People v Pollard

[*1] People v Pollard 2014 NY Slip Op 50291(U) Decided on February 21, 2014 Supreme Court, Kings County Cyrulnik, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 21, 2014
Supreme Court, Kings County

The People of the State of New York

against

Javase Pollard, Defendant.



8879/2012



Kenneth P. Thompson, Esq., Kings County District Attorney, by Assistant District Attorney, Edwin Pieters, for the People of the State of New York.

Brooklyn Defender Services, by Joseph Indusi, Esq., for defendant, Javase Pollard.

Miriam Cyrulnik, J.

A combined Dunaway / Wade hearing was conducted before this court on November 26, 2013, December 2, 2013, December 17, 2013 and December 19, 2013. Both the People and the defendant called witnesses at the hearing. Counsels requested, and were granted, time to brief the issues raised during the hearing, and the court has considered those affirmations and memoranda of law.

The court recognizes that portions of the testimony given by the People's witnesses were contradicted by the testimony of defendant's witness, who happens to be the complaining witness in this matter. However, despite these contradictions, the court does not find that the testimony given by the People's witnesses was incredible as a matter of law. Although at odds with defendant's witness on some points, the court does not find that the testimony of the People's witnesses was "manifestly untrue, physically impossible, contrary to experience, ... self-contradictory" (People v Carmona, 233 AD2d 142 [1st Dept 1996]), "patently tailored to nullify constitutional objections, or otherwise unworthy of belief " (People v Hobson, 111 AD3d 958 [2d Dept 2013]); (see also People v Glenn, 53 AD3d 622 [2d Dept 2008], lv denied 11 NY3d 832 [2008]; People v Jay R., 259 AD2d 436 [1st Dept 1999]; People v Quinones, 61 AD2d 765 [1st Dept 1978]; People v Baldwin, 41 Misc 3d 1217(A) [Sup Ct, Queens County 2013]; and People v M.R., 26 Misc 3d 1213(A) [Sup Ct, Bronx County 2009]). Therefore, having had the opportunity to hear the testimony of the witnesses, observe their demeanor and assess their veracity, the court now makes the following findings of fact, based upon the material, relevant and credible evidence adduced:

Findings of Fact[*2]

On November 26, 2013, the People called Detective Joseph Augello. Detective Augello is assigned to the 67th Precinct, and has investigated over 200 cases in 3 years in that precinct.

On September 24, 2012, Detective Augello was assigned to investigate a robbery that occurred at 5708 Clarendon Road, in Kings County. He spoke to the complaining witness, Joshua Martinez, who was transported from the scene of the robbery to the 67th Precinct by Police Officer Rodriguez. Mr. Martinez reported that on September 24, 2012, between 3:00 p.m. and 3:20 p.m., he was approached by a male black, five foot eight to five foot nine inches in height, 19 to 20 years old, weighing between 120 and 130 pounds, wearing a green hooded sweatshirt and blue jeans. Mr. Martinez could not describe specific facial features, the hairstyle or the accent of the perpetrator.Mr. Martinez told Detective Augello that the male demanded his cell phone by stating "give me your phone" and, when Mr. Martinez refused to surrender it, placed him in a headlock. When Mr. Martinez managed to free himself from the headlock, the male displayed a shiny metal object, which Mr. Martinez believed to be a knife. He then surrendered the cell phone. Mr. Martinez sustained an injury to his neck, which may have been caused by being in the headlock or the struggle to escape it.

Detective Augello showed Mr. Martinez a binder of mugshot photographs known as the Electronic Recidivist Log. This binder, which is maintained by the Detective Squad, contained photographs of people who were previously arrested for cell phone robberies. Detective Augello did not know exactly how many photographs it contained or if the perpetrator's photograph was in it at the time Mr. Martinez viewed it, but he confirmed that the book contained one photograph per page. Mr. Martinez took approximately one minute to view the entire binder of approximately 20 photographs. He did not identify anyone in the binder.

