| People v McDonald |
| 2016 NY Slip Op 03017 [138 AD3d 1027] |
| April 20, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kashif McDonald, Appellant. |
Robert DiDio, Kew Gardens, NY (Danielle Muscatello of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and AnnBordley of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGiudice, J.), rendered September 9, 2008, convicting him of murder in the second degreeand robbery in the first degree, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing (Holdman, J.), of that branch of thedefendant'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.
On December 9, 2005, three armed perpetrators allegedly committed a robbery at astore and, during the course thereof, shot and killed one of the store's employees. Thedefendant was arrested in connection therewith.
At a Wade hearing (see United States v Wade, 388 US 218 [1967]),Detective Michael McDermott testified that, on January 8, 2006, two witnesses, JeffClyne and Ronald Seeram, each identified the defendant as one of the perpetrators uponviewing certain photographs from the police department's photo manager system.McDermott explained that the photo manager system generates screens displaying sixphotographs at one time based on certain age and physical appearance criteria enteredinto a computer. According to McDermott, during the photographic identificationprocedures, each witness was seated in a different area of the precinct station house, onopposite sides of the detective squad room, and at a different computer terminal. Heestimated that the witnesses were approximately 20 feet apart.
McDermott supervised Seeram's photographic identification procedure. Notably,McDermott failed to preserve a screen printout of any of the photo arrays viewed bySeeram, including the one from which Seeram purportedly identified the defendant.Instead, at the hearing, McDermott produced a single photograph of the defendant. Thisphotograph, however, was dated January 9, 2006, not January 8, 2006.
According to McDermott, another detective supervised Clyne's photographic [*2]identification procedure and was responsible for enteringthe specific criteria into the computer utilized by Clyne. That detective was not producedat the Wade hearing. Nevertheless, through McDermott's testimony, the Peoplewere permitted at the hearing to introduce a photo array apparently depicting a computerscreen of six photographs, one of which depicted the defendant.
Thereafter, lineup identification procedures were conducted. Only the detectiveassigned to conduct the lineup at which Clyne purportedly made an identification of thedefendant testified at the Wade hearing. The detective who supervised the lineupat which Seeram purportedly identified the defendant was not produced at theWade hearing. At the conclusion of the hearing, the Supreme Court concludedthat 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. "[U]nduly suggestive pretrialidentification procedures violate due process and therefore are not admissible todetermine the guilt or innocence of an accused" (People v Chipp, 75 NY2d 327,335 [1990]). When a defendant challenges an identification procedure as undulysuggestive, the People have the initial burden of going forward to establish thereasonableness of the police conduct and the lack of any undue suggestiveness (see People v Coleman, 73AD3d 1200, 1203 [2010]; People v Stephens, 143 AD2d 692, 695 [1988];see also People v Rahming, 26 NY2d 411 [1970]). This requirement "rests upona recognition that 'in many instances a defendant simply does not know the factssurrounding a pretrial identification procedure and thus cannot make specific factualallegations' " (People v Coleman, 73 AD3d at 1203, quoting People vRodriguez, 79 NY2d 445, 453 [1992]; see CPL 710.60 [3] [b]). Once thePeople meet their burden, the defendant bears the ultimate burden of proving that apretrial identification procedure was unduly suggestive (see People v Dobbins, 112AD3d 735, 736 [2013]; People v Coleman, 73 AD3d at 1203; People vStephens, 143 AD2d at 695).
The People's failure to preserve the photo array from which Seeram identified thedefendant gives rise to a presumption of suggestiveness (see People v Dobbins,112 AD3d at 736; People vRedding, 65 AD3d 1059, 1060 [2009]). While the People can overcome thatpresumption "by presenting sufficient evidence of nonsuggestiveness, such as byreconstructing the photo array from related materials" (see People v Dobbins, 112AD3d at 736), they failed to do so here.
At the suppression hearing, McDermott testified that he did not preserve the photoarrays viewed by Seeram because the computer that displayed those arrays was notattached to a printer. He stated that after Seeram identified the defendant from a photoarray, McDermott used another computer to print out a single photograph of thedefendant using the defendant's NYSID number, and then showed that photograph toSeeram. It cannot be said that this testimony was sufficient to dispel any inference ofsuggestiveness. McDermott did not explain why he did not attach a printer to thecomputer Seeram was using, or why he did not attempt to reconstruct the photo array(see id.). Moreover, the single photograph was not signed by Seeram, and wasdated January 9, 2006, the day following Seerem's photographic identificationprocedure.
Further, the People failed to produce the detective who conducted Clyne'sphotographic identification procedure, or the detective who conducted Seeram's lineupidentification procedure. Contrary to our dissenting colleague's determination,McDermott did not conduct either of those procedures, and, therefore, could not providecompetent evidence as to the circumstances thereof and what, if anything, transpiredduring those identification procedures (see People v Coleman, 73 AD3d at1203).
Under these circumstances, the People failed to meet their initial burden of goingforward to establish the reasonableness of the police conduct and the lack of any unduesuggestiveness with respect to any of the pretrial identification procedures (seePeople v Ortiz, 90 NY2d 533, 538 [1997]; People v Coleman, 73 AD3d at1203).
