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Fourth Department – Show-up identification: People v. Desmond

New York State Supreme Court, Appellate Division, Fourth Judicial Department

 Show-up identification

Handcuffed – Voice identification

People v. Desmond

KA 17-00344

Appealed from Monroe County Court

Background: The defendant appealed from his conviction of burglary and robbery. He argues that the show-up identification procedures involving the two victims were unduly suggestive and ought to have been suppressed.

Ruling: The Appellate Division reserved and remitted. The court held that the show-up procedure was reasonable under the circumstances noting that the visual show-up procedure involving one of the victims was not rendered unduly suggestive by the fact that the defendant was in handcuffs and was illuminated by a police vehicle’s high beams. Furthermore, the voice identification procedure was not unduly suggestive, noting that the victim’s confidence in his identification increased the more the defendant spoke. The Appellate Division noted that there was no evidence that the county court ruled on the defendant’s trial order of dismissal and remitted the matter to court for a ruling on the motion.

Bradley E. Keem, of the public defender’s office, for the defendant-appellant; Martin P. McCarthy, II, of the district attorney’s office, for the respondent.

Oral argument video