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Defendant Contends Identification Procedures by Police Incorrect


Appeal from a judgment of the County Court rendered on January 6, 1981, upon a verdict convicting a man of the criminal act of rape in the first degree.

On the evening of July 4, 1979, at approximately 9:45 p. m., the female victim, aged 19, was walking up Baker Avenue in Cohoes, New York, en route to Cohoes Memorial Hospital. A man walked past her, turned and came up behind her, put his hands over her eyes and mouth and told her not to scream. A New York Criminal Lawyer said he then dragged her off the shoulder of the road into some bushes, punched her for a number of times, removed her clothing, and raped her.

When the man left, she donned her clothing and ran to the emergency room at the hospital where she received medical attention for her injuries and notified police. She thereafter gave a detailed description of her assailant to the police stating that he was a white male, age 20 to 25 years, about five feet nine inches tall, weighing 150 to 160 pounds, with shoulder length dirty blonde hair parted in the middle, wearing blue denim pants with a belt, a light pullover shirt, and sneakers. On September 25, 1979, she examined a series of six photographs at the Police Department and quickly identified a photograph of the accused as the man who had raped her. The man was indicted and his trial commenced. A New York Criminal Lawyer said he was positively identified in court by the victim as the man who raped her on July 4, 1979. His defense was mistaken identity and he contended, among other things, that at or around the time of the incident his hair was not even collar length. In addition, both the man and his wife testified that he was at home the entire night the criminal act was committed. Rebuttal witnesses for the Sate contradicted the testimony.

In seeking reversal on the appeal, the man attacks the identification procedures employed by the police, the charge of the court to the jury, and the conduct of the prosecution during the trial and upon summation. The trial was not free from error, but the same may be said of most any trial. The appellate process is not a search for error, but a review of what transpired at trial to determine whether there were any improprieties which influenced the jury to the extent that the verdict was tainted and the man did not receive a fair trial. With the considerations in mind, there must be an affirmance.

A New York Drug Possession Lawyer said the pretrial photographic identification procedures employed were not proved to be impermissibly suggestive. Moreover, the victim’s in-court identification and testimony that she observed the man face-to-face for three to five minutes, establish an independent source for the identification. A New York Sex Crimes Lawyer said the charge of the jury on the issue was adequate, as was the charge on the defense of alibi. The court properly and fairly marshaled the evidence and when the entire charge is read in context, it cannot be said to be unfair to the man, since it covered all necessary elements to properly instruct the jury.

As to the conduct of the prosecution, first, no error in the effort to impeach the man by questioning him concerning his post-arrest failure to tell the police of his alibi offered at trial. The man, while in custody on another charge, told police he had been up north on July 4, 1979, contrary to his alibi testimony at trial. The information had not been furnished in pretrial discovery, and the trial court did not permit its use at trial for impeachment purposes. However, the State were allowed to question the man as to whether he had told the police while in custody the alibi story offered at trial. The court also allowed testimony from an interrogating officer that the man never told him he had been home with his wife on the evening of July 4, 1979. The man argues that the prohibition against the use of his post-arrest silence as evidence against him is violated.

Again, the situation is distinguishable. First, the man was not silent, and the rationale of the above decisions is inapplicable. Therefore, the purpose of the questioning was not to penalize the man for exercising his constitutional right to remain silent.

There are the same views as to the cross-examination of the man’s wife concerning her pretrial failure to inform police of the alibi story. Again, she had previously told the police a conflicting version of the alibi subsequently offered at trial. Moreover, the court followed the cautionary procedures and thereafter gave the necessary and proper limiting instruction to the jury.

While the comments of the prosecutor on summation regarding alibi witnesses were improper, as was his reference to the man’s request for counsel, in the context of the entire summation and in response to comments made by the defense counsel, the Court does not view the conduct of the prosecutor to have denied the man his due process right to a fair trial.

When a family member or a friend gets involve in a criminal act, it would be unfair to the victim to lie just to free the offender. If you need to make sure that you will send an offender in prison, contact the NYC Criminal Lawyers together with the New York City White Collar Crime Attorneys from Stephen Bilkis and Associates.

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