People v Richards

[*1] People v Richards 2016 NY Slip Op 50123(U) Decided on February 3, 2016 County Court, Rockland County Thorsen, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2016
County Court, Rockland County

The People of the State of New York, Plaintiff,

against

Omar Richards, Defendant.



2015-174



David D. Narain, Esq.

Michael E. Bongiorno, Esq.

Attorneys for Defendant

Thomas P. Zugibe, Esq.

District Attorney, Rockland County

Attn: Jennifer S. Parietti, Superv. ADA
Rolf M. Thorsen, J.

Defendant is charged by the within indictment with one count of Rape in the First Degree (P.L. §130.35[1]), one count of Attempted Criminal Sexual Assault in the First Degree (P.L. §§110.00/130.50[1]), and two counts of Sexual Abuse in the First Degree (P.L. §130.65[1]).[FN1] By Decision and Order filed August 13, 2015, this Court ordered that combined Huntley/Rodriguez/Wade/Mapp hearings be held. On November 30, 2015, December 17, 2015 and December 21, 2015, said hearings were held before this Court in accordance with that decision. The People called NYPD Detectives Albert Ragsdale and Harish Mansharamani and Town of Ramapo Police Department Detectives Dennis Procter and Thomas Byrnes. Defendant did not present any witnesses.

Having reviewed the evidence and the arguments of counsel,[FN2] and pursuant to Criminal Procedure Law Section 710.60(6), the Court makes the following findings of fact and conclusions of law:

I.Findings of Fact

On October 7, 2014, Detective Albert Ragsdale of the NYPD Special Victims Squad became involved in the investigation of a rape when officers from the Town of Greenburgh Police [*2]Department informed him of the allegations and brought the victim of the alleged rape (hereinafter referred to as "B.R.") to speak with him. The Greenburgh police also provided Detective Ragsdale with a package of information containing the name of the alleged perpetrator, i.e., the defendant, and a color photograph of him.

Upon interviewing B.R. on that same date, Detective Ragsdale learned that B.R. had met the defendant, whom she knew as Omar or "Fly Boy," approximately seven months before while she was working at Dunkin Donuts. At that time, defendant gave B.R. his Instagram information, which is the manner in which B.R. kept in contact with defendant during that seven-month period. On or before October 6, 2014, B.R. decided to "go out" with defendant and on that date, defendant picked B.R. up in a red, four-door truck and the two drove around, went to a park and then to a private house, where B.R. alleges the rape took place. During the time they were in the truck together, B.R. had consumed "a good amount of [Jack Daniels]." As part of his investigation, Detective Ragsdale showed B.R. a single photograph of defendant, the same photograph that was contained in the packet of information given to the detective by the Town of Greenburgh Police Department. See, People's Exhibit 1. B.R. identified the person in the photograph as defendant, the person she alleges raped her on October 6, 2014.[FN3] Based on Detective Ragsdale's interview with B.R., Detective Ragsdale believed the rape occurred in the Bronx.

In furtherance of his investigation, Detective Ragsdale conducted computer checks of both defendant and B.R. and, on October 9, 2014, arranged for B.R. to make a controlled telephone call to defendant. The conversation between B.R. and defendant was audio recorded. See, People's Exhibit 2.

On November 18, 2014 at approximately 5:30 a.m., pursuant to an I-card issued by Detective Ragsdale, the Bronx Warrant squad arrested the defendant at his home at 27 Sneden Place in Spring Valley, New York.[FN4] According to Detective Harish Mansharamani, who arrived at the Sneden Place address after defendant had already been arrested and had already been placed in the Warrant Squad van, defendant was arrested "without incident." For the next three and one-half hours, with defendant riding in the back of the van, the Bronx Warrant Squad drove around looking to make additional arrests. Defendant was eventually brought to the Special Victims Squad office at approximately 9:00 a.m. where he met with Detective Ragsdale.[FN5] After first introducing himself to defendant, Detective Ragsdale asked defendant if he knew B.R. When defendant answered in the affirmative, Detective Ragsdale then told defendant that B.R. had accused him of rape. In response, defendant stated that he wanted a lawyer. Defendant then admitted to Detective Ragsdale that he took B.R. to his house in Spring Valley but that once B.R. found out that defendant had a girlfriend, "she flipped out." According to Detective Ragsdale, he never had the opportunity to read defendant his Miranda rights prior to the defendant's statement.

