On March 29, 2007 a Wade, Dunaway and Huntley hearing was scheduled pursuant to an order of this court (Gianelli, J.) dated January 25, 2007.

At the commencement of the hearing, the People and defense counsel stipulated that the statements allegedly made by the Defendant would not be used at trial and that they would proceed with the Wade hearing only.

The People have the initial burden of presenting clear and convincing evidence demonstrating the reasonableness of the police conduct and that the pre-trial identification was not unduly suggestive. People v. Rahming, 26 NY2d 411, 311 NYS2d 292 (1970); People v. Ortiz, 90 NY2d 533, 664 NYS2d 243 (1997). If that burden is met, the Defendant has the burden to prove, by a fair preponderance of the evidence, that the pre-trial identification was unduly suggestive. People v. Chipp, 75 NY2d 327, 553 NYS2d 72 (1990), cert. den. 498 U.S. 833, 111 S.Ct. 99 (1990). If the Defendant establishes that the pre-trial identification was unduly suggestive, the prosecution must be given the opportunity to provide clear and convincing evidence that there was an independent source for the identification, to establish the admissibility of an in-court identification. U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926 (1967); People v. Ballot, 20 NY2d 600, 286 NYS2d 1 (1967); People v. Young, 7 NY3d 40, 817 NYS2d 576 (2006).

In an attempt to meet its initial burden, the People called Police Officer Michael Collins and Police Officer Nicholas Alvarado to testify. The Defendant did not call any witnesses. After listening to their testimony and observing their demeanor, the court finds the officers' testimony to be credible.

The Defendant is charged with forcible touching, pursuant to Penal Law § 130.52. It is alleged that on April 16, 2006, at approximately 3:10 a.m., the Defendant, while riding as a passenger in a taxi cab traveling eastbound on Front Street in Uniondale, New York, did intentionally and for no legitimate purpose forcibly touch the complainant, Aleah Jones. ("Aleah"). It is further alleged that shortly following this incident the cab dropped the Defendant in the vicinity of 1130 Myron Avenue, Uniondale, New York and drove the complainant to her home, at 728 Macon Place, Uniondale, New York. The complainant and her mother, Rene Jones ("Rene"), then called the police.

Officer Collins testified that on April 16, 2006 he was working a shift that had begun at 7:00 p.m on April 15, 2006 and ended at 5:00 a.m. on April 16, 2006. He was alone, in uniform, [*2]operating a marked radio motor patrol ("RMP") vehicle. At approximately 3:56 a.m. Officer Collins received a routine radio call to respond to the complainant's home, which he did. At that time, Aleah told him of the alleged incident. While at the Jones' home Officer Collins spoke to the taxi cab driver, on the telephone, and was advised that the man in the cab was to be dropped off at 1130 Myron Street in Uniondale, New York and was actually dropped off at the corner of Myron Street and Manor Parkway. Officer Collins then asked the complainant and her mother to ride with Officer Alvarado, who had arrived at their home, to 1130 Motor Parkway, Uniondale, New York to see if she could identify the individual Aleah claimed to have touched her. According to Officer Alvarado, he told the complainant that the officers would knock on the door of the premises and if anyone she recognized as the person who touched her in the taxi came out she should let them know.

Both officers testified that Aleah and her mother traveled with Officer Alvarado to 1130 Myron Street, while Office Collins traveled in his own vehicle. Both officers indicated that when they arrived at the subject address, in addition to themselves, a Sargent and other officers were present. Officer Collins parked his vehicle approximately thirty (30') feet from the door of the premises, while Officer Alvarado parked his vehicle, in which the complainant and her mother were sitting, approximately forty (40') to fifty (50') feet from the house. Both officers described the lighting in the area as good; there was a street light on the corner, a light on the house at the door, and Officer Alvarado had the spot light of his vehicle trained on the door.

At the location, the complainant and her mother remained in the back seat of Officer Alvarado's vehicle. While Officer Collins went to the door, Officer Alvarado positioned himself at the side of the house, ten (10') to fifteen (15') feet from his RMP, and the other officers at the scene were either standing with Officer Collins or had gone around to the rear of the house.

Officer Collins then knocked on the door, which was answered by a man who he identified as "Ellio." When Ellio came out of the house, Officer Alvarado returned to his RMP to see if the complainant recognized him. She did not. Officer Alvarado then gave Officer Collins the "thumbs down" signal; and, Officer Collins asked Ellio if there were any other males in the house. A second gentleman, who Officer Collins identified as "Freddie", then came out of the house. Officer Alvarado again returned to his vehicle, where the complainant again indicated that she did not recognize this individual, which Officer Alvarado again signaled to Officer Collins. The Defendant then exited the house, at which time, according to Officer Alvarado, the complainant indicated, "Yes, that's him, that's him." Officer Alvarado then flashed his lights to indicate to Officer Collins that a positive identification had been made. This identification occurred at approximately 4:55 a.m.

At this time, there were four (4) to five (5) people from the house standing on the porch at the door. Officer Collins testified that his gun was in his holster and his handcuffs where in their holder. Officer Collins also testified that he did not have any conversation with the Defendant, as the Defendant did not speak English. According to Officer Collins, aside from Ellio's wife, all of the occupants of the house, who were standing on the porch at the time of the identification, where Hispanic males.

