
    The People of the State of New York, Respondent, v. Manuel A. Gonzalez and James F. Castellano, Jr., Appellants.
    Argued May 14, 1970;
    decided July 1, 1970.
    
      
      Francis J. Valentino, James J. McDonough and Matthew Muraskin for Manuel A. Gonzalez, appellant.
    
      
      Isaac Heimbinder for James F. Castellano, Jr., appellant.
    
      William Cahn, District Attorney (Henry P. DeVine of counsel), for respondent.
   Scileppi, J.

TMs is an appeal from separate judgments affirming judgments convicting appellants Manuel Gonzalez and James Castellano of robbery in the first degree, grand larceny in the first degree, assault in the second and third degrees and imposing sentence after a jury trial.

On March 18, 1966 a robbery was committed in the offices of the State Laundry in Nassau County. At the trial, one Marguerite D’Amora, the laundry receptionist, testified that on the day in question, she looked out the window and noticed a shiny blue car being parked in front of the office. Two men, whom she identified at the trial as the appellants Gonzalez and Castellano (the latter who was bearded at the time of the robbery), got out of the car. Gonzalez pointed a gun at her and said: ‘ ‘ This is a stick up. Come with me * * * You won’t get hurt ”. Simultaneously, Castellano said; “ Get up ” and they took her and another employee (Kitty Clarke) up to the cashier’s office on the next floor. On the way, Gonzalez remembered to put a mask on, but Castellano left his mask in his pocket. Prior to entering the cashier’s office, appellants forced a third employee (Mrs. Pisciotto) out of a telephone booth and all were corralled into the cashier’s office. Castellano kept a gun on the employees (including Kenneth Bloch, the office manager), while Gonzalez forced the cashier to open the safe. After cash and checks were removed, the two men fled.

The police were given a description of the men and their get away car. Patrolman Guzzo testified that he observed a light blue Chevrolet, operated by Castellano, not far from the laundry and that he had reported the license number (SK 8919) to police headquarters. Thereafter, other officers saw a blue Chevrolet (License SK 8918) driven by Gonzalez with the bearded Castellano in it, but the car sped away when the police told them to stop. After a short chase, Castellano was arrested and Gonzalez, who had run away, was taken into custody later in the day.

Appellants argue that a reversal and new trial is mandated because the People employed certain pretrial identification procedures which they contend were violative of their rights in that they tainted the in-court identification of the appellants. We disagree. The record reveals that four witnesses were called by the People to place the appellants at the scene of the crime. Of these, Kenneth Bloch and Ernestine Pisciotto, on the night of the arrest, were brought to police headquarters where both appellants were exhibited to them in a “ showup ”, On that night and at the trial, they identified Castellano, but were unable to identify Gonzalez since they had never seen him unmasked. Since this showup ” was conducted prior to the decisions of the Supreme Court in United States v. Wade (388 U. S. 218), Gilbert v. California (388 U. S. 263) and Stovall v. Denno (388 U. S. 293), the question before us narrows down to whether the confrontation conducted in this case [i.e., the show up] was so unnecessarily suggestive and conducive to irreparable mistaken identification that [appellants were] denied due process of law” (Stovall, supra, at pp. 301-302) (see, also, People v. Rivera, 22 N Y 2d 453; People v. Ballott, 20 N Y 2d 600; People v. Brown, 20 N Y 2d 238). As to Gonzalez, no question is presented since neither witness was able to identify him. Turning to Castellano, we are not prepared to say, after considering “ the totality of the circumstances surrounding ” the confrontation (Stovall, supra, at p. 302), that he was denied due process of law. The witnesses had ample opportunity to identify Castellano during the commission of the robbery, thus rendering the improprieties of the identification procedures employed harmless error (People v. Brown, supra). Moreover, even if we were to say that the identification, made by these witnesses, was violative of Castellano’s due process rights, any error would be rendered harmless by the more than ample identification made by Mrs. D’Amora and Patrolman Guzzo who were not present at the “ showup ”.

Appellants also argue that they were denied due process under Stovall v. Denno (388 U. S. 293, supra) and Simmons v. United States (390 U. S. 377) because Bloch, Pisciotto and D’Amora were shown photographs of appellants on the day before trial, 16 months after the commission of the crime and the arrest.