In addition, at a voir dire hearing held outside the presence of the jury during thetrial, the Supreme Court improperly curtailed the defendant's cross-examination ofMcDermott as to how a photo array (referred to as exhibit 1), which was first disclosed atthe time of trial, was generated. [*3]At the hearing,McDermott acknowledged that his handwritten notes on exhibit 1 corresponded withClyne and Seeram's descriptions of the perpetrators. Exhibit 1 was dated December 10,2005, which was the day after the subject shooting occurred. Despite the date shown onthat photo array, McDermott testified that it was generated after Clyne andSeeram had already identified the defendant in January of 2006. He further testified thatthe array was generated so as to include a photo of the defendant, as well as five otherindividuals who had been arrested with the defendant on prior occasions. WhenMcDermott was confronted with the fact that the defendant's photograph was notcontained within exhibit 1, the court curtailed the defense counsel's questioning ofMcDermott as to how the photo array was generated. McDermott then testified thatexhibit 1 was merely used as scrap paper, and that it was never shown to either Clyne orSeeram.
"Where a witness testifies at trial regarding an identification of the accused, whetherthat testimony describes an in-court identification or a pretrial . . .procedure, the trier of facts must be permitted to consider whether such testimony isworthy of belief, or whether it is lacking in reliability due to the suggestiveness of thatidentification procedure or of some other procedure employed prior thereto" (Peoplev Ruffino, 110 AD2d 198, 203 [1985]; see People v Castricone, 198 AD2d765, 766 [1993]; People v Malone, 173 AD2d 160, 161 [1991]). Here, contraryto the Supreme Court's determination, defense counsel should have been permitted toquestion McDermott about exhibit 1 in front of the jury so that the jury could considerwhether McDermott's testimony was worthy of belief and reliable not only with respectto the handwritten notes contained on exhibit 1, but also as to the circumstances of thatphoto array's generation, and whether it was shown to the witnesses as part of a pretrialidentification procedure.
In sum, although no single factor is determinative, under the totality of thecircumstances, we conclude that the Supreme Court should have granted that branch ofthe defendant's omnibus motion which was to suppress identification testimony, and thatthe defendant is entitled to a new trial, to be preceded by a hearing to determine whetheran independent source for the identifications exists.
The defendant's remaining contentions either are without merit or need not bereached in light of our determination. Rivera, J.P., Duffy and Barros, JJ., concur.
Roman, J., dissents, and votes to affirm the judgment, with the followingmemorandum: I disagree with the majority's determination that the Supreme Courtshould have granted those branches of the defendant's omnibus motion which were tosuppress testimony regarding Ronald Seeram's photographic and lineup identifications,and Jeff Clyne's photographic identification. For the reasons set forth below, I find thatthe People met their initial burden of establishing the reasonableness of the policeconduct and the lack of undue suggestiveness with respect to these procedures, and thedefendant failed to prove that the procedures were unduly suggestive. Additionally, Idisagree with the majority that the court improperly limited the defendant'scross-examination of Detective Michael McDermott.
With respect to the People's failure to preserve the photographic array viewed bySeeram, I agree that such failure gives rise to a presumption of suggestiveness withrespect to that photographic identification procedure (see People v Bridges, 63 AD3d 752, 753 [2009]; Peoplev Wedgeworth, 156 AD2d 529, 529 [1989]). However, contrary to the majority'sconclusion, the People presented sufficient evidence to rebut that presumption (see People v Reaves, 112AD3d 746, 747 [2013]; People v Bridges, 63 AD3d at 753). At theWade hearing (see United States v Wade, 388 US 218 [1967]),McDermott testified that on January 8, 2006, Clyne and Seeram were at opposite sides ofone room as they viewed photographs from the police department's photo managersystem, which generated six photographs at a time based on the criteria entered into thecomputer system. McDermott testified that the description entered into the computerviewed by Clyne was a male black, 18 to 25 years old, weighing 130 to 160 pounds, andthat the description entered into Seeram's computer was a male black, 18 to 26 years old,weighing 130 to 165 pounds. McDermott further testified that [*4]Clyne viewed approximately 54 pages, or 324 photographs,before identifying the defendant, while Seeram viewed approximately 32 pages, or 192photographs, before he identified the defendant.
