The defendant has been indicted for various charges involving his allegedly on February 27, 2009 possessing and firing a handgun on the street injuring a bystander.

On May 5, 2010, this Court commenced a Huntley/Wade/Dunaway hearing on the defendant's motion to suppress identification testimony and a statement. On this date, the only witness who testified was Detective Alberto Zapata. (The page numbers of references to his testimony are preceded by "Z.") Following this testimony, the People requested and were granted the opportunity to call the identifying witness, Police Office Pedro Martinez, who made identifications of the defendant from surveillance videos, a photographic array, and a lineup. Office Martinez testified on June 15, 2010. (The page numbers of references to his testimony are preceded by "M.") The defendant and the People have submitted post-hearing papers in support of their respective position on the motion, each set being dated July 7, 2010. For the reasons stated below, the motions to suppress are denied.

I.FINDINGS OF FACT

A. The Shooting [*2]

Police Officer Pedro Martinez was assigned to the Transit Bureau of District 32 for seven-and-a-half years and is responsible for patrolling the subway system. In the Police Academy, he received the usual training in observing people so as to be able to later recognize them which is a situation he regularly confronted while working (M. 10-12). No further details of this training were elicited.

On February 27, 2009 at about 4:30 p.m., Martinez was off duty, standing on the sidewalk in front of 835 Ocean Avenue on the east side of the street facing across Ocean Avenue waiting for his son to return from school from the subway station to the north on Cortelyou Road (M. 12-14; Z. 4). To the right of Martinez was Cortelyou Road and to his left was Dorchester Road (M. 14). Martinez was unarmed, in plainclothes, and was waiting by himself (M. 45, 49; Z. 4-5). He stood looking directly across the street at a residential building and a parking garage that had a driveway that opened onto Ocean Avenue (M. 14). There were no vehicles parked in the driveway at that time. Ocean Avenue had parking on both sides of the street and four lanes of traffic which at that time of day was usually heavy (M. 14, 17, 48).

At that time, Martinez heard gunshots to his right coming from the direction of Cortelyou Road. He turned to his right towards the sound and saw four young males running from that direction on the other side of Ocean Avenue approximately seven or eight car lengths away (M. 15, 27, 46). Martinez did not look to see if anybody was hit or who was being shot at (M. 68). He first saw the four men close to Cortelyou Road on the other side of Ocean Avenue (M. 16-18). One male (later identified as the defendant) was running behind the other three males holding a black gun in his right hand pointed behind him back towards Cortelyou Road. He was running south towards Dorchester Road as he was shooting behind him with his right shoulder turned towards Cortelyou Road (M. 18-19, 49, 53). Martinez could not recall whether the shooter was also turning his head while he shot (M. 52). Martinez recalled the shooter was a black male, approximately 17 to 19 years-old, 5'8" to 5'10" with short hair, and wearing a black jacket with a black backpack and dark jeans (M. 19-21, 58). The other three men ran closely together approximately ten yards in front of the shooter and remained in front of the shooter the entire time Martinez observed them (M. 21, 56, 58).

The four men continued running on the west side of Ocean Avenue on the sidewalk past the garage. It was daylight and, though there were cars parked on the street, there was nothing obscuring Martinez's view of the left side of the shooter's face or the full bodies of all four men (M. 22-23, 61). Due to the rapidity of the event, Martinez could not recall whether he also saw the right side of the shooter's face (M. 61). Martinez saw the shooter fire approximately two or three shots straight up the west side of Ocean Avenue towards Cortelyou Road (M. 24). At their closest point, the shooter was directly across Ocean Avenue from Martinez (M. 27).

After running past the driveway directly across from Martinez, all four men continued on the sidewalk of the west side of Ocean Avenue for another five car lengths and then ran diagonally across the street to the east side heading towards Dorchester Road. When the men reached Martinez's side of Ocean Avenue they were approximately five or six car lengths away (M. 27-28). Right before the shooter crossed the street, Martinez observed him put the gun in his right jacket pocket (M. 35).

Once on the corner of Ocean Avenue and Dorchester Road, the three men made a left turn onto Dorchester Road. The shooter followed, and Martinez lost sight of them (M. 29-30). From [*3]when Martinez first saw the four men on Cortelyou Road until he lost sight of them on Dorchester Road, approximately one minute had elapsed (M. 30). Martinez spent about five to ten seconds of that time looking at the shooter's face and the rest of that time looking "in general" at the four men (M. 30).

After Martinez lost sight of the four men, he took out his phone to call 911 when he saw a police van turning on Cortelyou Road towards him. Martinez used his shield to flag down the van (M. 30, 32). Martinez described the shooter to the officers as 5' 8" to 5' 10", approximately 17 to 19 years-old, black jacket, black backpack. Martinez also described the other men as black, also 17 to 19 years-old, one of whom had a white bubble jacket with a sweater, chubby, 5' 6", 180 to 200 pounds. The other two were described as wearing dark clothes, 5' 7" to 5' 10". The police van then turned onto Dorchester Road, and Martinez remained on Ocean Avenue to wait for his son (M. 32).

