This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 105
The People &c.,
            Appellant,
        v.
Jamell R. McCullough,
            Respondent.




          Scott Myles, for appellant.
          Brian Shiffrin, for respondent.
          The Innocence Project, Inc., amicus curiae.




MEMORANDUM:
          The order of the Appellate Division should be reversed
and the case remitted to that court for consideration of the
facts and issues raised but not determined on appeal to that
court.

                              - 1 -
                                 - 2 -                         No. 105

          Defendant was charged with murder in the second degree
(Penal Law §§ 20.00, 125.25 [3]), robbery in the first degree
(Penal Law §§ 20.00, 160.15 [4]) and attempted robbery in the
first degree (Penal Law §§ 20.00, 110.00, 160.15 [4]) arising out
of the robbery and murder of a man at a barbershop on Dewey
Avenue in Rochester, New York.
          On December 27, 2008, an eyewitness, J.J., was in front
of the barbershop owned by the victim, Vincent Dotson, when a
white Malibu with a missing hubcap pulled up.     One of the
occupants of the vehicle followed J.J. into the barbershop, sat
in a chair and asked for a haircut.      J.J. sat in another chair.
The man took two phone calls in succession.     Shortly thereafter,
three other men entered the barbershop.     One of them asked,
"where's the bud at," while another man (later identified as
defendant), shut the door and attempted to lock it.     The men
ordered J.J. and Dotson to the floor, demanding money and drugs.
One of the men took $200 from Dotson and then fatally shot him.
The four men fled and J.J. called 911.
          Later that evening, the police, in response to a
dispatch concerning the robbery, pursued a white Malibu with
three men inside.   All three men fled; two of them escaped, but
the driver, one Willie Harvey, was apprehended.     Harvey was
transported to the crime scene, where a witness -- another
employee of the barbershop who had been waiting for a bus nearby
when the incident occurred -- identified him as the driver.


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                               - 3 -                         No. 105

Approximately three months later, J.J. identified defendant in a
lineup as the last man to enter the barbershop.   Harvey later
implicated defendant in the crimes.
          Defendant was thereafter indicted on the murder and
robbery counts, pleaded not guilty and proceeded to trial.
          The defense moved for an order permitting, among other
things, testimony from an identification expert about certain
factors that could have influenced J.J.'s ability to make a
positive identification of defendant.1   Supreme Court, noting
that it had previously heard J.J.'s testimony in a criminal
proceeding brought against Harvey's brother (one of the
accomplices in the crime), held that J.J.'s identification of
defendant as a participant, coupled with Harvey's testimony
connecting defendant to the incident, would constitute sufficient
corroboration.   It therefore denied the motion, but granted the
defense permission to revisit the issue once the People had
rested their case.
          At trial, in addition to J.J.'s testimony concerning
the events he observed in the barbershop, the People produced
testimony from Harvey, the getaway driver, who, by then, had
pleaded guilty to robbery in the first degree for his role as an
accomplice in the crime.   Harvey testified that he observed


     1
        The expert was expected to testify as to how the level of
violence, the length of the incident and the presence of a weapon
could influence an eyewitness's ability to make an
identification.

                               - 3 -
                                - 4 -                       No. 105

defendant at Harvey's cousin's house both immediately before and
after the crime.    He also stated that Harvey's brother, cousin,
defendant and another man drove in two separate cars to the
corner of Dewey Avenue and Flower City Park.    At that point,
Harvey remained in the car while the four men walked down Dewey
Avenue, with the men returning approximately 15 minutes later.
According to Harvey, all of the participants reconvened at his
cousin's home where he observed the other four men, including
defendant, place marijuana and two or three guns on the hood of
the Malibu.
            Harvey admitted at trial that he initially failed to
pick defendant out of a photo array a month after the incident.
He testified that he did not identify defendant because, at that
point, he was unsure what role his brother had played in the
incident.    He admitted that he had lied when he told police that
he did not recognize anyone in the array.
            At the conclusion of the People's case, defense counsel
renewed his motion to call the expert witness.    The court denied
the motion, stating that J.J.'s testimony had been corroborated
by Harvey's, rendering the proposed expert testimony unnecessary.
The jury convicted defendant of all counts.    Defendant appealed.
            A divided Appellate Division reversed, holding, as
relevant here, that the trial court abused its discretion in
precluding the defense from presenting expert testimony on the
reliability of eyewitness identification (126 AD3d 1452,


