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People v. Abney

October 27, 2009

THE PEOPLE &C., RESPONDENT,
v.
QUENTIN ABNEY, APPELLANT.
THE PEOPLE &C., RESPONDENT,
v.
GREGORY ALLEN, APPELLANT.



The opinion of the court was delivered by: Read, J.

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Defendants in both of these cases unsuccessfully sought to introduce expert testimony on the reliability of eyewitness identification. The question for us to decide is whether, in light of our decisions in People v Lee (96 NY2d 157 [2001]), People v Young (7 NY3d 40 [2006]) and, especially, People v LeGrand (8 NY3d 449 [2007]), the trial courts abused their discretion when they disallowed this testimony. We conclude that the trial judge in Abney abused his discretion, but that the trial judge in Allen did not.*fn1

I. Abney

A. Facts and Trial

On June 2, 2005 at about 3:20 P.M., 13-year-old Farhana U., on her way home from school, was descending well-lit stairs into the subway station near the corner of Essex and Delancey Streets in Manhattan when a man whom she did not know approached her and asked for "some change." This man stood face-to-face with Farhana, about two feet away. She initially did not think he intended to harm her and was not afraid. Looking him squarely in the face, she said she had no change.

After Farhana "took a couple of steps forward," the stranger wheeled in front of her, placed a knife with a six-inch blade and "a big curve on the end" near her throat, and asked her "a couple of times" to hand over her necklace, a gold chain with a locket. As this man stood close by her, Farhana was "looking at his face"; she was "really scared" and "didn't know what to do." When Farhana refused his demand, screaming "No," he ripped the chain off her neck, and fled up the stairs. This entire encounter was fleeting.

Farhana continued down the stairs into the subway station and reported the robbery to a token clerk. At about 4:30 P.M., Detective Samuel DeJesus interviewed her at his desk in the transit station house at Columbus Circle. According to Detective DeJesus, Farhana seemed frightened; she told him that she had been robbed at knifepoint by a stranger, a black man in his thirties who was over six feet tall, had "pinkish" lips, and wore a short-sleeved blue shirt and a blue bandana.

Farhana's physical description of the robber and how he carried out the crime prompted Detective DeJesus to suspect defendant Quentin Abney: he was familiar with defendant on account of his arrest for an earlier subway-related robbery. Telling Farhana that he would be "right back," the detective left his desk to put together an array of six photographs, including defendant's. When he returned, he told Farhana that he "was going to show her a group of photos and, if she recognized anyone, to let [him] know which one and what number." Pointing out defendant's photograph, she responded, "that's him, number six."

On June 22, 2005, Detective Ernest Dorvil telephoned Farhana at her home to ask her to view a lineup. Upon arrival at the station house, she waited in an office with the door shut while the lineup was being put together. From the office, Farhana could not see defendant, who was in a "cell area" on the other side of the building, or any of the "fillers" selected to participate in the lineup. Once the lineup was assembled, Detective Dorvil escorted Farhana to the viewing room, where they were joined by another police officer and defendant's attorney. She identified defendant, in position number four (there were six men in the lineup); Farhana was "sure" that he was the man who had asked her for change and then robbed her at knifepoint.

Defendant was arrested and charged with one count of robbery in the first degree (Penal Law § 160.15 [3]). At the subsequent jury trial, Farhana testified on direct examination that the man who robbed her had a dark brown complexion, "puppy dog eyes," and "pinkish-purplish lips"; she did not remember whether he was wearing anything over his head, but thought his shirt was blue. Defense counsel cross-examined Detective DeJesus about the details of Farhana's initial description of the robber; Detective Dorvil about the lineup, eliciting testimony that he let Farhana know ahead of time that a suspect was included (which she contradicted, saying that the detective told her only that he wanted her to view "a couple of people"); and Farhana about the lineup and the appearance of the knife.

Defendant presented an alibi defense, contending that, at or around the time of the robbery, he was picking up his girlfriend Mary Nimmons's daughter from preschool in Brooklyn and that, before and after doing this, he was at Nimmons's home at 64 MacDougal Street in Brooklyn. His alibi witnesses were Nimmons (the mother of two children by defendant) and her sister and two cousins; and Carolyn Murphy, an assistant teacher at the preschool.

Murphy testified that, on June 2, 2005, defendant picked up Nimmons's daughter. She claimed to recall the date because the very next day -- June 3, 2005 -- Nimmons came to the school to obtain a copy of the sign-in sheet reflecting that fact. While Nimmons also initially testified that she got the sign-in sheet on June 3, she later professed to have picked it up at defendant's request some time after his arrest on June 22, 2005. Murphy further testified that she was one of the employees responsible for making sure the sign-in sheets were filled out properly, and that the sheet was checked for accuracy every time it was signed.

On rebuttal, the parties stipulated that "the logbook [of sign-in sheets] from March through June [would] be entered into evidence and made available to the jury and [could] be referenced in the closing arguments." In general, the sign-in sheets were filled in irregularly -- some days children were signed in, but not signed out; and in some places where a signature appeared, no time was filled in. The sheet dated June 2, 2005 from the March-June logbook exhibit differed from the sheet dated June 2, 2005 admitted on defendant's behalf. The former stated that defendant picked up Nimmons's daughter at 3:04 P.M.; the latter pegged the time at 3:00 P.M.

The jury convicted defendant of first-degree robbery, and Supreme Court sentenced him as a persistent violent felony offender to a prison term of 20 years to life. He appealed.

B. Proffer of Expert Testimony

Before jury selection, defendant made a motion in limine to present expert testimony concerning "psychological factors of memory and perception that may affect the accuracy of witness identification." Specifically, he sought to call Dr. Solomon M. Fulero, who would "educat[e] the jurors on many counterintuitive findings that bear directly on the reliability of the identification evidence in [the] case," which were beyond the average juror's ken. Defendant identified 15 such factors: stress, exposure time, color perception under monochromatic light, event violence, cross-racial accuracy, similarity of lineup fillers, lineup instructions, rate of memory loss, postevent information, the wording of questions posed to an eyewitness, unconscious transference to the crime scene of someone seen in another situation or context, the witness's pre-existing attitudes and expectations, simultaneous and sequential lineups, the lack of correlation of confidence and accuracy, and confidence malleability. He specifically noted that the robbery was brief, the victim was under stress, and a weapon was used.

Supreme Court denied the motion as premature, with leave to renew at the close of the People's direct case. The trial judge observed that while he was aware that the People's case hinged on the eyewitness testimony of the 13-year-old victim, "at this juncture, . . . [he], in the exercise of discretion, [did] not consider [the] case an appropriate one for an expert identification witness" for several reasons.

The trial judge reasoned that "[a]s a threshold matter," defendant's papers did not "appropriately narrow the scope of the expert's proposed testimony," which therefore threatened to turn into "a full-fledged seminar . . . which could lead to hours of academic discussion and speculation." Second, the proffered testimony about how police investigative techniques might influence a lineup identification was not relevant because the victim had previously picked out a photograph from an array, and so must have realized that a suspect would be included in the lineup. Third, two of the proposed subjects of testimony --postevent information and unconscious transference -- "[had] not passed the Frye test" in other courts.*fn2 Fourth, evidence about simultaneous ...


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