This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 195 

The People &c.,

 Respondent,

 v.

Kaity Marshall,

 Appellant.

Richard Joselson, for appellant.

Camille O'Hara Gillespie, for respondent.

Innocence Project, Inc., amicus curiae.

RIVERA, J.:

Defendant claims that the trial court, relying on People v

Herner (85 NY2d 877 [1995]), and affirmed by the Appellate Term,

improperly denied her request for a Wade hearing to determine the

suggestiveness of a prosecutor's pre-trial display to complainant

of defendant's arrest photograph, on the ground that the display

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was trial preparation, and not an identification procedure. 

Defendant further argues that we should repudiate a practice that

has developed post-Herner, into an exception to Criminal

Procedure Law § 710.30. 

Upon consideration of the applicable statutory mandates and

caselaw, as well as the concerns over mistaken identification and

the potential risk of wrongful convictions based on eyewitness

error, we conclude that the trial-preparation exception and the

procedural mechanism designed to determine its application to any

particular case, the so-called Herner hearing, serves as an

obstacle to judicial scrutiny of potentially unconstitutionally

suggestive identification procedures. The Herner procedure is,

furthermore, unnecessary, because a Wade hearing adequately

ensures against the admission of an unreliable identification.

We further conclude that the trial court here improperly

denied defendant's requests for a Wade hearing, but such error

was harmless as there is record support for the trial court's

alternative finding of an independent source for complainant's

in-court identification of defendant. Therefore, Appellate Term

should be affirmed.

I.

The People charged defendant Kaity Marshall with several

offenses arising from an assault of a passenger on a New York

City bus. Initially, the police were unable to locate a suspect,

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despite descriptions of the assailant from the complainant and

the bus driver. Then, two months after the incident, complainant

was at a hospital pharmacy when, by mere happenstance, she saw

defendant and recognized her. Complainant immediately called the

police, and identified defendant as the assailant. Defendant was

arrested at the hospital and later charged with Assault in the

Third Degree (Penal Law § 120.00 [1]), Criminal Possession of a

Weapon in the Fourth Degree (Penal Law § 265.01 [2]), Menacing in

the Second Degree and Third Degree (Penal Law §§ 120.14, 120.15),

and Harassment in the Second Degree (Penal Law § 240.26 [1]).

Eighteen months after the bus incident, and the day before a

scheduled court appearance on defendant's criminal case, the

prosecutor met with complainant and showed her a photograph of

defendant taken on the day of her arrest. In court the following

day, the prosecutor informed the judge and defense counsel that

as part of trial preparation he had shown complainant the

photograph in order to aid him in understanding her description

of defendant's hairstyles on the day of the attack and when she

was arrested.

As part of defendant's omnibus motion, and in response to

the prosecutor's disclosure, defense counsel requested a hearing

pursuant to Herner (85 NY2d at 879), to establish that the

photograph display constituted an identification procedure under

CPL 710.30, necessitating a Wade hearing to determine whether the

display was unduly suggestive. In support of the motion, counsel

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argued that the photograph display likely tainted complainant's

anticipated in-court identification, "thus transforming

[complainant's] initial identification into one that is now

certain based on a suggestive identification procedure," which

therefore required preclusion of the identification made at the

hospital. Counsel also requested to call as a witness the

Assistant District Attorney (ADA) who displayed the photograph to

complainant.

The court granted the hearing but denied the request to call

the ADA. Instead, the sole witness at the hearing was

complainant, who testified not only about the meeting with the

ADA, but also about the attack, the assailant's appearance and

her identification of defendant at the hospital. In recounting

the incident, complainant asserted that she took a good look at

the assailant so that she would recognize her if she ever saw her

again. She described the assailant as a black woman, between 20

and 40 years of age, who, as compared to herself, had a

straighter face, a slightly larger nose and a much darker

complexion. Complainant further testified that the next time she

saw the assailant was by chance, at a hospital, two months after

the incident. She stated that she had no doubt that this woman

was the same person who had attacked her on the bus.

