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The People &C v. Daniel Thomas

November 21, 2011


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


The order of the Appellate Division should be affirmed. At about 3:40 a.m. on June 10, 2006, Oscar Magallanes was accosted by two men, on the landing outside the front door of 124 East 103rd Street, in Manhattan. As he put his key into the lock, the men forced him to the ground. One attacker held Magallanes down, while the other went through the pockets of his jeans, taking his cell phone, as well as a $20 bill and a $1 bill from his wallet. The landing was well-lit, and Magallanes had no difficulty seeing the faces of the two men, with whom he remonstrated before they took off, westbound, along 103rd Street towards Park Avenue.

At about the same time, Police Officer Francisco Leon and his partner were driving north on Park Avenue when they noticed two men -- Daniel Thomas and Victor Cruz -- running, shoulder-to-shoulder, westbound on 103rd Street, turning their heads backwards as they ran. When the men saw the officers, they slowed to a walking pace, and the officers confronted them. Officer Leon asked Thomas for identification, which Thomas produced, but also displaying a credit card bearing a name different from his own. Thomas was unable to explain the origins of the credit card, and he and Cruz were arrested.

At the precinct, a search of Cruz yielded a cell phone, a $20 bill and a $1 bill. Meanwhile, Magallanes had reported the robbery to the police. As Police Officer Christopher Diakonikolas was preparing to leave the precinct to investigate, he saw Thomas and Cruz, and noticed the cell phone, which had a sticker on it. At the scene of the robbery, Diakonikolas interviewed Magallanes, who gave him a description of the cell phone, consistent with what Diakonikolas had seen at the precinct.

Thomas and Cruz were brought to the crime scene for a "show-up," at which Magallanes identified them as the men who had robbed him. Magallanes also identified his cell phone, which had been found in Cruz's possession.

Cruz pleaded guilty to one count of robbery in the second degree. Thomas elected to go to trial. Following a suppression hearing, Supreme Court ruled that the police lacked probable cause to arrest Thomas after he was unable to explain the credit card, and suppressed Magallanes's show-up identification of Thomas as the fruit of an illegal arrest. Magallanes would, however, be allowed to testify about his show-up identification of Cruz. An independent source hearing was also held, and Supreme Court ruled that Magallanes would be permitted to identify Thomas in court.

At trial, Magallanes testified that he had identified Cruz at a show-up. He made an in-court identification of Cruz, through a photograph, as the man who had rifled through his pockets and taken his cell phone and cash. The jury heard that Magallanes's cell phone had been found on Cruz. Magallanes also made an in-court identification of Thomas as the person who had held him down during the robbery. Thomas presented no evidence.

At the close of testimony, Thomas objected to the testimony concerning the show-up, citing People v Monroe (40 NY2d 1096 [1977]) for the proposition that identification of a co-defendant who is not on trial is necessarily irrelevant and inadmissible. He requested that the testimony be stricken or a mistrial granted. Supreme Court denied Thomas's motion.

During the People's summation, the prosecutor mentioned Magallanes's show-up identification of Cruz as the man who had taken his cell phone, as evidence that his courtroom recognition of Thomas was accurate. Thomas raised no specific objection to this part of the summation.

The jury found Thomas guilty of robbery in the second degree. Appealing the judgment of conviction, Thomas argued, among other things, that the evidence of the show-up identification of Cruz was inadmissible. The Appellate Division ruled that any error was harmless, and affirmed Supreme Court's judgment. One Justice dissented, and granted Thomas leave to appeal to this Court. We now affirm, although our reasoning differs somewhat from that of the Appellate Division.

Thomas's reliance on People v Monroe is misplaced. In Monroe, we held that trial "testimony by one of the witnesses that he had identified one of the robbers not on trial, bolstered by one of the police officers on the same issue" was wrongly admitted (40 NY2d at 1098 [emphasis added]). Monroe does not stand for the proposition that the admission of evidence of a witness's identification of a co-defendant not on trial is improper. To the extent that some Appellate Division decisions suggest otherwise, they are in error.

Nor is the case before us governed by the well- established restrictions in New York on third-party testimony concerning an eyewitness's pretrial identification of a defendant, known as the Trowbridge rule (People v Trowbridge, 305 NY 471 [1953]; see also People v Buie, 86 NY2d 501, 509-510 [1995]). Here, it was Magallanes himself who testified, not a third party.

Moreover, the concerns that underlie Trowbridge do not apply in the situation presented here. The repetition of an identification by a third party may "improperly influence the jury's belief in the reliability of the identification. . . . The testimony of the third party is not probative of whether the defendant was the person who committed the crime, but it could at best establish that the eyewitness, prior to trial, identified the defendant in the presence of others" (People v Bolden, 58 NY2d 741, 743 [1982] [Gabrielli, J., concurring]). By contrast, Magallanes's testimony concerning his identification of Cruz was probative of whether Thomas had attacked Magallanes. This is because Magallanes's accuracy in identifying the person who, it turned out, had his cell phone was relevant to whether the conditions on the landing at 124 East ...

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