The Defendant is charged with one count of Burglary in the First Degree in violation of Penal Law § 140.30 (2) , one count of Attempted Robbery in the Second Degree in violation of Penal Law § 110/160.10 (2) (a), and one count of Assault in the Second Degree in violation of Penal Law § 120.05 (12). A hearing was held before this Court to determine whether evidence of the identification of the Defendant at a lineup and any prospective in-court identification of the Defendant by the complaining witness should be suppressed. The prosecution called one witness, Police Officer Efrain Curet. I find his testimony to be credible. The defense called no witnesses. For the reasons stated below, Defendant's motion is denied.

Police Officer Curet testified that he is employed by the NYPD and was assigned to investigate a case arising from an alleged attempted robbery at 240 East 94th Street in New York County on September 17, 2008. Officer Curet testified that upon arriving at the crime scene, he first obtained a description of the perpetrator from two responding officers who had spoken to the complainant. He recounted two descriptions given by the responding officers based on statements from the complainant. The first was of a male black wearing blue jeans, white shoes, a black hat and a dark colored shirt and the second was of a male black 5' 9'', with a black baseball cap, 15 to 20 years old. A witness named Delores Crawford was also interviewed. She described the perpetrator as a young male black, skinny, with a slight build, polo shirt and dungarees. A third witness, Miss Hudson, could only say that she had heard a scream and saw a young black male walk by her. Detective Curet interviewed the complainant, Ms. Baretto in the ambulance on the way to the hospital and again at the hospital. At one point he testified that Ms. Baretto told him in the ambulance that the perpetrator was a "young male, black, with a gray [*2]shirt, blue jeans . . black baseball cap."^[FN1]

In the complaint report filed with respect to this incident, there is no height, weight, eye color or hair color description given for the perpetrator. Officer Curet also testified, inconsistently, that the complainant gave a description on September 17th that the perpetrator was a male hispanic (rather than a male black), wearing a dark t-shirt and white sneakers and did not provide a description which indicated that the perpetrator had facial hair. She described him as wearing a skull cap, rather than a baseball cap and as being 5'1" tall. Officer Curet testified that in the ambulance, the Defendant was hysterical and said that a man had hit her. He also indicated that he had gotten a description of the perpetrator from officers on the scene who had gotten the description from the complainant that the Defendant was a young male black, wearing a gray t-shirt and blue jeans. Officer Curet testified that the only description which Ms. Baretto gave him in the ambulance was that the perpetrator was a young black man and that the remainder of the description he received from Ms. Baretto was in the form of her confirming what the officers had told Officer Curet. At a still later point in his testimony, he seemed to indicate that the entire description he had received from the complainant was in the form of her confirming information the officers had told Officer Curet based on their earlier conversation with the complainant.^[FN2]

Officer Curet then reviewed video footage from the location and spoke to the complaining witness both before and after reviewing the videotape. Upon reviewing the videotape at the location of the alleged crime, he testified, he could see a person following the complainant into the building. In the videotape, the officer testified, the same person is seen fleeing the scene five minutes later. He testified that in the videotape, the suspected perpetrator is wearing blue jeans, a gray shirt, a black baseball cap, backwards, what appeared to be beads around his neck and red and white sneakers.

The videotape was released to the public through public information and in a few days, the police received an anonymous call taken by Detective Molino which indicated the suspect appeared to look like a person who lived in apartment 6-A in a different building than the crime scene, later identified during the testimony at 230 East 111th street. The person who provided the anonymous tip identified the suspect as Anthony Jackson. Officer Curet said that he went to that building and recovered videotape.

Officer Curet testified that in the videotape from the crime scene, the suspect enters the building at 18:02. Videotape from Defendant's building, 230 East 111th street on that date shows what Officer Curet indicated was the same person wearing the same attire leaving his building at 17:05 and returning at 19:44. Officer Curet also talked to the superintendent of Defendant's building who said that when watching television and seeing the footage the police had released, "he immediately knew it was the defendant, and that he had a full head of hair and a beard a [*3]couple of days ago."^[FN3] In response to the public airing of the videotape, police also got a call from a person who said she was certain the person on the tape was her nephew, Lawrence Stokes. Officer Curet spoke to Lawrence Stokes by phone, Mr. Stokes indicated he was in Georgia and the police did not do any further follow-up to ascertain whether this was correct.

