
    The People of the State of New York, Respondent, v Raymond Quevas, Appellant.
    Argued January 13, 1993;
    decided February 23, 1993
    
      POINTS OF COUNSEL
    
      Elon Harpaz, New York City, and Philip L. Weinstein for appellant.
    The admission of third-party testimony recounting the complainant’s prior out-of-court identification violated the requirements of CPL 60.25 and denied appellant due process where the complainant’s failure to identify appellant in court was not attributable to a lack of recollection. (People v Bayron, 66 NY2d 77; People v Nival, 33 NY2d 391, 417 US 903; People v Trowbridge, 305 NY 471; People v Adler, 140 NY 331; People v Johnson, 75 NY2d 856; People v Cwikla, 46 NY2d 434; People v Bouton, 50 NY2d 130; People v Allen, 300 NY 222.)
    
      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Emil Bricker and Barbara D. Underwood of counsel), for respondent.
    Both courts below correctly found that the victim was unable to identify defendant in court on the basis of present recollection, and therefore the police officer was properly permitted to testify to a pretrial identification by the victim pursuant to CPL 60.25. (People v Bayron, 66 NY2d 77; People v Hernandez, 154 AD2d 197, 76 NY2d 736; People v Johnson, 75 NY2d 856; People v Cwikla, 46 NY2d 434; People v Nival, 33 NY2d 391, 417 US 903; People v Prochilo, 41 NY2d 759; People v Velazquez, 73 NY2d 815; People v Patterson, 53 NY2d 829; People v Williamson, 51 NY2d 801; People v Centano, 76 NY2d 837.)
   OPINION OF THE COURT

Smith, J.

Defendant was convicted, after a jury trial, of four counts of sodomy in the first degree (Penal Law § 130.50) and related crimes. The testimony was that on several occasions, the defendant and another man took the complainant, a 14-year-old somewhat retarded youngster, to the basement of a building and sodomized him.

The sole issue on this appeal is whether the prosecutor laid a proper foundation for the introduction of identification testimony through a police officer. CPL 60.25 permits such testimony where a witness testifies that he or she (1) has observed the perpetrator at the time of the crime or some other relevant period, (2) has observed that person on a subsequent occasion under constitutionally permissible circumstances and recognized the person as the one previously seen, and (3) is unable to say "on the basis of present recollection” whether the defendant is the same person (CPL 60.25 [1] [a] [iii]; see, People v Bayron, 66 NY2d 77, 81).

In this case, the complainant, before testifying about the details of the crime, was asked several times whether he saw one of the persons who sodomized him in the courtroom. He testified as follows:

"Q. [prosecutor] This guy that you are talking about, do you see that person in this courtroom today?
"A. [complainant] Nope.
"Q. You want to look around?
"A. Nope.
"Q. The whole room?
"A. Nope.
"Q. Do me a favor, you stand up—
"[defense counsel]: Objection.
"the court: Overruled.
"Q. Now, from there, you can look around, you see that person in the court?
"A. Nope.
"Q. Look around.
"[defense counsel]: Objection, asked and answered.
"the court: Please.
"Q. Look all around.
"A. Nope.”

Subsequently, the complainant testified that he had pointed out that person to a police officer during a search of the area where the criminal acts had occurred.

In light of this testimony, at the conclusion of the complainant’s direct testimony, defense counsel asked the court for a ruling on whether the police officer would be allowed to testify to the out-of-court identification. When the court indicated that it would be allowed, the defense attorney argued that the complainant had testified that the perpetrator was not in the courtroom. The following colloquy occurred:

"[defense counsel]: Well, Judge, it’s my position because the complainant didn’t say I don’t remember, he said 'Is that person in the courtroom,’ he said no, then it’s not a matter of recollection, it’s that person is not in the courtroom, the direct answer.
"the court: Counsel, I’m going to let the police officer testify and if you wish, when he gets back on the stand, before we go any further, I will have the witness walk around the courtroom and see if he can identify anyone, if he sees anybody that he recognizes.
"[defense counsel]: No, Judge.
"the court: You don’t? Okay. I notice the type of glasses he’s wearing. I don’t know if he can see that far, or if he didn’t look close enough, or if the District Attorney knows what questions to ask him.”

During redirect examination, the court tested the complainant’s ability to see:

"the court: Okay. Can you see that lady sitting at the table?
"the witness: Yes.
"the court: You see her?
"the witness: Yes.
"the court: You know what she’s wearing?
"the witness: This lady?
"the court: Not this lady, the lady at the table.
"the witness: Yes.
"the court: You can tell what she’s wearing?
"the witness: Yes. Got brown hair, tall, colored white.
"the court: Okay, good.”