Upon learning from defendant that defendant took B.R. to his house in Spring Valley, Detective Ragsdale realized that the alleged rape did not take place in his jurisdiction. As a result, Detective Ragsdale voided defendant's arrest, released defendant from custody and contacted the Spring Valley Police Department and turned the investigation over to them.

On November 20, 2014, Detective Dennis Procter of the Town of Ramapo Police Department, after having been contacted by Detective Bookstein of the Village of Spring Valley Police Department, commenced an investigation regarding a sexual assault that may have taken place in the Town of Ramapo. Detective Procter had been advised by Detective Bookstein that a suspect had already been identified, namely the defendant.[FN6]

Treating the investigation as if no prior investigation had taken place, Detective Procter and Detective Bookstein drove to the Bronx and met with B.R. During their interview with B.R., B.R. provided the detectives with additional information regarding the defendant, specific details of the events that occurred, as well as a description of the places she went to the day of the incident. B.R. also reiterated much of the information she told to Detective Ragsdale. Based on their conversation, Detective Procter believed that B.R. described the Herb Reisman Sports Complex in the Town of Ramapo as the park where defendant took B.R. The detectives then drove B.R. with them to Rockland County where B.R. recognized the Herb Reisman Sports Complex as the park she went to with the defendant and 18 Harvey Court in Spring Valley as the house where the alleged rape took place. Both locations are situated in the Town of Ramapo.

Once the detectives acquired the information from B.R. regarding defendant's Instagram account, including a screen shot from defendant's Instagram page that B.R. e-mailed to Detective Procter, another member of the Town of Ramapo Police Department accessed defendant's Instagram account on the police department's computer at the request of Detective Procter. See, People's Exhibit 3.

After Detective Procter interviewed B.R. and pursuant to his request, Detective Thomas Byrnes prepared a photographic array for B.R. to view. Using the Web RICCI system, Detective Byrnes inputted defendant's name into the system and after retrieving defendant's image, Detective Byrnes set defendant as the suspect. Detective Byrnes then inputted characteristics such as defendant's hair color, height, weight and eye color and an array of six images was created. See, People's Exhibit 5. Detective Byrnes then read the photo array instructions to B.R. using a pre-printed form. See, People's Exhibit 4. After being read the instructions, B.R. initialed and dated the form indicating that she understood the instructions. Detective Byrnes next took the photo array out of a folder and showed it to B.R. Using another form, Detective Byrnes asked B.R. if she recognized anyone in the photo array. B.R. indicated that she did, selected photo number five and stated, "That's the person that raped me." The person depicted in photo number five was the defendant. After B.R. identified the defendant, B.R. signed and dated the second form. See, People's Exhibit 4.

Just over a week later, on December 2, 2014, Detective Procter and two Ramapo patrol officers went to defendant's house at 27 Sneden Place in Spring Valley. Detective Procter knocked on the front door and moments later defendant opened the door. Defendant's girlfriend (presumably) was also present. After explaining to defendant that they needed to talk to him, defendant stepped [*3]out onto the front landing area where Detective Procter told defendant he was being arrested for rape. Since defendant was only wearing a t-shirt, sweatpants and socks, defendant's girlfriend retrieved some items that defendant needed, i.e., a jacket and shoes, as well as his cell phone. Defendant's cell phone was handed over to Detective Procter.

At the police station, defendant was read his Miranda rights at which time he stated he wanted an attorney. Defendant was then placed into a cell. When defendant asked to use his cell phone to make some phone calls, he was permitted to do so. Defendant was then processed on the arrest and arraigned. Detective Procter then placed defendant's cell phone in the property locker and subsequently obtained a search warrant to search the contents of the phone.[FN7]

Conclusions of Law:

A.Suppression of Statement (November 18, 2014 Arrest)

The Court will first address defendant's arguments that the statement defendant gave to Detective Ragsdale as a result of his November 18, 2014 arrest must be suppressed. Specifically, defendant contends that this statement must be suppressed on the grounds that: (1) the police violated defendant's Fourth Amendment right under Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371 (1980), when they arrested him in his house without a warrant; and (2) the statement was involuntarily made in violation of Miranda v. Arizona and under the totality of the circumstances.

