| People v Robinson |
| 2014 NY Slip Op 09024 [123 AD3d 1062] |
| December 24, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v John Robinson, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Nao Terai of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, LoriGlachman, and Arieh Schulman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Gary, J.), rendered March 28, 2013, convicting him of robbery in the first degree (twocounts), upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing (J. Goldberg, J.), of that branch of the defendant's omnibus motionwhich 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 identification exists.
The defendant was arrested in connection with three robberies. At a Wadehearing (see United States v Wade, 388 US 218 [1967]) a detective testifiedthat two of the complainants identified the defendant after viewing photographs from thepolice department's photo manager system, which generated screens of six photographsat a time based on criteria entered into the computer by the detective. The screens viewedby the complainants were not preserved. The detective was unable to recall how manyscreens each complainant viewed, or how long they viewed photographs before makingan identification. The complainants subsequently identified the defendant in a lineupconsisting of the defendant and four fillers. The defendant was aged 18 and the fillerswere aged 18, 29, 30, and 35. At the conclusion of the hearing the Supreme Court foundthat the identification procedures were not unduly suggestive.
The Supreme Court erred in denying that branch of the defendant's omnibus motionwhich was to suppress identification testimony. The People's failure to preserve theoriginal photographic arrays viewed by the complainants gave rise to a presumption ofsuggestiveness, and the People did not present sufficient evidence to rebut thatpresumption (see People vDobbins, 112 AD3d 735, 736 [2013]; People v Galletti, 239 AD2d 598,599 [1997]; cf. People vReaves, 112 AD3d 746, 747 [2013]). The fact that the police failed to preservethe arrays viewed by the complainants does not warrant suppression in and of itself.However, the detective's testimony at the suppression hearing as to how thecomputerized procedure operated was insufficiently detailed to establish its fairness (cf. People v Holley, 116 AD3d442 [2014]; People v Patterson, 306 AD2d 14, 15 [2003]; People vCampos, 197 AD2d 366, 367 [1993]). The detective gave inconsistent testimonyregarding what age criteria he entered in the computer system to generate each photoarray. Furthermore, he did not recall how many screens either complainant viewed beforeeach of them recognized the defendant, or how long it took each [*2]to make an identification. Therefore, the evidence did notovercome the presumption that the arrays were suggestive (see People v Dobbins,112 AD3d at 736). Although the police had not yet focused on any particular suspect, itcannot be said that the sheer volume of photographs viewed was sufficient to dispel anyinference of suggestiveness, as it is unknown how many photographs were viewed by thecomplainants (cf. People v Burgos, 204 AD2d 344, 345 [1994]; People vCampos, 197 AD2d at 367; People v Stokes, 139 AD2d 785, 786[1988]).
We need not address whether the subsequent lineup was sufficiently attenuated intime from the photo identification procedure to nullify any possible taint, because thelineup procedure was also unduly suggestive (see People v Dobbins, 112 AD3dat 737). While there is no requirement that a defendant in a lineup be surrounded byindividuals nearly identical in appearance, the other individuals in the lineup shouldsufficiently resemble the defendant so that there is no substantial likelihood that thedefendant would be singled out for identification (see id.). Upon our review of aphotograph of the lineup viewed by the complainants, it is apparent that the defendantand one of the fillers appear to be of similar ages, but the other three fillers appear visiblyolder than the defendant (see id.). The age disparity was sufficiently apparent asto orient the viewer toward the defendant as a perpetrator of the crimes charged (cf. People v Mullings, 88AD3d 745 [2011]; People vAlonge, 74 AD3d 1354, 1355 [2010]).
Because the identification procedures were unduly suggestive, the defendant isentitled to a new trial, preceded by an independent source hearing (see People v Delamota, 18NY3d 107, 110 [2011]; People v Murphy, 260 AD2d 505 [1999]).
In light of our determination, we need not reach the defendant's remainingcontentions. Rivera, J.P., Leventhal, Chambers and Sgroi, JJ., concur.