By petition filed on July 19, 2006 respondent is alleged to have committed acts which,

were she an adult, would constitute the crimes of Robbery in the Second and Third Degrees,

Attempted Robbery in the Second and Third Degrees, Assault in the Second and Third Degrees,

Attempted Assault in the Second and Third Degrees, Grand Larceny in the Fourth Degree and

Attempted Grand Larceny in the Fourth Degree.

By decision and order dated October 12, 2006 this Court granted respondent's motion

for an order suppressing potential evidence concerning an out-of-court identification of the

respondent as the fruit of an unlawful arrest and detention and the case was set down for the

Presentment Agency to prove that the eyewitness had a basis for identifying respondent at the

fact-finding hearing independent of the suppressed police-arranged identification procedure

(Matter of Aliya M., 13 Misc 3d 1223[A], 2006 NY Slip Op 51952[U], at *4-5; see, People v.

Burts, 78 NY2d 20 [1991]; People v. Moses, 32 AD3d 866, 867-868 [2006]).^[FN1] [*2]

The hearing upon the issue of independent source was conducted before this Court on

December 15, 2006. The sole witness at the hearing was the alleged victim, Sarah Smith.^[FN2]

Sarah Smith testified that on March 17, 2006 she was standing alone in the vicinity

of Oak Street and Kissena Boulevard in Queens County at approximately 3:00 P.M. and

"waiting for friends." As she was standing on the street, "[a] group of kids, about twenty of them,

were walking past me [and] nothing happened . . . I really didn't look at any of them." Moments

later, Ms. Smith "heard some girls sa[y] mind your business'" and she then "got hit on the

right side of her face" by "a fist" by an "African American" individual whose face she did not

see, but whose arm she did see just before the punch landed, allowing her to identify the race of

that individual. After she was punched in the face, Smith "fell to the ground" and she ended up

prone on her back. While she was on her back on the ground "I turned around and I see the girl.

She was about to kick me and three others came." Smith was surrounded by these four

individuals who were "about a foot away" from her and the "[o]ne who hit me in the face was on

my right side, there was one in front of me and there were two on the left of me." Smith stated

that from her prone position she had a clear view of the "lower body" of the three individuals

situated to either side of her, a clear view of the face of the person situated to her right and one of

the people situated to her left, as well as a full view of the body, including the face, of the person [*3]

standing in front of her.

When asked to describe the person who had punched her in the face, the witness testified

that her assailant was "[t]all, dark, kind of husky [with] droopy eyes. I really saw her eyes when

I was on the ground" and she testified that this person had "dark brown" eyes. Of the other three

people who were surrounding her, Smith recalled that the person directly in front of her was

a black female who "was short . . . she had squinty eyes and she had braids" as well as "dark

brown eyes", and the two people to her left side "both [had] around the same skin tone" and were

both about the same height as she was on the date of the incident, and Smith recalled that one of

these two people "had big eyes" which were also "dark brown" in color. In addition, Ms. Smith

observed that one of the assailants was wearing red outer clothing and another black outer

clothing, which were described as a "[s]hirt or a jacket." While lying on the ground, Smith was

"kicked around" by the three people situated on either side of her while the person situated in

front of her "was picking through my pants pockets". While Smith attempted to cover her face

for protection while she was being kicked, she observed the three assailants to her left and right

side kicking her "all over my body." According to Ms. Smith, the four perpetrators fled together

when a teacher from her school came upon the scene while driving. As a result of the incident,

Smith suffered physical injury and she lost her cellular phone and her gold earrings which had

been removed from her ears during the fracas.

Ms. Smith said that the incident was brief but that she had an opportunity to clearly view

the face and body of three of her four assailants, although she indicated that she was able to recall

the faces of all four of the individuals who had attacked her when she was shown pictures by the [*4]

police. While Smith stated that she did not have a current recollection of the face or body of one

of the individuals who had been situated to her left while she had been lying on the ground, she had been able to identify that person when asked to do so by the police. When asked whether she

could identify anyone present in the courtroom as one of her assailants, Ms. Smith stated that the

respondent, Aliya M., was one of the four people who had attacked her on March 17, 2006. She

further indicated that respondent had been one of the individuals who was situated to her left and

who kicked her while she was on the ground. According to Ms. Smith, she noticed respondent's

eyes, which she described as "round and big" during the incident and was able to presently

identify respondent based upon that past recollection.

A

There were two police-arranged identification procedures conducted in this case, only

one of which resulted in a positive identification which led to respondent's arrest.