In response to questions about her meeting with the ADA,

complainant testified that he showed her a photograph and asked

her if she knew the picture, that the photograph was blurry and

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that she had only glanced at it. She also stated that the

photograph did not change her mind about her memory of the

attacker. The People did not submit the photograph into

evidence. On cross-examination, complainant stated that she had

not seen a photograph of the woman who was arrested, had not

previously seen the photograph shown to her at the meeting with

the ADA, and that she did not remember the ADA asking about

defendant's hairstyle, or for a description of the assailant. 

In her post-hearing submission, defense counsel again argued

that the photograph display was a suggestive identification

procedure that should be tested further in a Wade hearing, and

that defendant should be permitted to call as a witness the ADA

who interviewed complainant. The People responded that the

display was trial preparation, and, regardless, they did not

intend to offer the photograph into evidence because

complainant's pre-arrest hospital identification of defendant

served as an untainted basis for an in-court identification. 

The court rejected defendant's arguments and determined that

the photograph display was part of trial preparation. The court

also concluded that, given complainant's prior identification of

defendant at the hospital, her "brief viewing of the blurry

photograph [would] not taint an in-court identification of

Defendant."

II.

At defendant's nonjury trial, the People relied heavily on

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eyewitness testimony from complainant and the bus driver. 

Complainant repeated much of the testimony from the pre-trial

hearing. She again recounted that one afternoon she was seated

riding a city bus in Brooklyn with her daughter when another

female passenger, whom complainant had never seen before, stood

in front of her to look out the window and stepped on her foot. 

After the woman sat down, complainant remarked to her that she

had failed to apologize. The woman then stood up and punched

complainant repeatedly in the face, nose and head, giving

complainant a bloody nose and injuring her left eye. During the

physical altercation, complainant attempted to defend herself,

but the woman pulled out a knife and threatened to kill her. 

Several passengers were screaming, causing the bus driver to look

in the rearview mirror where he saw the woman, who was unknown to

him, and complainant, whom he recognized as a previous passenger. 

He again briefly saw the assailant, now wearing sunglasses, as

she exited the bus when it reached the next stop.

Complainant made an in-court identification of defendant as

her assailant. Complainant also testified as to her out-ofcourt, spontaneous identification of defendant at the hospital. 

Complainant made no reference to any other pre-trial

identification and did not testify about the photograph display. 

The People did not submit the photograph into evidence.

The People's other eyewitness was the bus driver, who made

an in-court identification of defendant as the woman he observed

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punch complainant in the face. He testified that during the

altercation he took a good look at defendant's face, and

described for the court the attacker's race, approximate age,

weight and clothing. 

Defendant testified that she was with her mother at a

laundromat at the time of the attack. She submitted into

evidence her cellular telephone records, which showed that calls

were made and text messages were sent from her phone at the

approximate time of the incident. The records indicated that two

of these text messages were sent to her mother's phone number,

which defendant claimed were unintentional. Defendant further

testified that on the day of her arrest she heard complainant

tell the officers that she was not sure defendant was the

attacker, and asked to call her daughter to verify, and that

later, at the precinct, defendant saw complainant with a younger

woman, who she overheard say "Mom, that's not her."

Defendant's mother also testified, and corroborated that her

daughter was with her at a laundromat and that defendant was

texting on her phone at the time of the incident. On crossexamination, defendant's mother admitted that she had not

previously informed defense counsel, the prosecutor or the police

that defendant was with her on the day of the attack.

On rebuttal, the People presented testimony from the two

arresting officers who stated that complainant told them she was

one hundred percent sure defendant was the attacker and that she

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never wavered. 

The court found defendant guilty of attempted assault in the

third degree (Penal Law §§ 110,00, 120.00 [1]), attempted

criminal possession of a weapon in the fourth degree (Penal Law

§§ 110.00, 265.01 [2]), menacing in the third degree (Penal Law §

120.15), and harassment in the second degree (Penal Law § 240.26

[1]). The Appellate Term affirmed, concluding as relevant here,

that the pre-trial photograph display was permissible trial

preparation and, since complainant identified defendant upon her

arrest, the display did not taint complainant's in-court

identification. The court also rejected defendant's claim that

the ADA should have been called at the hearing (42 Misc 3d 141[A]

[App Term, 2d, 11th, & 13th Jud Dists 2014]). A Judge of this

Court granted defendant leave to appeal (23 NY3d 1039 [2014]). 