This Court has consistently recognized that where, as here, "a photographicidentification procedure involves showing a witness a preexisting file consisting of alarge number of photographs, the 'sheer volume and scope of [the] procedure militatesagainst the presence of suggestiveness' " (People v Mason, 138 AD2d411, 412 [1988], quoting People v Jerome, 111 AD2d 874, 874 [1985]; see People v Fields, 66 AD3d799, 799 [2009]; People v Ashby, 289 AD2d 588, 588 [2001]; People vBurgos, 204 AD2d 344, 345 [1994]; People v Faulk, 192 AD2d 717, 717[1993]; People v Stokes, 139 AD2d 785, 785 [1988]; People vLudwigsen, 128 AD2d 810, 810 [1987]). The majority's reliance on People v Dobbins (112 AD3d735 [2013]) is misplaced. There, this Court held that the People's failure to preservethe original printout of a photographic array gave rise to a presumption ofsuggestiveness, which the People failed to rebut, inasmuch as the detective testifying atthe suppression hearing "did not memorialize and could not recall the specificinformation that he entered into the photo manager system which generated thephotographic array, did not memorialize and could not recall how many photographs thecomplainant viewed, and did not memorialize and could not recall for how long thecomplainant was viewing photographs" (id. at 736). Here, by contrast,McDermott specifically testified regarding the criteria that was entered into the computersystem, the number of photographs that Clyne and Seeram viewed prior to making anidentification, and the time frame in which they viewed the photographs.
Furthermore, the defendant failed to preserve for appellate review his contention thatthe People did not meet their initial burden of establishing the reasonableness of thepolice conduct and the lack of undue suggestiveness as to Clyne's photographicidentification because they did not call Detective Van Pelt, who also participated in thephotographic identification procedures, as a witness (see People v Fields, 66AD3d at 799). In any event, that contention, and the defendant's further claim that thePeople did not meet their initial burden with respect to Seeram's lineup identificationbecause the detective who conducted that procedure was not called as witness, arewithout merit.
At the hearing, McDermott testified that during the photographic identificationprocedures, Clyne and Seeram were seated on opposite sides of the same room,approximately 20 feet apart from each other. McDermott testified that he went back andforth to consult with his colleague, Van Pelt, who primarily stayed with Clyne, whileMcDermott primarily stayed with Seeram. McDermott further testified that Clyne andSeeram did not communicate with each other while viewing the photographs, and that heinstructed both of them to let him know if they made an identification. Additionally, asset forth above, McDermott testified concerning the specific information that was enteredinto the photo manager system, and the number of photographs Clyne and Seeram eachviewed. Thus, the instant case is distinguishable from People v Coleman (73 AD3d 1200 [2010]), where thePeople offered only the testimony of a detective who was not present during a priorphotographic array identification procedure, and thus, "could not answer any questions asto what, if anything, was said before or during the identification procedure, or provideany details as to the attendant circumstances" (id. at 1203).
As to the lineup, Detective Carlo D'Ambrosi testified that he picked up both Clyneand Seeram, and transported them to the precinct station house. Upon arrival, he escortedthem to the Community Affairs office, and instructed them not to talk to each other.D'Ambrosi testified that he separated Clyne and Seeram, and that he stayed with themwhile the lineup was being prepared. D'Ambrosi testified that Seeram was escorted to theviewing room by Detective Routledge while D'Ambrosi stayed with Clyne. Referring tothe lineup report which was admitted into evidence at the hearing, D'Ambrosi testifiedthat Seeram identified the defendant from the lineup. Specifically, the lineup reportprovides that when Seeram was asked where he recognized the defendant from, hereplied, "It's number 5 he was the first guy in." Additionally, the lineup report, which listseach participant's age, height, and weight, reflects that the participants were of relativelysimilar appearance (see People vOrtiz, 61 AD3d 1003, 1003 [2009]; People v Matthews, 57 AD3d 1008, 1009 [2008]; People v Jean-Baptiste, 57AD3d 566, 567 [2008]).
Based on the foregoing, I find that the People presented sufficient evidenceregarding [*5]the circumstances surrounding the viewingof the photographs and the lineup, and met their initial burden of establishing thereasonableness of the police conduct and the lack of suggestiveness of the subject pretrialidentification procedures. The burden then shifted to the defendant, who failed to satisfyhis ultimate burden of proving that the identification procedures were unduly suggestive.The defendant's contention that Clyne and Seeram could have communicated with eachother while at the precinct station house during the photographic identificationprocedure, or in the Community Affairs office prior to viewing the lineup, is purelyspeculative and unsupported by the hearing record (see People v Reyes, 60 AD3d 873, 874 [2009]; Peoplev Celestin, 231 AD2d 736, 736 [1996]). Therefore, the Supreme Court properlydenied those branches of the defendant's omnibus motion which were to suppresstestimony regarding Seeram's and Clyne's photographic identifications, and Seeram'slineup identification.
Further, contrary to the majority's determination, I find that the Supreme Court didnot improperly limit the defendant's cross-examination of McDermott concerning thephotographic array dated December 10, 2005. Following an informal hearing, the courtcredited McDermott's testimony that he had made the handwritten notations on the array,and that this array was never shown to Clyne or Seeram (see generally People vFletcher, 130 AD3d 1063, 1064 [2015], lv granted 26 NY3d 1044[2015]). Finally, the court providently exercised its discretion in denying the defendant'sapplication to reopen the Wade hearing based on the disclosure of this array,which did not include a photograph of the defendant, since the defendant failed todemonstrate that the new facts proffered in support of his motion were likely to affect theoriginal determination (seePeople v Guerrier, 129 AD3d 863, 863 [2015]; People v Moore, 118 AD3d916, 918 [2014]).
Accordingly, I would affirm the judgment.