After the Defendant was identified, he was placed under arrest, handcuffed and place in Officer Collins' RMP. Officer Alvarado returned to his RMP, wrote up a statement regarding the identification for the complainant and her mother to sign and drove them home. [*3]

The purpose of Wade Hearing is to "test identification testimony for taint arising from official suggestion during police-arranged confrontations between the defendant and an eyewitness' (People v. Gissendanner, 48 NY2d 543, 552, 423 NYS2d 893, 399 NE2d 924; People v. Newball, 76 NY2d 587, 591, 561 NYS2d 898, 563 NE2d 269)" People v. Dixon, 85 NY2d 218, 623 NYS2d 813 (1995); see also: People v. Rush, 239 AD2d 526, 658 NYS2d 256 (2nd Dept. 1997); People v. Vera, 235 AD2d 509, 653 NYS2d 360 (2nd Dept. 1997)

Identification procedures have been determined to be unduly suggestive when they "create a substantial likelihood that the defendant would be singled out for identification." People v. Chipp, supra .; People v. Lee, 96 NY2d 157, 726 NYS2d 361 (2001) "Generally, a showup identification will be inadmissible when there was no effort to make the least provision for a reliable identification and the combined result of the procedures employed establish that the showup was unduly suggestive' (People v. Adams, 53 NY2d 241, 249, 440 NYS2d 902, 423 NE2d 379)." People v. Riley, 70 NY2d 523, 522 NYS2d 842 (1987)

Show-up identifications are disfavored, having been found to be suggestive by their very nature, People v. Ortiz, 90 NY2d 533, 664 NYS2d 243 (1997); People v. Wharton, 74 NY2d 921, 550 NYS2d 260 (1989); yet, "at-the-crime-scene civilian showup identifications are not presumptively infirm. .... It must be scrutinized very carefully for unacceptable suggestiveness and unreliability. The admission or suppression of these street showup protocols thus turns on specific and varying circumstances in individual cases (citation omitted)." People v. Duuvon, 77 NY2d 541, 569 NYS2d 346 (1991) "Showup procedures are permissible when, ..., they are conducted in close spacial and temporal proximity to the to the commission of the crime for the purpose of securing a prompt and reliable identification." People v. Cruz, 31 AD2d 660, 818 NYS2d 302 (2nd Dept. 2006), lv. den. 7 NY3d 847, 823 NYS2d 776 (2006); see also: People v. Gilyard, 32 AD3d 1046, 821 N.Y.S.l2d 461 (2nd Dept. 2006); People v. Dupree, __ AD3d __, 829 NYS2d 199 {37 AD3d 491} (2nd Dept. 2007) Such showup procedures "are generally held to be proper because, based on fresh recollections of recent events, they insure reliable identifications of perpetrators and the prompt release of innocent suspects. (citations omitted)" People v. Soto, 87 AD2d 618, 448 NYS2d 25 (2nd Dept. 1982); see also: People v. Duuvon, supra .; People v. Moore, 145 AD2d 510, 535 NYS2d 640 (2nd Dept. 1988); People v. Hall, 141 AD2d 841, 530 NYS2d 180 (2nd Dept. 1988); People v. Holly, 106 AD2d 403, 482 NYS2d 323 (2nd Dept. 1984)

The court does not find the identification procedure used herein to have been unduly suggestive. The identification was made in close proximity to the crime scene, the Defendant having been dropped off at the location of the identification shortly after the alleged forcible touching, and was in close temporal proximity to the commission of the alleged crime. People v. McBride, 242 AD2d 482, 662 NYS2d 470 (1st Dept. 1997) [2 hours elapsed between commission of the crime and the identification]; People v. Lewis, 123 AD2d 716, 507 NYS2d 80 (2nd Dept. 1986) [2 hours elapsed between commission of the crime and the identification]; People v. Boyd, 272 AD2d 898, 709 NYS2d 269 (4th Dept. 2000) [no more than 2 hours elapsed between commission of the crime and the identification]; People v. Maybell, 198 AD2d 108, 603 NYS2d 161 (1st Dept. 1993) [approximately 3 hours elapsed between commission of the crime and the [*4]identification]^[FN1] Moreover, the police, not knowing themselves who the suspect was, and not making an arrest until after the complainant identified the Defendant, never indicated to the complainant that they had a suspect in custody and merely asked the complainant to indicate if she recognized anyone from a number of other individuals at the scene. see: People v. McBride, supra .; People v. Wells, 221 AD2d 281 (1st Dept. 1995) Contrast, People v. Johnson, 81 NY2d 828, 595 NYS2d 385 (1993), where the police told the complainant they knew the name of the perpetrator, "had a suspect in custody", told the complainant that they were taking him back to the crime scene "for a positive ID," and the police escorted the defendant, in handcuffs, into the complaint's view.

The court here finds that the Defendant was "not identified in a one on one show up or even in a police selected lineup[, but was identified in a randomly selected manner, outside of police control which,] although police arranged [citation omitted] was not police selected. the [sic] identification was not unduly suggestive but rather approaches the optimum of fairness." People v. Mallet, 164 Misc 2d 1009, 627 NYS2d 248 (S.C. Kings Co. 1995) The Defendant's prompt identification of the Defendant herein appears to the court to be of the most reliable kind, "indicative of good police work", People v. Veal, 106 AD2d 418, 482 NYS2d 341 (2nd Dept. 1984); free of the taint of any undue suggestion or influence.

Accordingly, the Defendant's application to suppress the identification testimony is denied.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

April 3, 2007

___________________________

ANDREW M. ENGEL

J.D.C.