People v. Malloy

80 A.D.2d 793, 438 N.Y.S.2d 469, 1981 N.Y. App. Div. LEXIS 10597

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 19, 1981
• Status: Published

Opinions

Judgment, Supreme Court, Bronx County, rendered June 22, 1979, convicting defendant, after a jury trial, of robbery in the first degree, criminal possession of stolen property in the first degree, and unlawful imprisonment in the second degree, affirmed. Ross, J. P., and Lupiano, J., concur in a memorandum by Lupiano, J.; Bloom and Fein, JJ., concur in a separate memorandum by Fein, J., and Carro, J., dissents in a memorandum, all as set forth as follows.

Lupiano, J. Victor Licciardi, Jay Kopp and Dean Kopp, employees of Elko Processors, Inc., were transporting a load of raw furs by truck to Elko’s Bronx warehouse on the evening of March 30, 1978. A blue van blocked their path. Defendant jumped out of the van from the driver’s side, while two accomplices emerged from the passenger’s side. The three perpetrators did not wear masks, and the lighting provided by nearby street lights was good. Defendant, displaying a gun, opened the truck door on the driver’s side, which triggered the vehicle’s burglar alarm. Licciardi was compelled to turn off the alarm by defendant who pointed the gun at Licciardi’s head. The Kopp brothers were taken from the truck, and after being handcuffed, were ordered to lie face down in the back of the van. Licciardi was ordered by defendant to leave the truck and was then interrogated by defendant as to the particulars of the truck’s alarm system and padlock. During this interrogation, the participants stood two to four feet apart. Licciardi was then placed in the van in a similar manner. Thus, all three victims had a full-face view of defendant, the observations by the Kopp brothers being of some two and one-half to three minutes duration, and the observation by Licciardi being of some five and one-half to eight minutes. Defendant was described by the three victims to the police as being five feet six inches to five feet ten inches in height, weighing 135 to 150 pounds, with a medium build and possessing short dark, bushy hair, a mustache and a dark complexion. The victims estimated that defendant was between 30 and 35 years old and was possibly of Italian or Hispanic extraction. During the subsequent police investigation, the victims, individually, were shown a photographic array, but could not identify anyone. Defendant’s photograph was not contained in this array. One week later, the victims, individually, were shown a second photographic array which contained two pictures of defendant. This photographic array also contained two pictures of another individual and 10 pictures of 10 other individuals. All three victims tentatively identified defendant. The investigation thus focused on defendant. Some two weeks later, the victims were shown a third array of photographs consisting of 14 surveillance photographs of defendant and an old “mugshot.” Licciardi identified defendant, commenting: “He even holds the cigarette in his mouth the same way.” The Kopp brothers also identified defendant, but all three wanted a personal view of defendant to be certain. Some three weeks thereafter, a fourth array of photographs was shown — photographs of defendant taken under surveillance. The victims commented on the similarity of defendant’s build, his jacket, and the blue van depicted in the photographs to one of the perpetrators of and the van utilized in the armed hijacking. Defendant was subsequently arrested, asked for and obtained permission to call an attorney,-but was apparently unsuccessful in reaching the one he called. At the lineup held soon after the. arrest, defendant was identified by the three victims. Assuming the lineup identification of defendant by the three victims after his arrest was tainted by the failure of the authorities to honor defendant’s alleged request for counsel, the fact remains that there was an independent, untainted source for the iii-court identification of defendant by the three victims. The in-court identification is not tainted by the suggestive third and fourth photographic arrays and is fully supported by the tentative identification of defendant by all three victims of defendant’s photograph in the second array. The victims were not mere bystanders and, as victims, had every reason to pay strict attention to defendant, the perpetrator, who was armed and appeared to be the spokesman for the trio of hijackers. Licciardi stood face to face with defendant for some three to five minutes, and overall had some five and one-half to eight minutes observation of defendant in good lighting. The description of defendant supplied by the victims was detailed. To reiterate, the Kopp brothers had some two and one-half to three minutes in which to observe defendant during the commission of the crime. The record clearly displays the seriousness with which these three citizens approached the task of initially identifying and then clarifying their identification of defendant as one of the three perpetrators. They clearly were not precipitant in their identification and took great care to insure that they did not accuse the wrong man. Succinctly stated, the three victims selected defendant’s picture out of a fair photo array (the second photographic array) only two weeks after the hijacking and resisted the suggestiveness of the later arrays. This is a case in which three victims of an armed hijacker got a “good long look” at their assailant under optimum lighting conditions. Over the six-week period subsequent to the crime, these three eyewitnesses identified defendant as the gun-wielding hijacker and never retracted that identification or identified anyone else, although they had several opportunities to do so. There is simply no substantial likelihood of an irreparably mistaken identification in this case. “Reliability of identification is to be tested by a determination of whether under a totality of the circumstances there is ‘a very substantial likelihood of irreparable misidentification.’ Simmons v United States (390 US 377, 384); Manson v Brathwaite (432 US 98) and Neil v Biggers (409 US 188, 199-200) provide us with suggested guidelines for the determination of reliability such as ‘the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation’ ” (People v Gonzalez, 61 AD2d 666, 670). All of the aforementioned elements on this record emerge on the plus or positive side, indicating a reliability more than ordinarily difficult to challenge.