        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

232
KA 11-01614
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMELL R. MCCULLOUGH, DEFENDANT-APPELLANT.


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered November 3, 2010. The judgment
convicted defendant, upon a jury verdict, of murder in the second
degree, robbery in the first degree and attempted robbery in the first
degree.

     It is hereby ORDERED that the judgment so appealed from is
reversed on the law and a new trial is granted.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of, inter alia, murder in the second degree (Penal Law §
125.25 [3]) and robbery in the first degree (§ 160.15 [4]), defendant
contends that Supreme Court abused its discretion in precluding him
from presenting expert testimony on the reliability of eyewitness
identifications. We agree.

     “Because mistaken eyewitness identifications play a significant
role in many wrongful convictions, and expert testimony on the subject
of eyewitness recognition memory can educate a jury concerning the
circumstances in which an eyewitness is more likely to make such
mistakes, ‘courts are encouraged . . . in appropriate cases’ to grant
defendants’ motions to admit expert testimony on this subject” (People
v Santiago, 17 NY3d 661, 669, quoting People v Drake, 7 NY3d 28, 31).
In People v LeGrand (8 NY3d 449), the Court of Appeals established a
two-stage inquiry for considering a motion to admit expert testimony
on eyewitness identification (see Santiago, 17 NY3d at 669). “The
first stage is deciding whether the case ‘turns on the accuracy of
eyewitness identifications and there is little or no corroborating
evidence connecting the defendant to the crime’ (LeGrand, 8 NY3d at
452). If the trial court finds itself with such a case, then it must
proceed to the second stage, which involves the application of four
factors. The court must decide whether the proposed ‘testimony is (1)
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relevant to the witness’s identification of defendant, (2) based on
principles that are generally accepted within the relevant scientific
community, (3) proffered by a qualified expert and (4) on a topic
beyond the ken of the average juror’ (id.). If, on the other hand,
sufficient evidence corroborates an eyewitness’s identification of the
defendant, then there is no obligation on the part of the trial court
to proceed to the second stage of analysis, because testimony
concerning eyewitness identifications is unnecessary” (Santiago, 17
NY3d at 669).

     Here, the People concede that this case hinges upon the accuracy
of the eyewitness’s identification of defendant, and we agree with
defendant that there was little or no corroborating evidence
connecting him to the crime (see LeGrand, 8 NY3d at 452). The
eyewitness testified that, on the evening of December 27, 2008, he was
with the victim at the victim’s barbershop when a man exited a white
Chevy Malibu and asked if he could still get a haircut. The victim
said yes, and the man sat down in a barber chair. Shortly thereafter,
three men entered the shop. The first two men to enter were dark-
skinned, and the first of the two men (hereafter, the shooter) wore a
dark coat and a black winter hat. The third man to enter was lighter-
skinned and taller, with a bright orange coat and matching baseball
cap, and he tried to lock the door behind him. The men ordered the
victim and the eyewitness to the ground, demanding money and drugs.
After taking approximately $200 from the victim, the shooter fatally
shot the victim, and the assailants fled. The shooter returned
briefly, and the eyewitness heard a “clicking sound over his head.”
The shooter then left the shop and the eyewitness called 911.

     Later that evening, a police officer responding to a dispatch
about the robbery encountered and pursued a white Chevy Malibu with
three men inside. The three men fled on foot, but the officer
apprehended the driver, Willie Harvey. The officer transported Harvey
back to the crime scene, where a witness who had been waiting for a
bus near the barber shop when the robbery occurred identified him. A
few weeks after the robbery, the police showed the eyewitness a photo
array containing a photograph of defendant. The eyewitness pointed to
defendant’s photograph and said, “that looks a lot like the shooter,”
i.e., the first man to enter the shop. Two months later, the
eyewitness identified defendant in a lineup as “the last guy who came
into the barber shop,” and he identified defendant as such at trial.
Defendant was the only individual included in both the photo array and
the lineup.

     Contrary to the contention of the dissent, the fact that the
eyewitness viewed the perpetrators at relatively close range and in
well-lit conditions “does not constitute corroborating evidence of the
identification for purposes of determining whether expert testimony
regarding the accuracy of an eyewitness identification is admissible”
(People v Nazario, 100 AD3d 783, 784, lv denied 20 NY3d 1063 [emphasis
added]; see Santiago, 17 NY3d at 669). The only testimony
corroborating the eyewitness’s identification of defendant came from
Harvey, who even the prosecutor characterized as “a liar.” Harvey
initially denied any knowledge of the robbery, and thereafter
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identified other individuals as the perpetrators. When shown a photo
array containing defendant’s photograph about a month after the
robbery, Harvey told the police that he did not recognize anyone.
Harvey only identified defendant as one of the perpetrators minutes
before he pleaded guilty to robbery in the first degree in exchange
for the minimum sentence of 10 years. In addition to Harvey’s dubious
credibility, we note that “several factors call [his] corroborating
identification[] into question” (Santiago, 17 NY3d at 673). Harvey
had never met defendant prior to the robbery, he remained in the
vehicle during the robbery, and he had limited opportunities to
observe defendant that night (cf. People v Muhammad, 17 NY3d 532, 546;
People v Abney, 13 NY3d 251, 269). We therefore agree with defendant
that Harvey’s testimony was insufficient to relieve the court of its
obligation to proceed to the second stage of the LeGrand analysis (see
Santiago, 17 NY3d at 673).