We now affirm. 

III.

Wrongful convictions based on mistaken eyewitness

identifications pose a serious danger to defendants and the

integrity of our justice system (United States v Wade, 388 US

218, 228 [1967] ["The vagaries of eyewitness identification are

well-known; the annals of criminal law are rife with instances of

mistaken identification"]; People v Santiago, 17 NY3d 661, 669

[2011] ["mistaken eyewitness identifications play a significant

role in many wrongful convictions"]; People v Riley, 70 NY2d 523,

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531 [1987] ["The complex psychological interplay and dependency

of erroneously induced identification . . . must be vigilantly

guarded against because [it] drives right into the heart of the

adjudicative guilt or innocence process affecting the person

accused and identified"]; People v Caserta, 19 NY2d 18, 21 [1966]

["One of the most stubborn problems in the administration of the

criminal law is to establish identity by the testimony of

witnesses to whom an accused was previously unknown, from quick

observation under stress or when . . . there was no particular

reason to note the person's identity"]).

Apart from the uncertainty of human memory, suggestive

identification procedures "increase the dangers inhering in

eyewitness identification" (Wade, 388 US at 229). A pre-trial

identification procedure that unduly suggests a defendant's guilt

of the charged offense increases the risk of misidentification by

improperly influencing the witness. As the Supreme Court has

recognized, 

"[p]ersons who conduct the identification

procedure may suggest, intentionally or

unintentionally, that they expect the witness

to identify the accused. Such a suggestion,

coming from a police officer or prosecutor,

can lead a witness to make a mistaken

identification. The witness then will be

predisposed to adhere to this identification

in subsequent testimony at trial" 

(Moore v Illinois, 434 US 220, 224-225 [1977]). Furthermore, even

employing "the most correct photographic identification

procedures," displays conducted by the police contain "some

danger that the witness may make an incorrect identification"

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(Simmons v United States, 390 US 377, 383 [1968]). "Regardless

of how the initial misidentification comes about, the witness

thereafter is apt to retain in . . . memory the image of the

photograph rather than of the person actually seen, reducing the

trustworthiness of subsequent lineup or courtroom identification"

(id. at 383-384). It is inescapable that "[a] major factor

contributing to the high incidence of miscarriage of justice from

mistaken identification has been the degree of suggestion

inherent in the manner in which the prosecution presents the

suspect to witnesses for pretrial identification" (Wade, 388 US

at 228). 

The unfairness to the defendant and the unreliability of

such procedures adversely impact the truth-finding process. 

Therefore, a pre-trial identification procedure that is unduly

suggestive violates a defendant's due process rights and is "not

admissible to determine the guilt or innocense of an accused"

(People v Chipp, 75 NY2d 327, 335 [1990] [citing Wade, 388 US

218; People v Blake, 35 NY2d 331 [1974]; Riley, 70 NY2d 523;

People v Adams, 53 NY2d 241 [1981]). 

A defendant may generally challenge suggestive procedures

pursuant to CPL 710, which New York's Legislature enacted in

"response to the problem of suggestive and misleading pretrial

identification procedures" (People v Gissendanner, 48 NY2d 543,

552 [1979]), and in "recognition of the importance of testing the

reliability of identification testimony before trial" (People v

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Rodriguez, 79 NY2d 445, 449 [1992]). This Court has explained

that "the statutory scheme ensures that the identifications are

not the product of undue suggestiveness, and lessens the

possibility of misidentification" (People v Boyer, 6 NY3d 427,

431 [2006], citing Rodriguez, 79 NY2d at 449; People v Newball,

76 NY2d 587, 590-591 [1990]). As the Court stated in Boyer,

"[t]he statutory mandate is plain and the procedure simple: the

People serve notice, defendant moves to suppress and the court

holds a Wade hearing to consider the suppression motion" (6 NY3d

at 431). Although a court may summarily deny a request to

suppress evidence where the defendant fails to allege a legal

basis for the motion (CPL 710.60 [3]), "so long as the motion

alleges undue suggestiveness, the defendant is generally entitled

to a Wade hearing" (Boyer, 6 NY3d at 431).