Ms. Smith met with police officers on March 17, 2006 and they brought her to a

Dunkin' Donuts store near the scene of the incident to see if she could identify any of the

perpetrators. According to Ms. Smith, she observed fifteen people inside of the store, including

the four people who had attacked her, but she did not identify them to the officers who were

accompanying her "because I was scared" and because she was still "in shock" as a result of

the incident. However, moments later, Smith testified that "I pointed out one girl to the officer

that day . . . I told them that she was wearing [a] partially red jacket, part of her jacket was red,

and I told them that I believe she was one of the girls who kicked me." According to Smith, an

officer then proceeded to question this individual, but no arrest was made and the officer "let her

go."

On March 21, 2006, Ms. Smith met with New York City Police Detective Brian McGuire [*5]

who had been assigned to investigate the incident of March 17, 2006. As this Court found in the Dunaway hearing (see, Dunaway v. United States, 442 US 200 [1979]), Smith met with

Detective McGuire at the 109th Precinct on March 21st and she informed him that on March 17th,

she had been attacked and robbed by four black female teenagers. Smith testified at both hearings

that she was unable to give Detective McGuire further descriptions of her assailants when they

met on March 21st, although she did inform the Detective that on the date of the incident she was

at the precinct and that see did one of her assailants at the precinct as she was leaving (Matter of

Aliya M., 2006 NY Slip Op 51952[U], at *1). After obtaining photographs of the possible

suspects, Detective McGuire met with Ms. Smith at a location other than the precinct and he

displayed a photographic array which contained "head shot" photographs of the respondent and

five "fillers" (id., at *2). According to the testimony elicited at the Dunaway hearing, Ms. Smith

did not hesitate in pointing out the respondent and indicating that she had been one of the four

people who had attacked her on March 17th (id.).

II

Where testimony concerning an out-of-court identification is suppressed due to a

violation of a defendant's constitutional rights, it is incumbent upon the prosecution to establish

an independent source for the identification of the defendant by a witness.^[FN3]

In the context of identification evidence, independent source means identification [*6]

evidence which is independent of the illegality which resulted in the exclusion of the proposed

identification testimony obtained through an impermissibly suggestive out-of-court identification

procedure or, as in this case, obtained as a result of an unlawful seizure and detention of a person

(People v. Ballott, 20 NY2d 600, 606 [1967]; People v. Rahming, 26 NY2d 411, 416 [1970];

People v. Ortiz, 42 NY2d 834 [1977]; People v. Dodt, 61 NY2d 408, 417 [1984]; People v.

Young, 7 NY2d 40, 44 [2006]).

Thus, where testimony concerning an out-of-court identification procedure has been

suppressed due to the suggestiveness of the identification procedure, the prosecution is required

to establish by clear and convincing evidence that the in-court identification to be made by the

witness is based upon the witness's independent observation of the perpetrator (People v. Ballott,

at 606-607; People v. Rahming, at 417; People v. Young, at 44; People v. Radcliffe, 273 AD2d

483, 484 [2000]; People v. Williams, 222 AD2d 149, 152 [1996], lv. denied 88 NY2d 1072

[1996]; People v. Webster, 248 AD2d 738 [1998], lv. denied 92 NY2d 908 [1998]; People v.

Adelman, __ AD3d __, 2007 NY Slip Op 00660).^[FN4] Similarly, where the out-of-court identifi-

cation is suppressed as the fruit of an unlawful seizure and detention, the prosecution is required

to establish that the witness's proposed in-court identification has a basis independent of the

unlawful police action which resulted in the suppression of testimony concerning the out-of-court

identification (see, People v. Harris, 77 NY2d 434, 438 [1991]; People v. Jones, 2 NY3d 235, [*7]

243-244 [2004]; People v. Dodt, at 417; People v. Gethers, 86 NY2d 159, 163 [1995]; People v.

Kennedy, 282 AD2d 759, 760 [2001]; People v. Robinson, 8 AD3d 95 [2004]).^[FN5]

The issue therefore, is whether Sarah Smith has a basis to make an in-court identification

of the respondent independent of the identification obtained subsequent to the illegal seizure and

detention of the respondent by Detective McGuire several days after the incident.