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                               - 5 -                         No. 105

1452-1453 [4th Dept 2015]).   The dissenting Justices stated that
Supreme Court, having observed the getaway driver and hearing his
testimony, was "in the best position to determine whether the
testimony with respect to [his] ability to identify defendant was
sufficient to establish the reliability of that identification,
and thus constituted sufficient corroborating evidence of the
eyewitness identification" (id. at 1458 [citations omitted]).     A
Justice of the Appellate Division granted the People leave to
appeal.
           The decision to admit or exclude expert testimony
concerning factors that affect the reliability of eyewitness
identifications rests within the sound discretion of the trial
court (see People v Lee, 96 NY2d 157, 160 [2001]).   When the
motion is considered during the People's case-in-chief, the trial
court performs this function by weighing the request to introduce
such testimony "against other relevant factors, such as the
centrality of the identification issue and the existence of
corroborating evidence" (id. at 163; see also People v LeGrand, 8
NY3d 449, 459 [2007]).   To the extent LeGrand has been understood
to require courts to apply a strict two-part test that initially
evaluates the strength of the corroborating evidence, it should
instead be read as enumerating factors for trial courts to
consider in determining whether expert testimony on eyewitness
identification "'would aid a lay jury in reaching a verdict'"
(Lee, 96 NY2d at 162, quoting People v Taylor, 75 NY2d 277, 288


                               - 5 -
                               - 6 -                       No. 105

[1990]).   Courts reviewing such a determination simply examine
whether the trial court abused its discretion in applying the
"standard balancing test or prejudice versus probative value"
(People v Powell, -- NE3d --, 2016 NY Slip Op 02555 [2016]).
           Here, Supreme Court did not abuse its discretion as a
matter of law when it precluded the introduction of the expert
testimony.   The trial court was entitled to reject the expert
testimony after balancing the probative value of the evidence
against its prejudicial or otherwise harmful effects.   In light
of the fact that "trial courts generally have the power to limit
the amount and scope of evidence presented," (LeGrand, 8 NY3d at
452 [2007]), on this record, the Appellate Division erred in
holding that Supreme Court abused its discretion as a matter of
law in precluding the testimony.




                               - 6 -
People v McCullough
No. 105




RIVERA, J.(dissenting):
          Our Court has made plain that it is an abuse of
discretion for a trial court to preclude expert testimony on the
reliability of eyewitness identifications where the case "turns
on the accuracy of eyewitness identifications and there is little
or no corroborating evidence connecting the defendant to the
crime," and the proposed expert "'testimony 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'" (People v
Santiago, 17 NY3d 661, 669 [2011], quoting People v LeGrand, 8
NY3d 449, 452 [2007]).    A trial court cannot rest its
determination to exclude expert testimony on alleged
corroborating evidence that is itself unreliable (Santiago, 17
NY3d at 673).
          In defendant's case, the proposed corroborating
evidence came from a coparticipant in the crimes and was highly
suspect, with more than a speculative possibility that the jury
would question the credibility of its source.    I would not
ignore, as the majority apparently does, the "several factors


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                               - 2 -                          No. 105

[that] call the corroborating identification[] into question"
(id.).   Instead, based on facts indicative of the
untrustworthiness of this testimony, rendering doubtful its
reliability, I conclude that the trial court abused its
discretion when it denied defendant's request to present expert
testimony on matters potentially affecting the accuracy of the
eyewitness identification.   Therefore, I dissent and would affirm
the Appellate Division order reversing defendant's conviction and
granting him a new trial.


