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Admissibility of Pre-Trial Photo Identifications When Defendant Refuses To Cooperate With Lineup Identification


People v. Perkins

New York Court of Appeals Slip Op 05675

Decided June 29, 2010

Issue : whether a photographic identification will be admissible at trial when defendant would not cooperate with lineup procedures and a photo array was used instead.
Held : Generally, pre-trial photographic identifications are not admissible, however, the Legislature did not intend to rule out photographic identification evidence in the event a defendant thwarts a lineup. The defendant forfeited the right to rely on the evidentiary rules ordinarily barring the admission of photographic identification evidence and this allowed the prosecution to introduce the victim’s identification of him from photos taken the same day as the aborted lineup.

Facts :

A victim of an armed robbery was showed a photographic array by police. The victim immediately recognized the defendant as the man who shot him.

Defendant was arrested three months later and the same victim was called to view a lineup. At the lineup the defendant refused to cooperate with police and he kicked and spat and cursed making it impossible to conduct the lineup. The police officer took head shots of the defendant and the lineup fillers and showed them to the victim. The victim again pointed out the defendant as the man who shot him.

A Wade hearing was held and the trial court denied the motion to suppress the identification. The trial court did admit into evidence the head shots photographs taken at the lineup as well as testimony that the defendant refused to cooperate with the lineup procedure.

Defendant was convicted of second egree attempted murder and first degree robberty and sentenced to concurrent terms of 25 years and 10 years.

The Court of Appeals cited People v. Caserta , 19 N.Y.2d 18 (1966) stating that generally pre-trial photographic identifications are not admissible into evidence because it is readily possible to distort pictures as affecting identity and because a jury might infer that the police possessed a defendant’s photograph because of previous runins with the law.

However, the Court of Appeals held that the Legislature did not intend to rule out photographic identification evidence in the event a defendant thwarts a lineup. The defendant forfeited the right to rely on the evidentiary rules ordinarily barring the admission of photographic identification evidence and this allowed the prosecution to introduce the victim’s identification of him from photos taken the same day as the aborted lineup.