This memorandum is uncorrected and subject to revision before

publication in the New York Reports.

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No. 105 

The People &c.,

 Appellant,

 v.

Jamell R. McCullough, 

 Respondent.

Scott Miles, for appellant.

Brian Shiffrin, for respondent.

The Innocence Project, Inc., amicus curiae.

MEMORANDUM:

The order of the Appellate Division should be reversed

and the case remitted to that court for consideration of the

facts and issues raised but not determined on appeal to that

court. 

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Defendant was charged with murder in the second degree

(Penal Law §§ 20.00, 125.25 [3]), robbery in the first degree

(Penal Law §§ 20.00, 160.15 [4]) and attempted robbery in the

first degree (Penal Law §§ 20.00, 110.00, 160.15 [4]) arising out

of the robbery and murder of a man at a barbershop on Dewey

Avenue in Rochester, New York. 

On December 27, 2008, an eyewitness, J.J., was in front

of the barbershop owned by the victim, Vincent Dotson, when a

white Malibu with a missing hubcap pulled up. One of the

occupants of the vehicle followed J.J. into the barbershop, sat

in a chair and asked for a haircut. J.J. sat in another chair. 

The man took two phone calls in succession. Shortly thereafter,

three other men entered the barbershop. One of them asked,

"where's the bud at," while another man (later identified as

defendant), shut the door and attempted to lock it. The men

ordered J.J. and Dotson to the floor, demanding money and drugs. 

One of the men took $200 from Dotson and then fatally shot him. 

The four men fled and J.J. called 911. 

Later that evening, the police, in response to a

dispatch concerning the robbery, pursued a white Malibu with

three men inside. All three men fled; two of them escaped, but

the driver, one Willie Harvey, was apprehended. Harvey was

transported to the crime scene, where a witness -- another

employee of the barbershop who had been waiting for a bus nearby

when the incident occurred -- identified him as the driver. 

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Approximately three months later, J.J. identified defendant in a

lineup as the last man to enter the barbershop. Harvey later

implicated defendant in the crimes. 

Defendant was thereafter indicted on the murder and

robbery counts, pleaded not guilty and proceeded to trial.

The defense moved for an order permitting, among other

things, testimony from an identification expert about certain

factors that could have influenced J.J.'s ability to make a

positive identification of defendant.1 Supreme Court, noting

that it had previously heard J.J.'s testimony in a criminal

proceeding brought against Harvey's brother (one of the

accomplices in the crime), held that J.J.'s identification of

defendant as a participant, coupled with Harvey's testimony

connecting defendant to the incident, would constitute sufficient

corroboration. It therefore denied the motion, but granted the

defense permission to revisit the issue once the People had

rested their case. 

At trial, in addition to J.J.'s testimony concerning

the events he observed in the barbershop, the People produced

testimony from Harvey, the getaway driver, who, by then, had

pleaded guilty to robbery in the first degree for his role as an

accomplice in the crime. Harvey testified that he observed

1 The expert was expected to testify as to how the level of

violence, the length of the incident and the presence of a weapon

could influence an eyewitness's ability to make an

identification.

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defendant at Harvey's cousin's house both immediately before and

after the crime. He also stated that Harvey's brother, cousin,

defendant and another man drove in two separate cars to the

corner of Dewey Avenue and Flower City Park. At that point,

Harvey remained in the car while the four men walked down Dewey

Avenue, with the men returning approximately 15 minutes later. 

According to Harvey, all of the participants reconvened at his

cousin's home where he observed the other four men, including

defendant, place marijuana and two or three guns on the hood of

the Malibu. 

Harvey admitted at trial that he initially failed to

pick defendant out of a photo array a month after the incident. 

He testified that he did not identify defendant because, at that

point, he was unsure what role his brother had played in the

incident. He admitted that he had lied when he told police that

he did not recognize anyone in the array. 

At the conclusion of the People's case, defense counsel

renewed his motion to call the expert witness. The court denied

the motion, stating that J.J.'s testimony had been corroborated

by Harvey's, rendering the proposed expert testimony unnecessary. 

The jury convicted defendant of all counts. Defendant appealed.