With respect to defendant's argument that his statement was the result of a warrantless arrest in violation of Payton v. New York, it is the People who bear the burden of proving that entry into the home was valid. See, People v. Nelson, 292 AD2d 397 (2d Dept. 2002); People v. Moore, 269 AD2d 409 (2d Dept. 2000). The Court finds that the People have not met their burden. In fact, the People offered no evidence to establish the situs of defendant's arrest, i.e., whether it was made outside of defendant's home or inside of defendant's home. The only witness that testified at the hearing regarding the defendant's November 18, 2014 arrest was Detective Harish Mansharamani of the Bronx Warrant Squad, who was not present at defendant's house when defendant was actually placed under arrest and taken into custody by other members of the Bronx Warrant Squad. Rather, Detective Mansharamani testified that he arrived at 27 Sneden Place after defendant had already been placed under arrest and by the time he arrived there, defendant was already sitting in the van. Although Detective Mansharamani testified that, based on information provided to him, defendant was arrested "without incident," indicating that there was no forced entry or use of force, Detective Mansharamani's testimony was silent with respect to where the arrest actually took place. Since no evidence was adduced to establish that the police did not cross the threshold into defendant's house when they placed him under arrest, the People have not met their burden to establish the validity of defendant's arrest.

Defendant next contends that the statements he made to the police were involuntarily made. A statement is "involuntarily made" by a defendant when it is obtained (1) by the use or threatened use of physical force or other improper means; (2) by means of any promises made to [*4]defendant which creates a substantial risk that defendant might falsely incriminate himself; or (3) in violation of the defendant's constitutional rights. C.P.L. §60.45(2). See also, People v. Rodney, 85 NY2d 289 (1995). The burden of proving the voluntariness of defendant's statements is on the People and such must be proven beyond a reasonable doubt. See, People v. Witherspoon, 66 NY2d 973 (1983); People v. Huntley, 15 NY2d 72, 78 (1965).

Here, the Court finds that the audio recorded statement of defendant's telephone conversation need not be suppressed, the Court finds that statements defendant made to Detective Ragsdale following his arrest by the Bronx Warrant Squad on November 18, 2015 were involuntarily made and must be suppressed.

With respect to the audio recorded telephone conversation that defendant had with B.R., the testimony elicited at the suppression hearing requires this Court to find that defendant's statements were not the product of coercion and that such statements were voluntarily made. As a preliminary matter, "it is well-established, both under New York and Federal Law, that eavesdropping evidence obtained without a warrant is admissible where one of the parties to the ... conversation has consented to the eavesdropping." People v. Bourdonnay, 160 AD2d 1014 (2d Dept. 1990). In the instant matter, this principle applies to the controlled telephone call made from the police station. See, People v. Pike, 254 AD2d 727 (4th Dept. 1998); see also, People v. Taplin, 1 AD3d 1044 (4th Dept. 2003). As such, defendant's motion to suppress the audio recorded conversation is denied.

Turning next to the statement defendant made to Detective Ragsdale after he was arrested by the Bronx Warrant Squad, it is well settled that before law enforcement officials are obligated to provide Miranda warnings, the elements of both police "custody" and police "interrogation" must be present. See, People v. Huffman, 41 NY2d 29 (1976). The test to determine the first element — whether a defendant was "in custody" — is an objective one. "The test is not what the defendant thought, but rather what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position." People v. Yukl, 25 NY2d 585 (1969)(Internal citations omitted). In other words, "the standard to be applied is whether a reasonable person, innocent of any crime, would have believed that [he or] she was in police custody." People v. Delfino, 234 AD2d 382 (2d Dept. 1996).

Applied here, it is undisputed that defendant was in custody at the time he made his statement to Detective Ragsdale. Thus, the issue becomes whether defendant was subjected to police interrogation. "The term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 300, 100 S. Ct. 1682 (1980). "Statements made in response to such police words or actions are inadmissible in the absence of Miranda warnings." See, People v. Tavares-Nunez, 87 AD3d 1171, 1172 (2d Dept. 2011), citing, People v. Ferro, 63 NY2d 316, 319 (1984). On the other hand, truly spontaneous statements are admissible at trial. Truly spontaneous statements are defined as follows:

Volunteered statements, meaning those that are "self-generated" and " made without apparent external cause,'" are admissible even if the [*5]defendant was in custody and unwarned. For a statement to fall within that category, "the spontaneity has to be genuine and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed."