     With respect to the second stage of the analysis, we conclude
that the proposed testimony “satisfies the general criteria for the
admissibility of expert proof” (Muhammad, 17 NY3d at 546), i.e., it is
“ ‘(1) relevant to the witness’s identification of defendant, (2)
based on principles that are generally accepted within the relevant
scientific community, (3) proffered by a qualified expert and (4) on a
topic beyond the ken of the average juror’ ” (Santiago, 17 NY3d at
669, quoting LeGrand, 8 NY3d at 452). Defendant sought to introduce
expert testimony from Dr. Nancy Franklin, a psychologist, concerning
various factors that affect the reliability of eyewitness
identifications, including “the level of violence of the interaction
[event violence], the length of time of the incident [event duration],
[and] the presence of a weapon or other attention-calling object
[weapon focus].” Those factors are clearly relevant to the
eyewitness’s identification of defendant (see Abney, 13 NY3d at 268).
With respect to event violence and weapon focus, the eyewitness
testified that one of the assailants put a gun to his head, pistol-
whipped both him and the victim, and then shot the victim in the chest
at close range. At least one of the other assailants also displayed a
handgun. After the assailants fled, the shooter returned and the
eyewitness heard a “clicking sound” over his head. The eyewitness
testified that he did not know how long the robbery lasted. With
respect to general acceptance in the scientific community, we “must
assume on this record” that Franklin’s proposed testimony is based on
principles that are generally accepted in the scientific community
because “defendant sought, and was denied, a Frye hearing on that
issue” (People v Oddone, 22 NY3d 369, 379). Finally, we agree with
defendant that Franklin is a qualified expert on eyewitness
identifications (see People v Norstrand, 35 Misc 3d 367, 372; Abney,
31 Misc 3d 1231[A], *9-13, 2011 NY Slip Op 50919[U], on remand from 13
NY3d 251), and that the subject of her proposed testimony is beyond
the ken of the average juror (see People v Lee, 96 NY2d 157, 162).

     Because the evidence of defendant’s   guilt is not overwhelming,
the error cannot be deemed harmless (see   Santiago, 17 NY3d at 673-674;
Abney, 13 NY3d at 268; Nazario, 100 AD3d   at 785). We therefore
reverse the judgment and grant defendant   a new trial.
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     All concur except SCUDDER, P.J., and LINDLEY, J., who dissent and
vote to affirm in the following memorandum: We respectfully dissent.
We disagree with the conclusion of the majority that Supreme Court
abused its discretion in denying defendant’s motion seeking to present
expert testimony on the reliability of the eyewitness identification
of defendant. The court denied the motion in limine, but granted
leave to renew at the close of the People’s case. The court denied
the motion on renewal after having the opportunity to hear the
detailed testimony of the eyewitness, and to assess the credibility of
defendant’s accomplice and the reliability of his identification of
defendant, before determining that the testimony of the accomplice
provided sufficient corroboration for the eyewitness testimony (see
People v Lee, 96 NY2d 157, 162-163).

     Although “the case turns on the accuracy of [the] eyewitness
identification[]” (People v LeGrand, 8 NY3d 449, 452), we conclude
that the identification of defendant by the eyewitness was
corroborated by the reliable testimony of the accomplice, and thus we
disagree with the majority that an analysis of the factors in the
second stage of the LeGrand analysis is necessary (see generally
People v Santiago, 17 NY3d 661, 669). In any event, we respectfully
disagree with the majority that expert testimony regarding the impact
of “event violence,” “event duration,” and “weapon focus” on the
reliability of eyewitness identification is generally accepted in the
scientific community. Indeed, the Court of Appeals has previously
concluded that a Frye hearing was required with respect to those
precise factors (see People v Abney, 13 NY3d 251, 268). We also
disagree with the majority’s conclusion that the court’s denial of the
request for a Frye hearing constitutes a determination that the
proposed testimony is based on principles that are generally accepted
in the scientific community. Instead, the court denied the request
for the Frye hearing, which was made in the alternative to the motion
to admit the expert testimony, because it determined that the expert
testimony was “not needed.”

