People v. Castello, 2015–03628

• Decision Date: 02 October 2019
• Docket Number: Ind. No. 3891/13,2015–03628
• Parties: The PEOPLE, etc., Respondent, v. Bennett CASTELLO, Appellant.
• Court: New York Supreme Court — Appellate Division

176 A.D.3d 730

110 N.Y.S.3d 425

The PEOPLE, etc., Respondent,

v.Bennett CASTELLO, Appellant.

2015–03628

Ind. No. 3891/13

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

Argued—November 13, 2018

October 2, 2019

Paul Skip Laisure, New York, N.Y. (Kathleen Whooley of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Gamaliel Marrero of counsel), for respondent.

LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Danny K. Chun, J.), rendered April 7, 2015, convicting him of predatory sexual assault (two counts), rape in the first degree (two counts), sex abuse in the first degree, and burglary in the first degree as a sexually motivated felony, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is modified, on the law, by vacating the convictions of rape in the first degree (two counts), vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.

The defendant was charged with committing sexual offenses against the then–13–year–old complainant. On April 29, 2013, the complainant allegedly was followed into her apartment building by the defendant, a stranger, who then threatened her with a pair of scissors before assaulting her.

At a pretrial suppression hearing, a detective testified that the complainant viewed computer-generated photographic arrays on three different occasions: twice on April 30, 2013, and once on May 2, 2013. The detective also testified that when she met the complainant at the hospital on April 29, 2013, the complainant gave a description of the perpetrator as, among other things, a stocky white male with a round face, 5 feet 8 inches tall, and 30 to 35 years old. The detective further testified that, during the early morning of April 30, 2013, she displayed photographs to the complainant using the police department's computer photo manager system. The detective said that she entered into the computer the description of the perpetrator that the complainant had previously provided, and the computer randomly selected photographs, which she thought were displayed on the computer screen six photographs at a time. The detective testified that the complainant did not make an identification during this first viewing.

The detective testified that, later in the day on April 30, 2013, the complainant viewed additional photographs on a police computer of individuals who were included in the Sex Offender Monitoring Unit database in Brooklyn. She stated that the complainant did not make an identification during that second viewing.

The detective testified that on May 2, 2013, the complainant viewed photographs on a police computer of individuals who were included in the Sex Offender Monitoring Unit database, city-wide. The detective further testified that the complainant identified the defendant's photograph as the individual who raped her. The detective recalled that five days later, on May 7, 2013, she printed out the photograph that the complainant had identified. She acknowledged that the complainant did not sign the copy of the photograph that was printed. The detective also testified that on May 7, 2013, the complainant identified the defendant in a lineup.

In total, over the three sessions of viewing the photographs generated by the police department's computer photo manager system, the complainant viewed approximately 700 to 1,000 photographs. Although the detective printed out a four-page list of the sex offender identification numbers which corresponded to the photographs viewed by the complainant, she could not identify which one was the defendant's identification number or state that the numbers were in the same order as the photographs the complainant viewed.

The defendant moved, inter alia, to suppress the identification testimony on the ground that the identification procedures were unduly suggestive. Following a suppression hearing, the Supreme Court, inter alia, denied that branch of the defendant's omnibus motion which was to suppress the identification testimony. After a jury trial, the defendant was convicted of predatory sexual assault (two counts), rape in the first degree (two counts), sex abuse in the first degree, and burglary in the first degree as a sexually motivated felony.

We agree with the Supreme Court's denial of that branch of the defendant's omnibus motion which was to suppress identification testimony. "[U]nduly suggestive pretrial identification procedures violate due process and therefore are not admissible to determine the guilt or innocence of an accused" ( People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608 ). "When a defendant challenges an identification procedure as [unduly] suggestive, the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness" ( People v. Delamota, 18 N.Y.3d 107, 118, 936 N.Y.S.2d 614, 960 N.E.2d 383 [internal quotation marks omitted] ), "which is a ‘minimal’ burden of ‘production’ " ( People v. Busano, 141 A.D.3d 538, 539, 36 N.Y.S.3d 149, quoting People v. Ortiz, 90 N.Y.2d 533, 538, 664 N.Y.S.2d 243, 686 N.E.2d 1337 ; see People v. Sims, 146 A.D.3d 820, 820, 45 N.Y.S.3d 491 ). The People's failure to preserve a record of what was viewed during the photo identification procedure gives rise to a rebuttable presumption of suggestiveness (see People v. Holley, 26 N.Y.3d 514, 521–522, 25 N.Y.S.3d 40, 45 N.E.3d 936 ).

The presumption of suggestiveness may be overcome "by presenting sufficient evidence of nonsuggestiveness, such as by reconstructing the photo array from related materials" ( People v. Dobbins, 112 A.D.3d 735, 736, 976 N.Y.S.2d 213 ) or through the testimony of a police witness detailing the manner in which the photo manager system was utilized to arrive at the identification (see People v. Holley, 26 N.Y.3d at 524–525, 25 N.Y.S.3d 40, 45 N.E.3d 936 ; People v. Busano, 141 A.D.3d at 540, 36 N.Y.S.3d 149 ). "If the People meet their burden ... the burden shifts to the defendant to persuade the...