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The prosecution’s intention to utilize the statements and identifications was unambiguously communicated to the defendant throughout the controlling time period, and was never withdrawn


The prosecution’s intention to utilize the statements and identifications was unambiguously communicated to the defendant throughout the controlling time period, and was never withdrawn. To the extent that the formal notice portions of the VDF lacked certain talismanic details, the Court declined to read them in isolation. The information contained in the six-page VDF, of which the formal notices were a part, the oral notice provided at the arraignment on the felony complaint, and the 161 form provided thirteen days after arraignment, was sufficient to meet the requirement that the People “specify the statement or identification evidence intended to be offered” and included the specific information enumerated by the Court of Appeals in Lopez case.

The location at which the first statement was made can be determined by reading the VDF, which included the facts that the officer to whom it was made was involved in the arrest, and that the arrest took place five minutes after the statement was made. This information was sufficient to apprise the defendant that he had made the statement at the arrest scene. Similarly, although the exact hour and minute at which the defendant made his audio-taped statement was not included in the VDF, the information identifying the date, location, and ADA to whom he made his such statement was sufficient to identify the time at which the statement was made. The time was limited to that period of 4 January 1995 during which he was at the District Attorney’s Complaint Room and before he was taken to the court for arraignment. This information narrowed the time of the statement to a period sufficiently short so as to permit the defendant meaningfully to identify the exact statement he was alleged to have made. There was, after all, no allegation that the defendant made more than one statement to the ADA while at the complaint room on such date, which might give rise to a need for the prosecution to state the exact hour at which the statement was made.

As to the identification notice, the defendant argued that it was insufficiently specific both because it did not unambiguously state whether the identification procedure utilized in the emergency room of the hospital on the night of the assault was a lineup or a show-up, and because the names and exact number of the police witnesses who also identified him at the hospital were not specified. The People correctly responded that the type of identification procedure–a show-up–was unambiguously stated to the defendant when the original notice of the identification procedure was given at the arraignment on the felony complaint.

Moreover, this information was provided a second time, within fifteen days after the arraignment on the indictment, when the 161 form was read to counsel at a bench conference. Thus, the prosecution provided timely and complete notice of the nature of the identification procedure and defendant’s complaint that he could not discern this information from the notice provisions of the VDF was without moment.

Were such notice necessary, the Court would find that the notice as to the police witnesses who identified the defendant was also sufficiently specific. However, although not every identification by a police officer was immune from suppression as suggestive or insulated from the notice provisions of C.P.L. ยง 710.30, the identifications in this case were clearly confirmatory identifications by trained police officers who had witnessed the defendant committing the crime approximately one hour earlier.

The defendant argued that these identifications were not confirmatory because the officers were not undercover officers who had received detailed training on the observation and identification of suspects. Therefore, the defendant would have the officers’ identifications reviewed as though they were made by ordinary civilians with no training in law enforcement techniques. However, it was the type of identification procedure and not the job assignment of the identifying officer which determines whether police officer identification was confirmatory. Just as there was no blanket rule that all police officer identifications were confirmatory, there was no rule that only identifications by undercover officers can be confirmatory. Police officer identifications in cases involving many different crimes have been determined to be confirmatory and, therefore, not subject to statutory notice or suppression hearings. This interpretation comports with the defining factors of a “confirmatory identification” as described by the Court of Appeals–that the identification constitute the “completion of an integral police procedure” made by trained officers who were aware that they will be called upon to make a subsequent identification and that there was no significant passage of time between the crime and the subsequent identification.

In this case, the officers who had witnessed the assault and attempted robbery observed the defendant at the hospital a little more than an hour after they had observed him commit the crime. Although all of the officers had chased after the defendant, they had each lost sight of the defendant during the chase and were identifying him for the purpose of ascertaining that the correct man had been arrested. There was, therefore, no reason to treat these identifications any differently than the confirmatory station-house show-up identification by the undercover officer in Wharton case, made three hours after the crime. While the People provided notice of the identifications in the VDF, that notice was not required. The giving of surplus notice created neither the right to a suppression hearing nor the right to preclude the introduction of confirmatory identifications for insufficiently specific notice.

Following the People’s written response and oral argument, the motion for preclusion was denied in its entirety and hearings were granted as to the statements and the show-up identification by the complainant. The hearing was denied as to the confirmatory identifications by the police officer witnesses.

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