A trial court erred by not granting a defendant’s motion to suppress evidence obtained through a “showup” identification, in which a criminal suspect is presented in person to a victim or witness of a crime, an appellate court said in ordering a new trial.

A 3-1 majority of the Appellate Division, Second Department, panel held in People v. James, 382/11, that the use of showup identification by Newburgh police to arrest Kenyatta James on suspicion of robbing a woman at knifepoint was “unduly suggestive” and that Orange County Supreme Court Justice Jeffrey Berry should have granted James’ motion to suppress identification testimony.

James was convicted of first-degree robbery and third-degree criminal possession of a weapon and sentenced to 17 years in prison.

The case is rooted in a July 30, 2010 incident, in which a 22-year-old woman called 911 and said she had been robbed.

During the call and in a subsequent interview with a police officer, the woman described her assailant as a light-skinned black male about 20 years old, 6 feet tall and wearing jeans and a brown-and-white striped shirt. She told police the man had walked her home but then robbed her at knifepoint, fleeing the scene with her purse.

James, who was 33 years old at the time, stands 5 feet 8 inches tall and was wearing shorts and a red-and-blue striped shirt on the day of the robbery.

The officer who interviewed the victim put out a call over the radio with the description of the suspect as a light-skinned black male wearing a brown-and-white shirt.

A detective who heard the officer’s call spotted James near the robbery scene, shirtless but carrying a shirt in his hand, and saw James duck behind a parked vehicle.

Officers detained James until the victim could be brought in for a showup identification. They found a red-and-blue striped shirt near a parked vehicle. During a pat-down, an 8-to-10 inch serrated blade was found in James’ pants pocket.

When the victim arrived, James had his hands cuffed and several officers stood nearby. The victim initially hesitated to identify James as the robber, but when an officer held up the striped shirt found at the scene across James’ chest, the victim said he was the assailant, and he was arrested.

The majority of the Second Department panel wrote that the “active police involvement in the identification process” made the process unduly suggestive.

“Although the complainant saw the shirtless defendant, she did not identify him as the perpetrator until after the police held the striped shirt up against him,” the panel wrote. “This action by the police is akin to the police having pointed out the defendant as the perpetrator.”

Justices Thomas Dickerson, Jeffrey Cohen and Colleen Duffy composed the majority.

In his dissent, Justice Mark Dillon said he would have upheld the conviction. Dillon wrote that showup identifications—while “disfavored”—-can be reasonable under circumstances such as “temporal and geographic proximity to the crime” and when the identification is “not being performed in a manner that is unduly suggestive.”

James was identified two blocks from the crime scene, Dillon noted, and about 10 minutes after the robbery took place.

Dillon wrote that rulings in People v. Dennis, 125 AD2d 325, and People v. Mayers, 100 AD2d 558, are controlling in James.

In Dennis, the Second Department upheld a showup identification in which a handcuffed burglary suspect was made to wear the black jacket and cap he allegedly wore during the break-in. In Mayers, the court upheld an identification in which a suspect was made to don a black turtleneck he allegedly wore while committing a robbery.

The majority, however, disagreed with Dillon that Dennis and Mayers control, as James involves police officers holding apparel against a defendant rather than requiring him to don it.

“Here, the draping of the shirt was neither requested by, nor undertaken at the behest of, the complainant; it was solely police initiated when the complainant initially failed to identify the defendant,” the majority said.

Mary Zugibe Raleigh, a Warwick solo attorney who represented James on appeal, said that the Second Department “did the right thing” by reversing Berry’s decision.

While showup identifications can be done correctly, Zugibe Raleigh said, they can lead “to a lot of problems,” as some victims might believe the “cops are always right” and would be unlikely to doubt that officers had apprehended the right suspect. Using photo arrays and lineups are better methods of identifying suspects, Zugibe Raleigh said.

James has maintained his innocence.

Dennis McCormick of the Legal Aid Society of Orange County represented James at trial.

Assistant Orange County District Attorneys Elizabeth Schulz and Andrew Kass argued the case on appeal.

The majority acknowledged that the time the complainant spent with the robber—at least an hour—gave her an independent source for her in-court identification. But given the fact that defendant’s conviction rested solely on her testimony, it concluded that the court’s error was not harmless beyond a reasonable doubt.

“We believe the court misapplied the law as to the independent source for the identification and we intend to seek review in the Court of Appeals,” said Orange County District Attorney David Hoover in a statement to the Law Journal.