Defendant appeals from a judgment of the Supreme Court, New York County (Edward J. McLaughlin, J.), rendered April 28, 2004, convicting him, after a jury trial, of assault in the first degree, and sentenced him, as a second felony offender, and imposing sentence.
The opinion of the court was delivered by: Buckley, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
David B. Saxe, J.P., John T. Buckley, James M. McGuire, Karla Moskowitz, Rolando T. Acosta, JJ.
Based on the identification testimony of the victim and two witnesses, a jury convicted defendant of assault in the first degree for repeatedly slashing a woman with a box cutter in a subway station.
In the early morning hours of January 10, 2003, the victim was standing on a well-lit subway platform with 5 to 10 other people, when she noticed defendant make eye contact with her, step behind a pillar, and reappear closer to her. Defendant repeated the sequence, during the course of which he passed by Pablo Alarcon, who also made eye contact with him. Both the victim and Alarcon took particular note of defendant, due to his strange behavior and multiple layers of clothing, including a red hood, dark jacket, and jeans. Although defendant's face was partially covered by the hood, Alarcon could see that he was an Hispanic of slightly darker complexion than Alarcon himself, had a dark goatee and eyebrows, and appeared to be in his mid-20s; Alarcon considered defendant's facial expression to be suspicious and frightening.
Edwin Rios entered the station and walked past the victim and defendant, who by then were conversing. Rios's attention was first drawn to the victim, an attractive young lady wearing a short skirt, but he also observed defendant's face and clothing.
Defendant, now arm's length distant from the victim, paced in front of her for a few seconds and then asked if she was "working." She did not understand the question, and requested clarification. He asked if she was "an escort." When the victim replied in the negative, defendant began to slash at her head repeatedly with a box cutter, causing her to bleed profusely and severing her thumb. From about 15 feet away, Rios turned to see defendant attacking the victim, who was attempting to defend herself. Hearing screaming, Alarcon also looked to see the assault. Defendant then broke off his attack and ran past Rios, who saw his face again, as well as an orange box cutter in his hand, and Alarcon, who observed defendant put in his pocket what appeared to be a "construction knife" used "to cut sheet rock." Defendant jumped onto the tracks and escaped down the tunnel, while the victim, calling for help, went up the station stairwell.
The victim was taken to the hospital, where she described her assailant to the police as a tan-skinned Hispanic man, about 5-feet, 8-inches tall, in his late 20s or early 30s, with a mustache that continued down his chin. The next day, she worked with a police artist to create a sketch of the assailant. Two days after that, the police went to the subway station as part of an investigation and spoke with Rios, who described the assailant as a light-skinned Hispanic with a goatee similar to Rios's own, in his late 20s, about 5-feet, 8-inches tall, of medium build, and wearing blue jeans, a dark blue sweater, and a hood. Rios believed that the police sketch accurately portrayed the assailant.
On January 23rd, 13 days after the incident, Alarcon looked at a photo array, but did not recognize anyone. The next day, the victim identified defendant from a photo array. On January 25th, defendant was taken into custody, and the day after that the victim and Alarcon separately viewed a lineup. The victim immediately identified defendant as her attacker. Although Alarcon was "eighty percent" certain that defendant was the assailant, he told the police that he did not recognize anyone, because he harbored trepidations regarding his immigration status. The day after the lineup, Alarcon saw a photograph in a newspaper depicting defendant in handcuffs and accompanied by two police officers. Alarcon showed the photograph to his supervisor, but still did not mention anything to the authorities. In December 2003, 11 months after the attack, an ADA telephoned Alarcon, who admitted that he had recognized someone in the lineup and in the newspaper. Upon being shown a photograph of the lineup, Alarcon identified defendant.
In January 2004, Rios, who had not previously been shown any photographs, viewed a lineup. Even though defendant had shaved off most of his goatee by then, Rios identified him.
The victim and Rios positively identified defendant in the courtroom, while Alarcon identified him with 80% certainty.
The hearing court properly denied defendant's motion to suppress the identification testimony. The record, including the lineup photographs, establishes that the composition of the lineups was not unduly suggestive (see People v Chipp, 75 NY2d 327, 336 , cert denied 498 US 833 ). The differences between defendant and the fillers in facial hair and apparent age were not so distinguishing as to single out defendant (see id; People v Amuso, 39 AD3d 425 , lv denied 9 NY3d 862 ; People v Evans, 202 AD2d 377 , lv denied 83 NY2d 966 ). Any disparities in height and weight were minimized by the fact that the lineup participants were viewed while seated and holding large numbered cards in front of their torsos (see Amuso, 39 AD3d at 425-426). There is no basis for disturbing the court's credibility findings that Alarcon recognized defendant at the initial lineup but told the police otherwise out of fear concerning his immigration status, and that his identification was not the result of postlineup events (see People v Garcia, 284 AD2d 106, 107 , lv denied 97 NY2d 641 ). Since defendant himself elicited at trial Alarcon's photographic identification, he cannot be heard to complain now of its introduction (see People v Cuiman, 229 AD2d 280, 282 , lv denied 90 NY2d 903 ).
The only preserved challenge to the prosecutor's summation concerns a remark to which defendant objected as not supported by testimony; however, we reject that claim. Defendant's remaining objections to the prosecutor's closing statement are unpreserved for review, and we decline to review them in the interest of justice. As an alternative holding, none of the cited comments exceeded the broad latitude accorded on summation (see People v D'Alessandro, 184 AD2d 114, 119 , lv denied 81 NY2d 884 ).