     We agree with the court that, here, expert testimony on
eyewitness recognition memory was “not needed” to assist the jury
because the record establishes that the eyewitness provided very
detailed testimony regarding the events, including a description of
defendant and his actions, which was sufficiently corroborated by the
identification of defendant by one of his accomplices. Contrary to
the assertion of the majority, we do not conclude that the conditions
under which the eyewitness viewed defendant corroborate his
identification of defendant but, instead, we conclude that those
conditions support the reliability of that testimony (see generally
People v Young, 7 NY3d 40, 45). The eyewitness testified that he
observed a man exit a white Chevy Malibu at the victim’s barbershop on
the evening of December 27, 2008 at approximately 10:00 p.m. and the
man asked the victim whether he could still get a haircut. The
eyewitness testified that while the man was seated in the barber
chair, he was seated in another barber chair, nine feet from the door
in the well-lit room, with an unobstructed view of the door. He
observed three men enter the barber shop, and each of the men looked
directly at the eyewitness. The third man, whom he identified as
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defendant, was described by the eyewitness as “lighter than the rest
of them” and “tall . . . The other two that came in were short,
shorter.” The eyewitness described defendant as wearing dark jeans
and an orange coat with a baseball cap that matched his coat. He
testified that defendant “looked at [him] before he turned to lock the
door” and that the deadbolt lock did not work. Defendant’s face was
not concealed in any manner (cf. Santiago, 17 NY3d at 664; Young, 7
NY3d at 42). “It does not require scientific research . . . to
establish that an identification is more reliable when the witness’s
original opportunity to observe was good” (Young, 7 NY3d at 45).

     The eyewitness also described the other participants by the
clothing they wore, their skin tone, and the order in which they
entered the barber shop. He explained that the first man (hereafter
the shooter) asked “where’s the bud at,” meaning marihuana. The
eyewitness described the events as they unfolded in detail; he
described what specific participants said and how the shooter shot the
victim, and he testified that the shooter held a gun to his head, that
the man in the barber chair produced a gun, that a third man also had
a gun, that the men, including defendant, searched the barbershop for
drugs, and that the man in the barber chair exited the barber shop
first and the shooter exited last. Thus, we conclude that the
opportunity for the eyewitness to observe defendant was not brief (cf.
Santiago, 17 NY3d at 664), or “fleeting” (Abney, 13 NY3d at 257).

     The court also did not abuse its discretion in determining that
the eyewitness’s testimony was corroborated by the testimony of
defendant’s accomplice, Willie Harvey (see Abney, 13 NY3d at 269).
Harvey testified that he and his brother met his cousin and two men he
did not know at his cousin’s house. He observed his cousin and the
two men enter a vehicle, and he and his brother drove to the barber
shop in a white Chevy Malibu, which his brother exited to enter the
barber shop. Harvey testified that he parked the Malibu to wait for
the others. He estimated that he waited 10 to 15 minutes, based on
the fact that he made two telephone calls while he waited. He
observed his brother, cousin and the other two men walk towards his
car and the men traveled in two cars to his cousin’s house. At his
cousin’s house, while still seated in the driver’s seat, Harvey
observed the four men place marihuana and “two or three” handguns on
the hood of the Malibu. Although Harvey did not know defendant
personally before the night in question, the record establishes that
he observed defendant before and after the crime (see generally People
v Muhammad, 17 NY3d 532, 546). We therefore conclude that Harvey’s
testimony “harmonize[d] with the [eyewitness’s] testimony in such a
manner as to furnish the necessary connection between the defendant
and the crime” (People v Nazario, 100 AD3d 783, 784, lv denied 20 NY3d
1063).

     Although the majority properly notes that Harvey failed to
identify defendant in a photo array, Harvey explained on redirect
examination that he recognized defendant but did not identify him
because he did not know at that time what part his brother played in
the crimes. The majority also properly notes that Harvey was
characterized by the prosecutor as “a liar.” We nevertheless disagree
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with the majority’s conclusion that Harvey’s “dubious credibility”
with respect to portions of his testimony renders his identification
of defendant unreliable for the purpose of providing corroborative
evidence of the eyewitness identification. Instead, we conclude that
the court, which observed Harvey and heard his testimony, is in the
best position to determine whether the testimony with respect to
Harvey’s ability to identify defendant was sufficient to establish the
reliability of that identification, and thus to constitute sufficient
corroborating evidence of the eyewitness identification (see generally
Allen, 13 NY3d at 269; Lee, 96 NY2d at 163).

     “A trial court may, in its discretion, admit, limit, or deny the
testimony of an expert on the reliability of eyewitness
identification, weighing a request to introduce such expert testimony
‘against other relevant factors, such as the centrality of the
identification issue and the existence of corroborating evidence’ ”
(Santiago, 17 NY3d at 668-669, quoting Lee, 96 NY2d at 163). Because
we conclude that the court did not abuse its sound discretion in
denying the motion to present expert testimony on the reliability of
the eyewitness identification (see Lee, 96 NY2d at 163), we would
affirm the judgment.




Entered:   March 27, 2015                      Frances E. Cafarell
                                               Clerk of the Court
