| People v Busano |
| 2016 NY Slip Op 05385 [141 AD3d 538] |
| July 6, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Simon Busano, Appellant. |
Lynn W. L. Fahey, New York, NY (Rahshanda Sibley of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, ThomasM. Ross, and Julian Joiris of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Ingram, J.), rendered June 3, 2013, convicting him of assault in the first degree and gangassault in the first degree, upon a jury verdict, and sentencing him to a determinate termof imprisonment of 19 years followed by a period of five years of postrelease supervisionon each of his convictions, and a fine in the sum of $5,000 on the conviction of assault inthe first degree, with the terms of imprisonment to run concurrently with each other. Theappeal brings up for review the denial, after a hearing, of that branch of the defendant'somnibus motion which was to suppress identification testimony.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, (1) by reducing the term of imprisonment imposed on each of the convictionsfrom a determinate term of imprisonment of 19 years to a determinate term ofimprisonment of 12 years, and (2) by vacating so much of the sentence as imposed a finein the sum of $5,000 on the conviction of assault in the first degree; as so modified, thejudgment is affirmed.
The complainant was attacked by three individuals while he was walking with hiswife, his daughter, and two of his grandchildren in front of a housing complex inBrooklyn. Later that day, the complainant's daughter viewed photographic arraysgenerated by the New York City Police Department's photo manager system, a computerdatabase that contains photographs of individuals who have previously been arrested.The complainant's daughter identified the defendant as one of the perpetrators of theattack when his photograph was displayed in a photographic array generated by the photomanager system. The defendant was apprehended about two weeks later in Miami,Florida, and transported back to New York. The police thereafter conducted a lineup atwhich the complainant's daughter, the complainant's wife, and an unrelated eyewitnessall separately identified the defendant as one of the participants in the attack.
The defendant was charged with, among other crimes, assault in the first degree andgang assault in the first degree. The defendant moved to suppress the lineupidentification testimony on the ground that the photo identification procedure and thelineup identification procedure were [*2]undulysuggestive. Following a suppression hearing, the Supreme Court denied that branch ofthe defendant's omnibus motion which was to suppress the lineup identificationtestimony. At the ensuing jury trial, the complainant, the complainant's daughter, thecomplainant's wife, and the unrelated eyewitness all identified the defendant as one ofthe participants in the attack. The defendant testified that although he had been presentduring the attack, he did not participate in it.
The jury returned a verdict finding the defendant guilty of assault in the first degreeand gang assault in the first degree. The defendant was thereafter sentenced to twoconcurrent determinate terms of imprisonment of 19 years, to be followed by periods offive years of postrelease supervision, and a fine in the sum of $5,000. On appeal, thedefendant argues that the Supreme Court should have granted that branch of his omnibusmotion which was to suppress the lineup identification testimony, and that his sentence isexcessive and represents an impermissible penalty for exercising his right to a jurytrial.
"[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]). "Review of whether a pretrialidentification procedure is unduly suggestive is subject to a well-establishedburden-shifting mechanism" (People v Holley, 26 NY3d 514, 521 [2015]). At the firststep, the People must meet only their "initial burden of going forward to establish thereasonableness of the police conduct and the lack of any undue suggestiveness"(People v Chipp, 75 NY2d at 335), which is a "minimal" burden of "production"(People v Ortiz, 90 NY2d 533, 538 [1997]; see People v Holley, 26NY3d at 526-527 [Abdus-Salaam, J., concurring]). "If this burden is not sustained, aperemptory ruling against the People is justified. If the People meet their burden ofproduction, the burden shifts to the defendant to persuade the hearing court that theprocedure was improper" (People v Holley, 26 NY3d at 521). In other words,"[w]hile the People have the initial burden of going forward to establish . . .the lack of any undue suggestiveness in a pretrial identification procedure, it is thedefendant who bears the ultimate burden of proving that the procedure was undulysuggestive" (People v Chipp, 75 NY2d at 335; see People v Holley, 26NY3d at 521).
Here, the defendant contends that the Supreme Court should have suppressed thelineup identification testimony on the ground that the photo identification procedure wasunduly suggestive. The defendant argues that the People's failure to preserve the originalphotographic arrays viewed by the complainant's daughter gave rise to a presumption ofsuggestiveness, and that the People failed to rebut that presumption through thepresentation of evidence at the suppression hearing.
