive.

There does not appear to be any reported New York case that relates to the fairness of placing into a lineup an individual with a uniquely distinguishing facial characteristic. In a case, however, the criminal defendant argued that the lineup used by the police was constitutionally defective because the defendant was the only person in the lineup with bloodshot eyes, a characteristic said by the witnesses to belong to the perpetrator. The court ruled that while the witnesses noticed the redness in the defendant’s eyes, the photograph indicated that this redness was not “remarkable.” In the case at bar, however, the defendant’s facial characteristic is remarkable.

Other jurisdictions have allowed such identifications be admitted into evidence. A California court held that a photographic array showing only one person with a birthmark, the criminal defendant was not unduly suggestive. Similarly, a Missouri court held that dissimilarity in physical appearance alone is insufficient to establish impermissible suggestiveness. The court considered the case of a defendant with a substantially disfigured chin, and it determined that this inherent physical abnormality would preclude the possibility of providing subjects reasonably close in appearance.

Nevertheless, the court held that testimony about an identification would not be suppressed as the result of an impermissibly suggestive procedure because the likelihood of misidentification was considered nonexistent. This sort of holding is consistent with the Supreme Court’s rulings.

“In the past Federal constitutional guarantees, interpreted by the Supreme Court, generally satisfied and often exceeded the requirements of comparable provisions of the State Constitution. But there would be no need for an independent State Bill of Rights if that was always the case this court has frequently found that the State Constitution affords additional protections above the bare minimum mandated by Federal Law.”

“There is a trenchant need for quick verification of identity, cause for arrest and detention, and the desirability of early or even immediate release of those falsely accused of a criminal case. Speedy viewings benefit both law enforcement and the defendant If the witness makes a positive identification, the police can direct their resources to other investigations. If the witness does not make an identification, the suspect can be released from custody, and the police can resume their investigation.

In the present case, the police made an effort to find stand-ins reasonably close in age, weight and height to the defendant. In addition, all the men in the lineup were black. No attempt, however, was made to conceal the defendant’s glass eye. While it is certainly true that “stations are not theatrical casting offices.”, some effort in this case could have been attempted to remove any suggestiveness. In a case, the police had a description of a perpetrator who was supposed to be bald with a moustache. In addition, the perpetrator was alleged to be a policeman. The investigator did not have enough photographs of balding policemen to construct a photographic lineup, so he ingeniously used white tabs to conceal this characteristic of the criminal defendant and the scalps of the few fillers.

The People’s brief submitted in opposition to the motion to suppress the identifications argues that the suggestiveness of the lineup was necessary because the defendant’s unique physical characteristic could not be duplicated in other fillers except by inhuman and cruel means. No reasonable person could possibly suggest that such measures should be taken. This dissimilarity could have been concealed. Such a concealment would be scarcely more than is used when all the subjects of a lineup are seated in order to conceal their heights or weights, or when white tabs are used to conceal a bald head. Thus, in the absence of such a precaution, the lineup identifications must be suppressed because they were unnecessarily suggestive.

Undoubtedly, this places a burden on the police to exercise care when conducting lineups. Indeed, “have pointed to the burden on law enforcement officials to find lineup stand-ins with physical features approximating those of the suspect as a reason for approving what otherwise might have been suggestive lineups.”

“if the jury finds the in-court identification less than convincing, it should not be permitted to resolve its doubts by relying on the fact that the witness had identified the defendant on a prior occasion if that identification was under inherently suggestive circumstances. Similarly, if the witness is unable to identify the defendant at trial the defendant’s conviction should not rest solely upon evidence of a pretrial identification made under circumstances which were likely to produce an unreliable result.”

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