                                I.
           A jury convicted defendant of murder in the second
degree, robbery in the first degree, and attempted robbery in the
first degree, arising from the fatal shooting of Vincent Dotson,
during a robbery in his barbershop.    There was no forensic, DNA,
or physical evidence connecting defendant to the crime, and the
sole eyewitness was the surviving victim, "J.J.," who observed
defendant under conditions that defendant argued could
potentially impact the reliability of the eyewitness
identification.
           Defense counsel filed a motion in limine to admit
expert testimony concerning the influence of various factors on
eyewitness recollection, including the level of violence during
the interaction, the length of time of the incident, and the
presence of a weapon.   Defendant alternatively requested a


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                                - 3 -                       No. 105

hearing pursuant to Frye v United States (293 F 1013 [DC Cir
1923]), to determine whether his proposed expert testimony was
generally accepted within the relevant scientific community.
During argument on the motion, the People contended that under
our case law no expert was necessary because J.J.'s testimony was
corroborated by a separately charged co-defendant, Willie Harvey,
who would place defendant in the vicinity of the crime.    The
People stated that although Harvey did not go inside the
barbershop and was not a witness to the robbery or shooting, he
would testify that he drove defendant and three other men around
the corner from where the barbershop was located, drove away with
them, and later saw them with guns and the robbery proceeds.
          The People also sought to "make the record very clear"
about various credibility issues related to Harvey.   The People
described Harvey's initial failure to identify defendant from a
photo array, even after Harvey implicated his own brother and
another person in the crimes.   The People also explained that
Harvey was initially charged with murder, robbery, and attempted
robbery in the first degree, and entered a deal by which he was
allowed to plead guilty to the robbery count in satisfaction of
all charges, in exchange for testifying against defendant and the
other participants in the crimes.   The People alternatively
requested a Frye hearing if the court was considering permitting
the expert testimony.
          In response, defense counsel argued Harvey could not


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                               - 4 -                         No. 105

provide the necessary corroboration for J.J.'s testimony because
Harvey's statements were self-serving, and his description of
events was partially contradicted by other testimony.   Moreover,
Harvey admitted he had never seen defendant until the night of
the crime.
           The judge denied the motion, explaining that he
previously observed J.J. testify against another codefendant and
considered him to be "a credible witness," and that Harvey's
testimony appeared sufficient to corroborate J.J.'s
identification of defendant.   At the close of the People's case,
the judge denied counsel's renewed motion, without a Frye
hearing, upon a finding that Harvey corroborated J.J.'s
testimony.


                                II.
           At trial, J.J. testified that he observed a man exit a
white Chevy Malibu and enter Dotson's barbershop to get a hair
cut.   Soon after, three other men entered, one of whom tried to
lock the door behind them.   J.J. described the first two men who
walked into the barbershop as dark-skinned, and stated that the
first man wore a dark coat and black winter hat.   The third man
was lighter-skinned and taller, and wore an orange coat and
matching baseball cap.
           The men ordered Dotson and J.J. to the ground, demanded
money and drugs, and pistol whipped them.   After they had taken


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                                - 5 -                         No. 105

$200 from Dotson, the first of the three men to enter the
barbershop fatally shot Dotson in the chest.     The men ran out of
the shop, but the shooter returned.     J.J. closed his eyes and
heard a clicking sound over his head.     After he heard the shooter
leave, J.J. called 911.
           Several weeks after the shooting, J.J. saw defendant in
a photo array and told the police that he looked like the
shooter.   Two months later, J.J. picked out defendant in a
lineup, only this time he said defendant was the last man to
enter the barbershop, notwithstanding the different descriptions
he had previously provided of these two men.     Defendant was the
only person displayed in both the photo array and the lineup.
J.J. made an in-court identification of defendant, again
describing him as the last man of the three who entered the shop.
           Harvey testified and also identified defendant as one
of the men involved in the robbery.     Harvey described how he
first met defendant on the day of the crime, when Harvey,
Harvey's brother and cousin, defendant, and another stranger
drove in separate cars to where the shooting occurred.     Everyone
but Harvey exited the cars and went around the corner.     About 15
minutes later they returned, and again drove in separate cars to
another location where Harvey saw the men put marijuana and guns
on the hood of the car he had been riding in, a white Chevy
Malibu.    He then left in the Malibu with his brother and cousin,
and rode with them until he was apprehended by the police later