The Court of Appeals has recognized that "a detective who shows a witnessphotographs on the photo manager system or via a similar computer-assisted processmust carry out whatever steps are necessary to ensure that he or she can recreate in someway during a suppression hearing the display of the photographs in the precisearrangement and order in which they were shown to the witness" (People vHolley, 26 NY3d at 523). A failure to preserve such evidence "gives rise to apresumption of suggestiveness" (People v Dobbins, 112 AD3d 735, 736 [2013]; seePeople v Holley, 26 NY3d at 523; People v McDonald, 138 AD3d 1027 [2016]; People v Robinson, 123 AD3d1062, 1062 [2014]). However, the failure "to preserve the arrays viewed by [awitness] does not warrant suppression in and of itself" (People v Robinson, 123AD3d at 1062), and the People may overcome the presumption of suggestiveness "bypresenting sufficient evidence of nonsuggestiveness, such as by reconstructing the photoarray from related materials" (People v Dobbins, 112 AD3d at 736), or throughthe testimony of a police witness detailing the manner in which the photo managersystem was utilized to arrive at the identification (see People v Holley, 26 NY3dat 524-525).
In this case, although the People's failure to preserve the photographic arraysdisplayed through the use of the photo manager system gives rise to a presumption ofsuggestiveness, the People nevertheless rebutted that presumption and sustained theirinitial burden of production through the testimony of the police officer who administeredthe photo identification procedure. The officer testified that the complainant's daughterwas shown computer-generated photo arrays shortly after the attack occurred. The officerfurther testified as to the specific information that was entered [*3]into the photo manager system, which included theperpetrator's race and approximate age, height, and weight (cf. People vRobinson, 123 AD3d at 1062-1063; People v Dobbins, 112 AD3d at 736).The officer testified that approximately 230 photographs fit the search criteria that wasentered into the photo manager system and that these photographs were displayed inarrays consisting of six photographs at a time. Under the circumstances, the Peoplesustained their initial burden of demonstrating the reasonableness of the police conductand the lack of any undue suggestiveness (see People v Holley, 26 NY3d at524-525; People v Chipp, 75 NY2d at 335; see also People v Fields, 66 AD3d 799 [2009]; People vAshby, 289 AD2d 588 [2001]; People v Jerome, 111 AD2d 874 [1985]).Furthermore, upon our review of the record of the hearing, we conclude that thedefendant failed to sustain his ultimate burden of proving that the photo identificationprocedure was unduly suggestive (see People v Holley, 26 NY3d at 524-525).Accordingly, the Supreme Court properly denied that branch of the defendant's omnibusmotion which was to suppress the lineup identification testimony on the ground that thephoto identification procedure was unduly suggestive.
The defendant further contends that the lineup procedure utilized in this case wasunduly suggestive and that the Supreme Court should have suppressed the lineupidentification testimony on that ground. Contrary to the defendant's contention, thePeople sustained their burden of demonstrating the reasonableness of the police conductand the lack of any undue suggestiveness with respect to the three separate lineupidentifications made by the complainant's daughter, his wife, and the unrelatedeyewitness, respectively (see People v Chipp, 75 NY2d at 335). To the extent thatthe poor quality of the photographs of the lineups gave rise to a presumption ofsuggestiveness (see e.g. People v Brennan, 222 AD2d 445 [1995]), the Peoplenevertheless rebutted that presumption through the testimony of the officer whoadministered the lineup procedures and through the lineup reports, which were admittedinto evidence at the hearing without objection (see People v Pitts, 46 AD3d 923, 923 [2007]).Furthermore, since the lineup participants generally resembled the defendant in height,weight, attire, and skin tone, the variations in age between the defendant and three of theother members of the lineup, without more, did not render the lineup impermissiblysuggestive or conducive to mistaken identification (see People v Jackson, 98NY2d 555, 559 [2002]; Peoplev Davis, 27 AD3d 761, 761-762 [2006]; People v Blue, 267 AD2d 317,318 [1999]). Inasmuch as the lineup procedure did not create a substantial likelihood thatthe defendant would be singled out for identification, the Supreme Court properly deniedthat branch of the defendant's omnibus motion which was to suppress the lineupidentification testimony on the ground that the lineup procedure was unduly suggestive(see People v Jones, 131AD3d 1179, 1180 [2015]; People v Ortiz, 61 AD3d 1003 [2009]).
The defendant failed to preserve for appellate review his contention that the sentenceimposed by the Supreme Court improperly penalized him for exercising his right to a jurytrial, because he did not set forth the issue on the record at the time of sentencing (seePeople v Hurley, 75 NY2d 887, 888 [1990]). In any event, the fact that the sentenceimposed after trial was greater than the sentence offered during plea negotiations doesnot, standing alone, establish that the defendant was punished for exercising his right to atrial (see People v Pena, 50 NY2d 400, 411 [1980]; People v Gomez, 135 AD3d954, 957 [2016]).
Nevertheless, the sentence imposed was excessive to the extent indicated herein.Dillon, J.P., Miller, Hinds-Radix and Brathwaite Nelson, JJ., concur.