Furthermore, if "the pretrial identification procedure is

shown to be impermissible and improper, any in-court

identifications, though not per se excludable, are not to be

received in evidence 'without first determining that they were

not tainted by the illegal [procedure] but were of independent

origin'" (People v Ballott, 20 NY2d 600, 606 [1967] [quoting

Gilbert v California, 388 US 263, 272 [1967]; see also, People v

Logan, 25 NY2d 184 [1969]; People v Rahming, 26 NY2d 411, 416

[1970]). In other words, an in-court identification is

admissible only if the People establish by clear and convincing

evidence that it "was neither the product of, nor affected by,

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the improper pretrial" procedure (Rahming, 26 NY2d at 416, citing

Logan, 25 NY2d at 191; Ballott, 20 NY2d at 606-607). 

Here, rather than focus the hearing directly on whether the

photograph display was unduly suggestive, the court proceeded to

consider whether, as the People argued, the display was trial

preparation and thus fell outside the ambit of CPL 710.30, or, as

the defendant maintained, the display constituted an

identification procedure and thus a proper subject of a Wade

hearing. The court, defendant and the People interpreted this

Court's memorandum decision in Herner as approving what is

essentially a pre-Wade hearing designed to assess the need for a

judicial determination on suggestiveness. 

In Herner (85 NY2d at 878), during the course of preparing

the identifying witness to testify at trial, the prosecutor

showed her a picture of the lineup at which she had identified

the defendant. The prosecutor asked if she remembered the

lineup, and the witness answered affirmatively (id.). The

witness was also shown the picture a second time the morning

before she testified (id.). This Court agreed with the courts

below that the pre-trial display of the photograph was trial

preparation and not an identification procedure subject to the

notification requirement of CPL 710.30. Lower courts have

construed Herner as establishing a so-called trial preparation

exception to a Wade hearing (see, e.g., People v Bulgin, 29 Misc

3d 286, 304 [Sup Ct, Bronx County 2010] [identification of

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defendant in photograph arrays approximately sixteen months after

the showup and original photograph identification was trial

preparation]; People v Jackson, 43 AD3d 488, 489 [3d Dept 2007]

[review of tape recordings of meetings between a confidential

informant and the defendant just before the confidential

informant's testimony at trial were trial preparation and not

identification procedures and therefore did not require notice

under CPL 710.30]; People v Hopkins, 284 AD2d 223, 223 [1st Dept

2001] [witness' viewing of arrest photographs of defendant and

codefendant prior to the witness' testimony to review the roles

of each in the robbery was trial preparation and not an

identification procedure and therefore the Wade hearing was

unnecessary]; People v Jerold, 278 AD2d 804, 804 [4th Dept 2000]

[as the witness had already identified the defendant, her

viewing, before testifying, of a photograph array and another

photograph of the defendant was trial preparation and did not

taint her subsequent in-court identification of the defendant];

People v Randolph, 232 AD2d 327, 327 [1st Dept 1996] [witness'

viewing after a hearing of photographs of the defendant and two

other people arrested in connection with this case, in order to

help the witness, who was not fluent in English, to explain the

roles of each person in the robbery was not an identification

procedure, and therefore was not subject to the requirements of

CPL 710.30]).

Defendant claims that the trial preparation exception

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recognized in Herner is inconsistent with New York's approach to

suggestive pre-trial identifications. We agree. By employing

this truncated hearing protocol, the court failed to reach the

essential question whether the photograph display was unduly

suggestive, and, if so, whether it tainted complainant's

identification of defendant. When a defendant challenges the

suggestiveness of an out-of-court viewing of defendant's

likeness, the central issue presented for judicial consideration

is whether the pre-trial display is conducted under circumstances

bearing the earmarks of improper influence and unreliability,

which create the risk of mistaken identification and thus infect

the truth-seeking process.

The concern that a pre-trial identification will result in

witness error is the same regardless of the People's motive. 

Whether the procedure is intended to refresh or anchor the

identification of defendant in the witness' memory before trial,

or intended to assist the ADA in preparing the case, the relevant

inquiry remains the same: was the observation of defendant unduly

suggestive, rendering the subsequent identification unreliable. 