                                - 5 -
                               - 6 -                       No. 105

that evening.
          As the prosecutor foretold, Harvey's credibility was
questionable.   Defense counsel sought to establish Harvey's
penchant for fabrication.   He cross-examined Harvey about his
false statements to the police, including his initial denials of
any knowledge about the crimes, and his attempts to minimize his
role after he was identified as the driver.   Although Harvey told
the court at his plea that he was the driver, he contradicted
this statement at defendant's trial and downplayed his
involvement, saying he was a passenger and that his brother drove
to the crime scene.1
          The circumstances surrounding Harvey's identification
of defendant were particularly troubling.   Harvey admitted that
he initially failed to pick out defendant from a photo array a
month after the shooting, only to identify him from a second
photo array another month later, while Harvey was incarcerated
and awaiting trial on charges of murder and robbery for the
Dotson shooting.   After Harvey identified defendant, Harvey
entered a plea agreement whereby he would receive a 10-year
sentence, in exchange for pleading guilty to robbery in the first
degree and testifying against defendant and the other
participants in the crimes.
          The Appellate Division reversed defendant's conviction


     1
      Harvey claimed that his attorney at the plea told him to
say he was the driver.

                               - 6 -
                                - 7 -                       No. 105

and ordered a new trial, concluding that the trial court wrongly
excluded the expert testimony on witness identification because
there was little or no corroborating evidence connecting
defendant to the crime, and Harvey's testimony established that
he was a person of dubious credibility, whose identification of
defendant was itself unreliable.   In my opinion, there is no
merit to the People's appeal.


                                III.
          The People argue that the trial court did not abuse its
discretion by denying defendant's request to admit expert
evidence on the reliability of eyewitness identification because
Harvey's observations of defendant were sufficient to corroborate
J.J.'s identification, rendering the expert's testimony
unnecessary.   In the alternative, the People request a Frye
hearing to determine if the expert testimony is admissible, thus
providing a basis for a new trial.
          In the wake of the growing body of research on factors
impacting the reliability of eyewitness identifications, and the
data establishing a connection between misidentifications and
wrongful convictions, we have encouraged courts to admit expert
testimony on eyewitness identifications in appropriate cases, as
a means to educate the jury about these factors (Santiago, 17
NY3d at 669, quoting People v Drake, 7 NY3d 28, 31 [2006] and
People v Young, 7 NY3d 40, 45 [2006]).   This type of expert


                                - 7 -
                               - 8 -                        No. 105

testimony is particularly useful to the jury because research
shows that jurors tend to find eyewitness identification
extremely believable and treat certain factors as good indicators
of accuracy, even though research suggests that some of these
factors impact adversely on the reliability of eyewitness
testimony (see John C. Brigham & Robert K. Bothwell, The Ability
of Prospective Jurors to Estimate the Accuracy of Eyewitness
Identifications, 7 Law & Hum Behav 19, 28 [1983]; Kenneth A.
Deffenbacher, et al., A Meta-Analytic Review of the Effects of
High Stress on Eyewitness Memory, 28 Law & Hum Behav 687, 699
[2004]; Brian H. Bornstein, et al., Effects of Exposure Time and
Cognitive Operations on Facial Identification Accuracy: A
Meta-Analysis of Two Variables Associated with Initial Memory
Strength, 18 Psych, Crime, and L [2012]).
           The admission of expert testimony on the accuracy of
eyewitness identification rests within the discretion of a trial
court, after "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 668-69, citing Lee, 96 NY2d at
163).   Nevertheless, "there are cases in which it is unfair to
deprive the jury of expert testimony about the reliability of
eyewitness observations" (People v Oddone, 22 NY3d 369, 379
[2013]).   In such cases it is an abuse of discretion to exclude
expert testimony (LeGrand, 8 NY3d at 456).


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                               - 9 -                         No. 105

           In LeGrand, the Court "established a two-stage inquiry"
governing this exercise of a trial court's discretion (Santiago,
17 NY3d at 669, quoting LeGrand, 8 NY3d at 452).   Under the first
stage, the trial court must determine "whether the case 'turns on
the accuracy of eyewitness identifications and there is little or
no corroborating evidence connecting the defendant to the crime'"
(id.).2   Where there exists sufficient corroborating evidence, it
is reasonable for a trial court to conclude that the eyewitness
identification is "quite unlikely to be mistaken, and that
[expert] testimony would be an unnecessary distraction for the
jury" (Young, 7 NY3d at 46).   However, if the corroborating
evidence, or witness, presents reliability issues, a trial court
has no basis to assume a jury will not benefit from expert
testimony on factors affecting the accuracy of eyewitness
identification, and the scales tip in favor of allowing the
expert to testify, if otherwise qualified.   This is especially so
when the eyewitness testimony is subject to the type of factors
that place its reliability in doubt.


