People v. Herner, 649 N.E.2d 1198 (N.Y. 1995). · Go Syfert
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People v. Herner, 649 N.E.2d 1198 (N.Y. 1995). Cases Citing This Book View Copy Cite
27 citation events (23 in the last 25 years) across 5 distinct courts.
Strongest positive: The People v. Kaity Marshall (ny, 2015-12-17)
Treatment trajectory · 1996 → 2026 · click a year to view as-of
1996 2011 2026
Top citers, strongest first. 10 distinct citers. How cited ↗
discussed Cited as authority (rule) The People v. Kaity Marshall (2×)
NY · 2015 · confidence medium
Although I agree with the majority that the Herner dichotomy, between trial preparation on the one hand and identification procedures on the other (see People v Herner, 85 NY2d 877, 879 [1995]), is not conceptually valid and should not be used to shield from Wade scrutiny pretrial prosecutorial photo displays to an identifying witness, I cannot agree that defendant was afforded the Wade hearing to which she was decidedly entitled, much less that the People at the hearing held met their initial Wade burden to demonstrate the nonsuggestiveness of the subject photo display.
discussed Cited as authority (rule) People v. Parker
N.Y. App. Div. · 2015 · confidence medium
We conclude that this was not a police-arranged identification procedure within the meaning of CPL 710.30 (see id. at 162-164) but, rather, the People were merely preparing the witness for trial with the use of that evidence (see generally People v Herner, 85 NY2d 877, 879 [1995]; People v Ortiz, 1 AD3d 1017, 1018-1019 [2003], lv denied 1 NY3d 632 [2004]).
discussed Cited as authority (rule) People v. Parker
N.Y. App. Div. · 2015 · confidence medium
We conclude that this was not a police-arranged identification procedure within the meaning of CPL 710.30 (see id. at 162-164) but, rather, the People were merely preparing the witness for trial with the use of that evidence (see generally People v Herner, 85 NY2d 877, 879 [1995]; People v Ortiz, 1 AD3d 1017, 1018-1019 [2003], lv denied 1 NY3d 632 [2004]).
discussed Cited as authority (rule) People v. Bulgin
N.Y. Sup. Ct. · 2010 · confidence medium
(People v Herner, 85 NY2d 877, 879 [1995] [conviction affirmed; prosecutor’s showing of photograph of lineup to victim the night before and the morning of her trial testimony was “clearly preparation for trial,” and was not an identification procedure within the meaning of CPL 710.30; defendant was given opportunity to question victim at hearing outside presence of the jury to explore whether manner in which photo array was shown to her was suggestive]; see also People v Williams, 8 AD3d 74 [1st Dept 2004] [prosecutor properly displayed photographs of defendant and other suspects to witn…
discussed Cited as authority (rule) People v. Jackson
N.Y. App. Div. · 2007 · confidence medium
The review of the recordings by the Cl— who wore the transmitter and participated in the recorded conversations with defendant and reviewed the tapes for the first time just prior to testifying—constituted trial preparation and not identification procedures within the ambit of CPL 710.30 and, thus, no notice regarding the Cl’s review was required (see People v Herner, 85 NY2d 877, 879 [1995]; People v Hopkins, 284 AD2d 223, 223 [2001], lv denied 96 NY2d 902 [2001]; People v Glover, 266 AD2d 862, 863 [1999], lv denied 94 NY2d 862 [1999]; People v Clark, 203 AD2d 935, 936 [1994], lv denied…
discussed Cited as authority (rule) People v. Ortiz
N.Y. App. Div. · 2003 · confidence medium
Moreover, the victim’s viewing of the videotape depicting defendant, which was initially accomplished without the involvement of police, was not an identification procedure requiring notice pursuant to CPL 710.30 (see generally People v Gee, 99 NY2d 158,162 [2002]; People v Herner, 85 NY2d 877, 879 [1995]).
discussed Cited "see" Khan v. Capra
E.D.N.Y · 2020 · signal: see · confidence high
See People v. Turner, 840 N.E.2d 123, 126 (N.Y. 2005) (a single failing in an otherwise competent performance must be so “egregious and prejudicial” as to deprive a defendant of his constitutional right). witness preparation” under the New York Court of Appeals decision in Herner, 85 N.Y.2d at 877 .
discussed Cited "see" People v. Jerold
N.Y. App. Div. · 2000 · signal: see · confidence high
The People met their initial burden of establishing that the conduct of the police was reasonable and that the photo array was not unduly suggestive, and defendant failed to meet his “ultimate burden of proving that the procedure was unduly suggestive” (People v Chipp, 75 NY2d 327, 335 , cert denied 498 US 833 ; see, People v Lee, 207 AD2d 953 , lv denied 85 NY2d 864 ). “[G]iven that defendant had already been identified” by the witness, the fact that she subsequently viewed the photo array and another photograph of defendant prior to testifying constituted proper trial preparation and…
discussed Cited "see, e.g." People v. Grajales
NY · 2007 · signal: compare · confidence medium
Gee, 99 NY2d at 163 ; People v Moss, 80 NY2d 857, 858 [1992]; Rodriguez, 79 NY2d at 448-449 ; People v Laing, 79 NY2d 166, 169 [1992]; People v Gissendanner, 48 NY2d 543, 552 [1979]; compare People v Herner, 85 NY2d 877, 879 [1995] [finding notice was not required where prosecutor showed witness lineup photographs in preparation for trial “because there was no identification procedure under CPL 710.30”]).
discussed Cited "see, e.g." People v. Glover
N.Y. App. Div. · 1999 · signal: see also · confidence low
The viewing of photographs by the police officer before trial constituted trial preparation, not an identification procedure (see, People v Morales, 248 AD2d 173 , lv denied 92 NY2d 857 ; see also, People v Herner, 85 NY2d 877, 879 ).
Retrieving the full opinion text from the archive…
The People of the State of New York, Respondent,
v.
William A. Herner, Appellant
New York Court of Appeals.
Mar 23, 1995.
649 N.E.2d 1198
APPEARANCES OF COUNSEL, Ronald C. Valentine, Public Defender of Wayne County (Peter J. Pullano, Rochester, of counsel), for appellant., Richard M. Healey, District Attorney of Wayne County, Lyons (Melvin Bressler, Rochester, of counsel), for respondent.
Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick Concur.
Cited by 19 opinions  |  Published

