[*1]
| People v Harris |
| 2007 NY Slip Op 50447(U) [15 Misc 3d 1101(A)] |
| Decided on March 9, 2007 |
| Supreme Court, Kings County |
| Sullivan, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Supreme Court, Kings County
The People of the State of New York
against
Victor Harris, Defendant.
|
4118/06
James P. Sullivan, J.
The defendant Victor Harris is charged with robbery in the second and third degrees, and other related offenses. A Dunaway-Wade hearing was conducted before this court on February 14, 2007. Detective Ronald Johnson testified on behalf of the People.
Findings of Fact
On January 31, 2006, at about 7:45 p.m., Detective Johnson met with Josh Robinson and Eric Meyer [FN1] at the 88th precinct. Although Robinson and Meyer had been the victims of two separate robberies, Johnson interviewed them together. At about 6:30 p.m. that evening, Robinson was stopped in Fort Greene Park and surrounded by four individuals, one of whom demanded his wallet. The robber then took money from the wallet and handed the wallet back. Robinson described this man as 18 years old, black, approximately 5 feet, 9 inches tall, 140 pounds, and wearing dark clothing. Robinson told the detective that while he got a "good look" at the man who took his wallet, he would not be able to identify any of the other three individuals.
Meyer, who was also in Fort Greene Park, was robbed a few minutes later, at about 6:35 p.m. Meyer told Detective Johnson that he was stopped by four individuals, one of whom demanded his wallet. Meyer apparently handed over his wallet, which contained $50.00, and possibly an American Express credit card. Meyer stated that the man who took his wallet was wearing a "doo-rag" and was about 5 feet, 10 inches tall. He could provide no description of the other three individuals, other than that they were in their teens or early twenties. He also told Detective Johnson that he did not a good look at any of their faces, and that he did not believe that he could identify any of the robbers.
Detective Johnson had Robinson view photographs on the "photo manager" system. Detective Johnson narrowed the scope of the photos shown by entering the limiting data of black men approximately 18 to 22 years old, whose addresses or crimes placed them within the confines of the 88th precinct. These limiting parameters produced 127 photographs, which the witness is able to view by looking at six photos at a time on a computer screen. After about ten minutes, and after [*2]Robinson had viewed about 60 photos, he selected the defendant's photograph as that of the man who had robbed him. A copy of the photographic array of six men was introduced into evidence, showing that Robinson had signed the photo that he selected.
Keeping the same six-man photographic array on the screen, Detective Johnson took Robinson back to the office where Meyer was waiting. Meyer and Robinson had waited together in that same office before Robinson viewed the photos. According to Detective Johnson, Meyer and Robinson had no opportunity to speak to each other after Robinson viewed the photos and before Meyer did. Detective Johnson brought Meyer to the computer, and asked him if he recognized any of the six men in the photo array on the screen. Meyer responded that the defendant "looked like" one of the robbers, but that he was not sure, and would have to see him in person or in a line-up. Detective Johnson took Meyer back to the robbery unit office, where he and Robinson remained together for some amount of time after the photo viewing. Before they were taken home, Detective Johnson told them that if he made an arrest, they would each have an opportunity to view a line-up.
On February 2, 2006, the defendant was arrested, and Detective Johnson arranged a line-up for that day. Again, Robinson and Meyer waited together before the line-up was held. At about 9:30 a.m., Robinson viewed the line-up, and within seconds, selected defendant as the robber. Meyer was then conducted to the line-up room, without having an opportunity to speak to Robinson. He also selected the defendant as the robber in a matter of seconds. Photographs of the line-up were introduced into evidence.
Conclusions of Law
A police officer may arrest a person without a warrant when the officer has probable cause to believe that such person has committed a crime. People v. Johnson, 66 NY2d 398, 402 (1985). While probable cause does not require the same quantum of proof needed to warrant a conviction, it does require the existence of facts and circumstances which, when viewed as a whole, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense has been or is being committed and that the defendant committed or is committing that offense. People v. Bigelow, 66 NY2d 417, 423 (1985); People v. Kennedy, 282 AD2d 759, 759-60 (2d Dep't 2001). Here, probable cause to arrest the defendant was supplied by Josh Robinson's selection of the defendant's photo as the person who had robbed him. See People v. Baptiste, 201 AD2d 659, 660 (2d Dep't 1994).