The next day, defense counsel moved to have defendant released on his own recognizance during pendency of the trial because "the complainant categorically stated that the person who did these alleged acts to him was not in the courtroom.” The court denied the application, stating that when the witness was asked to make an identification, he "did not even look in the direction of the defendant. He looked to his left, to start with, then said no. * * * Then the District Attorney asked him to look again, and look around. So he looked half of the way, and I observed him closely, and he said no. I’m not sure whether or not he asked him, would you look around the courtroom. He hardly glanced in that direction, and he said, 'Nope.’ ”

The court subsequently permitted the police officer to testify about complainant’s out-of-court identification. After defendant was convicted, he moved to set aside the verdict on the basis of the erroneous admission of the officer’s identification testimony. The court denied the motion, noting that it observed the complainant very carefully and that "[although the question was repeated several times by the district attorney, two of those times the complaining witness did not even look in the direction of the defendant. And when he did look in the direction, he just glanced there. And there could be many reasons for that, counsel, for his answer of 'Nope, nope.’ ”

The proper foundation was not laid for the admission of the police officer’s testimony as to the complainant’s out-of-court identification of the defendant. Although it was their burden to do so, the People did not establish the reason why the complainant could not make an in-court identification.

In order to lay a proper foundation under CPL 60.25 there must be testimony from the witness which establishes a lack of present recollection of the defendant as the perpetrator. The testimony may occur at the trial (People v Black, 130 AD2d 353; People v Jamerson, 117 AD2d 754, affd 68 NY2d 984) or it may occur at a hearing to suppress identification testimony and be the basis of a conclusion by the court not to permit the witness to identify the defendant at trial (People v Cwikla, 46 NY2d 434). The evidence must establish a lack of present recollection as a basis for the lack of identification and not a fear of identifying the defendant (People v Bayron, 66 NY2d 77, supra; People v Johnson, 75 NY2d 856). Here, the identification testimony from the witness was ambiguous and there was no basis for the court to make a finding in accordance with CPL 60.25 that the witness could not identify the defendant on the basis of present recollection.

Moreover, the court did not make a finding that the complainant had no present recollection of the defendant. While the court initially suggested three possibilities — visual impairment, failure to look closely, or inadequate questioning by the prosecutor — after the court’s examination, it commented that the witness did not make an in-court identification because he did not look carefully at defendant. However much deference is given to the trial court’s findings (dissenting opn, at 49), and however broadly we construe the "remedial statute” (dissenting opn, at 46), the People have failed to satisfy the prerequisites for admission of third-party identification testimony. It is possible, for example, that the complainant could not identify defendant because (1) he was physically or mentally incapable of doing so; (2) he was too frightened to do so (compare, People v Bayron, 66 NY2d 77, supra); or (3) defendant was not the perpetrator.

Under these circumstances, the receipt of the identification testimony of the police officer was error (see, People v Bayron, 66 NY2d 77, supra).

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Bellacosa, J.

(dissenting). I would affirm the order of the Appellate Division upholding the judgment of conviction for sodomy, sexual abuse and endangering the welfare of a developmentally disabled youngster.

The reversal of this conviction turns solely on a foundational evidentiary ruling of the trial court after the victim, who suffered from certain impairments, was unable to make an in-court identification of the defendant. The refusal to uphold the statutory authorization in CPL 60.25 that contemplates the admission of third-party identification testimony in circumstances such as are presented in this case elevates form over substance and undermines the central goal of this remedial statute.

The procedural heart of this appeal is CPL 60.25. It authorizes a trial court to allow a third party to testify to an out-of-court identification of a defendant when the direct witness— here, the victim — is "unable at the proceeding to state, on the basis of present recollection, whether or not the defendant is the person in question” (CPL 60.25 [1] [a] [iiij).

It is well established that a genuine inability — as contrasted to a failure of will — is necessary to satisfy the statutory prerequisite (People v Johnson, 75 NY2d 856, 857; People v Bayron, 66 NY2d 77, 82) and to justify the use of the statutory alternative to present relevant evidence to the jury. However, this Court has not limited the statutory inability to a specific incapacity to recall a previously formed mental image of the defendant. For example, the statute may be utilized in a situation in which the witness, although possibly able to recall the previously formed mental image of the defendant, is unable to make an in-court identification due to a "change in appearance of the defendant” (People v Nival, 33 NY2d 391, 395; accord, People v Bayron, 66 NY2d 77, 80 supra; see also, Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 60.25, at 639). This Court has succinctly stated the core of the rule as:

”[W]here at the time of trial the eyewitness is unable to recognize the defendant, testimony of his own previous identification, as well as testimony of third persons 'to whom the witness promptly declared his recognition on such occasion’ (CPL 60.25 [1] [b]), is allowable as evidence-in-chief of identification” (People v Bayron, 66 NY2d 77, 81, supra [emphasis added]).