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was charged in an indictment with robbery in the first and second degrees based on allegations that he, acting in concert with another, forcibly stole property from Shar’s Petland Store in Ontario, New York. Pursuant to CPL 710.30 (1) (b), the People gave notice to the defendant that they intended to offer evidence of a previous lineup identification of the defendant by the complainant. Following a Wade hearing, County Court determined that the complainant would be permitted to identify the defendant at the time of trial as the one who committed the robbery and would also be permitted to give testimony regarding the identification of defendant in a lineup (see, CPL 60.30). The court determined that there was nothing impermissibly suggestive about the lineup procedure.

Prior to trial the prosecutor was preparing the victim for her trial testimony and permitted her to view a photograph of the lineup where she had previously identified defendant and asked her if she remembered the lineup. The victim indicated that she did and preparations continued. The victim again viewed the photograph the morning of her trial testimony. During the trial, it was learned that the complainant was[*879] shown a photo of the lineup the night before her trial testimony. The court then allowed defendant to have a hearing outside the presence of the jury at which complainant was questioned relative to the manner in which the photo was shown to her and whether there was any suggestibility. Following the hearing, the court denied defendant’s oral motion to suppress identification testimony based on a failure to give notice pursuant to CPL 710.30. Subsequently, after a jury trial, defendant was convicted of robbery in the first degree and robbery in the second degree.

The Appellate Division affirmed, determining that showing the earlier lineup photograph to the complainant before her trial testimony was preparatory, requiring no notice under CPL 710.30.

We agree with the trial court and the Appellate Division that no notice was required because there was no identification procedure under CPL 710.30. The prosecutor’s showing the victim a photograph of the lineup was clearly preparation for trial.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed in a memorandum.