A divided Appellate Division reversed, holding, as

relevant here, that the trial court abused its discretion in

precluding the defense from presenting expert testimony on the

reliability of eyewitness identification (126 AD3d 1452,

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1452-1453 [4th Dept 2015]). The dissenting Justices stated that

Supreme Court, having observed the getaway driver and hearing his

testimony, was "in the best position to determine whether the

testimony with respect to [his] ability to identify defendant was

sufficient to establish the reliability of that identification,

and thus constituted sufficient corroborating evidence of the

eyewitness identification" (id. at 1458 [citations omitted]). A

Justice of the Appellate Division granted the People leave to

appeal. 

 The decision to admit or exclude expert testimony

concerning factors that affect the reliability of eyewitness

identifications rests within the sound discretion of the trial

court (see People v Lee, 96 NY2d 157, 160 [2001]). When the

motion is considered during the People's case-in-chief, the trial

court performs this function by weighing the request to introduce

such testimony "against other relevant factors, such as the

centrality of the identification issue and the existence of

corroborating evidence" (id. at 163; see also People v LeGrand, 8

NY3d 449, 459 [2007]). To the extent LeGrand has been understood

to require courts to apply a strict two-part test that initially

evaluates the strength of the corroborating evidence, it should

instead be read as enumerating factors for trial courts to

consider in determining whether expert testimony on eyewitness

identification "'would aid a lay jury in reaching a verdict'"

(Lee, 96 NY2d at 162, quoting People v Taylor, 75 NY2d 277, 288

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[1990]). Courts reviewing such a determination simply examine

whether the trial court abused its discretion in applying the

"standard balancing test or prejudice versus probative value"

(People v Powell, -- NE3d --, 2016 NY Slip Op 02555 [2016]). 

Here, Supreme Court did not abuse its discretion as a

matter of law when it precluded the introduction of the expert

testimony. The trial court was entitled to reject the expert

testimony after balancing the probative value of the evidence

against its prejudicial or otherwise harmful effects. In light

of the fact that "trial courts generally have the power to limit

the amount and scope of evidence presented," (LeGrand, 8 NY3d at

452 [2007]), on this record, the Appellate Division erred in

holding that Supreme Court abused its discretion as a matter of

law in precluding the testimony.

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People v McCullough

No. 105 

RIVERA, J.(dissenting):

Our Court has made plain that it is an abuse of

discretion for a trial court to preclude expert testimony on the

reliability of eyewitness identifications where the case "turns

on the accuracy of eyewitness identifications and there is little

or no corroborating evidence connecting the defendant to the

crime," and the proposed expert "'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'" (People v

Santiago, 17 NY3d 661, 669 [2011], quoting People v LeGrand, 8

NY3d 449, 452 [2007]). A trial court cannot rest its

determination to exclude expert testimony on alleged

corroborating evidence that is itself unreliable (Santiago, 17

NY3d at 673).

In defendant's case, the proposed corroborating

evidence came from a coparticipant in the crimes and was highly

suspect, with more than a speculative possibility that the jury

would question the credibility of its source. I would not

ignore, as the majority apparently does, the "several factors

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[that] call the corroborating identification[] into question"

(id.). Instead, based on facts indicative of the

untrustworthiness of this testimony, rendering doubtful its

reliability, I conclude that the trial court abused its

discretion when it denied defendant's request to present expert

testimony on matters potentially affecting the accuracy of the

eyewitness identification. Therefore, I dissent and would affirm

the Appellate Division order reversing defendant's conviction and

granting him a new trial.

I.

A jury convicted defendant of murder in the second

degree, robbery in the first degree, and attempted robbery in the

first degree, arising from the fatal shooting of Vincent Dotson,

during a robbery in his barbershop. There was no forensic, DNA,

or physical evidence connecting defendant to the crime, and the

sole eyewitness was the surviving victim, "J.J.," who observed

defendant under conditions that defendant argued could

potentially impact the reliability of the eyewitness

identification.

