People v. McDonald, 2008-09292, Ind. No. 1788/06.

• Decision Date: 20 April 2016
• Docket Number: 2008-09292, Ind. No. 1788/06.
• Citation: 30 N.Y.S.3d 241,2016 N.Y. Slip Op. 03017,138 A.D.3d 1027
• Parties: The PEOPLE, etc., respondent, v. Kashif McDONALD, appellant.
• Court: New York Supreme Court — Appellate Division

138 A.D.3d 1027

30 N.Y.S.3d 241

2016 N.Y. Slip Op. 03017

The PEOPLE, etc., respondent,

v.Kashif McDONALD, appellant.

2008-09292, Ind. No. 1788/06.

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

April 20, 2016.

Robert DiDio, Kew Gardens, NY (Danielle Muscatello of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and Ann Bordley of counsel), for respondent.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, COLLEEN D. DUFFY, and BETSY BARROS, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered September 9, 2008, convicting him of murder in the second degree and robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Holdman, 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.

On December 9, 2005, three armed perpetrators allegedly committed a robbery at a store and, during the course thereof, shot and killed one of the store's employees. The defendant was arrested in connection therewith.

At a Wade hearing (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149

), Detective Michael McDermott testified that, on January 8, 2006, two witnesses, Jeff Clyne and Ronald Seeram, each identified the defendant as one of the perpetrators upon viewing certain photographs from the police department's photo manager system. McDermott explained that the photo manager system generates screens displaying six photographs at one time based on certain age and physical appearance criteria entered into a computer. According to McDermott, during the photographic identification procedures, each witness was seated in a different area of the precinct station house, on opposite sides of the detective squad room, and at a different computer terminal. He estimated that the witnesses were approximately 20 feet apart.

McDermott supervised Seeram's photographic identification procedure. Notably, McDermott failed to preserve a screen printout of any of the photo arrays viewed by Seeram, including the one from which Seeram purportedly identified the defendant. Instead, at the hearing, McDermott produced a single photograph of the defendant. This photograph, however, was dated January 9, 2006, not January 8, 2006.

According to McDermott, another detective supervised Clyne's photographic identification procedure and was responsible for entering the specific criteria into the computer utilized by Clyne. That detective was not produced at the Wade hearing. Nevertheless, through McDermott's testimony, the People were permitted at the hearing to introduce a photo array apparently depicting a computer screen of six photographs, one of which depicted the defendant.

Thereafter, lineup identification procedures were conducted. Only the detective assigned to conduct the lineup at which Clyne purportedly made an identification of the defendant testified at the Wade hearing. The detective who supervised the lineup at which Seeram purportedly identified the defendant was not produced at the Wade hearing. At the conclusion of the hearing, the Supreme Court concluded that the identification procedures were not unduly suggestive.

The Supreme Court erred in denying 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 (see

People v. Coleman, 73 A.D.3d 1200, 1203, 903 N.Y.S.2d 431

; People v. Stephens, 143 A.D.2d 692, 695, 532 N.Y.S.2d 928 ; see also

People v. Rahming, 26 N.Y.2d 411, 311 N.Y.S.2d 292, 259 N.E.2d 727 ). This requirement “rests upon a recognition that ‘in many instances a defendant simply does not know the facts surrounding a pretrial identification procedure and thus cannot make specific factual allegations' ” (People v. Coleman, 73 A.D.3d at 1203, 903 N.Y.S.2d 431, quoting People v. Rodriguez, 79 N.Y.2d 445, 453, 583 N.Y.S.2d 814, 593 N.E.2d 268 ; see CPL 710.60[3] [b] ). Once the People meet their burden, the defendant bears the ultimate burden of proving that a pretrial identification procedure was unduly suggestive (see

People v. Dobbins, 112 A.D.3d 735, 736, 976 N.Y.S.2d 213 ; People v. Coleman, 73 A.D.3d at 1203, 903 N.Y.S.2d 431 ; People v. Stephens, 143 A.D.2d at 695, 532 N.Y.S.2d 928 ).

