The defendant, having been indicted on two counts of robbery in the first degree, was found guilty after a jury trial on each of said counts on November 19, 1968 and is awaiting sentence thereon.
Defendant assigns two alleged errors in his motion: First, that defendant was denied the application of United States v. Wade (388 U.S. 218) and People v. Ballott (20 N.Y.2d 600) in the trial testimony with respect to the identification of the defendant as the perpetrator of these robberies; Second, that there was no proof before the jury to justify the necessary finding that the defendant was armed with a loaded pistol or a deadly weapon as alleged in the first count of robbery in the first degree.
The People argue that this is not properly a motion in arrest of judgment (Code Crim. Pro., § 467). However, in order to reach the merits of defendant's claim, the motion will be treated as one to set aside the verdict and for a new trial. (People v. Lynn, 37 Misc. 2d 461, affd. 20 A.D.2d 931.)
A brief resume of what transpired at the trial will point up the vexing problem faced by the court on this motion.
No issue as to identification was raised prior to the trial by either the prosecution or the defendant. In presenting its case in chief, the People called various witnesses who identified the defendant in court as the perpetrator of each of the robberies.
Upon cross-examination, the defense brought out the fact that most of these witnesses had observed the defendant at police headquarters subsequent to his arrest through a so-called "one-way" mirror. The testimony also brought out the fact that the defendant, a Negro, was alone at the time except for a police officer in uniform.
The defense made no motion during the trial to exclude the jury and conduct a Wade type hearing nor was a motion made to exclude the testimony as to identification. Both sides continued to present evidence as to identification without further comment.
The jury thus heard not only the original in-court identification but also the testimony as to the extra-judicial viewing of the defendant in the absence of counsel as well as the circumstances surrounding the viewing of the culprit at the time the crime was being committed.
Realizing the possible issue of due process, the court in submitting the issue of identification to the jury, charged as follows: "The prosecution must prove beyond a reasonable doubt all of the essential elements of the crime, including the fact that the accused is the person who committed those acts. As a jury, therefore, you must determine as a fact that the accused is such person. You do this by weighing and evaluating the evidence presented as to identification. The issue is this: Is the jury satisfied in their minds with the sufficiency of the identification and with the reliability of a witness who has testified to the fact of identification." After charging the jury as to factors surrounding the observation of the culprit at the time of the alleged commission of the crime such as light, vision, time, location and emotional condition, the court said: "Finally, you must consider whether or not the present identification is made as the result of some form of suggestion. Evidence has been adduced here by the defense to the effect that either some or all of the witnesses after the crime was committed viewed either photographs or the defendant himself at the police headquarters. To what extent, if any, did such intervening view of the defendant between the time of the alleged crime and the present identification in court taint or impair such identification is for the jury to decide on the basis of all of the testimony. Be careful to make your decision in a way which will exclude beyond a reasonable doubt, the possibility of a mistake in identification."
As the trial court in United States v. Kinnard (294 F. Supp. 286; U.S. Dist. Ct., D. C., Nov. 4, 1968; 4 Crim. Law Reporter, p. 2141) said: "There is much to be said for putting the entire chain of identification from on-the-scene to in-court before the jury and permitting the jury to decide. The jury is an equal if not far better protection than the constant presence of counsel during police investigatory work. Trial by jury is a process guaranteed by the Constitution. In the judgment of many informed trial judges, the fairest result in identification cases will be achieved if we do not put blinders on the juries but permit the juries to determine identity with all the facts before them."
The question presented on this motion is: Can the defense in a robbery case, where the identification of the accused as the actual perpetrator of the crime is almost always the principal issue of fact to be determined by a jury, wait until the verdict is rendered before raising the issue of due process? If the defendant does not raise the issue at any time before or at the beginning of the trial, must the prosecution before offering in-court testimony, ask the court to conduct a Wade type hearing?
Neither of these questions has been answered to date nor is the full import of Wade elaborated upon by appellate courts.
As a practical solution, this court in deciding whether a new trial should be granted, must review the evidence adduced at the trial under the due process ...