     2
      Contrary to the majority's contention, LeGrand did not
simply list factors to be considered or ignored by courts without
guiding standards and structure (majority op at 5-6). Rather,
LeGrand established a legal framework with specific areas of
inquiry, to be applied by courts when determining the
admissibility of expert testimony on eyewitness identification
(see Santiago, 17 NY3d at 669, quoting LeGrand, 8 NY3d at 452
[LeGrand "set out standards governing the discretion of trial
courts in regard to the admission of expert testimony on
eyewitness identification [and] established a two-stage inquiry
for considering a motion to admit such testimony"]).

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                              - 10 -                         No. 105

          For example, in Santiago, no physical evidence linked
the defendant to an assault in a subway station, but the victim
and two other eyewitnesses identified the defendant as the
assailant.   Several factors impacted the accuracy of the victim's
identification.   The defendant was a stranger to the victim, and
the assailant's face was partially concealed during the attack by
his clothing and hat, such that the victim could not see the
assailant's hair and his face was not visible "[f]rom the middle
of his top lip, down, and from the top of his eyebrows up"
(Santiago, 17 NY3d at 664).   The Court held that the trial court
abused its discretion in denying defendant's request to admit
expert testimony on eyewitness identification, rejecting the
People's argument that the non-victim witnesses connected
defendant to the crime.   The Court determined that these
eyewitnesses were insufficient to support exclusion of the expert
because "several factors call[ed] the corroborating
identifications into question" (id. at 673).3   One eyewitness,


     3
       The defendant sought to admit expert testimony concerning
the impact on eyewitness recognition of "exposure time (the
amount of time available for viewing a perpetrator affects the
witness's ability to identify the perpetrator); cross-racial and
cross-ethnic inaccuracy (non-Hispanic Caucasian eyewitnesses are
generally less accurate in identifying Hispanic people than in
identifying other non-Hispanic Caucasians); weapon focus (a
victim's focus on the weapon used in an assault can affect
ability to observe and remember the attacker); lineup fairness
(similarity of fillers to the suspect increases identification
accuracy); lineup instructions (police instructions indicating
that the police believe the perpetrator to be in the lineup
increase the likelihood of false identification); forgetting

                              - 10 -
                              - 11 -                       No. 105

like the victim, only partially viewed the assailant's face, and
picked out defendant from a lineup with "only 80% confidence."
The Court also recognized that this his memory may have been
tainted by having seen a newspaper photograph of the defendant
linking him to the crime the day after he initially viewed the
lineup.   Similarly, the other eyewitness's identification of the
defendant "may have been influenced by his memory of the police
artist's sketch of the assailant, calling into question the
independence of this evidence" (id.).
          However, where the corroborative evidence has a "strong
indicia of accuracy" (id. at 671), the trial court may exercise
its discretion to exclude expert testimony which might confuse
and distract the jury from principal matters in the case (Oddone,
22 NY3d at 379).   Thus, this Court found in People v Lee, that



curve (the rate of memory loss for an event is greatest right
after the event and then levels off over time); postevent
information (eyewitness testimony about an event often reflects
not only what the witness actually saw but also information the
witness obtained later); wording of questions (eyewitness
testimony about an event can be affected by how questions put to
the witness during investigation are worded); unconscious
transference (eyewitnesses sometimes identify as the culprit an
individual familiar to them from other situations or contexts);
simultaneous versus sequential lineups (witnesses are more likely
to make mistakes when they view simultaneous lineups than when
they view sequential lineups); eyewitness confidence issues (an
eyewitness's confidence level is not a good predictor of
eyewitness accuracy, but eyewitness confidence is the major
determinant in whether an identification is believed by jurors),
and confidence malleability (eyewitnesses' confidence levels can
be influenced by factors unrelated to identification accuracy)"
(Santiago, 17 NY3d at 666-67).