Defendant's argument regarding the jury charge on unanimity is also unpreserved (see People v Parra, 58 AD3d 479 , lv denied 12 NY3d 820 ), and we decline to review it in the interest of justice. As an alternative holding, we find that the charge, as a whole, conveyed the proper legal principles (see People v Drake, 7 NY3d 28, 34 ), and a jury poll confirmed that the verdict was, in fact, unanimous.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 ). The sentence was not excessive, and we decline to reduce it in the interest of justice.
The remaining issue is whether the court should have allowed defendant to present expert testimony regarding identifications or ordered a Frye hearing on the matter. Initially, defendant's assertion that the trial court was bound by the law of the case doctrine to conduct a Frye hearing is belied by the plain language of the earlier Justice's preliminary ruling on the matter.
Defendant's motion to permit expert testimony set forth three groups of factors purportedly affecting the accuracy of witness identification: (1) event factors (exposure time to an event and cross-racial accuracy); (2) investigative factors (similarity of lineup participants, lineup instructions, rate of memory loss, influence of information acquired after the event, wording of questions to witnesses, unconscious transference to the crime scene of a person from elsewhere, pre-existing attitudes and expectations of witnesses, and simultaneous versus sequential lineups); and (3) witness confidence (correlation of confidence level with accuracy and weapon focus). The trial court determined that, under the circumstances of this case, the proposed topics were either inapplicable, within the common understanding of the jury, or not warranted.
In People v LeGrand (8 NY3d 449, 452 ) the Court of Appeals stated that, although the decision whether to admit expert testimony regarding eyewitness identification ordinarily rests within the trial court's discretion, "where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror."
The Court of Appeals has recognized that expert testimony is "a kind of authorized encroachment" into the jury's otherwise exclusive province of drawing conclusions from the facts (People v Lee, 96 NY2d 157, 162  [internal quotation marks omitted]). Even where a qualified expert's testimony might be relevant, beyond the ken of the average juror, and based on principles generally accepted in the scientific community, a court can providently exclude such testimony if it would unnecessarily distract the jury (see People v Young, 7 NY3d 40, 46 ). With those considerations in mind, "[t]he trial court should weigh defendant's request to admit expert testimony against factors such as the centrality of the identification issue and the existence of corroborating evidence'" (LeGrand, 8 NY3d at 456, quoting Lee, 96 NY2d at 163). The qualifying "such as" language indicates that there may be other factors, but the overriding concern is the degree of risk of misidentification (see People v Marte, 12 NY3d 583, 589 , cert denied __ US __, 2010 US LEXIS 1388, 2010 WL 596609 ). The court in LeGrand did not hold that expert testimony must be allowed if there is no corroborating evidence; rather, the court stated that it is an abuse of discretion to preclude expert testimony where "the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime" (8 NY3d at 452 [emphasis added]). Thus, the issue of whether expert testimony must be allowed depends on the risk of convicting the wrong person (see e.g. Young, 7 NY3d at 46 ["[i]t was reasonable, under the circumstances, for the trial court to conclude that [the victim's] identification was quite unlikely to be mistaken"]). Where the accuracy of an identification is more in doubt, the risk of wrongful conviction is greater, thereby militating in favor of admitting expert testimony. Indeed, in spite of some expansive language in LeGrand, the Court of Appeals' holding in that case, and in Young and Lee, was expressly based on "the facts and circumstances" particular to each case (LeGrand, 8 NY3d at 456, 459; see Young, 7 NY3d at 46; Lee, 96 NY2d at 163).
In LeGrand, there was no forensic or other physical evidence linking the defendant to the fatal stabbing, and the People's case rested only on shaky identifications of eyewitnesses made almost seven years after the commission of the crime (8 NY3d at 453). One of the witnesses identified the defendant in a photo array and a lineup; a second witness thought the defendant's photo was a " close, if not exact'" match; a third witness characterized the defendant's photo as " similar'" to that of the assailant; and the remaining two witnesses were unable to identify the defendant (id.). Three years after those identifications, ten years after the crime, the defendant was identified at trial by three of the witnesses, two of whom viewed a photo array the day before their testimony (id.). The jury could not reach a verdict, and prior to his new trial, defendant moved to introduce expert testimony on the reliability of eyewitness identification (id.). The trial court found several aspects of the proposed testimony to be relevant and beyond the ken of the average juror, but, following a Frye hearing, precluded the evidence on the ground that it was not generally accepted in the scientific community (id. at 453-454). The Court of Appeals, however, determined that three factors that influence the reliability of eyewitness identifications are generally accepted: correlation between confidence and accuracy of identification, the effect of postevent information on the accuracy of identification, and confidence malleability (id. at 458).
The Court of Appeals in Young opined that if there had not been corroborating evidence (stolen property found in the possession of two of the defendant's acquaintances), "it might well have been an abuse of discretion" to deny expert testimony on issues such as cross-racial identification, weapon focus, the effect of stress on recollection, and the correlation between confidence and accuracy (7 NY3d at 45). In that case, one victim was unable to identify the defendant (id. at 42). The other victim saw only part of the robber's face, retained a clear recollection of only his eyes, and viewed him under conditions of high stress while he held an axe over her wheelchair-bound husband's head ...