While Mr. Martinez viewed the Electronic Recidivist Log, Detective Augello proceeded to enter the description of the perpetrator into the Police Department's Photo Manager System in order to generate photographs for Mr. Martinez to view. Detective Augello entered information such as height, weight, gender, ethnicity, race, precincts and type of crime in order to generate the photographs to be viewed by Mr. Martinez. As a result of his search, approximately 2,672 photographs were generated. The photographs are viewed on a computer monitor, which displays sets of six photographs per page.

According to Detective Augello,[FN1] after approximately 20 minutes, Mr. Martinez identified a photograph of the person he recognized to be the perpetrator of the robbery. Mr. Martinez viewed approximately 256 photographs before making the identification.[FN2] The 256 photographs viewed by Mr. Martinez comprised 46 pages of 6 photographs each. Mr. Martinez identified the perpetrator on page 46. None of those pages of photographs were preserved by the detective. However, a list of the arrest numbers associated with the photographs on the 46 pages [*3]viewed was generated.[FN3] Although he was aware of the existence of more than 1 photograph of the perpetrator, Detective Augello did not know if the perpetrator's photograph appeared more than once in the 46 pages viewed by Mr. Martinez. In response to a question by the court, he stated that, in his experience, he had never seen photographs repeat in the Photo Manager System.[FN4]

Once Mr. Martinez made the identification, Detective Augello printed the photograph and showed it to Mr. Martinez. Mr. Martinez wrote a brief statement on it and signed it. Detective Augello then created a wanted poster.[FN5] The wanted poster was not created using the photograph singled out by Mr. Martinez in the Photo Manager System, but a more current photograph generated through the perpetrator's NYSID number. Detective Augello identified defendant as the person depicted in the wanted poster.

Detective Augello also created an I-card, based upon Mr. Martinez' identification of defendant. This identified defendant to police personnel as a person to be stopped, arrested and brought to the 67th Precinct. Before creating the I-card, Detective Augello determined that defendant had no open warrants.

Detective Augello subsequently learned that Detective Henry Rivero placed defendant in a lineup on October 5, 2012.

On December 2, 2013, the People called Detective Henry Rivero. Detective Rivero was assigned to the 67th Precinct until July of 2013, when he was assigned to the 121st Precinct.

On October 5, 2012, the Warrant Squad brought defendant to the 67th Precinct in relation to the robbery of Joshua Martinez. Detective Rivero identified defendant as the person apprehended on October 5, 2012.

Detective Rivero placed defendant under arrest at the 67th precinct and then proceeded to contact Mr. Martinez about coming to the precinct to view a lineup. Mr. Martinez advised Detective Rivero that he was in school and would come in later in the day. Detective Rivero contacted Mr. Martinez' mother, who ultimately picked him up and brought him to the precinct. Detective Rivero did not tell Mr. Martinez or his mother that he had a suspect or someone previously identified in custody.

At approximately 2:45 p.m. on October 5, 2013, Detective Rivero conducted a lineup in the Detective Squad of the 67th Precinct. The Detective Squad is a well -lit, square room on the second floor of the precinct. It has a single door and no windows to the outside of the precinct. There is one viewing window.

Detective Rivero obtained five fillers for the lineup, stating that he tried to find fillers who resembled defendant as closely as possible. Two were individuals being detained in the precinct on unrelated matters. The remaining three were found in a nearby homeless shelter. [*4]Detective Rivero first brought the fillers from the homeless shelter to an interview room in the precinct. He then brought the two detainees to the same room. Defendant was then brought from a holding cell to the Detective Squad, after which the fillers were brought into the Detective Squad to form the lineup.

Detective Rivero described the members of the lineup by position number: 1) 22 years old, five feet, nine inches tall, 135 pounds; 2) 25 years old, six feet tall, 170 pounds; 3) 42 years old, five feet eleven inches tall, 210 pounds; 4) (defendant) 19 years old, five feet, nine inches tall, 165 pounds; 5) 28 years old, five feet, eleven inches tall, 235 pounds; 6) 27 years old, five feet, ten inches tall, 155 pounds.

Each individual in the lineup, including defendant, wore the same white t-shirt and blue surgical cap. They were all seated, with a green sheet covering them from the lap down. The t-shirts, surgical caps and sheet were used to cover any differences in clothing and hairstyles among the participants and, in the detective's words, "make it fair to the defendant."