Indeed, this Court has previously recognized that showing

one photograph of a defendant - the procedure at issue in

defendant's case - carries the risk of undue suggestiveness and

entitles defendant to a Wade hearing (Rodriguez, 79 NY2d at 453

["Defendant was presumptively entitled to the Wade hearing on

alleging that the police display of a single photo to [the

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identifying witness] was suggestive"]; Matter of James H., 34

NY2d 814, 816 [1974] ["The danger is increased when a single

photograph is exhibited which tends to emphasize the person

portrayed as the person sought"]). We can find no basis to

maintain a distinction between viewings of a defendant's image in

preparation for trial and any other out-of-court identifications. 

Both expose a witness to defendant's likeness, with the potential

risk for undue suggestiveness. 

We therefore see no reason to encumber our courts with an

additional pre-Wade hearing. Instead, upon defendant's motion, a

court must hold a formal pre-trial hearing to determine whether

the police or prosecutor conducted an out-of-court identification

procedure that exposed the witness to defendant's identity in an

unduly suggestive manner (Boyer, 6 NY3d at 431). The People bear

the initial burden to establish a lack of any undue

suggestiveness, but the defendant "bears the ultimate burden of

proving that the procedure was unduly suggestive" (Chipp, 75 NY2d

at 335). If the court finds no undue suggestiveness, the motion

is denied and the People may admit the identification at trial. 

If the court finds the procedure to have been unduly suggestive,

and the People have failed to establish by clear and convincing

evidence the existence of an independent source for the

identification, the motion is granted (Rahming, 26 NY2d at 417). 

In that case, the pre-trial identification is suppressed and an

in-court identification tainted by the prior identification

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procedure precluded (Chipp, 75 NY2d at 335). We recognize that

absent a showing of suggestiveness the People bear no burden to

come forward with evidence of an independent source (id.). 

However, we repeat our previous observation that to avoid

unnecessary additional proceedings, the hearing should fully

address whether there is some basis for inclusion at trial of the

challenged identification (see People v Wilson, 5 NY3d 778, 780

[2005] ["in light of the 'risk for completely renewed

proceedings' whenever a pretrial identification is challenged,

the People are generally well-advised to come forward with any

independent source evidence at a Wade hearing so that the

suppression court may, where appropriate, rule in the

alternative"] [quoting People v Burts, 78 NY2d 20, 25 [1991]]). 

Here, the People maintain defendant is not entitled to a

Wade hearing because the ADA showed defendant's arrest photograph

to complainant in order for complainant to explain defendant's

appearance on the separate occasions of the attack and her

arrest, and not for purposes of an identification.1 However,

1The People alternatively argue that no Wade hearing is

required because complainant failed to identify defendant during

the display of the photograph, as in the case of People v Trammel

(84 NY2d 584 [1994]). However, because complainant's lack of

identification is disputed, and the record is subject to

conflicting interpretations on this question, we find Trammel

inapplicable under the unique circumstances of this case. Here,

because the People failed to introduce the photograph at the

hearing, and the complainant's testimony was unclear and appeared

to contradict the ADA's description of the meeting, defendant was

entitled to explore the circumstances of complainant's viewing of

the photograph. Thus, while a hearing is generally unnecessary

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complainant had to determine whether the person in the picture

was the person she remembered as the assailant. Defendant

correctly argues she was entitled to a Wade hearing to determine

if the display was unduly suggestive, and, therefore, tainted an

in-court identification.2

However, on the facts of this case, this error was harmless. 

As is clear under the law, the People are entitled to establish

that there is an independent source for an in-court

identification (Wade, 388 US at 241; Chipp, 75 NY2d at 335;

where the record reveals no substantial basis to dispute the lack

of a pretrial identification, here such a substantial basis

exists, removing this case from Trammel's ambit. Moreover, if as

the People contend, complainant failed to recognize the person in

the picture as the assailant, defendant may have been entitled to

this material under Brady v Maryland (373 US 83, 87 [1963]

["suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is

material either to guilt or to punishment"]).

The People also claim that the court was not required to

determine the suggestiveness of the photograph display because

the People did not intend to, and, in fact, did not, introduce

the photograph as part of the prosecution's case-in-chief. While

true, this does not alter our analysis because the complainant

made an in-court identification during the prosecutor's direct

examination, and our caselaw is clear that before an in-court

identification may be admitted the People must establish that it

was not tainted by a suggestive and improper prior identification

procedure (see Rahming, 26 NY2d at 416). Thus, at a minimum,

defendant was entitled to a Wade hearing on the suggestiveness of

the photograph display as it pertains to complainant's in-court

identification of defendant as the assailant.

