People v. Holley

• Decision Date: 17 December 2015
• Docket Number: No. 196,196
• Citation: 26 N.Y.3d 514,25 N.Y.S.3d 40,45 N.E.3d 936,2015 N.Y. Slip Op. 09314
• Parties: The PEOPLE of the State of New York, Respondent, v. Todd HOLLEY, Appellant.
• Court: New York Court of Appeals Court of Appeals

26 N.Y.3d 514
45 N.E.3d 936
25 N.Y.S.3d 40
2015 N.Y. Slip Op. 09314

The PEOPLE of the State of New York, Respondent
v.
Todd HOLLEY, Appellant.

No. 196

Court of Appeals of New York.

Dec. 17, 2015.

Seymour W. James, Jr., The Legal Aid Society, New York City (Andrew C. Fine and Lawrence T. Hausman of counsel), and Boies, Schiller & Flexner LLP, New York City (Stephen Kyriacou, Jr., of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York City (Joshua L. Haber and Alan Gadlin of counsel), for respondent.

OPINION OF THE COURT

FAHEY, J.

45 N.E.3d 937

When using a photo array as an identification procedure, the People should preserve a record of what was viewed. Failure to do so gives rise to a rebuttable presumption that the array was unduly suggestive. The obligation to preserve is not diminished by the type of system used. Computer screen or mug shots book, the People's obligation is the same. Here, the People failed to preserve a computer-generated array of photographs shown to an identifying witness, giving rise to a rebuttable presumption that the array was unduly suggestive. Nevertheless,

in the present case, the People overcame that presumption through testimony at the suppression hearing.

I.

On May 30, 2010, two young women, Ju Eun Lee and Yoori Han, were on a subway platform in Manhattan when a man attempted to lift the strap of Lee's purse from her shoulder. Lee clung to the bag, while Han seized the strap, engaging in a brief tug-of-war with the would-be robber. Both women saw the man's face at close range on a well-lit platform. The man let

45 N.E.3d 938

go of the purse and left the scene. A bystander, Sylvie Lee, was one of several people who came to the assistance of the two women and escorted them as they went to report the incident to a Metropolitan Transportation Authority employee. Meanwhile, the same man reentered the subway station, and, after making eye contact with Han, charged at the women. He repeatedly punched and kicked Han and punched Sylvie Lee, before fleeing.

Detective Greg Mazuroski of the New York City Police Department's Manhattan Transit Robbery Squad was assigned to the case. The detective interviewed the women. Han and Ju Eun Lee described the perpetrator as a “skinny” black man, around 30 to 40 years old, about six feet to six feet, two inches tall, and weighing between 160 and 180 pounds. Sylvie Lee described the man similarly.^*

On June 2, 2010, Detective Mazuroski invited Sylvie Lee to view a series of photograph arrays generated by the Police Department's photo manager system, a computer database that contains the photographs of individuals who have previously been arrested. The system generates arrays of six photographs at a time, based on criteria entered into the computer by the detective or officer, including the physical appearance of the suspect. The photographs are displayed on a computer screen.

In accordance with the witnesses' descriptions, Detective Mazuroski ran a search for black men, 30 to 40 years old, six feet to six feet, four inches, who had been arrested in Manhattan from 2007 to 2010. The search generated a large number of photographs, but Lee identified defendant Todd Holley as the attacker on the second “page” or photo array. She was then

shown more pages—at least 12 and perhaps as many as 20 more—over the course of an hour or so. Lee also identified defendant as the perpetrator in two additional, different photographs, included on pages 13 and 14. She did not identify anyone else.

The police located defendant and arrested him on June 8. He was an African–American man, 32 years old, about six feet, one inch to six feet, two inches tall, and approximately 160 pounds in weight. That day, Han and Sylvie Lee separately viewed a lineup, comprising defendant and five other black men. The fillers, according to their self-descriptions, ranged from 22 to 57 years of age, from five feet, nine inches to six feet, two inches, and from 180 to 250 pounds. They wore identical baseball caps, turned backwards. The men were seated. Following a request by Han, the men stood up momentarily to show their profiles. Both women identified defendant as the assailant.