Defense counsel filed a motion in limine to admit

expert testimony concerning the influence of various factors on

eyewitness recollection, including the level of violence during

the interaction, the length of time of the incident, and the

presence of a weapon. Defendant alternatively requested a

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hearing pursuant to Frye v United States (293 F 1013 [DC Cir

1923]), to determine whether his proposed expert testimony was

generally accepted within the relevant scientific community. 

During argument on the motion, the People contended that under

our case law no expert was necessary because J.J.'s testimony was

corroborated by a separately charged co-defendant, Willie Harvey,

who would place defendant in the vicinity of the crime. The

People stated that although Harvey did not go inside the

barbershop and was not a witness to the robbery or shooting, he

would testify that he drove defendant and three other men around

the corner from where the barbershop was located, drove away with

them, and later saw them with guns and the robbery proceeds.

The People also sought to "make the record very clear"

about various credibility issues related to Harvey. The People

described Harvey's initial failure to identify defendant from a

photo array, even after Harvey implicated his own brother and

another person in the crimes. The People also explained that

Harvey was initially charged with murder, robbery, and attempted

robbery in the first degree, and entered a deal by which he was

allowed to plead guilty to the robbery count in satisfaction of

all charges, in exchange for testifying against defendant and the

other participants in the crimes. The People alternatively

requested a Frye hearing if the court was considering permitting

the expert testimony.

In response, defense counsel argued Harvey could not

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provide the necessary corroboration for J.J.'s testimony because

Harvey's statements were self-serving, and his description of

events was partially contradicted by other testimony. Moreover,

Harvey admitted he had never seen defendant until the night of

the crime.

The judge denied the motion, explaining that he

previously observed J.J. testify against another codefendant and

considered him to be "a credible witness," and that Harvey's

testimony appeared sufficient to corroborate J.J.'s

identification of defendant. At the close of the People's case,

the judge denied counsel's renewed motion, without a Frye

hearing, upon a finding that Harvey corroborated J.J.'s

testimony.

II.

At trial, J.J. testified that he observed a man exit a

white Chevy Malibu and enter Dotson's barbershop to get a hair

cut. Soon after, three other men entered, one of whom tried to

lock the door behind them. J.J. described the first two men who

walked into the barbershop as dark-skinned, and stated that the

first man wore a dark coat and black winter hat. The third man

was lighter-skinned and taller, and wore an orange coat and

matching baseball cap.

The men ordered Dotson and J.J. to the ground, demanded

money and drugs, and pistol whipped them. After they had taken

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$200 from Dotson, the first of the three men to enter the

barbershop fatally shot Dotson in the chest. The men ran out of

the shop, but the shooter returned. J.J. closed his eyes and

heard a clicking sound over his head. After he heard the shooter

leave, J.J. called 911.

Several weeks after the shooting, J.J. saw defendant in

a photo array and told the police that he looked like the

shooter. Two months later, J.J. picked out defendant in a

lineup, only this time he said defendant was the last man to

enter the barbershop, notwithstanding the different descriptions

he had previously provided of these two men. Defendant was the

only person displayed in both the photo array and the lineup. 

J.J. made an in-court identification of defendant, again

describing him as the last man of the three who entered the shop.

Harvey testified and also identified defendant as one

of the men involved in the robbery. Harvey described how he

first met defendant on the day of the crime, when Harvey,

Harvey's brother and cousin, defendant, and another stranger

drove in separate cars to where the shooting occurred. Everyone

but Harvey exited the cars and went around the corner. About 15

minutes later they returned, and again drove in separate cars to

another location where Harvey saw the men put marijuana and guns

on the hood of the car he had been riding in, a white Chevy

Malibu. He then left in the Malibu with his brother and cousin,

and rode with them until he was apprehended by the police later

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that evening.

