Quentin Abney - Mistaken Witness ID

Abney, Quentin; robbery; NRE: mistaken witness identification

[867:1]; 1st Dept. 10/14/18; affirmed, but two dissenters

"[Abney] was convicted of robbing a 13-year-old girl at knifepoint based on the victim's eyewitness testimony. [Abney] argues that the conviction should be reversed, and the case remanded for a new trial, based on the trial court's refusal to permit the defense to present expert testimony on the reliability of eyewitness identifications. We disagree.

"On June 2, 2005, at 3:30 p.m., as 13-year-old Farhana U. walked down the well-lit stairway into the subway starion at Essex and Delancey Streets, she saw [Abney] [???] coming up the stairs towards her. When he was about two feet away from her, and she could clearly see his face, he asked her for some change. Farhana, who at that point was not frightened and did not believe that [he] intended to harm her, told [him] that she had no change. [He] at first continued walking up the stairs, and Farhana took a couple of steps down. Then, [he] suddently came around in front of ner, held a knife close to her neck, and demanded a couple of times, in a harsh voice, that Farhana give him the necklace she was wearing, a gold chain with a heart-shaped locket. Farhana was frightened, and screamed 'no' three or four times, but [he] ripped the chain from her neck and fled up the stairs.

"Police Detective Samuel DeJesus interewed Farhana in the presence of her brother. Farhana seemed frightened to DeJesus. She described the person who robbed her as a black male, over six fet tall, with pinkish lips, wearing a blue short-sleeved shirt and a blue bandana. DeJesus, having worked on the investigation of a robbery committed in the same geneal area on May 28, recognized a possible connection, and prepared a photographic array that included [Abney], who had been arrested for the May 28 robbery. Within an hour of the June 2 robbery, Farhana picked [Abney] out of the photgraphic array.

"On [Abney's] case he presented an alibi defense. It was [his] position that he could not have robbed Farhana at 3:20 p.m. on June 2 at the Essex/Delancey subway station because he had picked up the daughter of his fiancee at 3:00 p.m. that day at a school, located at 933 Herkimer Street in Brooklyn. To buttress this claim, [he] offered in evidence a sign-in/sign-out sheet purporting to document, by virtue of his signature thereon, that [he] had in fact made that pickup at the time he claimed. [His] fiancee, Mary Nimmons, testified that she obtained the sign-in/sign-out sheet from Carolyn Murphy, her daughter's assistant teacher."

[889:890]; Court of Appeals 10/27/09; reversed (as to Abney), due to evidentiary error

"Defendants in both of these cases unsuccessfully sought to introduce exert testimony on the reliability of eyewitness identification. The question for us is to decide whether...the trial courts abused their discretion when disallowing this testimony. We conclude that the trial judge in Abney abused his discretion..."

[In Nickel's case, Judge Paul Czajka 'abused his discretion' by denying testimony from a photiography expert that the adult pictured in the sexual photo -- which was central to that case -- was not Nickel. But, unfortunately, the Court of Appeals declined to hear Nickel's appeal.]

[6] "No physical or forensic evidence tied Mr. Abney to the crime.

"Mrs. Murphy, the [daughter's] teacher, testifed that Mr. Abney picked up [the daughter] at [3 p.m.]. The witnesses who were allowed to testify stated that they saw Mr. Abney walking [the daughter] home from school on the day of the crime shortly after 3:00 p.m."

"[T]he State does not dispute that the prosecutor knowingly provided the jury a document that she did not show to the Defense, a log sheet dated June 2nd but differing from Exhibit G [i.e., the one referred to further above]. The prosecutor...exploited this...by arguing during summation that Mr. Abney and Ms. Nimmons concocted an alibi, picked up the log sheet that was ultimately submitted as Defense Exhibit B...and that Defense Exhibit G was fraudulent."

