EDWARD WOODSON,                                                                           :

                                                               Defendant.                                    INDICTMENT NO.:0120/99

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FOR THE MOTION:                  Scott Brettschneider, Esq.

OPPOSED:                                Michael Brovner, Esq..,A.D.A.

A Wade hearing was held before this Court on October 5, 1999. The sole witness called by the People was Detective Richard Solomon whose testimony had the force and flavor of credibility. The defendant did not call any witnesses.

FINDINGS OF FACT

After due consideration of all the credible evidence adduced at the hearing, this Court makes the following findings of fact:

In December 1998, Det. Richard Solomon was working out of the 113 precinct and was investigating the shooting of Richard Gentilis that occurred on December 18, 1999. Having information that the defendant, Edward Woodson, may have been involved in the shooting, Det. Solomon constructed a photo array using the NYPD PIMS computer. The array consisted of the defendant's photo and five additional filler photos. Det. Solomon preserved the original array, produced it at the hearing and it was marked into evidence as People's Exhibit #1. The array was an 8 2" x 11" sheet of paper imprinted with six black and white images. At the top of the page were the words ANew York City Police Department@ with the words APhotographic Line- Up@ printed directly below them. At the bottom of the page were places to indicate whether an identification was made, the date of the identification, the photo selected and witnesses the initials. The images depicted six Black males with medium complexions and light facial hair. In his photo, the defendant appeared to have a small mark under his left eye along with some slight swelling in the same area.

The images in the array were laid out on the paper in two rows with three images in each row and were numbered from one to six. The defendant's image was number two and was located in the center of the top row. The images were nearly identical in size and background color. Det. Solomon testified that the only photo of the defendant he was able to obtain from the computer was one where he was wearing a white neck brace. Consequently, after printing the array, Det. Solomon used a magic marker to color the neck brace the defendant was wearing in the photograph black and then made similar markings on all the individuals depicted in the filler photos.

On December 18, 1999, Det. Solomon, accompanied by his partner Det. Edward Block, went to Jamaica Hospital to show the photo array to the complainant, Richard Gentilis. With the complainant lying in his hospital bed, Det. Solomon showed him the photo array and asked him to look at the photos and see if he recognized anyone. The complainant identified number two in the array and said Athat's Honcho.@ The complainant further indicated that number two in the array was the driver of the car that carried the individual who shot him. Det. Solomon then had the complainant initial the photo array. Also present during the identification procedure were three unidentified female friends of the complainant who were standing at the foot of the hospital bed. Det. Solomon identified the defendant as the individual the complainant selected from the photo array.

Sometime on the evening of January 6, 1999, the defendant surrendered to Det. Solomon. The next day as Det. Solomon continued his arrest processing of the defendant and arranged a line-up to include the defendant. Det. Solomon called the complainant and told him to come look at a line up and see if he recognized anyone. Det. Solomon went to a homeless shelter in a police van and obtained five individuals to participate in the line-up. Det. Solomon placed the defendant and the five homeless individuals in the line-up room at the 113 precinct. Det. Solomon took cards numbered one to six and placed them on a table and told the defendant and the fillers to select numbers and corresponding chairs. The defendant selected number two. Det. Solomon testified that he gave each person in the lineup a hat to mask their differing hair styles. Prior to photographing the lineup, Det. Solomon testified that he asked the defendant's attorney, Claude Timms, whether he was satisfied with the line-up. Det. Solomon stated that when the attorney did not answer he took photos of the line-up. The detective took three Polaroid type photos which he preserved and produced at the hearing. One photo taken on a diagonal, shows all six participants in the lineup. The other two photos of the lineup show three participants each.

The photographs reveal six Black males seated behind a long table and in front of a white wall. All the participants are holding pieces of paper with numbers from one to six on them. Additionally, each individual is wearing a black baseball cap with a number affixed to it that corresponds to the number they are holding. Numbers one, two (defendant), four and six are wearing white collared shirts. Number three is wearing a red shirt and number five a black shirt. All the participants appear to be approximately the same height, have similar skin complexion and have facial hair, either in the form of a moustache or goatee.

Det. Solomon stated that the complainant arrived at the 113 precinct some time in the late morning or early afternoon of January 7, 1999 after the fillers and the defendant had been placed in the lineup room. Det. Solomon told the complainant that he would be viewing a lineup and that he would ask him three questions: 1) Do you recognize anyone?, 2) Who if anyone do you recognize? and 3) Where do you recognize that person from. Standing outside the lineup room and viewing the lineup through a one-way mirror, the complainant indicated that he recognized number two, the defendant, as the person who was driving the car carrying the individual who shot him.

CONCLUSIONS OF LAW

The People bear the initial burden of going forward at a Wade hearing to demonstrate the reasonableness of the police conduct and to show the lack of undue suggestiveness in the procedure. (People v. Chipp, 75 N.Y.2d 327 [1990], cert denied, 498 U.S. 833). To satisfy their burden on lack of undue suggestiveness, the People need only present Asome evidence@ of the circumstances surrounding the identification procedure. (People v. Ortiz, 90 N.Y.2d 533 [1997]). Once the People meet their burden of going forward, the burden then shifts to the defendant who must ultimately establish that the identification procedure used was unduly suggestive. (People v. Chipp, supra; see also, e.g., People v. Rahming, 26 N.Y.2d 411 [1970]). If the defendant meets this burden of proof, the burden then shifts back to the People to establish a basis for the in-court identification which is independent from the tainted identification procedure by Aclear and convincing evidence@. (People v. Chipp, supra; see also People v. Ballot, 20 N.Y.2d 600 [1967]). In the case at the bar, it is apparent to the Court that the People have met their burden while the defendant has not.

