[*1]
| Matter of People v Hurst (Sherod) |
| 2012 NY Slip Op 50254(U) [34 Misc 3d 1225(A)] |
| Decided on February 14, 2012 |
| County Court, Monroe County |
| Nesser, J. |
| Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be
published in the printed Official Reports. |
County Court, Monroe County
The People of the State
of New York, Plaintiff,
against
Sherod J. Hurst, Defendant.
|
2011-0835
For the People:
KYLE STEINEBACH, ESQ.
Assistant District Attorney
For the Defendant:
CLARK J. ZIMMERMAN, JR. ESQ.
Joseph G. Nesser, J.
On October 19, 2011, defendant, Sherod J. Hurst, was arraigned on Indictment
No. 2011-0835 charging him with two counts of Attempt To Commit Robbery In the First degree
in violation of Penal Law Section 20.00 and 110.160.15(2), (4), two counts of Criminal
Possession Of a Weapon In the Second degree in violation of Penal Law Sections 20.00 and
265.03 (1), (b), (3), and one count of Assault in the Second Degree in violation of the Penal Law
Section 120.05 (2). On December 13, 2011 the people filed an Order to Show Cause requesting
that the defendant appear in a line up at the Monroe County Jail, pursuant to CPL Section 240.40
(2), (b), (1). On December 19, 2011 the defendant filed a notice of Cross Motion requesting the
Court deny in all respects the relief requested in the people's application to order a line up, or the
alternative, a hearing to determine whether the line up requested by the people should be held, or
in the alternative, best practices ordered to be utilized during any line up. An argument of Motion
was [*2]held on February 3, 2012 before the Honorable Joseph G.
Nesser, Acting County Court Judge.
DECISION
The Court upheld
Judge John L. DeMarco's decision ordering a line up because probable cause was found and the
defendant had already been indicted. The significant issue before this Court is how the line up
was to be conducted. A crime occurred when the defendant allegedly entered a house with
another individual to rob the occupants. The other person fired a round from a firearm into the
kitchen wall. The police were called after the attempted robbery and one of the female tenants
indicated that she knew one of the individuals by a street name. The defendant was picked out
from a photo array by the female tenant who indicated she was sure it was the defendant.
However, she wanted to verify the identification to see the gap in his teeth. Other people in the
house stated that they could not be sure without a live person being seen. The defendant denied
the charges. Consequently, an identification procedure was needed and a line up was the most
prudent procedure.
The defendant opposed the application and stated there was a lack of probable cause
that the defendant committed the crimes charged; therefore, cannot be compelled to submit to a
line up and provide testimonial evidence. Defendant cited the Matter of Abe A., 56 NY2d
288 (1982), the woman in the house made a tentative identification of the defendant during the
photo array and the defendant stated that it did not rise to the level required to compel the
defendant to submit to a line up. There was no other evidence or statements of the defendant to
place him at the crime scene.
In the alternative, this defendant requested by cross motion that best practices be
used in conducting the line up and to use the Department Of Justice Guide and requested a
sequential, double blind line up instead of a simultaneous line up procedure.
CPL Section 240.40 (2), (b), (i), states that upon motion of the prosecutor and
subject to constitutional limitation, the court in which an indictment...is pending may order the
defendant to provide nontestimonial evidence. Such order may, among other things, require a
defendant to appear in a line up. In People vs Hammonds, 1 Misc 3d 880 (2003), a
witness who has been shown a photo array may subsequently identify the defendant from a line
up. People v Wallace, 270 AD2d 823 (4th Department 2000).
A line up is not rendered unduly suggestive by directing participants to show their
teeth even though defendant had a particular dental deformity. The victim already identified the
defendant at a line up without viewing any of the participants' teeth and previously made an
identification in a photo array. See People v LeCorps, 19 AD3d 216 (1st Department 2005), a line up
is not unduly suggestive where a defendant was asked to smile, see People v Thomas,
223 AD2d 610 (2nd Department 1996).
In a double blind line up, law enforcement officers conducting the line up have no
knowledge as to which participant is a filler or the true suspect. Some scientific studies suggested
that some officers who knew the identity of the true suspect in a line up might influence the
decision of a witness even unintentionally through suggestive words or movements.
Moreover, a sequential method for a line up requires that the witness view each
potential suspect separately and then make a determination on each individual without ever
viewing all the suspects simultaneously. Some psychologists have speculated that in a
simultaneous line up the witness subconsciously believes that he should select a person that most
resembles the perpetrator. Since the witness believes that the alleged perpetrator is in the line up,
he would in all likelihood select a person from the line up based upon the person who most
closely resembles the perpetrator rather than from a recollection that the person is in fact the
perpetrator. In a sequential line up the witness performs a recall oriented function by comparing
the person being viewed by him at the line up with the person that he recalls being involved in
the incident.
In the U.S. Department of Justice Office Of Justice Programs Eye Witness Evidence
A Guide For Law Enforcement (1999) the recommendation in composing a live line up is that
there should be only one suspect in each identification procedure. The fillers should generally fit
the witness description of the perpetrator. This includes significant features of at least four fillers
per procedure to create a consistent appearance between the suspect and the fillers with respect to
any unique or unusual feature i.e. scars, tattoo's.
In People v Flowers, 2012 NY Misc. Lexis 217; 2012 NY Slip Opinion
22016 (1/20/2012), Judge DeMarco ordered a double blind, sequential line up with the defense
attorney present and that the line up procedure be recorded in a fashion that would enable the
Court to review the procedure for fairness if a hearing was later requested.
It is this Court's intention to ensure that the line up procedure be as fair, objective
and reliable as possible. Based on the aforementioned, in light of the facts, relevant case law, and
motion papers it is hereby
ORDERED, that the Court grants the people's request for a line up, it is further
ORDERED, that the line up shall be a double blind line up so that neither the administrator
of the line up nor the witness would know if the defendant is a suspect, it is further
ORDERED, that the line up be sequential so that each participant be presented to the witness
individually and the witness be allowed time to view each individual, it is further
ORDERED, that the defendant's lawyer be permitted to attend and observe the line up and be
present during any preline up instructions to the witness, it is further
[*3]
ORDERED, that the line up be recorded electronically,
photographically or any other way in a fashion that will enable the Court to review the procedure
for fairness should a hearing later be required, and it is further
ORDERED, that there be at least five fillers and at least two fillers shall have gaps in their
teeth.
Signed this 14th day of February, 2012, at Rochester, New
York.
___________________________________
HON. JOSEPH G. NESSER
Acting County Court Judge