As the prosecutor foretold, Harvey's credibility was

questionable. Defense counsel sought to establish Harvey's

penchant for fabrication. He cross-examined Harvey about his

false statements to the police, including his initial denials of

any knowledge about the crimes, and his attempts to minimize his

role after he was identified as the driver. Although Harvey told

the court at his plea that he was the driver, he contradicted

this statement at defendant's trial and downplayed his

involvement, saying he was a passenger and that his brother drove

to the crime scene.1

The circumstances surrounding Harvey's identification

of defendant were particularly troubling. Harvey admitted that

he initially failed to pick out defendant from a photo array a

month after the shooting, only to identify him from a second

photo array another month later, while Harvey was incarcerated

and awaiting trial on charges of murder and robbery for the

Dotson shooting. After Harvey identified defendant, Harvey

entered a plea agreement whereby he would receive a 10-year

sentence, in exchange for pleading guilty to robbery in the first

degree and testifying against defendant and the other

participants in the crimes.

The Appellate Division reversed defendant's conviction

1Harvey claimed that his attorney at the plea told him to

say he was the driver.

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and ordered a new trial, concluding that the trial court wrongly

excluded the expert testimony on witness identification because

there was little or no corroborating evidence connecting

defendant to the crime, and Harvey's testimony established that

he was a person of dubious credibility, whose identification of

defendant was itself unreliable. In my opinion, there is no

merit to the People's appeal.

III.

The People argue that the trial court did not abuse its

discretion by denying defendant's request to admit expert

evidence on the reliability of eyewitness identification because

Harvey's observations of defendant were sufficient to corroborate

J.J.'s identification, rendering the expert's testimony

unnecessary. In the alternative, the People request a Frye

hearing to determine if the expert testimony is admissible, thus

providing a basis for a new trial.

In the wake of the growing body of research on factors

impacting the reliability of eyewitness identifications, and the

data establishing a connection between misidentifications and

wrongful convictions, we have encouraged courts to admit expert

testimony on eyewitness identifications in appropriate cases, as

a means to educate the jury about these factors (Santiago, 17

NY3d at 669, quoting People v Drake, 7 NY3d 28, 31 [2006] and

People v Young, 7 NY3d 40, 45 [2006]). This type of expert

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testimony is particularly useful to the jury because research

shows that jurors tend to find eyewitness identification

extremely believable and treat certain factors as good indicators

of accuracy, even though research suggests that some of these

factors impact adversely on the reliability of eyewitness

testimony (see John C. Brigham & Robert K. Bothwell, The Ability

of Prospective Jurors to Estimate the Accuracy of Eyewitness

Identifications, 7 Law & Hum Behav 19, 28 [1983]; Kenneth A.

Deffenbacher, et al., A Meta-Analytic Review of the Effects of

High Stress on Eyewitness Memory, 28 Law & Hum Behav 687, 699

[2004]; Brian H. Bornstein, et al., Effects of Exposure Time and

Cognitive Operations on Facial Identification Accuracy: A

Meta-Analysis of Two Variables Associated with Initial Memory

Strength, 18 Psych, Crime, and L [2012]).

The admission of expert testimony on the accuracy of

eyewitness identification rests within the discretion of a trial

court, after "weighing a request to introduce such expert

testimony 'against other relevant factors, such as the centrality

of the identification issue and the existence of corroborating

evidence'" (Santiago, 17 NY3d at 668-69, citing Lee, 96 NY2d at

163). Nevertheless, "there are cases in which it is unfair to

deprive the jury of expert testimony about the reliability of

eyewitness observations" (People v Oddone, 22 NY3d 369, 379

[2013]). In such cases it is an abuse of discretion to exclude

expert testimony (LeGrand, 8 NY3d at 456).

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In LeGrand, the Court "established a two-stage inquiry"

governing this exercise of a trial court's discretion (Santiago,

17 NY3d at 669, quoting LeGrand, 8 NY3d at 452). Under the first

stage, the trial court must determine "whether the case 'turns on

the accuracy of eyewitness identifications and there is little or

no corroborating evidence connecting the defendant to the crime'"

(id.).2 Where there exists sufficient corroborating evidence, it

is reasonable for a trial court to conclude that the eyewitness

identification is "quite unlikely to be mistaken, and that

[expert] testimony would be an unnecessary distraction for the

jury" (Young, 7 NY3d at 46). However, if the corroborating

evidence, or witness, presents reliability issues, a trial court

has no basis to assume a jury will not benefit from expert

testimony on factors affecting the accuracy of eyewitness

identification, and the scales tip in favor of allowing the

expert to testify, if otherwise qualified. This is especially so

when the eyewitness testimony is subject to the type of factors

that place its reliability in doubt.