On September 18th (one day after the crime and six days before the lineup), Officer Curet called the complainant's son who then brought the complainant to the precinct to view photographs derived from video footage taken at the complainant's building at the time she was attacked. Officer Curet told the complainant's son that his mother would be shown photographs of a "possible suspect" in the case.^[FN4] The still photographs, according to Officer Curet, were taken from a video sequence in which the person in the photograph is seen in the videotape as following the complainant into the building at the time she was assaulted. Ms. Baretto was "extremely emotional [and] crying" during this conversation.^[FN5]

Officer Curet showed the complainant two still photographs of the person who had walked into the building following the complainant which were derived from the videotape. The photographs shown to the complainant were introduced into evidence as People's exhibits 3-A and 3-B. The photographs are low resolution grainy images which do not show the features of the Defendant's face with any precision. Ms. Baretto identified the photos as showing the person who had followed her into her building and entered the elevator with her.

Officer Curet interviewed the Defendant on September 22, 2008 but did not arrest him at that time. Officer Curet looked to see whether or not the Defendant had any injuries on his hands or head by virtue of the attack against Ms. Baretto but did not detect any injuries. The interview took 30 minutes and according to Officer Curet, there was not enough evidence to arrest the Defendant at that time. On September 23, Officer Curet viewed the videotape from Defendant's building.

Officer Curet then attempted to arrest the Defendant, went to his residence and spoke with his parents. On September 24th, the Defendant came to the 19th precinct with his attorney. He was put in a holding cell and placed under arrest at that time. On that date, the Defendant was placed in a lineup which was viewed by the complainant, Elsie Baretto. Ms. Baretto is hearing impaired but can read lips and speak. However, she also communicates with the assistance of a sign language interpreter.

Officer Curet informed Ms. Baretto that he wanted her to view a lineup and see if anyone looked familiar to her. Ms. Baretto arrived at the precinct at approximately 16:00. A lineup which consisted of the Defendant and five fillers was arranged. Officer Curet testified that he sought fillers who had a similar physical appearance and age as that of the Defendant. Ms. Baretto viewed the lineup at approximately 16:40. The lineup participants were sitting down, holding a number and wearing black baseball caps backwards. Three of the lineup participants wore white t-shirts and three wore black t-shirts. Defendant was the only person in the lineup [*4]with a long sleeved shirt. Defendant's shirt was white.

Officer Curet testified that he asked the Defendant to pull his sleeves up but did not provide him with a t-shirt. Defendant, in the presence of his attorney, chose and was seated in position No.3 in the lineup. The complainant viewed the lineup participants through a glass partition which allowed her to see the lineup participants but did not allow them to see her. Although the perpetrator had been described as being 19 years old, only one filler was below the age of 22 and the remaining fillers were aged 37, 31, 32 and 31 respectively. The first filler was 6'4" in height and weighed 170 pounds.

Ms. Baretto said that she recognized #3 from the attempted robbery. She indicated that it "look[ed] like" number 3.^[FN6] She spoke with the assistance of a sign language interpreter. She said that when she walked, she had seen him following her and that he grabbed her in the elevator, she resisted and he fled. People's Exhibits 1-A and 1-B, photographs of the lineup participants as they appeared at the time of the lineup were introduced into evidence. It took Ms. Baretto approximately one minute from the time the lineup was shown to her to identify the Defendant.

At the lineup, (at which Defendant's counsel was present) police refused to conduct a "double blind" lineup (where the officer conducting the lineup did not know who the suspect was), refused to conduct a "sequential" lineup, refused to tell the witness that it was as important to clear innocent people in a lineup as to identify guilty persons, did not tell the witness that the assailant may not be present in the lineup and did not tell the witness that an investigation would continue into the crime regardless of whether or not anyone was identified in the lineup. The complaining witness was not asked to state how certain she was of the identification she had made.

