by
Jill Paperno,
Author of "Representing the Accused: A Practical Guide to Criminal Defense"

Sometimes we don't think about all of the factors that must be considered at a Wade hearing.  Sometimes judges tell us the preliminary conversations between witnesses and the police are not relevant.  In People v Gambale (2017 NY Slip Op 03658 [4th Dept May 5, 2017), the Fourth Department provided support for our need to be expansive in our Wade litigation and our claims that we are entitled to explore these details.

Gambale involved a set of facts we often encounter and may not be sufficiently attuned to.  A robbery occurs at a hotel.  The police believe they know who the perpetrator is, and contact the suspect's parole officer.  In calling, the investigator "inquired about her role as a parole officer for defendant and her familiarity with him. Upon confirming that the parole officer was familiar with defendant, the investigator proceeded to ask her to report to the police department in order to view the video and to determine if she recognized anyone depicted therein. The parole officer identified defendant as the person committing the robbery."

Although we may not always think about the steps that are used to set up an identification procedure, it is extremely important to explore the preliminary conversations that lead a witness to participate.  When we are dealing with law enforcement and parole witnesses, we may forget to consider that they are still witnesses, and that a suggestion that a person with whom they are familiar may be involved in an incident can be suggestive for identification purposes.  The Fourth Department stated,

Here, we agree with defendant that, contrary to the court's determination that "[t]here was no influence or suggestion" by the investigator, the evidence establishes that the investigator suggested to the parole officer prior to her identification that the person depicted committing the robbery on the surveillance video was defendant (cf. Collins, 60 NY2d at 220, affg 84 AD2d 35, 39-40). Instead of requesting the parole officer's assistance in identifying someone from the video without preemptively disclosing the subject of his investigation (emphasis added), the investigator engaged in a conversation "about her being a parole officer for [defendant]." During the conversation, the investigator "asked [the parole officer] if she was familiar with [defendant]" (Emphasis added).The parole officer responded that she had "lots of contact" with defendant, so the investigator proceeded to ask her to "come down and view a video." The investigator subsequently met with the parole officer at the police department and asked her to view the video to determine if she recognized anyone, and the parole officer identified defendant as the person committing the robbery. We conclude that the investigator, by contacting the parole officer and inquiring about her familiarity with defendant prior to the parole officer's viewing of the video, engaged in the type of undue suggestiveness identified in Collins inasmuch as his comments improperly suggested to the parole officer that the person she was about to view was a particular acquaintance of hers, i.e., defendant (see id. at 220) (Emphasis added.). 

On this finding that lawful enforcement engaged in undue suggestiveness, the Appellate Division remitted the case to the trial court (Judge Randall) for a determination as to whether the identification was confirmatory.

Special Assistant Monroe County Public Defender Drew DuBrin is the attorney who successfully represented Mr. Gambale on the appeal.,

The lesson to be learned from this Gambale is that when you are investigating issues of suggestiveness of an identification procedure, it is not enough to look at the photo or lineup for the obvious physical differences (though you of course, must do that).  Counsel must also consider the circumstances of the display of the defendant or his/her photo, the body language, physical movements, the conversation, and the details leading up to the display - phone calls and prior contacts - in supporting an argument for suggestiveness.  Consider preparing your hearing with the following issues to be explored (and these are just a few ideas):

Photos - background, clothing, jewelry, scars, tattoos, hats, size of face, expressions, anything else unusual;
Appearance of the defendant - age, weight, skin tone, features, hair length, hair color, scars, tattoos, particular features
Is there anything unusual about your client's appearance that was omitted from the description?  If so, you have to make a strategic decision as to whether to raise that at the hearing or at trial.
Conversations between the witness and investigators prior to the viewing
Aspects of identification procedures that are now known to be suggestive, but were ignored (such as the lack of a double blind lineup or display)
Details of who was present and what was said, minute by minute, during the display.
Whether other people had communicated with the witness about who the perpetrator was prior to the display, or used their cell phones or other social media to point out the suspect to the witness

It is helpful to have an investigator speak to witnesses prior to the hearing to determine what was said by the police during the procedure.  Sometimes witnesses, without having yet been prepped, will unwittingly acknowledge that the officer's words were suggestive.  If so, have your investigator ready to testify.