Although courts have been reluctant to adopt a formal protocol defining the process by

which a witness makes an identification of another person (e.g., People v. Lee, 96 NY2d 157,

162 [2001]; People v. Young, 7 NY3d, at 44-45; People v. Drake, 7 NY3d 28, 33 [2006]

[discussing use of expert testimony to explain process of eyewitness identification]), it has been

stated that "[a] victim's in-court identification of the accused has three distinct elements. First,

the victim is present at trial to testify as to what transpired between her and the offender, and to

identify defendant as the culprit. Second, the victim possesses knowledge of and the ability to

reconstruct the prior criminal occurrence and to identify the defendant from her observations of

him at the time of the crime. And third, the defendant is also physically present in the courtroom,

so that the victim can observe him and compare his appearance to that of the offender" (United

States v. Crews, 445 US 463, 471 [1980]; see also, Manson v. Brathwaite, 432 US 98, 114-115 [*8]

[1976]; Neil v. Biggers, 409 US 188, 199-200 [1972]).^[FN6]

Ms. Smith testified credibly before this Court and without any apparent motive for

fabrication. She testified that she was attacked by four black female teenagers near her school

on the afternoon of March 17, 2006. One of the four assailants punched her on the right side of

her face and she fell to the ground, eventually ending up prone on her back. From her vantage

point on the sidewalk, Smith observed that the person who punched her in the face was a black

female teenager "who was about to kick me" and she also observed three other individuals,

whom she described as black female teenagers, run towards the scene. Now surrounded by these

four individuals, who were no more than a foot away from her, Smith was clearly able to see the

lower portions of the body of all four of her assailants, as well as the face of the person standing

to her right who was also the person who had punched her in the face moments ago. Smith also

had a clear view of the face of the person who was standing in front of her as well as the face of

one of the two individuals standing to her left.

According to Ms. Smith, although she was scared, she was able to take note of certain

physical characteristics of the three assailants she could clearly see. The person to her right who

had punched her in the face was "[t]all, dark, kind of husky [with] droopy eyes" that were "dark

brown". The person standing in front of her "was short [with] squinty eyes and she had braids" [*9]

and her eyes were "dark brown" in color. As for the two individuals standing to her left, Smith

recalled that they were about the same height as she is, that one of them had "big eyes" which

were "dark brown" in color. Smith was also able to recall that one of her assailants was wearing a

red jacket and one was wearing a black jacket. As the three individuals to her sides began to kick

her all over her body, the person who had been standing in front of her proceeded to rifle through

her pants pockets. After the attack stopped when a teacher drove upon the scene, Smith noticed

that her cellular phone, which had fallen from her hand during the incident, was missing, and that

her gold earrings had been removed from her ears and they were also missing.

According to Smith, she had a sufficient opportunity to view the faces of three of the four

individuals who had attacked her on March 17th and she was also able to recall the face of the

fourth individual when she was shown photographs by Detective McGuire on March 21st. During

her testimony at the hearing, Ms. Smith made a positive and unequivocal identification of

respondent as one of the people who attacked her on March 17th and further indicated that the

respondent had been one of the people to her left who had kicked her while she was on the

ground and her property was being taken. Smith testified that during the incident she had taken

particular notice of respondent's "round and big eyes" which were "dark brown" in color.

Based upon the evidence adduced at the hearing, the Court finds that Sarah Smith

exhibited no difficulties in describing with exacting detail the incident that occurred on March

17, 2006 including the actions of the four individuals who attacked her. In particular, she had an

opportunity to view the respondent during the incident as established by the fact that she

observed respondent's general physical appearance and notably, that respondent had big and [*10]

round eyes which were dark brown. Smith also observed where respondent was situated during

the attack and she was able to recall that respondent participated in kicking her while she was flat

on her back on the sidewalk. Thus, based upon Smith's observations at the time of the incident, her ability to clearly recall what transpired during the incident, including the role played by each

of the four assailants, and her ability to compare her recollection of respondent's appearance on

March 17th to her appearance in court on the date of the hearing resulting in an unequivocal

identification of respondent as one of the assailants, the Court finds that the Presentment Agency

has met its burden of establishing an independent source for Smith's in-court identification of

respondent by clear and convincing evidence (People v. Radcliffe, at 484; People v. Williams, at

153-154; People v. Webster, at 738; People v. Robinson, at 95; People v. Kilpatrick, 28 AD3d

360, 361 [2006], lv. denied 7 NY3d 791 [2006]; Matter of Elias R., 33 AD3d 325, 326 [2006];

People v. Adelman, __ AD3d, at __, 2007 NY Slip Op 00660, at *1).^[FN7]

Accordingly, the victim's in-court identification of the respondent is admissible at the

fact-finding hearing and the hearing shall proceed to conclusion as scheduled.

This constitutes the decision, opinion and order of the Court.

E N T E R: [*11]

_________________________________

JOHN M. HUNT

Judge of the Family Court

Dated: Jamaica, New York

February 1, 2007