When the complainant said "it looks like number three" she was taken out of the viewing room and it was outside the viewing room that she was asked where she recognized the Defendant from. Officer Curet said that taking the complainant out of the viewing room prior to asking her where she recognized the Defendant from was not standard practice but had been done because the complainant was having trouble standing. Officer Curet told Ms. Crawford that if she did not identify anyone during the lineup that it was "not a big deal"^[FN7] but did not say that to Ms. Baretto. Ms. Crawford did not identify anyone in the lineup.

In the videotape which allegedly shows the Defendant leaving his building on 111th street, Officer Curet testified, he is wearing a necklace. Officer Curet testified that the Defendant was also wearing a necklace when he entered the 94th street building the same evening as evidenced by the videotape. Officer Curet testified, however, that the photograph of the videotape introduced into evidence does not show the necklace.

An anonymous caller identified the Defendant as the man in the videotape after seeing the videotape on television. Then, after further investigation, the superintendent of the Defendant's building, an identified civilian informant, identified the Defendant as the person in the videotape. The Defendant's identity as the perpetrator of the crime was then additionally corroborated by the videotape of him leaving and returning to his own building at times which would have allowed him to easily travel to the complainant's building, commit the crime and then return home. It was only after all of this information was compiled by the police during a six day long investigation that the Defendant was finally arrested and then placed in a lineup.

When the police rely on information from an identified citizen-informant to support a finding of probable cause to arrest, the prosecution must establish that the informant is reliable and has a basis of knowledge for the information he provides. Aguilar v. Texas, 378 US 108 (1964); Spinelli v. United States, 393 US 410 (1969). An identified citizen-informant is presumed to possess a high degree of reliability, thus satisfying the first prong of the Aguilar/Spinelli test. People v. Chipp 75 NY2d 327 (1990). To satisfy the basis of knowledge prong, it must be demonstrated that details of the information provided by the informant which relate to criminal activity have been corroborated. See People v. Powell 234 AD2d 397 (2d Dept 1996), app. denied, 89 NY2d 988 (1997) ; People v. Gefell 227 AD2d 973 (4th Dept 1996). Here the police possessed sufficient details which corroborated the identity of the Defendant as the perpetrator of the crime to satisfy the basis of knowledge prong. The descriptions of the perpetrator given by the complaining witness prior to his arrest, the videotapes showing what appeared to be the perpetrator of the crime following the complainant into her building and then leaving, the videotape of the Defendant leaving and then returning to his home and the fact that the superintendent lived in the same building as the Defendant all supported the reasonable belief on the part of the police that the Defendant was the perpetrator of the crime.

Photographic showups followed in close succession by lineups are often held to be unduly suggestive. See People v. Wilson 11 AD3d 204 (1st Dept 2004), rev'd on other grounds, 5 NY3d 778 (2005). The initial showup can taint the subsequent lineup identification because of the danger that the witness may be unduly influenced by the one photograph the witness was initially shown by the police and consciously or not then identify the person in the lineup who matches the photograph. See Simmons v. United States 390 US 377, 383-384 (1968). Much of the rationale for allowing prompt on-scene corporeal showups to be conducted are also lacking when an initial photo showup is conducted. While a prompt on the scene corporeal showup may [*6]allow the police to let an innocent person who has been detained as a suspect go free, that rationale is lacking when a photo showup is conducted.

The photographs shown to the complainant here, however, were of an entirely different character than photographs of an identified suspect shown to a witness in a photo showup. Here, the police showed the complainant a photograph of an unidentified person who was present at the scene of the crime who, according to the videotape from which the photographs were taken, had followed the complainant into her building immediately before the commission of the crime. Under the circumstances, a strong inference could be drawn that the person who had followed the complainant into her building had then attacked her. The Fourth Department and the Court of Appeals considered a similar situation in People v. Gee 286 AD2d 62 (4th Dept 2001), aff'd, 99 NY2d 158 (2002). In Gee a convenience store robbery of a clerk was captured on videotape. The store clerk initially viewed the videotape, then a series of five still photographs depicting the perpetrators of the robbery and later identified one of the perpetrators in a lineup. The trial court denied Defendant's motion to suppress the identification, a decision which was affirmed by both the Fourth Department and the Court of Appeals.