                              - 11 -
                              - 12 -                         No. 105

the victim's identification of the defendant as the person who
stole his car was sufficiently corroborated by evidence that the
defendant was arrested driving the stolen vehicle (96 NY2d 157,
163 [2001]). In that case, the Court also noted that the
circumstances under which the victim observed the defendant
supported its reliability.   In People v Young, a home invasion
and robbery case, the eyewitness saw only part of defendant's
face and "retained a 'mental image' only of his eyes" (7 NY3d at
42). Yet the Court agreed that there was sufficient corroboration
evidence to link defendant to the crime because the "stolen
property was found in possession of two of defendant's
acquaintances; neither of [whom] could have been the robber," and
one of the acquaintances admitted she got the property from the
defendant (id. at 46).
          In People v Allen, eyewitnesses independently
identified the defendant as the knife-wielding member of a two-
man team of masked intruders in a barbershop robbery.    The first
eyewitness "quickly recognized" the defendant because he
regularly encountered him in the neighborhood, was familiar with
his voice, and also knew his nickname -- the same nickname
defendant provided to the police upon his arrest.   When the
police arrived at the barbershop, this eyewitness provided a
description and information about the defendant and subsequently
picked out the defendant from photos in mug books and a photo
array.   This identical photo array was shown the same day of the

                              - 12 -
                               - 13 -                         No. 105

robbery to the second eyewitness who immediately identified the
defendant's photo, and who also knew defendant from the
neighborhood (Allen 13 NY2d at 262; Santiago, 17 NY3d at 670
[discussing Allen: the "[t]wo witnesses recognized the robber
with the knife as an individual whom they knew from the
neighborhood"]).   The second eyewitness had a close view of the
defendant because the defendant had searched him for jewelry and
stood near him during the robbery.      Both eyewitnesses separately
identified defendant from a lineup four months later.     Under
these circumstances, the Court concluded that the trial court did
not abuse its discretion in denying expert testimony because "the
corroborating identification possessed strong indicia of
accuracy.   In particular the defendant . . . was known to the
second eyewitness who recognized him during the robbery"
(Santiago, 17 NY3d at 671, discussing Allen, 13 NY2d at 269).
            Here, there is no question that J.J.'s identification
was central to the People's case since it was the only direct
evidence linking defendant to the crimes.     The sole question is
whether Harvey provided sufficient corroborating evidence to
"significantly diminish[] the importance of the proffered expert
testimony" (Young, 7 NY3d at 46).    The corroborating evidence
must be sufficiently reliable that a trial court may conclude
with some confidence that the eyewitness identification is "quite
unlikely to be mistaken, and that [expert] testimony would be an
unnecessary distraction for the jury" (id.).     The record does not

                               - 13 -
                              - 14 -                        No. 105

support such a conclusion in defendant's case.
           In contrast to Lee, Young, and Allen, and similar to
Santiago, there are factors suggesting that Harvey's
identification of defendant is unreliable, based on undisputed
facts placing his credibility in question.    Harvey initially
failed to identify defendant from a photo array a month after the
crimes, and only implicated defendant after Harvey had been
charged, arrested and held in jail awaiting trial for the murder
and robbery, which carried a possible life sentence.    He then
identified defendant after he was offered a ten-year sentence in
exchange for his plea, thus avoiding life in prison.    Although he
testified that the only condition of the plea was that he had to
testify and tell "his side of the story" at defendant's trial,
nevertheless he identified defendant right before his plea,
raising the specter of fabrication to secure a generous plea
deal.   He also admitted that while he was incarcerated, and
before he implicated defendant in the crimes, he saw news reports
that defendant had been charged with the same crimes as Harvey.
Most damaging to Harvey's credibility is the fact that he
implicated his brother and cousin in the crime, but not
defendant, even though he had seen defendant's picture in a
police photo array soon after the crimes.    Harvey's reason for
not identifying defendant at the time was that he did not know
everything about what happened.   This was simply unbelievable
given his role as the getaway driver.   Even if it was a tenable

                              - 14 -
                             - 15 -                          No. 105

excuse, it would not outweigh the other circumstances pointing to
his unreliability, just as the explanation provided by one
eyewitness in Santiago for failing to identify the defendant when
the opportunity first presented itself was not enough to offset
the insufficiency of the corroboration in that case.     There, the
eyewitness claimed that he did not tell the police he saw the
defendant in the lineup because he wanted to remain unknown due
to his immigration status (Santiago, 17 NY3d at 665).    If that
explanation was insufficient, Harvey's certainly fares no better.
          The fact that Harvey's reliability is suspect based on
his credibility, rather than the potential inaccuracy of his
identification, does not affect the analysis.4   Where
circumstances suggest the corroborating testimony is inaccurate--
as was the case in Santiago--those circumstances weigh in favor
of admitting the expert testimony, and failure to do so
constitutes an abuse of discretion (Santiago, 17 NY3d at 673).
Similarly, where the credibility of the corroborating witness is
questionable, the trial court must consider this as tipping in
favor of admission of the expert testimony.   All the more so when
the corroborating witness has an apparent incentive to
misidentify the defendant, such as for example, a plea deal where