While the lineup was being organized, Mr. Martinez was segregated in the Burglary/Robbery Squad office, which was a separate room with a windowless door that remained closed while he waited.

Mr. Martinez was brought to the Detective Squad to view the lineup. He was seated for the viewing,[FN6] which took place through a one-way mirror. Before the viewing commenced, Detective Rivero told Mr. Martinez that he would see six individuals, each holding a number. In the event that he recognized anyone, he was instructed to say the number of the individual and from where he recognized him. Mr. Martinez identified position number four, which was defendant's position. He indicated that number four was the person who robbed him. Although Detective Rivero described the Detective Squad as a brightly lit room, when shown a photograph of the lineup, he conceded that it appeared much darker than the actual conditions of the lineup.[FN7]

Detective Rivero testified that the individuals in the lineup remained seated and silent throughout the viewing. No one was asked to stand or speak.[FN8] According to Detective Rivero, the measurements of the fillers from the homeless shelter were provided by the fillers and first recorded on a Fund Expenditure Report. He explained that a correction to the height of filler number one on the Lineup Information Report was made, not from his personal observation, but when he transcribed the information from the Fund Expenditure Report to the Lineup Information Report after the lineup was conducted.[FN9]

Detective Rivero was not aware that Detective Augello had created a wanted poster. [*5]Nevertheless, he was sure that no wanted posters were hanging on the first floor of the 67th Precinct when Mr. Martinez came in to view the line up. Additionally, to his knowledge, there were no wanted posters featuring defendant in the precinct that day.

Finally, Detective Rivero testified that the file he relied upon during the hearing was reconstructed from NYPD computer records. He did not have his original file, the whereabouts of which he did not know.

On December 17, 2013, after making an application granted by the court, defendant called the complaining witness, Joshua Martinez. Mr. Martinez testified that on September 24, 2012, he was present at the 67th Precinct, where he viewed a book of photographs to determine if he recognized the person who had robbed him of his cell phone. Upon viewing the book of photographs, Mr. Martinez did not recognize anyone.

Mr. Martinez then viewed additional photographs by scrolling through them on a computer monitor. He recalled that, when he identified one photograph, he was asked if he was sure and told to keep looking to make sure he had he correct person. After continuing to look through them, he identified another photograph. He was not sure if both photographs were of the same person, since one looked to be more recent, while in the other the subject appeared to be younger. He did not know they were two photographs of the same person until the police confirmed it. Mr. Martinez could not recall how long he viewed the photographs on the computer monitor or how many pages he viewed. However, he recalled that the first photograph was on the second page and the second photograph was on the fourth page. He stopped looking after identifying the second photograph.

On October 5, 2012, Mr. Martinez returned to the 67th Precinct to view a lineup. He could not recall if he was directly contacted by a police officer, but did recall that his mother picked him up from school and brought him to the precinct.

Once at the 67th Precinct, Mr. Martinez noticed wanted posters on the walls, but did not see any that depicted the person who robbed him. He waited briefly downstairs before being brought upstairs to wait for the lineup. Once upstairs, he was shown the empty lineup viewing room. He then waited in another room until the lineup was ready. No one told Mr. Martinez that they had a suspect in custody before the lineup took place.

Mr. Martinez recalled that he was instructed that he would view a lineup. He was also told that he could request the individuals in the lineup to speak. When he approached the viewing window, the members of the lineup were seated. They then stood together and sat back down. He recalled immediately telling the police that he thought he recognized number four (defendant). He was told to look at everybody before making a decision. According to Mr. Martinez, it was suggested to him, in order to be sure, that he ask them to say something to hear the sound of their voices. Each in turn then stood, said "give me your phone," and sat back down. Once each member of the lineup had spoken and been seated, Mr. Martinez confirmed that he recognized number four (defendant) as the person who robbed him.

Mr. Martinez testified that he eliminated certain individuals in the lineup, based upon height, weight and age. Additionally, although conceding that the photographs he viewed in September were still fresh in his mind, he reiterated that his lineup identification was based upon what he recalled from the robbery.