Although Stovall and Simmons dealt with identifications made at the investigative stage of a criminal proceeding, the thrust of those decisions was directed at the possibility of ‘‘irreparable mistaken identification ” (Stovall, supra, at p. 302). Granted that this possibility may exist in some cases, in the instant case our examination of the record leads us to the conclusion that a reversal is not warranted herein. The fact that a prior photo identification was made was never introduced by the People but rather was only brought out on cross-examination by defense counsel after witnesses had made their in-court identifications. Since these witnesses had a sufficient opportunity to observe the appellants at the time the crime was committed, the possibility of mistaken identification was minimal (Brown, supra). Moreover, there was never a request for a voir dire in the absence of the jury; therefore, the photo identification was only relevant for the purpose of the jury’s consideration of the witnesses’ credibility.

The identification of Castellano made by Mr. Bloch, the office manager, is, of course, a different matter. He was the only witness who, after making an in-court identification, testified that he would have been unable to identify Castellano if he had not been shown the photograph the day before trial. Consequently, the admission of his in-court identification was error. However, in view of the identification of him by three other witnesses, we hold that its admission was harmless.

Nor is there any merit to appellant Castellano’s additional argument that under Wade and Gilbert (supra) his right to counsel was violated because his attorney was not present when the witnesses were shown photographs of him. The District Attorney has a right to prepare his witnesses prior to trial and neither the Federal nor State Constitutions requires him to do so in the presence of defense counsel.

We have considered.all of appellants’ other arguments and find them to be without merit.

Accordingly, the judgments appealed from should be affirmed.

Chief Judge Fuld. (dissenting).

I cannot agree with the court’s conclusion that there was nothing wrong or improper about the pretrial identification procedures employed in this case. On the contrary, I believe that they were highly suggestive and prejudicial, and that they may not be treated as harmless error. The defendants, it is true, were identified at the trial as the robbers — Gonzalez by one witness and Castellano by three—but it is impossible on the record before us to say that these identifications had an independent source and were not tainted by the pretrial identification procedures employed by the prosecution.

RE DEFENDANT GONZALEZ

Only one witness, a Mrs. D’Amora, gave identification testimony against Gonzalez. She had been shown his photograph— 16 months after the commission of the crime—just before she entered the courtroom to identify him. She testified that she had observed him but briefly when he confronted her with the gun and that she was extremely frightened at the time. 'Significantly, it was established that when first questioned, immediately after the robbery, she had given the police a wrong description of Gonzalez. She was not asked, and did not say, whether she could have identified him upon the trial had his picture not been shown to her.

RE DEFENDANT CASTELLANO

Upon the trial, Mrs. D’Amora also pointed to Castellano as one of the robbers. Her identification of him is even more suspect than that of Gonzalez. At the time of the robbery, Castellano had a full blown beard, and she had been shown his picture, clean shaven — as he looked at the time of the trial — just before she entered the courtroom. The other two witnesses against him were a Mrs. Pisciotto and a Mr. Bloch; they had viewed Castellano in a showup, as he stood alone in a room at the police station, and were pointedly told by police officers, “ [w]e caught this man, the robber of your store.” Then, as with Mrs. D’Amora, these witnesses, just before they entered the courtroom, were shown Castellano’s picture. One of them, Bloch, frankly acknowledged that he would not have been able to identify Castellano in court were it not for the pretrial procedures.

The pretrial identification procedures thus employed — the showup of Castellano accompanied by the police declaration, ‘ ‘ this was the robber of your store ’ ’, and the exhibition of photographs of both defendants to the witnesses, 16 months after the robbery, just before they went into the courtroom — cannot be justified. They were so highly suggestive and prejudicial as to require that the case be remanded so that the trial court may determine whether the in-court identifications were induced or influenced by the pretrial procedures. (See, e.g., People v. Burwell, 26 N Y 2d 331, 336; Foster v. California, 394 U. S. 440, 443; United States v. Wade, 388 U. S. 218.) I note that, although the burden rests with the prosecution to establish, ‘ ‘ by clear and convincing evidence, ’ ’ that the identifications made in court had independent sources (People v. Burwell, 26 N Y 2d 331, 336, supra; see People v. Ballott, 20 N Y 2d 600, 606-607), not the slightest effort was here made to indicate that they were not affected by the tainted pretrial procedures adopted.