Turning to the question of whether evidence concerning the witnesses' line-up identifications should be suppressed, this court must examine the propriety of the police conduct and whether there was impermissible suggestiveness. See People v. Chipp, 75 NY2d 327, 335 (1990); People v. Adams, 53 NY2d 241, 249 (1981). Here, the People have established that the identification procedure involving Robinson was not suggestive. After viewing about 60 photos in the photo manager system, Robinson selected the defendant's photo. Two days later, he selected the defendant during a line-up. The photographs of the lineup reflect that the fillers were sufficiently similar to defendant in physical characteristics so that there would be no substantial likelihood that defendant [*3]would be singled out for identification See People v. Briggs, 285 AD2d 514 (2d Dep't 2001); People v. Cook, 254 AD2d 92 (1st Dep't 1998). Any discrepancies in height between defendant and the fillers were minimized by the fact that all the participants in the lineup were seated. See People v. Richards, 2 AD3d 883 (2d Dep't 2003); People v. Bolt, 295 AD2d 357 (2d Dep't 2002). Moreover, any differences in hair style were overcome by having the participants wear identical baseball caps. "While due process requires that pretrial identification procedures be fair, there is no requirement that the defendant must be surrounded by fillers who have identical physical characteristics." Briggs, 285 AD2d at 514; People v. Snyder, 304 AD2d 776, 777 (2d Dep't 2003). Any minor variations in the features of the fillers and the defendant in this case did not render the lineup impermissibly suggestive. See People v. Kirby, 34 AD2d 695 (2d Dep't 2006).
The identification procedures concerning Meyer are more troubling. Meyer told Detective Johnson that he could not see any of the robbers' faces, and that he did not believe he could identify any of them. Indeed, the only description he provided of the man who took his wallet was his approximate height and that he wore a "doo-rag." Additionally, he was interviewed together with Robinson, and sat with Robinson before either looked at photos. They then waited together after the photo viewing, and waited together again before the line-up. When Detective Johnson showed Meyer photos, rather than showing him all the photos as he had done with Robinson, he showed him a photo array of six photos, the same array from which Robinson had just selected the defendant's photo. Here, the danger is presented that Meyer might feel pressure to make a selection from this group, and might even assume that Robinson had just done so. Indeed, after Detective Johnson asked if he recognized anyone, Meyer was able to state only that the photo of the defendant "looked like" one of the robbers. See Hibel, New York Identification Law § 4.03 at 201 (citing risk of twofold increase in line-up misidentifications where the witness was led to believe that the suspect was in the line-up). Here, both Meyer and Robinson were also told that they would view a line-up only after the detective had arrested a suspect. See id. at 202. However, the Second Department has held that a line-up identification is not tainted because a police officer told the witness that a suspect would be in a line-up. See People v. Ashby, 289 AD2d 588 (2d Dep't 2001); People v. Mack, 243 AD2d 731, 732 (2d Dep't 1997). In the instant case, once Meyer viewed the line-up, he selected the defendant as the man who had robbed him. The danger presented here is that the witness has identified the suspect based on the memory of the earlier photo from the photo array. See People v. Young, 7 NY3d 40, 48 (2006) (identification expert suggests that most difficult part of memory to retain is the source) (G.B. Smith, dissenting opinion); People v. Williams, 14 Misc 3d 571, 2006 WL 3431886 at *5 (Kings Cty. Sup. 2006) (noting danger that once the witness identifies a mugshot or photo, more likely to identify the suspect in a line-up based on the earlier photo). Again, however, courts have held that an identification procedure is not suggestive if the witness viewed a defendant in a line-up after viewing that defendant's photo in an array, even if the witness was unable to make an identification from the photo array. See People Carroll, 200 AD2d 630 (2d Dep't 1994); People v. Denny, 177 AD2d 589 (2d Dep't 1991).
Overall, while many aspects of this identification procedure are troubling, this court is constrained to hold that it was not unconstitutionally suggestive. The photo array itself was not suggestive as the defendant's photograph did not differ significantly from the photographs of the [*4]fillers. See People v. Wells, 272 AD2d 562 (2d Dep't 2000). As noted above, the line-up itself was not suggestive, as the fillers were sufficiently similar to the defendant in appearance. Therefore, any weakness in Meyer's identification goes to the weight of the identification evidence at trial, and does not require a finding of suggestiveness.
Therefore, the defendant's motion to suppress evidence of the line-up identifications is denied.
This constitutes the opinion, decision and order of the court.
E N T E R,
______________________
James P. Sullivan, J.S.C.
Footnotes
Footnote 1:Referred to in the indictment as Aric Mayer.