1. Whether negative identification evidence can be part of the prosecution's case in chief.
2. Whether an individual who fails to appear in response to an order that was issued while he was not yet subject to an outstanding indictment can be convicted of bail jumping in the first degree.
1. Yes. Negative identification evidence is admissible.
2. No. An outstanding indictment must exist at the time of the release on condition of appearance in order to support a conviction of bail jumping in the first degree.
Arrested in a police "buy and bust" operation for the alleged sale of cocaine, Christopher Wilder failed to appear in court and was subsequently convicted In New York County Supreme Court of criminal sale of a controlled substance in the third degree and bail jumping in the first degree. The Appellate Division, First Department, affirmed judgment of conviction and sentence.
Wilder asked the Court of Appeals to reverse, arguing, among other things, that the courts below erred in not reducing the charge to bail jumping second degree since Wilder faced only an unindicted felony charge when he was released on bail. Wilder also challenged the admission of "negative identification evidence." A Detective Brown was permitted to testify that when other officers apprehended a suspect later that afternoon, who in important particulars met the initial description of the perpetrator, he observed the suspect and told the officers that it was not the individual who had participated in the drug sale. That suspect ultimately was exonerated from any complicity in the sale.
The Court of Appeals concluded that the trial court did not abuse its discretion in allowing the negative identification testimony.
The Court did hold, however, that the facts did not support defendant's conviction for bail jumping in the first degree and, therefore, modified the judgment by reducing defendant's conviction to bail jumping in the second degree.