By Jill Paperno

Second Assistant Monroe County Public Defender

CPL § 710.30 requires the prosecutor to provide notice to the defense within a statutory period when the prosecutor intends to offer a witness who has previously engaged in a police arranged identification procedure, when the witness will be testifying to…what?

We know that if the identification procedure was not confirmatory, the identifying witness cannot engage in an in-court identification of the defendant if there has been a previous out-of-court identification procedure. Or if the procedure was suggestive and there was no independent basis.  But can a witness come in, describe events, describe the appearance of the person they observed, and not identify, if there has been no § 710.30 notice or Wade hearing?

Since this happened in a recent case, prosecutors may be seeking to skirt the § 710.30 rules in future cases and I wanted to offer some suggested responses.

CPL § 710.30 states that:

Whenever the people intend to offer at a trial…(b) testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such, they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered. [emphasis added]

The statute does not state that the notice is only required if there is going to be an in-court identification.  So if a witness comes in and describes someone engaging in conduct, and describes the appearance of that person who apparently shares physical characteristics with your client, but doesn’t identify your client, that is still testimony that requires a prior 710.30 notice?  If the testimony was not an observation of the defendant, then it wouldn’t be relevant to your case and therefore inadmissible on that basis, right?  

If you hear that an eye-witness is about to testify at trial and there has been no § 710.30 notice, but there was an identification procedure, move to preclude the testimony on § 710.30 grounds, as a violation of your client’s right to due process as protected by the New York State and United States constitutions, and on relevance grounds, because if the observation didn’t relate to your client, the testimony is not relevant.  Do not ask for a Wade hearing in the middle of trial, as you will then forfeit your preclusion issue on appeal (and you’re not likely to win a Wade hearing, are you?).

Pursuant to People v Kirkland, 89 NY2d 903, 904-05 [1996]:

When the People intend to offer identification testimony from a witness, a notice of intent must be served upon the defendant specifying the evidence which the People intend to offer” (CPL § 710.30). The notice requirement is excused when a defendant moves for suppression of the identification testimony (CPL § 710.30[3]; People v Merrill, 87 NY2d 948; see also, People v Lopez, 84 NY2d 425).  Since the defendant here moved to suppress the identification testimony and received a full hearing on the fairness of the identification procedure, any alleged deficiency in the notice provided by the People was irrelevant.

If you find yourself in a situation where the witness is allowed to testify not only to the events, but that the individual he saw bore a resemblance to a famous star (say, a famous rapper), consider obtaining a picture of the rapper, marking it as a court exhibit and making it part of the record, as well as a photo of your client – preferably the one viewed by the witness to demonstrate the similarity – so that it is clear to the appellate court that this was not only testimony about observations of your client, but also clearly identification testimony.  I am not suggesting the photo be displayed to the jury – to the contrary – but just that you preserve the picture for the appellate court’s consideration.

If you lose these arguments, you may wish to append that photo to a motion for a mistrial.  

A prosecutor might argue that People v Grajales stands for the proposition that a § 710.30 notice is not required prior to such quasi-identification testimony.  If so, you might consider the following from People v Nolasco, 70 AD3d 972 [2nd Dept 2010]:

Contrary to the People’s contention, the Court of Appeals’ decision in People v Grajales, 8 NY3d 861, does not excuse their failure to provide such notice. In Grajales, the People provided timely notice pursuant to CPL 710.30(1)(b) that they intended to offer identification testimony from a complainant who had previously made a point-out identification, but the notice failed to mention a pretrial photographic identification made by the same complainant (Id. at 862).  The Court in Grajales held that since the People could not have intended to offer the inadmissible photographic identification at trial, the notice pursuant to CPL § 710.30(1)(b) omitting that information was not inadequate for failing to specify this identification (Id.).  Here, no statutory notice whatsoever was given by the People as to their intent to offer “testimony regarding an observation of the defendant ... at the time or place of the commission of the offense” to be given by Jose, “a witness who has previously identified him as such” (CPL 710.30[1][b]; see People v Smothers, 20 Misc3d at 658–659).  Furthermore, and contrary to the People’s contention, inasmuch as the only motion made by the defendant that could be deemed a motion to suppress Jose’s identification testimony was based on an incident in the courtroom during trial that was wholly unrelated to any pretrial identification, this case does not fall under the exception to the preclusion rule set forth in CPL § 710.30(3) (cf. People v Kirkland, 89 NY2d 903, 904–905). Accordingly, the denial of the defendant’s motion to preclude Jose’s in-court identification deprived him of a fair trial.