It is axiomatic that a defendant who is placed in a photographic array or lineup is not entitled to be accompanied by individuals who are nearly identical in appearance. (People v. Chipp, supra; People v. Galletti, 239 A.D.2d 598 [2d Dept. 1997], lv denied, 90 N.Y.2d 1011 [1997]). To find an identification procedure was, prima facie, unduly suggestive as a matter of law, the Court must determine that there was a Asubstantial likelihood that the defendant would be singled out for identification.@ (People v. Chipp, supra at 336). In other words, either some feature of the defendant's photo must draw the viewer's attention to such degree as to indicate the police had selected the defendant (See, e.g., People v. Rawlings, 159 A.D.2d 655 [2d Dept. 1990); People v. Cherry, 150 A.D.2d 475 [2d Dept. 1989]) or the defendant must contrast so markedly in appearance from the other participants that it can be concluded that the difference Ainfluenced the viewer towards choosing the defendant.@ (People v. Blake, 170 A.D.2d 613 [2d Dept. 1991]).

PHOTO ARRAY

After considering the totality of the circumstances surrounding the identification procedure in question the Court finds that the photographic array was not unduly suggestive. (see People v. Galletti, supra). At the outset, the use of six photos in the array was constitutionally permissible. (People v. Garcia, 115 A.D.2d 617 [2d Dept. 1985]). Turning to the physical construction of the array, nothing impermissibly draws attention the defendant's image. (see People v. Cherry, supra). The photos are sufficiently similar in size, finish and contrast. Furthermore, the Court finds the detective's use of a magic marker to mask the neck brace the defendant was wearing and to make similar markings on the filler photos was acceptable. While the Court's research reveals that the exact circumstances in the case at the bar may be unique, modifying a photo which might otherwise be too suggestive for use in a photo array is not unprecedented. (See, e.g., People v. Stackhouse, 226 A.D.2d 822 [3d Dept. 1996]). Extrinsic markings on photos used in an array do not invalidate the identification procedure unless the they impermissibly highlight or distinguish the defendant's photo. (Cf. People v. Tapling, 159 A.D.2d 260 [1^st Dept. 1990]). The markings made by Det. Solomon on the photos in the present case do not highlight the defendant's photo to such degree that the viewer's attention is drawn to that image. Rather, in the Court's opinion, the markings sufficiently neutralize the neck brace such that the photo array is not unduly suggestive. With regard to the defendant's allegation at the hearing that the markings made on the defendant's photo are unduly suggestive because the ink bled through the paper more significantly than on the defendant's photograph as compared to the other photos is without merit. There is no indication in the record that the complainant ever looked at the back of the sheet on which the array was imprinted.

As to the individuals depicted in the array, the Court finds that the fillers possess characteristics sufficiently similar to the defendant's to pass muster. (see People v. Galletti, supra; People v. Hoehne, 203 A.D.2d 480 [2d Dept. 1994]; People v. Henderson, 170 A.D.2d 532 [2d Dept. 1991]; People v. Blake, supra; People v. Jones, 166 A.D.2d 722 [2d Dept. 1990]; People v. Gettys, 162 A.D.2d 963 [4th Dept. 1990]). All the individuals depicted in the array have relatively equal skin tone, light facial hair, similar facial structures and appear to be approximately the same age. The mark and possible swelling under the defendant's left eye did not render the photographic array impermissibly suggestive given the defendant's overall similarity to the individuals depicted in the filler photos. (People v. Phillips, 145 A.D.2d 656 [2d Dept. 1988]; People v. Williams, 118 A.D.2d 610 [2d Dept. 1986]).

LINEUP

Preliminarily, the Court finds that the lineup was not per se suggestive merely because the complainant had previously been shown a photo array containing the defendant's photograph. (People v. Carroll, 200 A.D.2d 630 [2d Dept. 1994]). The lineup was procedurally sound in that there was no evidence the complainant saw the defendant or the fillers in the precinct prior to the identification procedure. Also, Det. Solomon's questions to the complainant prior to and during the lineup were neutral and not suggestive.

Contrary to the defendant's contention, the photographs taken by Det. Solomon to memorialize the lineup are adequately clear to permit the Court to make an accurate assessment of the suggestiveness of the identification procedure. Like the photo array, the defendant was sufficiently similar in appearance to the fillers such that there was not a substantially likelihood of misidentification. The fillers in the lineup appear adequately similar in skin tone, facial composition, age and build to the defendant. Likewise, all the fillers, except one, wore adequately similar facial hair to that of the defendant. Having the defendant and the fillers seated effectively masked any possible differences in height (People v. Irving, 254 A.D.2d 302 [2d Dept. 1998]) and the use of baseball hats concealed the participants various hairstyles. (People v. Williams, ___ A.D.2d___, 692 A.D.2d 349 [1^st Dept. 1999]).

Accordingly, for all the foregoing reasons, the motion to suppress the identification of the defendant is denied.

This opinion shall constitute the decision and order of the Court.

The clerk of the part is directed to distribute forthwith a copy of this Decision and accompanying Order to the Office of the District Attorney and to the office for the attorney(s) for the defendant.

Dated: Kew Gardens, New York
October , 1999

DARRELL L. GAVRIN
A.J.S.C.