See, People v. Tavares-Nunez, 87 AD3d at 1172 (Internal citations omitted).

Applied here, contrary to the People's contention, the Court finds that defendant's statement was not spontaneous but rather was the product of police interrogation. At the time defendant made the subject statement, he had been taken into custody approximately three hours earlier and was brought into an interview room specifically so that Detective Ragsdale could talk to him. When Detective Ragsdale entered the interview room, he introduced himself to defendant and asked defendant if he knew the victim, B.R. Thus, Detective Ragsdale subjected defendant to express questioning wherein that single questioned posed to defendant was reasonably likely to elicit an incriminating response.

Moreover, when defendant answered in the affirmative that he knew the victim, B.R., Detective Ragsdale then told defendant that B.R. accused him of rape. Despite the fact that defendant had not yet been advised of his Miranda rights, defendant stated that he wanted a lawyer. According to Detective Ragsdale, after defendant invoked his right to counsel and without any further prompting from the detective, defendant admitted, inter alia, that he took B.R. to his house in Spring Valley. Although the People contend that defendant volunteered this statement since he made it after he had already invoked his right to counsel and without any further questioning by Detective Ragsdale, this Court finds that defendant's statement was not spontaneous. After Detective Ragsdale introduced himself to defendant, he immediately asked defendant if he knew B.R. Thus, Detective Ragsdale set the tone for the interview right from the get-go. It was therefore incumbent on Detective Ragsdale to read defendant his Miranda rights immediately after he introduced himself since defendant was in custody and going to be subjected to interrogation. The fact that defendant invoked his right to counsel, without the benefit of having his Miranda rights read to him, does not automatically mean that any statements defendant made thereafter are spontaneous. Rather, because Detective Ragsdale had already asked defendant if he knew B.R. and told defendant that she had accused him of rape, defendant's request for an attorney and anything that he stated thereafter were in response to the detective's "interrogation," whether the interrogation was by way of express questioning (do you know B.R.) or other words and actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect (B.R. has accused you of rape). In other words, Detective Ragsdale's question and follow-up statement to defendant were external causes that prompted defendant to speak. As such, it cannot be said that defendant's statements were genuinely spontaneous or self-generated. On the contrary, the Court finds that defendant's statement was the result of Detective Ragsdale's inducement, provocation, encouragement or acquiescence, no matter how subtly employed.

Based on the foregoing, defendant's motion to suppress his statement to Detective Ragsdale is granted.

B.Suppression of Cell Phone (December 2, 2014 Arrest)

Defendant also moves to suppress his cell phone that came into Detective Procter's [*6]possession at the time of defendant's arrest. Defendant argues that defendant's girlfriend only gave Detective Procter the defendant's cell phone so that defendant could access his contact numbers and make phone calls to people with regard to his arrest and seizure of defendant's phone went beyond the scope of defendant's consent. Defendant further argues that the police had no probable cause to believe that defendant's cell phone constituted contraband or evidence of a crime. The People contend that by giving the phone to Detective Procter, defendant essentially consented to a seizure of his phone at a time when defendant had no expectation of privacy.

It is well-settled that the People, faced with a constitutional challenge to a search and/or seizure, have the burden of going forward with evidence to show the legality of the police conduct in the first instance. People v. Berrios, 28 NY2d 361, 367 (1971). It is the defendant, however, who bears the ultimate burden of proving, by a preponderance of the evidence, that the evidence seized should not be used against him. People v. Thomas, 291 AD2d 462 (2nd Dept. 2002). Here, the People have met their burden of going forward with evidence to show the legality of the police conduct and defendant has not met his burden to establish that the evidence should not be used against him.