     4
      I do not agree with the Appellate Division's conclusion
that Harvey's memory was unreliable based on factors impacting
Harvey's ability to view defendant and that defendant was a
stranger. The record establishes that Harvey observed defendant
for a period of time the evening of the robbery.

                             - 15 -
                               - 16 -                          No. 105

the witness's testimony ensures that he avoids a murder
conviction and a possible life sentence.    Under the facts of this
case, a jury could very well have found Harvey incredible, and
relied solely on J.J.'s identification testimony.    This is
exactly the type of uncorroborated, single witness case for which
we have explained it is most appropriate that the jury hear
expert testimony on factors impacting the accuracy and
reliability of witness identification.
            This does not mean that codefendant or coparticipant
testimony can never provide corroboration, or that a beneficial
plea deal renders such testimony "incredible."    "Whether a
victim's or other eyewitnesses's identification of a defendant is
sufficiently corroborated by other eyewitness identifications, so
that the trial court need not proceed to the second stage of the
LeGrand analysis, is dependent on the circumstances of the case"
(Santiago, 17 NY3d at 671).    Here, the facts undermining Harvey's
credibility compel the conclusion that his testimony lacks "the
strong indicia" necessary to sufficiently corroborate J.J.'s
eyewitness identification of defendant (see id.).
            Furthermore, J.J.'s identification was subject to the
types of factors that have an impact on eyewitness memory and
accuracy.    His observations of the four men involved in the crime
were made under highly stressful conditions, which can affect
memory (see People v Abney, 31 Misc 3d 1231 [A] [Sup Ct, NY
County 2011] [on remand, permitting expert testimony on event

                               - 16 -
                               - 17 -                        No. 105

stress]; Deffenbacher, et al., A Meta-Analytic Review of the
Effects of High Stress on Eyewitness Memory, 28 Law & Hum Behav
at 699).   J.J. watched as Dotson was murdered, and he himself
survived apparently because the gun pointed to his head misfired.
J.J. had his head down for most of the time and was pistol
whipped early during the robbery, minimizing the opportunity to
observe his assailants.   Also, defendant was a stranger to J.J.--
as were the other intruders.
           Since the People's case depended on J.J.'s
identification testimony, which was uncorroborated, the trial
court should have proceeded to the second stage of the LeGrand
inquiry (Santiago, 17 NY3d at 669).     Here, there is no question
that the testimony is "relevant to the witness's identification
of defendant," "on a topic beyond the ken of the average juror,'"
and that defendant proffered an expert witness facially qualified
(see id.).   Indeed, in another case the same judge qualified the
identification expert originally offered by defendant (see People
v Norstrand, 35 Misc 3d 367, 373 [Sup Ct, Monroe County 2011]).
Furthermore, because the court failed to grant a Frye hearing, I
assume that the matters identified by the defendant are
encompassed within generally accepted scientific principles
(Oddone, 22 NY3d at 379).   Thus, the expert should have been
permitted to testify.
           Lastly, the error was not harmless, as the proof of
defendant's guilt was not overwhelming (People v Crimmins,

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                                 - 18 -                            No. 105

36 NY2d 230, 242).   Indeed, there was no physical evidence that
tied defendant to the crime, and only J.J. identified defendant
as one of the men inside the barbershop.          For the reasons I have
explained, the defendant is entitled to a new trial and the
Appellate Division order should be affirmed.
*   *   *   *   *    *   *   *     *      *   *    *   *   *   *     *   *
Order reversed and case remitted to the Appellate Division,
Fourth Department, for consideration of the facts and issues
raised but not determined on the appeal to that court, in a
memorandum. Chief Judge DiFiore and Judges Pigott, Stein and
Garcia concur. Judge Rivera dissents and votes to affirm in an
opinion in which Judges Abdus-Salaam and Fahey concur.

Decided June 28, 2016




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