At approximately 6:15 p.m., Detective Alberto Zapata of the 70th Precinct, the lead investigator in this case, spoke in the hospital with a bystander, Marlene Jack, who had been shot in the hand while walking on Cortelyou Road and Ocean Avenue. She said she had been shot by a young black man,18 to 19 years-old in an off-white zippered jacket or bubble vest (Z. 36, 38). Zapata believed from further investigation that the shooter described by Marlene Jack was a second shooter involved in the incident. Marlene Jack has apparently made no identification of the defendant or anyone else.

B. Computer Photo Identification Attempt

Later that evening at approximately 10 p.m., Martinez was at the 70th Precinct and met with Zapata. Detective Zapata showed him photographs on a PIMS computer but Martinez could not identify anyone (M. 33; Z. 42, 45). The defendant's photograph should have been included in the 1,582 photographs viewed by Martinez, because the defendant's photograph was on file and fit the PIMS profile of photographs selected for viewing: "black males between 17 to 20 years-old, arrested in the 67th or 70th Precincts". Prior to viewing the photographs, Martinez had repeated his descriptions of the men he saw to Zapata and had told Zapata he believed he could identify the person he saw shooting on Ocean Avenue (Z. 41-43).

C. Surveillance Video Identification

On February 29, 2009, Zapata looked at various surveillance videos taken on Ocean Avenue from Cortelyou Road to Dorchester Road, from Dorchester Road to East 21st Street, and on East 21st Street from Dorchester Road to Ditmas Avenue (Z. 48). Videos at two locations on East 21st Street depicted four men running who fit Martinez's descriptions. From a video inside one of the locations, an apartment building located at 543 East 21st Street, Zapata saw two of the men in an elevator, one of whom was facing the camera. Zapata made a still photograph from this video and showed it to residents of the building (Z. 34-35). An "anonymous female" in the lobby informed Zapata that one of the men was "Fedley" who lived on the fourth floor. Zapata then returned to the precinct, conducted a computer check, and ascertained the defendant's name (Z. 35). (Neither the surveillance [*4]videos nor the still photograph were introduced in evidence. Zapata testified neither person in the elevator was wearing a bubble jacket [Z. 9]. Martinez, however, testified one of the people entering the elevator was wearing a white jacket and the other person was the defendant [M. 39]. Martinez also testified the person in the white jacket "stands out" in the videos from the others [M. 38].)

The next day, March 1, 2009, Martinez met with Zapata at the 70th Precinct to look at the surveillance videos that Zapata told him were taken at approximately 4:45 p.m. in the neighborhood on the day of the shooting (Z. 49). The first video shown was outside surveillance from 520 East 21st Street. Martinez recognized the buildings in the video and the clothing and general appearance of the four black males as they were depicted turning the corner on Ocean Avenue toward Dorchester Road (M. 34-36, 65-66; Z. 8). The second video depicted two of the men entering the front of an apartment building at 543 East 21st Street. Martinez recognized the male in the white bubble jacket with another person (M. 36-37; Z. 9).

Zapata then told Martinez that the third video was taken in the elevator of the building the two males entered in the previous video. Martinez recognized the male in the white bubble jacket and the person with him as the shooter (M. 38-39; Z. 50-51). He recognized the shooter by his face and the black jacket and black backpack. Martinez watched the videos for about ten minutes never stopping or pausing the videos at any point (Z. 50). The elevator video lasted only "seconds" (Z. 52).

D. Photo Array Identification

About twenty minutes after looking at the elevator video and identifying the person with the visible face as the shooter, Martinez was shown a photo array of six photographs that had been previously prepared by Zapata's partner, Detective Lee, from police computer files. No one else was in the room when Zapata showed the photographs to Martinez. Martinez identified the defendant's photograph as the shooter (Z. 16-17). Martinez wrote down his selection in the presence of Zapata and then left the precinct. Martinez was told that he would be called to view a lineup when that person was arrested (Z 54).

E. Defendant Surrenders and Makes A Statement

Following Martinez's identification of the defendant as the shooter, Zapata went to the defendant's home the same date, March 1, 2009, and spoke with the defendant's grandmother (Z. 17, 19). On March 10, 2009, the defendant's father came to the precinct at approximately 10:55 a.m. and spoke with Zapata (Z. 18-19). Almost two months later, on May 7, 2009, at approximately 10:40 a.m. the defendant and his father voluntarily came to the 70th Precinct. Zapata was upstairs in the detective squad on the second floor and came downstairs to meet them (Z. 20). The defendant, his father, and Zapata then proceeded upstairs to an interview room.