Addressing the question of whether the showing of the crime scene photographs in which only the Defendant's images appeared was unnecessarily suggestive, the Fourth Department first held that this viewing did not constitute an identification procedure at all because, as in the instant case, the photographs did not depict a suspect whose identity was known by the police:

Police did not show the clerk any photographs of an individual known to be defendant, or indeed of any known individual believed to have committed the robbery. Authorities did not seek the clerk's confirmation that a known suspect was the culprit. Instead, police showed the clerk five depictions of the robbery itself, in the form of a composite of stills taken from the store security video showing the crime as it occurred. 286 AD2d at 66. (emphasis in original).

The Fourth Department also held that even assuming the clerk's viewing of the photographs was an identification procedure, it was not an unduly suggestive one. As in the instant case, the police in Gee took a reasonable and common-sense investigative step when they asked the complaining witness to review still photographs derived from the crime scene videotape:

We discern no reasonable investigative alternative to the officers' reviewing the depictions of the robbery with the clerk in order to authenticate the photos and obtain confirmation concerning which individuals depicted were the robbers. . . . We are aware of nothing in the Due Process clause that requires police to forego such an obviously fair, efficient and useful initial investigative step. 286 AD2d at 67-68.

The instant case is distinguishable from Gee because here, the photographs shown to the complaint did not depict the crime itself, but depicted an unknown individual immediately prior [*7]to the commission of the crime under circumstances which created a strong inference that the depicted individual was the likely perpetrator. In the view of this Court, however, all of the rationales for the acceptability of the procedures used in Gee likewise apply here. Even assuming the viewing by the complainant of these photographs was an identification procedure moreover, as Defendant argues (see People v. Edmonson, 75 NY2d 672 [1990], cert. denied, Edmonson v. New York, 498 US 1001), it was an entirely reasonable one. Thus, in the Court's view, there was nothing unnecessarily suggestive in the showing of the photographs.^[FN8]

Even given that the showing of these photographs was reasonable, however, the Court here should still make a determination of whether the subsequent lineup identification procedure was rendered unduly suggestive by virtue of the showing of these photographs. As one commentator has noted "[s]cientific studies confirm that repeated viewings of a subject can increase the risk of a misidentification". Miriam Hibel, New York Identification Law, LexisNexus 2008 § 4.09 (8). As noted above, that concern is heightened in cases where a witness not only views a suspect on multiple occasions, but the initial viewing took place in a circumstance where no other suspects were displayed to the witness. Courts review many factors to determine whether the identification of a Defendant in one identification procedure was unduly suggestive by virtue of an earlier identification procedure, like that which, according to the Defendant, occurred here. Among the factors considered are whether the identification procedures were of a similar type, the amount of time between the procedures, whether the witness identified the Defendant in the initial procedure, whether the Defendant looked different in each procedure and whether the Defendant was the only person who appeared repeatedly in each procedure.

Reviewing all of those factors in total, the Court finds that the lineup was not rendered unduly suggestive by virtue of the witness' earlier viewing of the crime scene video photographs. First, as noted supra, because the initial showing of the photographs to the complainant was reasonable, there was nothing unnecessarily suggestive about showing these photographs and then placing the Defendant in a lineup.

Second, significantly, the crime scene photographs which were originally shown to the complainant (People's exhibits 3[a] and 3[b]) are low resolution grainy images in which the facial features of the suspect cannot be discerned with any degree of precision. It is difficult to understand how the suspect's image could have been engrafted onto the complainant's mind in a manner which would then predispose her to pick the same person she had seen in the [*8]photographs out of the lineup for the simple reason that the photographs do not clearly show the features of the suspect's face. Visual perceptions among people, of course, may differ. But from the Court's comparison of the crime scene photographs shown to the complainant and lineup photographs, it is in fact impossible, in the Court's view, to even determine which lineup participant most resembles the poor quality crime scene photographs earlier shown to the complainant. See People v. Rodriquez, 64 NY2d 738 (1984)("significant changes" in defendant's appearance in successive identification procedures militated against finding of undue suggestiveness.) The two identifications also used different procedures (photographs vs. a lineup) and were conducted six days apart rather than in closer temporal proximity.^[FN9]