2Contrary to the majority's contention, LeGrand did not

simply list factors to be considered or ignored by courts without

guiding standards and structure (majority op at 5-6). Rather,

LeGrand established a legal framework with specific areas of

inquiry, to be applied by courts when determining the

admissibility of expert testimony on eyewitness identification

(see Santiago, 17 NY3d at 669, quoting LeGrand, 8 NY3d at 452

[LeGrand "set out standards governing the discretion of trial

courts in regard to the admission of expert testimony on

eyewitness identification [and] established a two-stage inquiry

for considering a motion to admit such testimony"]).

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For example, in Santiago, no physical evidence linked

the defendant to an assault in a subway station, but the victim

and two other eyewitnesses identified the defendant as the

assailant. Several factors impacted the accuracy of the victim's

identification. The defendant was a stranger to the victim, and

the assailant's face was partially concealed during the attack by

his clothing and hat, such that the victim could not see the

assailant's hair and his face was not visible "[f]rom the middle

of his top lip, down, and from the top of his eyebrows up"

(Santiago, 17 NY3d at 664). The Court held that the trial court

abused its discretion in denying defendant's request to admit

expert testimony on eyewitness identification, rejecting the

People's argument that the non-victim witnesses connected

defendant to the crime. The Court determined that these

eyewitnesses were insufficient to support exclusion of the expert

because "several factors call[ed] the corroborating

identifications into question" (id. at 673).3 One eyewitness,

3 The defendant sought to admit expert testimony concerning

the impact on eyewitness recognition of "exposure time (the

amount of time available for viewing a perpetrator affects the

witness's ability to identify the perpetrator); cross-racial and

cross-ethnic inaccuracy (non-Hispanic Caucasian eyewitnesses are

generally less accurate in identifying Hispanic people than in

identifying other non-Hispanic Caucasians); weapon focus (a

victim's focus on the weapon used in an assault can affect

ability to observe and remember the attacker); lineup fairness

(similarity of fillers to the suspect increases identification

accuracy); lineup instructions (police instructions indicating

that the police believe the perpetrator to be in the lineup

increase the likelihood of false identification); forgetting

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like the victim, only partially viewed the assailant's face, and

picked out defendant from a lineup with "only 80% confidence." 

The Court also recognized that this his memory may have been

tainted by having seen a newspaper photograph of the defendant

linking him to the crime the day after he initially viewed the

lineup. Similarly, the other eyewitness's identification of the

defendant "may have been influenced by his memory of the police

artist's sketch of the assailant, calling into question the

independence of this evidence" (id.).

However, where the corroborative evidence has a "strong

indicia of accuracy" (id. at 671), the trial court may exercise

its discretion to exclude expert testimony which might confuse

and distract the jury from principal matters in the case (Oddone,

22 NY3d at 379). Thus, this Court found in People v Lee, that

curve (the rate of memory loss for an event is greatest right

after the event and then levels off over time); postevent

information (eyewitness testimony about an event often reflects

not only what the witness actually saw but also information the

witness obtained later); wording of questions (eyewitness

testimony about an event can be affected by how questions put to

the witness during investigation are worded); unconscious

transference (eyewitnesses sometimes identify as the culprit an

individual familiar to them from other situations or contexts);

simultaneous versus sequential lineups (witnesses are more likely

to make mistakes when they view simultaneous lineups than when

they view sequential lineups); eyewitness confidence issues (an

eyewitness's confidence level is not a good predictor of

eyewitness accuracy, but eyewitness confidence is the major

determinant in whether an identification is believed by jurors),

and confidence malleability (eyewitnesses' confidence levels can

be influenced by factors unrelated to identification accuracy)"

(Santiago, 17 NY3d at 666-67).