The application of the statute and rule in this case starts with a victim who suffered from certain developmental disabilities affecting his sight and mental acuity. These were established at a pretrial proceeding by psychiatric reports, and the victim’s difficulties were evident to the trial court through his over-all behavior on the stand, as also reflected by the contextual material recited in the majority opinion. After the victim failed to make an in-court identification of defendant-appellant as the person who committed the sodomy and other crimes, defense counsel moved in limine to preclude the arresting officer’s testimony to the victim’s earlier identification of the defendant on the ground that there had been no failure of recollection. The trial court denied that motion with the following ruling:

"the court: Counsel, I’m going to let the police officer testify and if you wish, when [the victim] gets back on the stand, before we go any further, I will have the witness walk around the courtroom and see if he can identify anyone, if he sees anybody that he recognizes.
"defense counsel: No, Judge.
"the court: You don’t? Okay. I notice the type of glasses he’s wearing. I don’t know if he can see that far, or if he didn’t look close enough, or if the District Attorney knows what questions to ask him.”

Taken in trial context, these explanations establish — as defendant-appellant concedes — that the court based its CPL 60.25 ruling on a finding that the complainant was either unable to follow the prosecutor’s instructions to look around the courtroom or was unable to see the defendant.

The next day, after the victim had left the stand, defense counsel moved to reargue the motion to prevent the officer’s testimony concerning the victim’s identification of the defendant. The court denied reargument. Defense counsel next moved for a mistrial on the basis of the denial of reargument, and that motion was denied. Finally, defense counsel moved to have his client released on his own recognizance owing to the failure of the victim to identify defendant as the perpetrator. In response to that motion, the court elaborated its findings on the victim’s failure to identify as follows:

"the court: As long as you made that application, the Court observed this infant stand up when the District Attorney asked him the question if he saw anybody in the courtroom that he recognized, or words to that effect, I don’t recall it. This child did not even look in the direction of the defendant. He looked to his left, to start with, then said no.
"defense counsel: Your Honor,—
"the court: Just a moment, because I didn’t interrupt you.
’’Then the District Attorney asked him to look again, and look around. So he looked half of the way, and I observed him closely, and he said no. I’m not sure whether or not he asked him, would you look around the courtroom. He hardly glanced in that direction, and he said, 'Nope.’ ”

The predicates established in this record and specifically relied upon by the trial court should justify the application of the remedial statute. The trial court found, in satisfactory and functional effect, that the victim suffered an inability "to state, on the basis of present recollection, whether or not the defendant is the person in question” (CPL 60.25 [1] [a] [iii]).

The trial court’s determination that the victim is unable to recognize the defendant, as a matter of foundation to allow the officer’s testimony in lieu of the victim’s, "must be accorded the same effect as a statement by the witness that he cannot now identify the defendant” (People v Cwikla, 46 NY2d 434, 444). Appellate courts might quarrel in reflective hindsight whether the offer of foundation proof could have been more ample or more particular and precise, or whether alternative means should have been tried before invoking the statutory authorization. However, an appellate court reviewing trial records should look to the entire context of the trial court’s ruling and the factual bases supporting it. In this case, the record contains sufficient evidence to support the necessary inferences for the trial court’s foundational conclusion that it was appropriate to invoke CPL 60.25.

The application of the guiding principles which lead to the overturning of this conviction falls prey, in my respectful view, to a form-over-substance second guess of the trial court. The analysis suffers from an overly strict, semantical parsing of the record and of the statute upon which the foundational evidentiary ruling rests. This Court’s ruling, rendered at a time and circumstance far removed from and lacking an appropriate deference to the trial court’s correct grasp of the sensitive trial dynamics in this particular instance, contradicts the customary and appropriately reasonable flexibility given trial courts in the exercise of prudent judgment in these foundational evidentiary contexts. Without sacrificing protections due to accuseds in these circumstances, trial courts are in a better position to weigh fairly and sensitively the competing concerns reflected by a record like this one.

In sum, erecting a highly formalized and stylized rubric is not warranted here. The irony is that this conviction would very likely be upheld if the People had asked this victim foundational questions slightly different in form or degree, or if the trial court had mouthed its ruling to echo the precise phraseology of the statute. Matters of such import as the admission of key evidence in felony prosecutions should not turn on formalistic, semantical nuances and variations. Rather, substance should govern at trial and on appellate review. Unfortunately, here substance does not prevail and an otherwise valid conviction is unravelled along with, precedentially, a realistic and proper use of a remedial statute designed to apply fairly in situations, just such as occurred here.

Acting Chief Judge Simons and Judges Kaye and Hancock, Jr., concur with Judge Smith; Judge Bellacosa dissents and votes to affirm in a separate opinion in which Judge Titone concurs.

Order reversed, etc.  