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61 A.D.2d 666

People v. Gonzalez

Appellate Division of the Supreme Court of the State of New York · decided 1978-04-04

Good law ✅— No negative treatment on recordhow we know

Decided 1978-04-04

How this case has been cited

Cited by 8 later decisions — most recently August 2009

1 federal appellate · 2 state decisions

401978198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Murphy, P. J. (dissenting).

¶1At about 10:20 p.m. on July 18, 1975, four men drove up to a gas station in a gold Cougar. Three of the men entered the station and robbed the two attendants, Francisco Acevedo and Erald Grant, at gunpoint. The fourth individual waited in the car. In an ensuing shootout with police, one individual (Devia) was killed, one (Rodriguez) escaped, and two (Velez and the appellant Gonzalez) were captured. At the Wade hearing, the testimony of the two attendants suggested that Velez and Devia were present in the station. On appeal, appellant contends that the identification made by the two attendants at the precinct after the robbery was unnecessarily suggestive. Appellant further maintains that, absent that identification testimony, the prosecution did not probatively establish his presence in the gas station as the third robbery suspect. Hence, he argues that the *672prosecution must demonstrate his guilt in the robbery as the fourth individual who waited in the car.

¶2At the Wade hearing, Acevedo testified that the third participant was wearing a white T-shirt and a dungaree hat over an afro. The hat was worn very low so that Acevedo did not see his face. The officer who brought him to the precinct, on the night of the occurrence, stated that one suspect was killed, one was shot, and two were inside. He then viewed the appellant and Velez in the same room; both were alone and handcuffed. With admitted uncertainty, Acevedo identified appellant at the precinct as the third participant who carried a shotgun. On the date of the Wade hearing, this attendant could identify a photograph of Velez taken a day after the robbery, but he could not identify a photograph of appellant. Likewise, he could not make an in-court identification of either Velez or appellant.

¶3Erald Grant, the other attendant, only viewed the third participant for a period of two seconds. Grant averred that the third participant was short and dark-skinned, but he could not describe the participant’s face, clothes or other distinguishing characteristics. In the precinct after the occurrence, Grant was first permitted to view Velez and the appellant in an adjacent room. He then identified them as two perpetrators of the robbery. However, he too was unable to identify either Velez or the appellant at the Wade hearing.

¶4Police Officer Kevin Moroney testified at the Wade hearing that, on the night of the robbery, Grant had identified both Velez and the appellant in the precinct. To the extent here relevant, Moroney also noted that, during the subsequent shoot-out, Rodriguez was wearing a light-colored dashiki and he fired a shotgun.

¶5Where a witness, due to the lapse of time or change in the appearance of a defendant, cannot make an in-court identification, but has previously identified a particular defendant, that witness may then establish that the defendant in court is the same one whom he previously identified (CPL 60.25). A second witness may be called to establish the fact that the prime witness actually identified the defendant on a prior occasion (People v Nival, 33 NY2d 391, 396). Neither attendant could identify Velez or the appellant at the Wade hearing. Each of these attendants, however, allegedly made a precinct identification of those suspects on the evening of the robbery. In the absence of a prejudicial showup, Officer Moroney could have properly testified, had he been a witness thereto, that both *673attendants had identified the appellant in the precinct. In fact, the officer only testified that Grant had made a prior identification of the appellant in the precinct. Since Moroney never substantiated the fact that Acevedo had actually identified the appellant on that prior occasion, Acevedo’s testimony concerning his prior identification was totally incompetent and should have been suppressed. Moreover, Acevedo was improperly informed by an officer, prior to his identification of the appellant in the precinct, that two suspects had been captured (cf. People v Posten, 54 AD2d 948). The officer did not know whether appellant or Rodriguez was the third participant in the robbery. Nonetheless, his statement to Acevedo might have misled the latter into believing that appellant was in the station during the robbery.

¶6The prosecution’s case thus rested solely upon the substantiated identification made by Grant. Absent imperative circumstances, a precinct showup is discouraged for it normally tends to be unnecessarily suggestive and conducive to irreparable mistaken identification. (People v Brown, 20 NY2d 238; People v Ballott, 20 NY2d 600; People v Toro, 44 AD2d 848.) Although Grant’s identification of the appellant at the precinct was made within one hour of the robbery, he had not seen the third participant’s face during his two-second encounter with that individual. Furthermore, it should be stressed that both Rodriguez and the appellant were wearing light-colored outer garments. Likewise, at the shoot-out, Rodriguez rather than the appellant was firing the shotgun. In this factual background, the showup in the precinct may well have induced Grant to come to the unfounded conclusion that the appellant, rather than Rodriguez, was the third active participant in the robbery. As a result of this improper showup, Grant’s and Acevedo’s testimony concerning their precinct identification of the appellant and Moroney’s bolstering testimony of precinct identification should be suppressed. A new trial should be held to determine the appellant’s status and involvement, if any, in the robbery.

¶7Accordingly, I recommend that the judgment be reversed, the motion to suppress be granted, and that a new trial be ordered.

¶8Silverman, Lane and Sandler, JJ., concur with Evans, J.; Murphy, P. J., dissents in an opinion.

¶9Judgment, Supreme Court, Bronx County, rendered on May 27, 1976, affirmed.

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