II.

Defendant was charged with one count of attempted robbery in the third degree and two counts of assault in the third degree. At a suppression hearing, Detective Mazuroski described the procedures he had followed with the photo manager system as well as the lineup. Detective Mazuroski testified that at the time he showed Sylvie Lee the photo arrays, he did not have a suspect in mind. Cross-examination disclosed that the detective had not included a weight range when he entered criteria in the photo manager system, even though it would have been possible to enter a weight. Significantly, the police had not preserved the photo arrays that were

45 N.E.3d 939

shown to Sylvie Lee for the hearing court to review. Photographs of the lineup were entered into evidence.

Defendant moved to suppress all identification testimony. He contended that the People's failure to preserve the photo arrays entitled him to a presumption of suggestiveness, and that, in any case, the procedure using the photo manager system was unduly suggestive, insofar as the detective did not enter the perpetrator's estimated weight. He also challenged the lineup as unduly suggestive. Supreme Court, crediting the detective's testimony and finding neither pretrial identification procedure unduly suggestive, denied the motion.

Prior to defendant's trial, the parties discussed with the court whether testimony should be elicited from Detective Mazuroski

concerning how the police came to arrest defendant. Supreme Court ruled that the People could elicit from the detective only that an investigation based on information beyond the witnesses' descriptions had led him to suspect defendant. The defense objected, primarily on the ground that such testimony would constitute improper bolstering of the eyewitness identifications.

At trial, Ju Eun Lee, Han, and Sylvie Lee identified defendant in court as the assailant, and the lineup identifications were described in detail. There was no testimony regarding the display of the photo arrays, but the detective testified that, after getting descriptions of the perpetrator from the witnesses, he had carried out “further investigation with information beyond the descriptions,” which “generated one suspect,” namely Holley. Defendant did not testify.

In summation, the prosecutor alluded to Detective Mazuroski's “further investigation,” and told the jury that the detective “didn't go out and just grab the man off the street that he thought looked like what [the witnesses'] description was. He went after his investigation and went and found Mr. Holley.” No objection was made to these remarks.

The jury found defendant guilty on all counts. Defendant appealed from the judgment of conviction and sentence, challenging Supreme Court's ruling on the suppression motion, as well as the admission of the testimony regarding the detective's investigation and the prosecutor's remarks concerning the investigation in summation.

The Appellate Division affirmed, holding that the use of the photo manager system procedure was not unduly suggestive.

“The detective's testimony about how the computerized procedure operates sufficiently established its fairness. The fact that the police failed to preserve the arrays viewed by the witness does not warrant a different conclusion. We also conclude that the detective entered sufficient information about the description of the perpetrator to ensure that the computer generated a fair selection of photos.” (116 A.D.3d 442, 442, 982 N.Y.S.2d 761 [1st Dept.2014] [citations omitted].)

The Appellate Division also upheld the lineup, noting that “[a]ny differences between defendant and the other participants, including an age disparity not fully reflected in the participants' actual appearances, and a weight disparity that

was minimized by having the participants seated, was not so noticeable as to single defendant out” (id. at 442–443, 982 N.Y.S.2d 761 [citations omitted] ). The Court rejected defendant's remaining arguments.

A Judge of this Court granted defendant leave to appeal (23 N.Y.3d 1037, 993 N.Y.S.2d 251, 17 N.E.3d 506 [2014] ). We now affirm.

45 N.E.3d 940

III.

The New York City Police Department's photo manager system, described above, is today's computer-generated equivalent of a long-established police procedure: showing a compilation of photographs of previous arrestees, in the form of a “mug book” (People v. Burts, 78 N.Y.2d 20, 22, 571 N.Y.S.2d 418, 574 N.E.2d 1024 [1991] ) or a “drawer[ ] of photographs” (People v. Hernandez, 70 N.Y.2d 833, 834, 523 N.Y.S.2d 442, 517 N.E.2d 1328 [1987] ), to people who witnessed a crime, in order to establish a suspect. The primary question on this appeal is what the consequence should be when the police use such a computer-generated photo array, and fail to preserve a record of the particular photographs shown to the witness.

Review of whether a...