On December 19, 2013, defendant re-called Detective Joseph Augello. [*6]

Detective Augello did not recall how many times Mr. Martinez identified defendant on the Photo Manager System. His recollection was that, consistent with protocol, as soon as Mr. Martinez made an identification on the Photo Manager System, the process was stopped. However, he also testified that he could not recall if he told Mr. Martinez to continue to look at photographs after an identification was made. Detective Augello was certain that, regardless of how many photographs he picked, Mr. Martinez only identified one individual as the person who robbed him on September 24, 2012.

Since giving his previous testimony on November 26, 2013, Detective Augello learned that two arrest numbers for defendant appear in the record of the photographs shown to Mr. Martinez on the Photo Manager System on September 24, 2012. He acknowledged that this means defendant's photograph appeared more than once on that date. Detective Augello conceded that the recurrence of photographs on the Photo Manager System was possible and that he had experienced it in the past.

When presented with Mr. Martinez' testimony that he encouraged the latter to continue viewing photographs after making a positive identification, Detective Augello could not explain why he would have done so and admitted that, if it happened, he shouldn't have under those circumstances.

Dunaway

An identified citizen informant is "presumed to be personally reliable"(People v Parris, 83 NY2d 342, 350 [1994]) and such an informant's "personal observations of the event ... described" suffice to establish the basis of knowledge requirement andtherefore probable cause to arrest (see People v Hetrick, 80 NY2d 344, 348 [1992]). Additionally, "[i]nformation provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest" (People v Jean-Charles, 226 AD2d 395, 395 [1996], appeal denied 88 NY2d 987 [1996] [internal quotation marks omitted]).

In the case at bar, Joshua Martinez reported that he was robbed of his cell phone. Upon viewing photographs on the Photo Manager System, Mr. Martinez positively identified defendant as the person who committed the robbery.[FN10] Defendant was arrested pursuant to an I-card issued as a result of Mr. Martinez' photographic identification of him.

As an identified citizen, the complaining witness related his personal observations of the event, accused the defendant of a specific crime, and identified him as the perpetrator.

Accordingly, defendant's motion to suppress, based upon lack of probable cause to arrest, is denied.

Wade

"It is firmly established in our jurisprudence that unduly suggestive pretrial identification procedures violate due process and therefore are not admissible to determine the guilt or innocence of an accused" (People v Chipp, 75 NY2d 327, 335 [1990][citations omitted]). "While the People have the initial burden of going forward to establish the reasonableness of the police conduct and lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly [*7]suggestive. Where suggestiveness is shown, it is the People's burden to demonstrate the existence of an independent source by clear and convincing evidence. Absent some showing of impermissible suggestiveness, however, there is no burden upon the People, nor is there any need, to demonstrate that a source independent of the pretrial identification procedure exists for the witness' in-court identification" (id. at 335 [citations omitted]).

It is well-settled that where the police, who have not yet focused upon a particular suspect, show a witness a voluminous photographic array, the sheer volume and scope of the procedure militates against the presence of suggestiveness (see People v Brennan, 222 AD2d 445 [2d Dept 1995], appeal denied 88 NY2d 980 [1996]; People v Liggins, 159 AD2d 443 [1st Dept 1990], appeal denied 76 NY2d 738 [1990]; People v Stokes, 139 AD2d 785 [2d Dept 1988], appeal denied 72 NY2d 867 [1988]; People v Mason, 138 AD2d 411 [2d dept 1988], appeal denied 72 NY2d 863 [1988]; People v Ludwigsen, 128 AD2d 810 [2d Dept 1987], appeal denied 69 NY2d 1006 [1987]; People v Stroud, 121 AD2d 484 [2d Dept 1986], appeal denied 68 NY2d 817 [1986]; People v Jerome, 111 AD2d 874 [2d Dept 1985], appeal denied 66 NY2d 764 [1985]).

In the case at bar, the credible evidence reveals that the complaining witness was presented with a photographic array consisting of over 2000 photographs. This voluminous array was generated by a search of the Police Department's Photo Manager System, based solely upon the description of the perpetrator provided by the complaining witness. At the time the police created the photographic array, they were not focused upon a particular suspect.

