People v. Dobbins

• Decision Date: 11 December 2013
• Citation: 976 N.Y.S.2d 213,112 A.D.3d 735,2013 N.Y. Slip Op. 08265
• Parties: The PEOPLE, etc., respondent, v. Kashawn DOBBINS, appellant.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 735

976 N.Y.S.2d 213

2013 N.Y. Slip Op. 08265

The PEOPLE, etc., respondent,

v.Kashawn DOBBINS, appellant.

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

Dec. 11, 2013.

Lynn W. L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Sharon Y. Brodt of counsel; Lorrie A. Zinno on the brief), for respondent.

REINALDO E. RIVERA, J.P., MARK C. DILLON, CHERYL E. CHAMBERS, and SYLVIA O. HINDS–RADIX, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered May 9, 2011, convicting him of robbery in the first degree and robbery in the second degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Paynter, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is reversed, on the law, that branch of the defendant's omnibus motion which was to suppress identification testimony is granted, and a new trial is ordered, to be preceded by a hearing to determine whether an independent source for the identifications exists.

“[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, cert. denied498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70). 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. Once the People satisfy this duty, the defendant has the ultimate burden of proving that the identification procedure was unduly suggestive” (People v. Delamota, 18 N.Y.3d 107, 118, 936 N.Y.S.2d 614, 960 N.E.2d 383 [internal quotation marks omitted] ).

The People's failure to preserve the original printout of a photographic array gives rise to a presumption of suggestiveness. However, by presenting sufficient evidence of nonsuggestiveness, such as by reconstructing the photo array from related materials ( see People v. Georgison, 299 A.D.2d 176, 750 N.Y.S.2d 18), the People can overcome that presumption ( see People v. Bridges, 63 A.D.3d 752, 753, 880 N.Y.S.2d 341).

Here, the People failed to rebut the presumption of suggestiveness that arose from their failure to preserve the photo array. At the suppression hearing, a detective testified that he did not memorialize and could not recall the specific information that he entered into the photo manager system which generated the photographic array, did not memorialize and could not recall how many photographs the complainant viewed, and did not memorialize and could not recall for how long the complainant was viewing photographs. Therefore, the evidence presented did not overcome the presumption that the array was suggestive ( see People v. Redding, 65 A.D.3d 1059, 884 N.Y.S.2d 886; People v. Lewis, 20 Misc.3d 1136[A], 867 N.Y.S.2d 377, 2008 N.Y. Slip Op. 51747[U] [Sup.Ct., Kings County]; cf. People v. Jones, 43 A.D.3d 1296, 1298, 843 N.Y.S.2d 880; People v. Burgos, 204 A.D.2d 344, 345, 611 N.Y.S.2d 605; People v. Stokes, 139 A.D.2d 785, 527 N.Y.S.2d 529).

We need not address whether the subsequent lineup at which the defendant was identified was sufficiently attenuated in time from the prior photographic identification procedure to nullify any possible taint resulting from the photographic array, because the lineup procedure was also unduly suggestive. While “[t]here is ... no requirement that a defendant in a lineupbe surrounded by individuals nearly identical in appearance” (People v. Brown, 89 A.D.3d 1032, 1033, 933 N.Y.S.2d 339, citing People v. Chipp, 75 N.Y.2d at 336, 553 N.Y.S.2d 72, 552 N.E.2d 608), the other individuals in the lineup should sufficiently resemble the defendant so that there is no substantial likelihood that the defendant would be singled out for identification ( see People v. Jean–Baptiste, 57 A.D.3d 566, 868 N.Y.S.2d 724; People v. Valdez, 204 A.D.2d 369, 611 N.Y.S.2d 566).

Here, according to the evidence presented at the hearing, the complainant gave a description of the perpetrator which included the physical characteristics of dark skin, age in the mid–20s, height of approximately 5 feet 8 inches, and weight of approximately 160 pounds. Upon our examination of the photographs of the lineup, it is apparent that the defendant was the only person that could have been in his mid–20s. In addition, the only “filler” who appeared somewhat similar in height and weight to the defendant was significantly older and had a lighter skin tone than the defendant. The remaining fillers, who were all much older than the defendant, were also much taller and much heavier than the defendant. These circumstances created a significant contrast to the defendant's appearance, making identification by suggestion highly likely ( see People v. Breitenbach, 260 A.D.2d 389, 390, 687 N.Y.S.2d 437; People v. Harris, 172 A.D.2d 560, 567 N.Y.S.2d 885, ...