Specifically, "once the police have lawfully taken possession of an arrested person's property, especially where there is knowledge or probable cause that it contains contraband or evidence of the crime, they have the right to examine it...." People v. Fustiano, 35 NY2d 196, 200 (1974). Here, Detective Procter lawfully came into possession of defendant's cell phone when defendant's girlfriend handed it to him at defendant's request. Once defendant was in custody, his reasonable expectation of privacy did not extend to personal belongings that he elected to bring to the police station. See, People v. Perel, 34 NY2d 462 (1974). Although Detective Procter testified that defendant was permitted to use his cell phone at the police station, defendant nevertheless relinquished his cell phone to the police's custody by electing to bring it with him despite his status as an arrestee.

While the Court finds that defendant's cell phone was lawfully in the possession of the police, the Court will not address the related issue regarding whether the police had probable cause to search defendant's cell phone as that issue is the subject of another motion pending before the Court and not fully litigated at the hearings that are the subject of the within Decision and Order.

C.Motion to Suppress Identification Evidence

Turning to that aspect of defendant's motion to suppress identification evidence, defendant moves to suppress a single photo identification procedure conducted by Detective Ragsdale on October 7, 2014, the date of defendant's first arrest, and the photographic array conducted by Detective Byrnes on November 20, 2014, the date of defendant's subsequent arrest by the Ramapo Police Department. Defendant argues that his motion should be granted as the People failed to establish sufficient familiarity between B.R. and the defendant to render the identifications merely confirmatory or, in the alternative, that the identification procedures were unduly suggestive.

i."Merely Confirmatory"

It is well settled that "[t]he People bear the burden at a Rodriguez hearing to demonstrate that the identification was merely confirmatory because the witness [knew the] defendant so well as to [*7]be impervious to police suggestion.'" People v. Coleman, 73 AD3d 1200, 1202 (2d Dept. 2010), quoting, People v. Rodriguez, 79 NY2d 445, 452 (1992). In Coleman, the Appellate Division, Second Department set forth a list of factors the Court should consider in determining the issue of "prior familiarity." Such factors "include, but are not limited to, the number of times the victim viewed the defendant before the crime, the duration and nature of the encounters, the setting, the period of time over which the viewings occurred, the time elapsed between the crime and the viewings, and whether the victim and defendant had any conversations." Id.

Viewing the evidence under the totality of the circumstances, this Court finds that the People have failed to sustain their burden of establishing that the defendant was so well known to the victim that she was impervious to police suggestion. See, People v. Coleman, 73 AD3d at 1202-1203. On the contrary, the testimony demonstrates that the victim had only met defendant briefly, in person, on one occasion at her place of employment prior to the date of the alleged rape. The victim did not know the defendant's last name, did not know where the defendant lived and, other than that first encounter, never had any conversations with him. Although both Detective Ragsdale and Detective Procter testified that B.R. told them that she communicated with defendant for seven months through Instagram, neither witness provided specific details with respect to the nature, duration or frequency of those "communications." Accordingly, the Court cannot find that the identifications made by the victim were merely confirmatory.

ii.Unduly Suggestive

a.Single Photo Identification (October 7, 2014)

The Court of Appeals and the appellate courts have consistently recognized that the showing of a single photograph of a defendant to a witness is unduly suggestive.[FN8] See, People v. Marshall, 2015 NY Slip Op 09313 at *16, 2015 NY LEXIS 3922 (2015); People v. Rodriquez, 79 NY2d 445, 453 (1992); People v. Mitchell, 42 AD3d 758, 760 (3rd Dept. 2007); People v. Kairis, 37 AD3d 1070 (4th Dept. 2007); People v. Smith, 221 AD2d 485, 486 (2d Dept. 1995). As such, the Court finds that B.R.'s identification of defendant through the use of a single photo was unduly suggestive.

b.Photo Array Identification (November 20, 2014)

"A photographic display is suggestive where some characteristic of one picture draws the viewer's attention to it, indicating that the police have made a particular selection." People v. Miller, 33 AD3d 728 (2d Dept. 2006); People v. Williams, 289 AD2d 270 (2d Dept. 2001); People v. Robert, 184 AD2d 597 (2d Dept. 1992). In other words, an unduly suggestive photo array is one that "creates a substantial likelihood that defendant would be singled out for identification." People v. Ferguson, 55 AD3d 926 (2d Dept. 2008).