2Defendant did not challenge the bus driver's in-court

identification, therefore we have no occasion on this appeal to

consider any potential suggestiveness and admissibility of firsttime, in-court identifications, as urged by Amicus. 

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Adams, 53 NY2d at 248). Here, the trial court relied on

complainant's identification of defendant at the hospital for its

finding that there was no substantial likelihood that complainant

misidentified defendant and thus concluded that the photo did not

taint the in-court identification of defendant. In essence, the

court found an independent source and the Appellate Term

affirmed.3 Such determination resolved an issue of fact and

therefore is beyond our review if supported by the record, unless

the determination is erroneous as a matter of law (People v

Young, 7 NY3d 40, 44 [2006], citing People v Malloy, 55 NY2d 296,

300 [1982]; People v Dickerson, 50 NY2d 937, 938 [1980]).

On the record before us we cannot say there is no support

for the court's finding. The complainant testified at the

hearing that she saw defendant at the hospital by chance and

recognized her as the assailant. She then called the police,

and, when they arrived, she pointed out defendant as the woman

who previously attacked her on the bus. She further testified

that viewing the photograph did not effect her memory of the

assailant. This was sufficient to establish an independent

3The dissent argues that there was no independent source

finding because the trial court's reference to the blurry photo

was merely "an effort to lend support to its conclusion that the

display did not qualify as an identification procedure at all" 

(dissenting op, at 3 n1). This selective reading of the opinion

is contradicted by the trial court's conclusion that the hospital

viewing and the photo display would not taint an in-court

identification.

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source for the complainant's in-court identification.4 

Nevertheless, defendant claims that she did not have an

opportunity to address the independent source issue because the

court, the People and defense counsel understood the hearing to

be limited to the trial preparation/identification procedure

question. While there is some support in the hearing transcripts

for defendant's argument that the hearing was circumscribed, the

record also establishes that defense counsel did, in fact, crossexamine complainant about the hospital identification. She asked

complainant why she was at the hospital pharmacy, how much time

passed before she recognized defendant, how she came to notice

the defendant, what the defendant was wearing and doing when

complainant saw her, and the circumstances leading to complainant

calling the police. Such questions were wholly unnecessary if,

as defendant contends, she understood the hearing to focus solely

on the suggestiveness of the photograph display. 

4Our opinion in no way retreats from our recognition in

People v Santiago (17 NY3d 661, 670 [2011]) and People v LeGrand

(8 NY3d 449, 458 [2007]) that post-event information affects the

accuracy of subsequent identifications. However, we disagree

with the dissent's apparent assertion that on the strength of the

statements in those prior cases defendant is entitled to another

hearing (dissenting op at 6). Nor did defendant fully develop

below, and thus preserve for our consideration, her argument that

an independent source identification may be subject to the same

dangers of eyewitness misidentification as those associated with

law-enforcement orchestrated pre-trial identifications

procedures. Therefore, we provide no opinion on whether the

developing data and caselaw on memory and eyewitness

identification puts in question the continuing viability of

independent source identifications.

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Furthermore, defendant cannot argue that she was unaware of

the proposed alternative ground for the in-court identification,

or, as the dissent suggests that the People limited their

argument to whether the display was trial preparation or an

identification procedure. The People consistently took the

position in their opposition papers to defendant's request for a

hearing and in their post-hearing memorandum that the prior

hospital identification was an independent source. Indeed, in

anticipation of the People's argument on this ground, defendant

asserted in her post-hearing submission that whether prior

viewings of defendant provided the basis for an independent incourt identification should be resolved in a Wade hearing or in

an independent source hearing. Moreover, defendant's request for

another hearing, even though record evidence of an independent

source exists, encourages the unnecessary expenditure of judicial

resources and is at odds with the procedure sanctioned in People

v Burts (78 NY2d at 24-25) and People v Wilson (5 NY3d at 780). 