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the victim's identification of the defendant as the person who

stole his car was sufficiently corroborated by evidence that the

defendant was arrested driving the stolen vehicle (96 NY2d 157,

163 [2001]). In that case, the Court also noted that the

circumstances under which the victim observed the defendant

supported its reliability. In People v Young, a home invasion

and robbery case, the eyewitness saw only part of defendant's

face and "retained a 'mental image' only of his eyes" (7 NY3d at

42). Yet the Court agreed that there was sufficient corroboration

evidence to link defendant to the crime because the "stolen

property was found in possession of two of defendant's

acquaintances; neither of [whom] could have been the robber," and

one of the acquaintances admitted she got the property from the

defendant (id. at 46).

In People v Allen, eyewitnesses independently

identified the defendant as the knife-wielding member of a twoman team of masked intruders in a barbershop robbery. The first

eyewitness "quickly recognized" the defendant because he

regularly encountered him in the neighborhood, was familiar with

his voice, and also knew his nickname -- the same nickname

defendant provided to the police upon his arrest. When the

police arrived at the barbershop, this eyewitness provided a

description and information about the defendant and subsequently

picked out the defendant from photos in mug books and a photo

array. This identical photo array was shown the same day of the

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robbery to the second eyewitness who immediately identified the

defendant's photo, and who also knew defendant from the

neighborhood (Allen 13 NY2d at 262; Santiago, 17 NY3d at 670

[discussing Allen: the "[t]wo witnesses recognized the robber

with the knife as an individual whom they knew from the

neighborhood"]). The second eyewitness had a close view of the

defendant because the defendant had searched him for jewelry and

stood near him during the robbery. Both eyewitnesses separately

identified defendant from a lineup four months later. Under

these circumstances, the Court concluded that the trial court did

not abuse its discretion in denying expert testimony because "the

corroborating identification possessed strong indicia of

accuracy. In particular the defendant . . . was known to the

second eyewitness who recognized him during the robbery"

(Santiago, 17 NY3d at 671, discussing Allen, 13 NY2d at 269).

Here, there is no question that J.J.'s identification

was central to the People's case since it was the only direct

evidence linking defendant to the crimes. The sole question is

whether Harvey provided sufficient corroborating evidence to

"significantly diminish[] the importance of the proffered expert

testimony" (Young, 7 NY3d at 46). The corroborating evidence

must be sufficiently reliable that a trial court may conclude

with some confidence that the eyewitness identification is "quite

unlikely to be mistaken, and that [expert] testimony would be an

unnecessary distraction for the jury" (id.). The record does not

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support such a conclusion in defendant's case.

In contrast to Lee, Young, and Allen, and similar to

Santiago, there are factors suggesting that Harvey's

identification of defendant is unreliable, based on undisputed

facts placing his credibility in question. Harvey initially

failed to identify defendant from a photo array a month after the

crimes, and only implicated defendant after Harvey had been

charged, arrested and held in jail awaiting trial for the murder

and robbery, which carried a possible life sentence. He then

identified defendant after he was offered a ten-year sentence in

exchange for his plea, thus avoiding life in prison. Although he

testified that the only condition of the plea was that he had to

testify and tell "his side of the story" at defendant's trial,

nevertheless he identified defendant right before his plea,

raising the specter of fabrication to secure a generous plea

deal. He also admitted that while he was incarcerated, and

before he implicated defendant in the crimes, he saw news reports

that defendant had been charged with the same crimes as Harvey. 

Most damaging to Harvey's credibility is the fact that he

implicated his brother and cousin in the crime, but not

defendant, even though he had seen defendant's picture in a

police photo array soon after the crimes. Harvey's reason for

not identifying defendant at the time was that he did not know

everything about what happened. This was simply unbelievable

given his role as the getaway driver. Even if it was a tenable

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excuse, it would not outweigh the other circumstances pointing to

his unreliability, just as the explanation provided by one

eyewitness in Santiago for failing to identify the defendant when

the opportunity first presented itself was not enough to offset

the insufficiency of the corroboration in that case. There, the

eyewitness claimed that he did not tell the police he saw the

defendant in the lineup because he wanted to remain unknown due

to his immigration status (Santiago, 17 NY3d at 665). If that

explanation was insufficient, Harvey's certainly fares no better.

