2023 New York Laws › CPL - Criminal Procedure › Part 1 - General Provisions › Title D - Rules of Evidence, Standards of Proof and Related Matters › Article 60 - Rules of Evidence and Related Matters › 60.25 - Rules of Evidence; Identification by Means of Previous Recognition, in Absence of Present Identification.

§ 60.25 Rules   of   evidence;   identification  by  means  of  previous
recognition, in absence of present identification.
1. In any criminal proceeding in which the defendant's  commission  of
an  offense is in issue, testimony as provided in subdivision two may be
given by a witness when:
(a) Such witness testifies that:
(i) He or she observed the person claimed by  the  people  to  be  the
defendant  either at the time and place of the commission of the offense
or upon some other occasion relevant to the case; and
(ii) On a subsequent occasion he or she observed, under  circumstances
consistent  with  such  rights as an accused person may derive under the
constitution of this state or of the United States, a person  or,  where
the  observation  is  made  pursuant  to a blind or blinded procedure as
defined in paragraph (c) of this subdivision, a pictorial, photographic,
electronic, filmed or video recorded reproduction of a person whom he or
she recognized as the same person whom he or she  had  observed  on  the
first or incriminating occasion; and
(iii)  He or she is unable at the proceeding to state, on the basis of
present recollection, whether or not the  defendant  is  the  person  in
question; and
(b)  It  is  established that the defendant is in fact the person whom
the witness observed and recognized or  whose  pictorial,  photographic,
electronic,  filmed  or video recorded reproduction the witness observed
and recognized on the second occasion. Such fact may be  established  by
testimony  of  another  person  or  persons to whom the witness promptly
declared his or her recognition on such occasion and by such  pictorial,
photographic, electronic, filmed or video recorded reproduction.
(c)  For  purposes  of this section, a "blind or blinded procedure" is
one in which the witness identifies a person in an array  of  pictorial,
photographic,  electronic,  filmed or video recorded reproductions under
circumstances where, at the time the identification is made, the  public
servant  administering such procedure: (i) does not know which person in
the array is the suspect, or (ii) does not know where the suspect is  in
the  array  viewed  by  the  witness. The failure of a public servant to
follow such a procedure shall be assessed solely for  purposes  of  this
article  and  shall  result in the preclusion of testimony regarding the
identification procedure as evidence in chief, but shall not  constitute
a  legal  basis to suppress evidence made pursuant to subdivision six of
section 710.20 of this chapter. This article neither limits nor  expands
subdivision six of section 710.20 of this chapter.
2.  Under circumstances prescribed in subdivision one of this section,
such witness may testify at the criminal proceeding that the person whom
he or she observed and  recognized  or  whose  pictorial,  photographic,
electronic, filmed or video recorded reproduction he or she observed and
recognized  on  the  second  occasion  is the same person whom he or she
observed  on  the  first  or  incriminating  occasion.  Such  testimony,
together with the evidence that the defendant is in fact the person whom
the  witness  observed  and recognized or whose pictorial, photographic,
electronic, filmed or video recorded reproduction he or she observed and
recognized on the second occasion, constitutes evidence in chief.