1 No. 57
The People &c.,
Respondent, v. Anthony Lee,
Appellant.
2001 NY Int. 48
May 8, 2001
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
Catharine F. Easterly, for appellant. Susan Gliner, for respondent. The Legal Aid Society, Criminal Appeals Bureau et al.,
amici curiæ.
GRAFFEO, J.:
In the eleven years since People v Mooney (, 76 NY2d 827), this Court has not been presented with an opportunity to
revisit the admissibility of expert testimony proffered on the
issue of the reliability of eyewitness identification. We now
hold that, while such expert testimony is not inadmissible per
se, the decision whether to admit it rests in the sound
discretion of the trial court. Here, the Trial Court did not
abuse that discretion in denying its introduction. In the early morning, Michael Perani's car was stolen
at gunpoint in Manhattan. The robbery occurred in an area that
was well illuminated by a street lamp and lights from a nearby
store. Perani stood only four or five feet from defendant and
exchanged words with him during the brief encounter. Defendant
drove off with the vehicle and Perani telephoned for assistance,
but the police were unable to locate defendant. Defendant was arrested two months later, after he was
stopped for a traffic violation and discovered driving Perani's
stolen vehicle.[1]
It was not until more than six months from the
arrest that the detective assigned to the robbery learned that
defendant had been found in possession of Perani's automobile.
Upon acquiring this information, the detective compiled a
photographic array, which he displayed to Perani, who identified
defendant as the person who stole his car. Ten days later,
Perani again identified defendant in a lineup. During a pre-trial hearing, defendant moved to
introduce at trial the testimony of a psychological expert for
the purpose of explaining to the jury the factors that may
influence the perception and memory of a witness and affect the
reliability of identification testimony. Defense counsel's
affirmation stated that the expert would testify how factors
such as the duration of an encounter, the passage of time, stress
involved in an encounter, assimilation of post-incident
information and race, have been shown by the scientific community
to affect memory and eyewitness identification. The expert also
would testify about the absence of correlation between eyewitness
confidence and the accuracy of an identification. The Hearing
Court summarily denied the application. The action proceeded to trial before a different
Justice. During the People's case-in-chief, defendant renewed
his request to introduce expert testimony regarding the
reliability of eyewitness identification, referencing his earlier
written motion and an off-the-record sidebar discussion from the
first day of trial. Specifically, defendant contended that the
passage of time between the crime and the identification, the
trauma of robbery and the lack of correlation between confidence
and accuracy of identifications were issues for an expert to
explain. The court initially considered whether it was bound by
the Hearing Court's earlier ruling, but proceeded to address
defendant's motion and ultimately denied it. The jury convicted defendant of one count of robbery in
the first degree and he was sentenced to an indeterminate prison
term of 4 to 12 years. The Appellate Division unanimously
affirmed the judgment of conviction and sentence (267 2 42).
A Judge of this Court granted defendant leave to appeal (95 2
836), and we now affirm. Although the issue of admissibility of expert testimony
regarding the reliability of eyewitness identification has been
addressed in other jurisdictions (see generally, 1 McCormick,
Evidence § 206, at 776-779 [5th ed 1999]), it remains an
unresolved issue in this State (see, People v Alexander, , 94 NY2d 382; People v Mooney, , 76 NY2d 827). As a general rule, the admissibility and limits of
expert testimony lie primarily in the sound discretion of the
trial court. It is for the trial court in the first instance to
determine when jurors are able to draw conclusions from the
evidence based on their day-to-day experience, their common
observation and their knowledge, and when they would be
benefitted by the specialized knowledge of an expert witness
(People v Cronin, , 60 NY2d 430, 433). Essentially, the trial
court assesses whether the proffered expert testimony would aid
a lay jury in reaching a verdict (People v Taylor, , 75 NY2d 277,
288). In rendering this determination, courts should be wary not
to exclude such testimony merely because, to some degree, it
invades the jury's province. As we have previously noted,
[e]xpert opinion testimony is used in partial substitution for
the jury's otherwise exclusive province which is to draw
'conclusions from the facts.' It is a kind of authorized
encroachment in that respect (People v Jones, , 73 NY2d 427, 430-
431 [internal citation omitted] [quoting People v Cronin, supra,
60 NY2d, at 432]). Despite the fact that jurors may be familiar from their
own experience with factors relevant to the reliability of
eyewitness observation and identification, it cannot be said that
psychological studies regarding the accuracy of an identification
are within the ken of the typical juror (see, People v Cronin,
supra, 60 NY2d, at 433). Moreover, in recognition that expert
testimony of this nature may involve novel scientific theories
and techniques, a trial court may need to determine whether the
proffered expert testimony is generally accepted by the relevant
scientific community (see, People v Wesley, , 83 NY2d 417, 423-
429). Applying this framework to the case at bar, we note
that in summarily rejecting defendant's motion on the ground that
such testimony was per se inadmissible, the Hearing Court failed
to exercise its discretion. The Trial Court, however,
subsequently entertained defendant's renewed request for the
introduction of expert testimony. Since the motion was
considered during the People's case-in-chief, the court was in a
position to weigh the request against other relevant factors,
such as the centrality of the identification issue and the
existence of corroborating evidence. For example, by this stage
of the proceedings, the court had heard testimony regarding the
circumstances under which Perani observed defendant during the
incident. Testimony had also been elicited from the police
officer who arrested defendant while in possession of Perani's
stolen vehicle. Hence, the court was aware of corroborating
evidence in addition to the identification testimony. Given the
particular facts and circumstances of this case, we cannot say
the Trial Court's denial of defendant's motion constituted an
abuse of discretion. Additionally, contrary to defendant's contention, the
photographic array presented to Perani was not unduly suggestive.
Both the Hearing Court and the Appellate Division found that,
although there were slight differences among the six photographs
that comprised the array, all of the persons depicted were
similar in appearance. We conclude that the subtle differences
in the photographs, including the arrest plates, were not
sufficient to create a substantial likelihood that the defendant
would be singled out for identification (People v Chipp, , 75 NY2d 327, 336). Defendant's contentions with respect to alleged
instances of prosecutorial misconduct are without merit.
Further, the constitutional challenge to the Trial Court's denial
of defendant's request for testimony from the 911 operator who
received Perani's initial telephone call describing his assailant
is not preserved for our review. To the extent defendant claims
this denial was an evidentiary error, we hold that any such error
was harmless (see, People v Crimmins, , 36 NY2d 230, 238-243). Accordingly, the order of the Appellate Division should
be affirmed.
Footnotes
1 Defendant was charged with criminal possession of stolen
property in the third degree and fourth degree, and unauthorized
use of a vehicle. Subsequently, the felony criminal possession
charges were reduced to a misdemeanor charge of criminal
possession of stolen property in the fifth degree. The record
does not reveal how these charges were resolved.