The opinion of the court was delivered by: JUDD
This petition for habeas corpus presents the question of what consequences flow from holding a pretrial lineup without the presence of defendant's counsel after the decision of United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). Petitioner seeks to be relieved of his sentence on a conviction for harassment and menacing, and to be protected from trial for another related offense of possession of a dangerous weapon.
Early on a July afternoon two teenage girls finished their swimming at Jones Beach and walked under the road to Parking Lot 4, to wait for a friend to pick them up. On the parking lot they were accosted by a man of dark complexion, dressed in a bathing suit and a towel. After a few words, he disclosed a gun under his towel, said "this is a stick up" and took one of the girls by the arm and started to pull her toward the bushes that surrounded the parking lot. One car drove into the parking lot and paid no attention but a second car stopped, because the driver sensed something wrong. The man with the gun then walked away, and the driver put the two girls in his car and found a policeman, who made a fruitless search of the area. One of the girls described the culprit as Puerto Rican, and the driver said he was a "Latin type."
The next afternoon about the same time one of the Long Island State Parkway Police found the defendant sitting on a wooden fence near Parking Lot 4, dressed in slacks, shirt and towel (of a different color). Defendant said he was from Canada and was waiting for a friend. He started to run away when other police arrived, but was apprehended and frisked. In the towel around his waist there was concealed a.177 caliber air-pistol, designed to shoot pellets or beebees.
Defendant was taken to the Jones Beach police station, and permitted to telephone his attorney. The policeman identified himself on the telephone, but did not mention any plans for a lineup. The lawyer said he would be there the next morning for the arraignment. He had to be in Ossining that night, and could not see his client before morning. The policeman denied being told not to do anything detrimental to defendant's rights, and the trial court apparently accepted his version.
Shortly after the lawyer had talked with the defendant, the police gave him Miranda warnings, and obtained his signature to a waiver of rights. It is not contended that the waiver specifically mentioned waiving the presence of counsel at a lineup.
The two girls were then summoned, identified the gun which had been taken from defendant, and were asked to pick him out from a group of four men. The other three in the lineup were off-duty detectives, of Italian descent and dark complexion, also dressed in slacks and sport shirts, and about defendant's height. The girls had no difficulty or hesitancy in identifying defendant as their assailant, and expressed no doubts about the matter. Each man was asked to speak his name, but his identification took place before defendant spoke.
Defendant is a native of Dominica in the British West Indies. He considers himself Negro, but is not black-skinned. Evelyn McAvinue, the girl whose arm he had taken, said all the men in the lineup had dark complexions, and she thought they looked Puerto Rican. The judge noted for the record that defendant did not look negroid, but "approaching between Spanish and Negro."
The District Court Judge conducted a pretrial hearing on defendant's motion to suppress any identification by the witnesses who had observed the lineup. Two police officers, Miss McAvinue, the defendant, and his attorney all testified.
The judge heard oral argument and dictated his decision into the record. He held that identification prior to arraignment was important, even in the defendant's interest, that the lawyer must have known that a lineup was customary, that defendant did not request his lawyer's presence, and "the police went about as far as could be reasonably expected to accord this man all his constitutional rights." Finally, he ...