Although the complaining witness testified that he identified defendant twice within the first 4 pages of the array, the record of the Photo Manager System, along with the contemporaneous reports prepared by Detective Augello, indicate that at least 46 pages, consisting of approximately 250 photographs, were viewed before the identification was made.[FN11] Despite the differing recollections of the complaining witness and Detective Augello with respect to how many photographs of defendant were pointed out, the court credits Detective Augello regarding the number of pages and photographs viewed.

Detective Augello had no recollection or record of the complaining witness pointing out two photographs of defendant and was doubtful that he would have encouraged him to continue looking at the photographic array once a positive identification was indicated. However, regardless of this discrepancy in the testimony of the respective witnesses, defendant has not established that the photographic array was unduly suggestive. Although defendant cross-examined Detective Augello and the complaining witness about the photographic array, he failed to elicit any information to indicate that the photographs viewed were suggestive in any way (see People v Ludwigsen, 128 AD2d 810 [1987], supra; People v Jerome, 111 AD2d 874 [1985], supra).

Additionally, defendant does not dispute that the two photographs claimed to have been picked out by the complaining witness were of him. Indeed, it was defendant's investigation of [*8]the list of arrest numbers generated by the Photo Manager System, and his discovery that two of his were included thereon, that led to the conclusion that his photograph appeared twice. This, along with other factors, contributed to the court's granting of defendant's request to call the complaining witness at the hearing.

Regardless of whose recollection is more accurate, the mere fact that defendant's photograph may have appeared more than once in the voluminous array viewed by the complaining witness does not render it unduly suggestive. Nothing in the evidence indicates that defendant's photograph was highlighted or made distinguishable within that array (see People v Gourdine, 223 AD2d 428 [1st Dept 1996], appeal denied 88 NY2d 848 [1996]; People v Troiano, 198 AD2d 385 [2d Dept 1993], appeal denied 82 NY2d 931 [1994]; People v Liggins, 159 AD2d 443 [1990], supra; People v Azzara, 138 AD2d 495 [2d Dept 1988], appeal denied 71 NY2d 1023 [1988]; People v Thomas, 133 AD2d 867 [2d Dept 1987]; People v Stroud, 121 AD2d 484 [1986], supra).

Finally, defendant's assertion that he is entitled to an inference of suggestibility because the Police did not preserve the photographic array is without merit. Where a photographic array consists of a large number of photographs, the volume and scope of the identification procedure militates against the presence of suggestiveness, thereby relieving the People of the burden of preserving and producing it (see People v Mason, 138 AD2d 411 [1988], supra; People v Ludwigsen, 128 AD2d 810 [1987], supra; People v Jerome, 111 AD2d 874 [1985], supra).[FN12]

Based upon the volume and scope of the photographic array viewed by the complaining witness and the fact that the police were not focused on any particular suspect at the time it was generated, the court finds that the identification procedure was not unduly suggestive. Accordingly, defendant's motion to suppress the identification from the photographic array is denied.

The court now turns to the lineup conducted in this matter. Clearly, whether an identification is impermissibly suggestive depends upon the totality of the circumstance of the particular case (see Simmons v United States, 390 U.S. 377, 88 S. Ct. [1968]; People v Liggins, 159 AD2d 443 [1990], supra; People v Thomas, 133 AD2d 867 [1987], supra).

Based upon the evidence presented in this case, the court finds that the People have failed to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in the lineup procedure. Furthermore, defendant has satisfied his burden of proving that the procedure was unduly suggestive (see People v Chipp, 75 NY2d 327 [1990], supra).

The People relied upon Detective Henry Rivero to establish the reasonableness and lack of suggestiveness of the lineup procedure. Defendant called the complaining witness to rebut Detective Rivero's testimony. Although Detective Rivero described a routine lineup procedure, [*9]his account is contradicted by the complaining witness, whose recollection the court credits. Contrary to Detective Rivero's testimony, which indicates that the participants of the lineup remained seated and silent throughout the procedure, the complaining witness testified that they first stood and sat together and then stood one at a time and spoke during his viewing. The People failed to impeach the complaining witness on this issue and did not seek to present any additional evidence or to rehabilitate Detective Rivero's testimony. Therefore the reasonableness of the police conduct during lineup procedure is called into question (see People v Jay R., 259 AD2d 436 [1st Dept 1999];People v Carmona, 233 AD2d 142 [1996], supra; People v Quinones, 61 AD2d 765 [1978], supra; People v Baldwin, 41 Misc 3d 1217(A) [2013], supra).

