| People v Dobbins |
| 2013 NY Slip Op 08265 [112 AD3d 735] |
| December 11, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kashawn Dobbins, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andSharon Y. Brodt of counsel; Lorrie A. Zinno on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Latella, J.), rendered May 9, 2011, convicting him of robbery in the first degree androbbery in the second degree (two counts), upon a jury verdict, and imposing sentence.The appeal brings up for review the denial, after a hearing (Paynter, J.), of that branch ofthe defendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is reversed, on the law, that branch of the defendant'somnibus motion which was to suppress identification testimony is granted, and a newtrial is ordered, to be preceded by a hearing to determine whether an independent sourcefor the identifications exists.
"[U]nduly suggestive pretrial identification procedures violate due process andtherefore are not admissible to determine the guilt or innocence of an accused"(People v Chipp, 75 NY2d 327, 335 [1990], cert denied 498 US 833[1990]). When a defendant challenges an identification procedure as unduly suggestive,the People have the "initial burden of going forward to establish the reasonableness ofthe police conduct and the lack of any undue suggestiveness. Once the People satisfy thisduty, the defendant has the ultimate burden of proving that the identification procedurewas unduly suggestive" (Peoplev Delamota, 18 NY3d 107, 118 [2011] [internal quotation marks and citationomitted]).
The People's failure to preserve the original printout of a photographic array givesrise to a presumption of suggestiveness. However, by presenting sufficient evidence ofnonsuggestiveness, such as by reconstructing the photo array from related materials(see People v Georgison, 299 AD2d 176 [2002]), the People can overcome thatpresumption (see People vBridges, 63 AD3d 752, 753 [2009]).
Here, the People failed to rebut the presumption of suggestiveness that arose fromtheir failure to preserve the photo array. At the suppression hearing, a detective testifiedthat he did not memorialize and could not recall the specific information that he enteredinto the photo manager system which generated the photographic array, did notmemorialize and could not recall how many photographs the complainant viewed, anddid not memorialize and could not recall for how long the complainant was viewingphotographs. Therefore, the evidence presented did not overcome the presumption thatthe array was suggestive (seePeople v Redding, 65 AD3d 1059 [2009]; People v Lewis, [*2]20 Misc 3d 1136[A], 2008 NY Slip Op 51747[U] [Sup Ct,Kings County 2008]; cf. Peoplev Jones, 43 AD3d 1296, 1298 [2007]; People v Burgos, 204 AD2d 344,345 [1994]; People v Stokes, 139 AD2d 785 [1988]).
We need not address whether the subsequent lineup at which the defendant wasidentified was sufficiently attenuated in time from the prior photographic identificationprocedure to nullify any possible taint resulting from the photographic array, because thelineup procedure was also unduly suggestive. While "[t]here is. . . norequirement that a defendant in a lineup be surrounded by individuals nearly identical inappearance" (People vBrown, 89 AD3d 1032, 1033 [2011], citing People v Chipp, 75 NY2d at336), the other individuals in the lineup should sufficiently resemble the defendant sothat there is no substantial likelihood that the defendant would be singled out foridentification (see People vJean-Baptiste, 57 AD3d 566 [2008]; People v Valdez, 204 AD2d 369[1994]).
Here, according to the evidence presented at the hearing, the complainant gave adescription of the perpetrator which included the physical characteristics of dark skin,age in the mid-20s, height of approximately five feet eight inches, and weight ofapproximately 160 pounds. Upon our examination of the photographs of the lineup, it isapparent that the defendant was the only person that could have been in his mid-20s. Inaddition, the only "filler" who appeared somewhat similar in height and weight to thedefendant was significantly older and had a lighter skin tone than the defendant. Theremaining fillers, who were all much older than the defendant, were also much taller andmuch heavier than the defendant. These circumstances created a significant contrast tothe defendant's appearance, making identification by suggestion highly likely (seePeople v Breitenbach, 260 AD2d 389, 390 [1999]; People v Harris, 172AD2d 560 [1991], affd 80 NY2d 796 [1992]; People v Gaddy, 115AD2d 658, 659 [1985]; People v Lebron, 46 AD2d 776, 777-778 [1974]; cf.People v Hernandez, 164 AD2d 920, 921 [1990]; People v Rodriquez, 137AD2d 847, 848 [1988]; People v Scott, 114 AD2d 915 [1985]).
Indeed, with respect to the suggestiveness of the lineup, the hearing court observedthat many of the fillers may be "way" older than the defendant. The hearing courtultimately upheld the lineup procedure as not unduly suggestive, stating that whether thefillers were "way" older than the defendant is "apparent to the eye but whether they areolder or not that is a suggestive thing." However, the reason there was no evidence at thehearing as to the actual age of the fillers was because the detective did not record any ofthe fillers' pedigree information, such as age or height. Contrary to the hearing court'sstatement, it is the appearance of the fillers in comparison to the defendant which causesthe lineup to be unduly suggestive under the circumstances of this case (see People vBreitenbach, 260 AD2d at 390; People v Harris, 172 AD2d 560 [1991];People v Gaddy, 115 AD2d at 659; People v Lebron, 46 AD2d at777-778; cf. People v Hernandez, 164 AD2d at 921; People v Rodriquez,137 AD2d at 848; People v Scott, 114 AD2d 915 [1985]).
As the only evidence connecting the defendant to the crime was the complainant'stestimony, which included his description of the lineup identification and his in-courtidentification of the defendant, and no evidence of an independent source for the in-courtidentification was presented at the hearing, the judgment must be reversed and a new trialordered, to be preceded by an independent source hearing (see People vBreitenbach, 260 AD2d at 390).
The defendant's remaining contentions either are without merit or need not bereached in light of our determination. Rivera, J.P., Dillon, Chambers and Hinds-Radix,JJ., concur.