In re Jamir T.

• Decision Date: 13 February 2019
• Docket Number: Docket No. D–11528–17,2018–02051
• Citation: 169 A.D.3d 800,94 N.Y.S.3d 140
• Parties: In the MATTER OF JAMIR T. (Anonymous), Appellant.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 800

94 N.Y.S.3d 140

In the MATTER OF JAMIR T. (Anonymous), Appellant.

2018–02051

Docket No. D–11528–17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—December 17, 2018

February 13, 2019

Mary Jean Howland, Tuckahoe, NY, attorney for the child, the appellant, Jamir T.

John M. Nonna, County Attorney, White Plains, NY (Linda Trentacoste and David H. Chen of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., HECTOR D. LASALLE, BETSY BARROS, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 3, Jamir T. appeals from an order of fact-finding and disposition of the Family Court, Westchester County (M.A. Scattaretico Naber, J.), entered January 16, 2018. The order, insofar as appealed from, after a fact-finding hearing, found that the appellant committed acts which, if committed by an adult, would have constituted the crime of assault in the second degree, and adjudicated the appellant a juvenile delinquent. The appeal brings up for review the denial, after a hearing, of that branch of Jamir T.'s omnibus motion which was to suppress identification testimony.

ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.

On September 14, 2017, the appellant was arrested for stabbing the then 18–year–old complainant. While at the hospital, the complainant identified the appellant from a photographic array. The appellant was then charged in a juvenile delinquency petition with committing acts which, if committed by an adult, would have constituted the crimes of, inter alia, attempted assault in the first and second degrees, and criminal possession of stolen property in the fifth degree. The appellant moved, inter alia, to suppress the identification testimony. The Family Court, after a hearing, denied that branch of his motion. After the fact-finding hearing, the court found that the presentment agency proved beyond a reasonable doubt that the appellant committed acts which, if committed by an adult, would have constituted the crime of assault in the second degree.

In determining whether a photographic array was unduly suggestive, the standard to be considered is whether the identification procedure was constructed in a manner such that there was a substantial risk that the defendant was "singled out for identification" ( People v. Chipp , 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 ; see People v. Staton , 138 A.D.3d 1149, 1149, 31 N.Y.S.3d 136, affd 28 N.Y.3d 1160, 49 N.Y.S.3d 351, 71 N.E.3d 939 ; People v. Burroughs , 98 A.D.3d 583, 583, 949 N.Y.S.2d 211 ). " ‘A photographic array is suggestive where some characteristic of an individual's picture draws the viewer's attention to it, indicating that the police have made a particular selection’ " ( People v. Dunbar , 134 A.D.3d 851, 852, 20 N.Y.S.3d 656, quoting People v. Curtis , 71 A.D.3d 1044, 1045, 900 N.Y.S.2d 68 ; see People v. Redding , 132 A.D.3d 700, 700, 17 N.Y.S.3d 495 ).

Here, although the appellant was the only person in the photographic array wearing a coat and with his hair pulled back, these facts were insufficient to establish that the photographic array was unduly suggestive (see People v. Thomas , 164 A.D.3d 619, 621, 82 N.Y.S.3d 82 ; People v. Plumley , 111 A.D.3d 1418, 1420, 975 N.Y.S.2d 309 ). The presentment agency established, through the testimony of a police officer and an agency staff member, that the persons in the five other photographs were sufficiently similar in appearance to the appellant. The officer explained that she had prepared the array by entering information about the appellant's appearance into a computer program and selecting from the results (see People v....