Unquestionably, there was in this case more than ample ground for concluding that the in-court identifications were tainted by the “ unnecessarily ” or “ impermissibly suggestive ” pretrial procedures adopted, and that there was ‘ ‘ substantial likelihood of irreparable misidentification. ” (Foster v. California, 394 U. S. 440, 442, supra; Simmons v. United States, 390 U. S. 377, 384; Stovall v. Denno, 388 U. S. 293, 302; see People v. Logan, 25 N Y 2d 184, 191; People v. Rivera, 22 N Y 2d 453, 455; People v. Ballott, 20 N Y 2d 600, 606, supra; People v. Brown, 20 N Y 2d 238, 244; United States ex rel. Phipps v. Follette, 428 F. 2d 912, 914; cf. Clemons v. United States, 408 F. 2d 1230, cert. den. 394 U. S. 964.) No attempt was made to ascertain ‘ ‘ whether, before the imprint arising from the unlawful identification procedure, there was already such a definite image in the witness’ mind that he was able to rely on it at trial without much, if any, assistance from its successor.” (United States ex rel. Phipps v. Follette, 428 F. 2d, at p. 915, supra.) Improper as was the showup of Castellano, even worse was the impropriety involved in the photographic display a year and a quarter after the crime. Most apt is this statement of Judge Friendly, writing for the court, in the Phipps case (428 F. 2d, at p. 915):

“ Lapse of time between the crime and the confrontation is also important; the longer the interval, the greater the dangers that the initial image will have dimmed and that the second image will play a significant role, Also, a long interval between the initial observation and the trial coupled with an improper confrontation a comparatively short time before the witness appears in court enhances the danger that he may be relying on his most recent encounter. ’ ’

In the case before us, there is no warrant for the majority’s conclusory statement that, on the present record, the in-court identifications were based on observations made at the scene of the crime and, indeed, while the witnesses were looking down the barrel of a gun. As in People v. Ballott, so here, their observations took place ‘but for a few minutes during a frightening and upsetting episode” (20 N Y 2d, at p. 607). Nor, as I noted above, may the error be stamped as harmless, since without the identification testimony of the three witnesses mentioned, the admissible evidence against the defendants falls far short of being sufficient to support a verdict of guilt.

In short, then, since there is more than enough here to indicate the likelihood that the in-court identifications were improperly based, at least in part, on the pretrial showup and photographic display, the case should be remitted for a hearing to determine whether, in fact, such is the situation. I would, therefore, modify the judgments of conviction to the extent of directing a hearing as to the effect of the pretrial identifications on the identifications made in court.

Breitel, J. (dissenting in part).

A hearing should be directed as to defendant Gonzalez to determine whether the in-court identification was independent of suggestive photographic showups (see People v. Burwell, 26 N Y 2d 331). Unlike codefendant Castellano, who, unmasked throughout the robbery, was identified by several witnesses at a showup held the day of the crime, Gonzalez was masked during part of the robbery, and was identified by only one witness, whose first confrontation-identification was at the trial some 16 months later. Under these circumstances, the photographic showups conducted for this witness before the Grand Jury and on the day of her trial identification were necessarily suggestive, and the independence of her in-court identification of Gonzalez should be determined. Although this witness also identified Castellano at the trial, the other evidence of Castellano’s identity is sufficient to render the identification procedure harmless as to him.

Accordingly, I dissent in part and would remit the action only as to defendant Gonzalez for the purpose of conducting an identification hearing and would otherwise affirm.

As to defendant Gonzalez: Judges Bergan, Jasen and Gibson concur with Judge Scileppi; Chief Judge Fuld dissents and votes to modify in an opinion; Judge Breitel dissents and votes to modify in a separate opinion; Judge Burke taking no part.

Judgment affirmed.

As to defendant Castellano: Judges Bergan, Breitel, Jasen and Gibson concur with Judge Scileppi; Chief Judge Fuld dissents and votes to modify in a separate opinion; Judge Burke taking no part.

Judgment affirmed. 
      
      . Upon their arrest, both appellants confessed and the mask was recovered, but neither the confessions nor the mask were introduced into evidence.
     
      
      . It also appears that three other witnesses were called and testified as to the commission of the crime. Since they were not able to make an in-court identification of either appellant, the fact that they may have participated in pretrial identification procedures is of little moment.
     