The fact that Harvey's reliability is suspect based on

his credibility, rather than the potential inaccuracy of his

identification, does not affect the analysis.4 Where

circumstances suggest the corroborating testimony is inaccurate--

as was the case in Santiago--those circumstances weigh in favor

of admitting the expert testimony, and failure to do so

constitutes an abuse of discretion (Santiago, 17 NY3d at 673). 

Similarly, where the credibility of the corroborating witness is

questionable, the trial court must consider this as tipping in

favor of admission of the expert testimony. All the more so when

the corroborating witness has an apparent incentive to

misidentify the defendant, such as for example, a plea deal where

4I do not agree with the Appellate Division's conclusion

that Harvey's memory was unreliable based on factors impacting

Harvey's ability to view defendant and that defendant was a

stranger. The record establishes that Harvey observed defendant

for a period of time the evening of the robbery.

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the witness's testimony ensures that he avoids a murder

conviction and a possible life sentence. Under the facts of this

case, a jury could very well have found Harvey incredible, and

relied solely on J.J.'s identification testimony. This is

exactly the type of uncorroborated, single witness case for which

we have explained it is most appropriate that the jury hear

expert testimony on factors impacting the accuracy and

reliability of witness identification. 

This does not mean that codefendant or coparticipant

testimony can never provide corroboration, or that a beneficial

plea deal renders such testimony "incredible." "Whether a

victim's or other eyewitnesses's identification of a defendant is

sufficiently corroborated by other eyewitness identifications, so

that the trial court need not proceed to the second stage of the

LeGrand analysis, is dependent on the circumstances of the case" 

(Santiago, 17 NY3d at 671). Here, the facts undermining Harvey's

credibility compel the conclusion that his testimony lacks "the

strong indicia" necessary to sufficiently corroborate J.J.'s

eyewitness identification of defendant (see id.).

Furthermore, J.J.'s identification was subject to the

types of factors that have an impact on eyewitness memory and

accuracy. His observations of the four men involved in the crime

were made under highly stressful conditions, which can affect

memory (see People v Abney, 31 Misc 3d 1231 [A] [Sup Ct, NY

County 2011] [on remand, permitting expert testimony on event

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stress]; Deffenbacher, et al., A Meta-Analytic Review of the

Effects of High Stress on Eyewitness Memory, 28 Law & Hum Behav

at 699). J.J. watched as Dotson was murdered, and he himself

survived apparently because the gun pointed to his head misfired. 

J.J. had his head down for most of the time and was pistol

whipped early during the robbery, minimizing the opportunity to

observe his assailants. Also, defendant was a stranger to J.J.--

as were the other intruders.

Since the People's case depended on J.J.'s

identification testimony, which was uncorroborated, the trial

court should have proceeded to the second stage of the LeGrand

inquiry (Santiago, 17 NY3d at 669). Here, there is no question

that the testimony is "relevant to the witness's identification

of defendant," "on a topic beyond the ken of the average juror,'"

and that defendant proffered an expert witness facially qualified

(see id.). Indeed, in another case the same judge qualified the

identification expert originally offered by defendant (see People

v Norstrand, 35 Misc 3d 367, 373 [Sup Ct, Monroe County 2011]). 

Furthermore, because the court failed to grant a Frye hearing, I

assume that the matters identified by the defendant are

encompassed within generally accepted scientific principles

(Oddone, 22 NY3d at 379). Thus, the expert should have been

permitted to testify.

Lastly, the error was not harmless, as the proof of

defendant's guilt was not overwhelming (People v Crimmins, 

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36 NY2d 230, 242). Indeed, there was no physical evidence that

tied defendant to the crime, and only J.J. identified defendant

as one of the men inside the barbershop. For the reasons I have

explained, the defendant is entitled to a new trial and the

Appellate Division order should be affirmed.

* * * * * * * * * * * * * * * * *

Order reversed and case remitted to the Appellate Division,

Fourth Department, for consideration of the facts and issues

raised but not determined on the appeal to that court, in a

memorandum. Chief Judge DiFiore and Judges Pigott, Stein and

Garcia concur. Judge Rivera dissents and votes to affirm in an

opinion in which Judges Abdus-Salaam and Fahey concur.

Decided June 28, 2016

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