The People's failure to preserve the photo array from which Seeram identified the defendant gives rise to a presumption of suggestiveness (see People v. Dobbins, 112 A.D.3d at 736, 976 N.Y.S.2d 213

; People v. Redding, 65 A.D.3d 1059, 1060, 884 N.Y.S.2d 886 ). While the People can overcome that presumption “by presenting sufficient evidence of nonsuggestiveness, such as by reconstructing the photo array from related materials” (see

People v. Dobbins, 112 A.D.3d at 736, 976 N.Y.S.2d 213 ), they failed to do so here.

At the suppression hearing, McDermott testified that he did not preserve the photo arrays viewed by Seeram because the computer that displayed those arrays was not attached to a printer. He stated that after Seeram identified the defendant from a photo array, McDermott used another computer to print out a single photograph of the defendant using the defendant's NYSID number, and then showed that photogaph to Seeram. It cannot be said that this testimony was sufficient to dispel any inference of suggestiveness. McDermott did not explain why he did not attach a printer to the computer Seeram was using, or why he did not attempt to reconstruct the photo array (see id. ). Moreover, the single photograph was not signed by Seeram, and was dated January 9, 2006, the day following Seerem's photographic identification procedure.

Further, the People failed to produce the detective who conducted Clyne's photographic identification procedure, or the detective who conducted Seeram's lineup identification procedure. Contrary to our dissenting colleague's determination, McDermott did not conduct either of those procedures, and, therefore, could not provide competent evidence as to the circumstances thereof and what, if anything, transpired during those identification procedures (see People v. Coleman, 73 A.D.3d at 1203, 903 N.Y.S.2d 431

).

Under these circumstances, the People failed to meet their initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness with respect to any of the pretrial identification procedures (see People v. Ortiz, 90 N.Y.2d 533, 538, 664 N.Y.S.2d 243, 686 N.E.2d 1337

; People v. Coleman, 73 A.D.3d at 1203, 903 N.Y.S.2d 431 ).

In addition, at a voir dire hearing held outside the presence of the jury during the trial, the Supreme Court improperly curtailed the defendant's cross-examination of McDermott as to how a photo array (referred to as Exhibit 1), which was first disclosed at the time of trial, was generated. At the hearing, McDermott acknowledged that his handwritten notes on Exhibit 1 corresponded with Clyne and Seeram's descriptions of the perpetrators. Exhibit 1 was dated December 10, 2005, which was the day after the subject shooting occurred. Despite the date shown on that photo array, McDermott testified that it was generated after Clyne and Seeram had already identified the defendant in January of 2006. He further testified that the array was generated so as to include a photo of the defendant, as well as five other individuals who had been arrested with the defendant on prior occasions. When McDermott was confronted with the fact that the defendant's photograph was not contained within Exhibit 1, the court curtailed the defense counsel's questioning of McDermott as to how the photo array was generated. McDermott then testified that Exhibit 1 was merely used as scrap paper, and that it was never shown to either Clyne or Seeram.

“Where a witness testifies at trial regarding an identification of an accused, whether that testimony describes an in-court identification or a pretrial ... procedure, the trier of facts must be permitted to consider whether such testimony is worthy of belief, or whether it is lacking in reliability due to the suggestiveness of that identification procedure or of some other procedure employed prior thereto” (People v. Ruffino, 110 A.D.2d 198, 203, 494 N.Y.S.2d 8

; see

People v. Castricone, 198 A.D.2d 765, 766, 604 N.Y.S.2d 365 ; People v. Malone, 173 A.D.2d 160, 161, 569 N.Y.S.2d 69 ). Here, contrary to the Supreme Court's determination, defense counsel should have been permitted to question McDermott about Exhibit 1 in front of the jury so that the jury could consider whether McDermott's testimony was worthy of belief and reliable not only with respect to the handwritten notes contained on Exhibit 1, but also as to the circumstances of that photo array's generation, and whether it was shown to the witnesses as part of a pretrial identification procedure.

In sum, although no single factor is determinative, under the totality of the circumstances, we conclude that the Supreme Court should have granted that branch of the defendant's omnibus motion which was to suppress identification testimony, and that the defendant is entitled to a new trial, to be preceded by a hearing to determine whether an independent source for...