In those cases, this Court recommended that the People present

evidence of the independent source at the pre-trial hearing, so

as to avoid the need for renewed hearings should the trial

court's non-suggestiveness determination be reversed on appeal.

Given our decision we have no occasion to address

defendant's claim that the court erred in denying her request to

call the ADA as a witness at the hearing.

Accordingly, the order of the Appellate Term, should be

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affirmed.

- 21 -
People v Kaity Marshall

No. 195 

LIPPMAN, Chief Judge (dissenting):

Although I agree with the majority that the Herner

dichotomy, between trial preparation on the one hand and

identification procedures on the other (see People v Herner, 85

NY2d 877, 879 [1995]), is not conceptually valid and should not

be used to shield from Wade scrutiny pretrial prosecutorial photo

displays to an identifying witness, I cannot agree that defendant

was afforded the Wade hearing to which she was decidedly

entitled, much less that the People at the hearing held met their

initial Wade burden to demonstrate the nonsuggestiveness of the

subject photo display. Nor do I find it possible to conclude

that the presumption of suggestiveness arising from the

prosecutor's display of a single arrest photograph of defendant

to the complainant, was otherwise overcome by what the majority

retrospectively dubs "independent source" evidence.

It is, first of all, plain that defendant was never

afforded a full Wade hearing and that this was by design, since

the announced purpose of the so-called "Herner" hearing was to

determine whether a Wade hearing would be needed; indeed, the

premise upon which the Herner proceeding was conducted was that

if the photo display lent itself to description as "trial

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preparation," no Wade hearing would be necessary. And, while

there was some inquiry at the hearing as to the circumstances

attending the complainant's observation of her assailant and her

two-month removed identification of defendant in a hospital

waiting area, the scope of that inquiry was curtailed in

accordance with what the court and the parties understood to be

the narrow focus of the hearing. This shared understanding was

expressly confirmed at the hearing's conclusion:

"THE COURT: What is the issue?

"[PROSECUTOR]: The issue is if it [was]

permissible trial prep or an identification

procedure. If it was an identification

procedure under the Penal Law then it was -- 

"THE COURT: Then it is a Wade hearing.

"[PROSECUTOR]: Right. We are not at the point

--

"THE COURT: But as the first step both agree

if it is ID procedure.

"[DEFENSE COUNSEL]: That is our position as

well, if this hearing is for the sole purpose

of determining whether or not if the

identification procedure, our [sic] trial

preparation, if it is deemed to be ID

procedure then this gets sent to the Wade

hearing.

"[PROSECUTOR]: "Yes.

"THE COURT: All right and I will need you

both parties to clarify what your positions

are on what fact[s] the Court should

determine or consider in determining whether

it is an ID procedure" (emphasis added).

Consistent with this understanding, defendant's attorney in her

posthearing submission reiterated "[t]he Herner hearing is for

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the sole purpose of determining whether the state action

constituted an ID process" (emphasis in original), and the

prosecutor argued not that there was an independent source for an

in-court identification, but rather that because the photo

display did not result in an identification -- the image having

according to the complainant been too "blurry" for that purpose -

- there had been no identification procedure that could have

affected the basis for plaintiff's prospective, i.e. in-court,

identification. This argument did not invite a finding that

there was an independent source for complainant's in-court

identification, i.e., one sufficient to overcome an intervening

suggestive identification procedure, only that there had not been

anything that could qualify as an intervening identification

procedure. 

The issue of independent source then, never having been

actually litigated in the context of what was by record agreement

a hearing limited to the question of whether or not there had

been an identification procedure, there is no preserved argument

as to independent source before us, much less anything that could

qualify as a competent finding of independent source to support

the majority's harmless error gloss.1 Indeed, even if this Court

1Contrary to the majority's characterization, the motion

court did not purport to base its decision of the motion on a

finding of independent source. The motion court quite plainly

found that the display of the photo was shielded from Wade

scrutiny under what it understood to be the Herner trial

preparation doctrine. Its observation that the display of the

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- 4 - No. 195

were empowered to make a de novo independent source finding,

which it is not, there is no record to support one.