Turning to the procedures which were used in the lineup itself, the Court also finds that these procedures did not render the lineup unduly suggestive. Defense counsel raises a number of criticisms about how the lineup was conducted in this case. Defendant points out that three of the participants in the lineup wore white t-shirts and three wore black t-shirts and that while a second witness who viewed the lineup and failed to identify anyone, Ms. Crawford, was told that her failure to identify anyone from the lineup would be "no big deal", no similar assurance was given to Ms. Baretto. Defendant also complains that the police refused Defense counsel's request to conduct a "double-blind" and a "sequential" lineup and inform Ms. Baretto about the importance of clearing innocent persons when viewing a lineup. The Court agrees with Defendant that all of the procedures Defendant recommended would have reduced the potential of the lineup to result in a misidentification. Indeed, in the Court's view, there are valid arguments why many of these procedures should be required by law.

The question here, however, is not whether the lineup was conducted using the most optimal procedures — it is whether the lineup was unduly suggestive. In reviewing the photographs of the lineup, it is clear to the Court that the lineup participants look very similar and that nothing in the circumstances surrounding the lineup rendered it unduly suggestive.

While the participants in a police arranged lineup need not be nearly identical, the lineup cannot be structured in a manner that creates a substantial likelihood that the defendant will be singled out for identification. People v. Chipp, supra. The Court is not aware of any controlling authority which would indicate that the failure of a lineup to be conducted using a "double-blind" or sequential lineup procedure renders such a lineup presumptively or conclusively suggestive. See People v. Johnson, 10 NY3d 875 (2008)(trial courts have discretion to deny requests to order that lineups be conducted using "double-blind" or sequential lineup procedures). In this case, the lineup participants all sat down, which minimized height discrepancies and all wore baseball caps facing backwards which eliminated hairstyle differences and gave the participants a similar appearance. Such methods are accepted techniques to reduce the potential for misidentification. See People v. Johnson, 306 AD2d 214 (1st Dept 2003), lv. denied, 100 NY2d 62; People v. Grant, 43 AD3d 800 (1st Dept 2007), lv. denied, 9 NY3d 990.

Though there may be a difference in age between the fillers in a lineup and the defendant, the relevant inquiry is whether there existed a substantial likelihood that the defendant would be [*9]singled out for identification. People v. Cheung, 255 AD2d 102 (1st Dept 1998), lv. denied, 93 NY2d 871 (1999). A disparity between the recorded ages of a defendant and the fillers in a lineup where that disparity is not reflected in the physical appearance of the lineup participants has little relevance in determining whether a lineup is unduly suggestive. People v. Amuso, 39 AD3d 425 (1st Dept 2007), lv. denied, 9 NY3d 862.

The inconsistencies recounted above with respect to the various descriptions Officer Curet recounted he had received are also not, in the Court's view, an indication that the identification procedures performed in this case were unduly suggestive. It is obvious to the Court that Officer Curet was not as precise as he might have been in describing these prior identifications. It is also obvious that Ms. Baretto was, understandably, distraught over being attacked in an elevator and that her emotional state likely led to inconsistencies in her descriptions of the perpetrator. All of these issues, of course, will likely be fertile ground for cross-examination at trial, but they do not indicate that the identification procedures used by the police in this case were unduly suggestive.

For all of these reasons, Defendant's motion to suppress the lineup identification made by the complainant and to suppress any prospective in-court identification of the Defendant by the complainant at trial are denied in their entirety. In light of this conclusion, the Court also declines to order an "Independent Source" hearing with respect to complainant's identification, as urged by Defendant here. See People v. Foster, 200 AD2d 196 (1st Dept 1994), app.

withdrawn, 83 NY2d 1003.

Dated: New York, New York________________________

May 20, 2009Daniel P. Conviser, A.J.S.C.