In evaluating the fairness of a lineup, the court may consider such physical characteristics of the subject as "skin color, height, weight, clothing, hairstyle, age and whether the subject is clean shaven or has facial hair" (People v Gonzalez, 173 AD2d 48, 56 [1st Dept 1991], appeal denied 79 NY2d 10901 [1992]; see also People v Pride, 34 Misc 3d 1222(A) [Sup Ct Kings County 2012]).

Where the People fail to preserve a photograph of a lineup or a photographic array, a presumption of suggestiveness is created.[FN13] This presumption may be rebutted by the People with competent evidence at the Wade hearing (see People v Galetti, 239 AD2d 598 [2d Dept 1997], appeal denied 90 NY2d 1011 [1997]; People v Brennan, 222 AD2d 445 [1995], supra; People v Simmons, 158 AD2d 950 [4th Dept 1990], appeal denied 76 NY2d 743 [1990]; People v Wedgeworth, 156 AD2d 529 [2d Dept 1989], appeal denied 156 NY2d 872 [1990]; People v Stokes, 139 AD2d 785 [1988], supra; People v Mason, 138 AD2d 411 [1988], supra; People v Bratton, 133 AD2d 408 [2d Dept 1987], appeal denied 70 NY2d 798 [1987]; People v Sanchez, 128 AD2d 816 [2d Dept 1987], appeal denied 70 NY2d 655 [1987]; People v Scatliffe, 117 AD2d 827 [2d Dept 1986], appeal denied 67 NY2d 1056 [1986]; People v Jerome, 111 AD2d 874 [1985], supra).

Although the People introduced a photograph of the lineup at the Wade hearing, as defendant correctly points out, it is of such poor quality as to be useless in making a determination regarding suggestiveness. The photograph, entered into evidence (Exhibit Number 3) and attached to the People's Affirmation in Opposition (Exhibit Number 3), is taken at an angle, with position number one closest to the camera and position number six furthest from it. This causes position number one to appear largest in the foreground of the photograph, while each successive position appears smaller as it is viewed from left to right.[FN14]

As described by Detective Rivero, the subjects each wear identical white t-shirts and blue [*10]surgical caps and they are covered by a sheet from the lap down. However, this is essentially all that can be discerned from the photograph. Despite describing the Detective Squad, where the line up took place, as brightly lit, Detective Rivero admitted that the photograph is dark and not representative of the lighting conditions at the time of the lineup. As a result of the angle of the photograph and its overall poor quality, virtually nothing about the physical characteristics of the lineup participants can be evaluated for suggestiveness. Skin tone, age, and facial hair and features are indiscernible, while height and weight are difficult to determine at best. With the exception of two positions (four and five), whose faces are minimally lit, the photograph depicts featureless silhouettes. Indeed, it is impossible to determine something as basic as the sex of position number six, who is furthest from the camera and most poorly lit.

Although a photograph of a lineup "need not be in the best condition to support a determination that the lineup was fair" (see People v Briggs, 285 AD2d 514 [2d Dept 2001], lv denied 98 NY2d 636 [2002] [court determined that the fillers resembled defendant despite the fact that the all the physical characteristics of all the participants were not clearly visible]), the photograph in this case is of such poor quality that it provides no assistance to the court. Further distinguishing the instant matter from Briggs are the credibility issues affecting the court's determination concerning the reasonableness of the police conduct during the lineup and the sufficiency of the lineup in light of the reduction of its functional size.

The quality of the lineup photograph being too poor to be of any use in determining suggestiveness, the court finds that a presumption of suggestiveness exists. The People, relying solely upon Detective Rivero on this issue, have presented no evidence to rebut this presumption.