Had there been a Wade hearing as there should have,

since, as the majority correctly notes, there is "no basis to

maintain a distinction between viewings of a defendant's image in

preparation for trial and any other out-of-court identifications

[since] [b]oth expose a witness to defendant's likeness, with the

potential risk for undue suggestiveness" (majority opinion at

15), the prosecution would have had the burden of going forward

to demonstrate that the photo display was not unduly suggestive

(see People v Chipp, 75 NY2d 327, 335 [1990], cert denied 498 US

833 [1990]). And, where a display of photographs is concerned,

that burden cannot be met without either the production of the

photograph[s] or testimony detailing the procedures employed to

guard against undue suggestiveness (see People v Holley, 

 NY3d , slip decision at 8-9 [decided herewith]). Here, the

arrest photograph shown complainant was never produced and the

only proof that its display was nonsuggestive was the

complainant's testimony that the image was too blurred to

recognize. Of course, in the absence of the photo or testimony

by the prosecutor who displayed it to complainant, there was no

assertedly unrecognizably "blurry" photo would not taint

complainant's in-court identification, viewed in context was

simply an effort to lend additional support to its conclusion

that the display did not qualify as an identification procedure

at all, a conclusion that this Court is now unanimous in

rejecting. 

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- 5 - No. 195

way to judge, or for defendant to challenge the truth of

complainant's facially improbable claim that the arrest

photograph, evidently created for the purpose of identifying

defendant while she was in custody and purportedly shown her to

enable her verification of defendant's hairstyle at the time of

her arrest, was in fact of such poor quality as to be useless for

those purposes. This proof, such as it was, was altogether

inadequate to meet the burden that would have been the People's

had this been a Wade proceeding, to show that the pretrial

display by the prosecutor of a single arrest photograph of the

defendant to the complaining witness some 16 months subsequent to

that arrest and 18 months after the incident upon which the

arrest identification was premised, was not unduly suggestive. 

Since the People manifestly did not meet their initial Wade

burden, they would as a condition of having complainant identify

defendant in court have been required to demonstrate, by clear

and convincing evidence, that there was an independent basis for

complainant's in-court identification (see Chipp, 75 NY2d at

335). But, plainly, without any means of judging the potency of

the intervening presumably suggestive photo display, any

conclusion that complainant's temporally distant observations of

her assailant would independently inform her in-court

identification could have been based on no more than supposition. 

We have recognized the principle, generally accepted

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- 6 - No. 195

among social scientists and cognitive psychologists,2 that

postevent information affects identification accuracy (see People

v Santiago, 17 NY3d 661, 670 [2011]; People v LeGrand, 8 NY3d

449, 458 [2007]). It is not consistent with that recognition to

simply assume that a display as potentially suggestive as the

prosecutor's was to complainant could have had no distorting

effect on her remotely formed memory of her assailant and her

trial account of the bus altercation. Certainly, there is not

clear and convincing evidence to support that conclusion. In

this connection, it should be noted that complainant never

identified her assailant out of a pretrial lineup or photo array,

much less out of one nonsuggestively composed. Her memory of her

assailant, then, was never objectively tested or fixed during the

long interval between the incident and defendant's trial, and, as

related in her trial testimony, was thus to an unascertainable

degree an amalgam of layers of recollection increasingly

malleable and susceptible to suggestion with the passage of time. 

Whether, under these circumstances, the display of the photograph

raised a substantial likelihood of irreparable misidentification,

was, in accordance with the requisites of constitutionally

mandated due process, a matter to be fully explored at a pretrial 

2The majority chides defendant for not "fully develop[ing]"

this line of argument below, but apart from the circumstance that

the argument rests on principles we have already recognized, the

criticism is particularly inapt in the context of an opinion

resting upon an post hoc appellate construction of a Wade

hearing. 

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- 7 - No. 195

Wade hearing. Inasmuch as such a hearing never took place, and

the record created at the Herner proceeding designedly was not a

functional Wade equivalent, the order of the Appellate Term

should be reversed and the matter remitted for a new trial, to be

preceded by an actual, properly noticed Wade hearing (see People

v Burts, 78 NY2d 20, 25 [1991]). 

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

Order affirmed. Opinion by Judge Rivera. Judges Pigott, AbdusSalaam and Fahey concur. Chief Judge Lippman dissents in an

opinion in which Judge Stein concurs.

Decided December 17, 2015

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