In the instant matter, B.R. was shown a photo array containing six photographs. See, People's Exhibit 5. Having reviewed the [*8]photos contained in the photo array, this Court finds that defendant's photograph was sufficiently similar in appearance to the other five photographs in the photo array and there were no characteristics of defendant's photograph that would draw the victims' attention to it to render the identification unduly suggestive. See, People v. Russell, 58 AD3d 759 (App. Div. 2d Dept. 2009). Moreover, there was nothing unduly suggestive in the manner in which Detective Byrnes conducted the photo array. Detective Byrnes testified that he read both the pre- and post- photo array instructions to B.R. using a pre-printed form, which B.R. initialed and signed, respectively, indicating that she understood the photo array procedure. See, People's Exhibit 4. Detective Byrnes also testified that the photo array was only shown to B.R. after he had read the instructions to her and upon showing the array to her, she immediately selected the defendant's photo as the individual that raped her. Accordingly, it is the opinion of this Court that the identification of the defendant through the use of a photo array was not unduly suggestive.

iii.Independent Source

Assuming, arguendo, that this Court found both identification procedures to be unduly suggestive, "[a]n in-court identification is admissible notwithstanding a procedurally defective pretrial identification procedure if the People establish by clear and convincing evidence that the identification is based upon the witness's independent observation of the defendant during the commission of the crime." See, People v. Houston, 82 AD3d 1122, 1123 (2d Dept. 2011). Although the People have requested the opportunity to conduct an independent source hearing in the event the Court finds that the identification procedures were not confirmatory or were unduly suggestive, the Court finds such a hearing to be unnecessary. Not only has the Court found the photo array procedure conducted by Detective Byrnes to pass constitutional muster, the Court finds that the evidence adduced at the hearing was sufficient to establish that B.R. had an independent basis to make an in-court identification of defendant.[FN9]

iv.Attenuation

Lastly, the defendant argues that the single photo identification procedure conducted on October 7, 2014 tainted the subsequent photographic array that took place on November 20, 2014. The People argue that the three weeks that separated the two procedures was sufficient to attenuate any taint.

Under the circumstances present here, the Court agrees with the People. "The passage of time, usually a factor that works against an accurate identification, has a palliative effect where a tainted viewing has occurred." People v. Waring, 183 AD2d at 275-276. Applied here, the three weeks between the unduly suggestive single photo viewing and the properly conducted photo array was a sufficient period of time to "achieve the desired effect," i.e., to purge any taint that the first viewing may have created.

In conclusion, defendant's motion to suppress is denied such that B.R. will be permitted to [*9]make an in-court identification of defendant at trial.

The foregoing Opinion shall constitute the Decision and Order of this Court.

E N T E R

Dated:February 3,2016

New City, New York

HON. Rolf M. Thorsen, J.C.C.

Footnotes

Footnote 1:Count Five of the indictment charging Unlawful Imprisonment in the Second Degree (P.L. §135.05) was previously dismissed by this Court.

Footnote 2:The arguments of counsel were contained in post-hearing Memoranda of Law submitted on behalf of both parties.

Footnote 3:Detective Ragsdale testified that the Town of Greenburgh Police Department advised him that they never showed B.R. the photograph of defendant because B.R. supplied them with a photograph of defendant.

Footnote 4:An I-card is a tool used frequently by the New York City Police Department to arrest a suspect who has an open complaint pending against him in lieu of an arrest warrant signed by a judge after charges have been signed.

Footnote 5:During this interview, defendant was not handcuffed.

Footnote 6:Detective Bookstein told Detective Procter that Bookstein had spoken with Detective Ragsdale and relayed to Detective Procter the substance of their conversation.

Footnote 7:As defendant' motion to controvert the search warrant was filed during the pendency of the hearings that are the subject of the within decision, the Court's decision will not address the legality of the search warrant as that issue was not specifically litigated at the hearing.

Footnote 8:"A truly confirmatory' viewing resulting in an identification is made principally for the benefit of fellow law enforcement personnel to ensure them that they have the perpetrator and not someone else in custody." People v. Waring, 183 AD2d 271, 273-274 (2d Dept. 1992).

Footnote 9:Rather than conduct separate hearings, "the People are generally well-advised to come forward with any independent source evidence at a Wade hearing so that the suppression court may, where appropriate, rule in the alternative." People v. Wilson, 5 NY3d 778, 780 (2005).