In addition to the poor quality of the lineup photograph, the court finds that the uncontradicted testimony of the complaining witness established that he used a process of elimination to reduce the functional size of the lineup, making it constitutionally unacceptable. The complaining witness testified that, upon viewing the lineup, he eliminated at least two positions due to height and one or more as a result of age, none of which were sufficiently similar to the perpetrator. With at least three of the positions eliminated before an identification was made, the lineup may have been reduced to as few as three participants who were sufficiently similar to defendant. This is insufficient to afford defendant a lineup that is not unduly suggestive (see People v Gaddy, 115 AD2d 658 [2d Dept 1985]; Matter of Royan D., 2 Misc 3d 1009(A) [Fam Ct Kings County 2004]).[FN15]

Having found that the People failed to establish the reasonableness of the police conduct and lack of any undue suggestiveness in the lineup procedure and that defendant satisfied his burden of proving that the procedure was unduly suggestive, the court grants defendant's motion to suppress the lineup identification.[FN16] [*11]

Since the photographic identification procedure was found not to be suggestive, it is unnecessary for the court to address the issue of independent source. The complaining witness will be permitted to make an in-court identification, based upon the previous photographic identification.

This constitutes the Decision and Order of the Court.

Dated: February 21, 2014

J.S.C. Footnotes

Footnote 1: The court notes that Detective Augello's testimony regarding Mr. Martinez' viewing of the photographs on the computer monitor, although supported by the record of the Photo Manger System and his police reports, is contradicted by the testimony of Mr. Martinez.

Footnote 2: The People entered the photograph singled out by Mr. Martinez as People's Exhibit Number 1 in evidence.

Footnote 3: Defendant requested and the People provided the list of arrest numbers during the course of this hearing.

Footnote 4: Detective Augello clarified this assertion in subsequent testimony.

Footnote 5: The People entered the wanted poster created by Detective Augello as People's Exhibit Number 2 in evidence.

Footnote 6: On cross-examination, Detective Rivero testified that Mr. Martinez stood to view the lineup.

Footnote 7: The People entered a photograph of the lineup as Exhibit Number 3 in evidence and attached it to their Affirmation in Opposition as Exhibit Number 3.

Footnote 8: The court notes that Mr. Martinez' testimony contradicts Detective Rivero on this issue.

Footnote 9: A review of the Fund Expenditure Report provided to defendant during the course of the hearing revealed that no physical descriptions of the fillers were recorded thereon (see Exhibit B, attached to Defendant's Motion to Suppress).

Footnote 10: Although there is some dispute as to the number of photographic identifications that took place, it is undisputed that defendant was the only person whom Mr. Martinez identified.

Footnote 11: The Photo Manager System arranged the photographs in order of the arrest numbers of the subjects and generated a sequential list of those arrest numbers. This list enabled Detective Augello to determine the number of photographs and pages viewed by the complaining witness and the specific page on which defendant's photograph appeared.

Footnote 12: The court respectfully disagrees with the conclusion regarding the preservation of photographic arrays reached in People v Lewis, 20 Misc 3d 1136(A) [Sup Ct, Kings County 2008], a non-binding case cited by defendant. In any event Lewis is distinguishable from the case at bar. The detective in that case was unable to testify to the number of photos the witness had viewed and no computer-generated record had been created to tally them. By contrast, Detective Augello's testimony on this point was supported by the computer-generated list of arrest numbers corresponding to the photos displayed.

Footnote 13: This maxim specifically refers to preservation of photographs of lineups and photographic arrays consisting of small numbers of photographs and is to be distinguished from the law as it applies to the voluminous photographic array viewed by the complaining witness in this case.

Footnote 14: In this court's experience, lineups are most often photographed "straight-on," affording a view similar to that which the witness viewing it would have had. It is also common practice, when the capability of the camera is limited by the size of the viewing room, for the record of a lineup to consist to two photographs, each depicting half the lineup, that can be held together to make a complete picture of it.

Footnote 15: Although the People chose not to address it as a "non-issue," Detective Rivero's testimony concerning his revised documentation of the physical descriptions of the lineup fillers, which was brought into question by defendant, contributed to the court's analysis of his credibility and the functional size of the lineup.

Footnote 16: Having found the corporeal lineup to be impermissibly suggestive, the court likewise grants the motion to suppress the voice identification, since it is part and parcel of the same identification procedure.