"The trial court also erred in precluding the Defense from presenting two witnesses, neither of whom was related to Ms. Abney or Ms. Nimmons or had a criminal record. One would have testified that he saw Mr. Abney walking with [the daughter] in Brooklyn shortly after 3:00 p.m. on the date of the robbery, and the other would have testified that she saw Mr. Abney at home in Bedford-Stuyvesant at the time of the commission of the crime."

[8] "Defense counsel obtained the original of the June 2nd sign-out sheet, submitted as Defense Exhibit G, which places [Abney] in Brooklyn at 3 p.m., making it impossible for him to have made it to Delancey and Essex Streets in Manhattan in time to commit the robbery there at 3:20 p.m...."

"Additionally, numerous other facts, which the State ignores, substantiate Mr. Abney's innocence and are inconsistent with [9] any fnding that Mr. Abney fabricated an alibi. First, the State totally ignores the fact that Ms. Murphy testified both that Mr. Abney picked up [the daughter] on June 2nd, and that Ms. Nimmons picked up a copy of Defense Exhibit G, not the original that was submitted into evidence...Second, in her affidavit accompanying the post-trial motion, defense counsel Rene Leviton attested that the administrator of [the daughter's] school stated that both log sheets were kept 'under lock and key,' which indicates that the log sheets could not readily be tamperred with, and therefore similarly substantiates [Abney's] alibi...Finally, there were four witnesses who observed [Abney] picking up [the daugher] from school near the time of the chain-snatching."

[Emphasis original.]

o) Please put the following at the very end of the 'Photography Expert' section: In the defense brief for the Quentin Abney wrongful conviction, there's a very interesting paragraph which addresses the need for and admissibility of expert testimony:

[10] "In arguing that the proffered testimony was not beyond the ken of the average juror, The State seeks to rewrite precedent to create the untenable result that expert testimony would almost never be required in any case. First, the State argues that expert testimony is not beyond the ken of the average juror if it addresses topics which are arguably within the juror's own experience in any way... This, however, is not the law. In People v. Young, 7 N.Y.3d 40 (2006), the Court stated that proposed testimony is outside the ken of the jury when 'specified knowledge of the expert can give jurors more perspective than they can get from their day-to-day experience.'...Contrary to the state's analysis, testimony that is consistent with lay knowledge can provide the jury with useful additional information. See, e.g., People v. Radcliffe, 191 Misc. 2d 545, 546 (Sup. Ct. Bronx County 2002) ('expert identification testimony, while confirming something a typical juror may know or be told in jury instructions, may nonetheless be required in order to add specialized information about the subject that is beyond the ken of the juror and relevant to the facts at hand')...Moreover, the State's contention that expert testimony is not necessary on topics that are not 'rocket science' and that can be dealt with by common sense...is directly [11] contrary to LeGrand [8 N.Y.3d 449 (2007)] and related cases which recognize that it is exactly on these seemingly common-sense topics that expert testmony may be most required."

NRE synopsis (by Maurice Possley):

"In March 2006, Abney went to trial in New York County...Court. Farhana...denied that police told her ahead of time that there was a suspect in the lineup. During cross-examination of Detective [Ernest] Dorvil, he admitted that he let Farhana know ahead of time that a suspect was included."

"The defense contended Abney was elsewhere at the time of the crime. Abney's girlfriend, Mary Nimmons, testified that at or around the time of the robbery, he was picking up her daughter from preschool in Brooklyn and that he then brought her to Nimmons's home in Brooklyn...Two of Abney's cousins who were at Nimmons's home also testified he was there."

"In January 2012, Abney went to trial a second time. His...lawyer, Kathleen Hardy...called Jennifer Dysart, a professor at John Jay College of New York and expert on eyewitness identification. She testified that Farhana's brief exposure to the robber and the trauma of having a knife put to her neck and her necklace ripped away were factors that could cause someone to make a mistake.

"On January 19, 2012, the jury acquitted Abney and he was released." [All emphases added unless otherwise noted.]