In the presence of his father, the defendant was told what the investigation was about (Z. 21). At approximately 11:00 a.m., Zapata, reading from a card, advised the defendant of his Miranda rights. After each right was read, the defendant was asked if he understood, but he made no response. When asked whether he wished to make a statement, the defendant said, "I was there but did not shoot" (Z. 25-26). [*5]

F. Lineup Identification

Later that day, on May 7, 2009, Martinez was notified by his command to report to the 70th Precinct to observe a lineup (M. 41; Z. 28). Martinez was escorted through the front door to the detective squad office. When passing through the reception area, he did not see any wanted posters depicting the shooter, nor did he see such posters, or the shooter in person, in the nine weeks since the date of the photo array (M. 41, 80).

Zapata never informed Martinez that wanted posters and Crime Stoppers reward cards containing the defendant's photograph had been given to officers in the 70th Precinct to be posted conspicuously around the neighborhood (Z. 54, 56). Zapata had taken down all the wanted posters and Crime Stoppers posters in the precinct before he left to collect fillers for the lineup (Z. 66-67).

In the office, Zapata informed Martinez that the purpose of the lineup was to see if he could identify the shooter (M. 78). Martinez then waited for approximately 20 to 25 minutes before viewing the lineup, during which time he did not speak with anyone else (M. 78-79). According to Zapata, however, Martinez arrived at the precinct at 12:45 p.m. and viewed the lineup just five minutes later (Z. 29, 32).

The defendant was put in lineup position number five, because he chose that number. The five fillers were men from a homeless shelter, and were placed by Zapata (Z. 29-30). All the men in the lineup were sitting and wearing do-rags in order to minimizes their height differences and conceal any differentiation in their hairstyles (Z. 30, 70-71). At no point was Martinez exposed to the defendant or the fillers prior to the viewing. When Martinez arrived, the defendant was in the lineup room with the fillers (Z. 30).

At approximately 12:50 p.m., Sergeant Mulberg supervised Martinez observing the lineup, and after two to three seconds, Martinez identified the defendant as the shooter (Z. 32, 70). Martinez testified he looked at the lineup from 30 seconds to a minute (M. 80). He recognized the defendant's face (M. 43), and said he was certain that he was the shooter from Ocean Avenue. Martinez memorialized the identification by signing the line-up report (Z. 33).

II.CONCLUSIONS OF LAW

A. The Surveillance Video Identification

After Zapata reviewed the surveillance videos of the four running males he had good reason to believe that the four men depicted in those videos were the ones described by Martinez. That is why Zapata, before even showing the videos to Martinez, sought to ascertain the identity of the people in the videos, particularly the persons in the elevator, by showing a still photograph from the elevator video to people in the building.

Detective Zapata thus ascertained the defendant's identify as one of the two males in the elevator surveillance video and obtained the defendant's photograph before he showed Martinez the surveillance videos.

By showing the surveillance videos to Martinez, and telling Martinez when and where the videos were taken, Zapata, rather than taking a prudent, non-suggestive, investigatory approach, as argued by the People, virtually told Martinez that he believed the videos captured the images of the [*6]four men just after Martinez had lost sight of them. Martinez would likely very well have reached the same conclusion without Zapata telling him when and where the videos were taken. To that extent, the "suggestiveness" of Zapata's statements were more apparent than real, but nevertheless, Zapata's providing this information to Martinez was ill-advised.

When Martinez was shown the elevator surveillance video, Martinez had already been made aware that it was taken following the earlier two videos depicting the same two men in the elevator running with the two other men. This sequence left little or no doubt that the two men in the elevator were part of the running group of four males that Martinez had seen on Ocean Avenue, particularly when all three videos depicted the same man wearing the distinctive white bubble jacket. The defendant's face was the only face visible in the elevator video. While this sequence did not guarantee that the defendant, who was also wearing the same clothing and backpack Martinez had described being worn by the shooter, would be identified as the shooter, showing Martinez the elevator video as the third part of the three-video sequence rather than first showing Martinez a photographic array created "a substantial likelihood that the defendant would be singled out for identification." People v. Chipp,75 NY2d 327, 336 (1990); In re James H. 34 NY2d 814, 816 (1974); People v Thornton, 236 AD2d 430 (2d Dept. 1997); People v Mallory, 126 AD2d 750 (2d Dept. 1987).

This procedure was unnecessarily suggestive notwithstanding that Martinez was an experienced police officer, because the video identification procedure was removed both in time and location from Martinez's Ocean Avenue observations. See People v Mato, 83 NY2d 406, 409-411 (1994); People v Waring, 183 AD2d 271, 274-275 (2d Dept. 1992) (unnecessarily suggestive photographic showup identifications cannot be defended by reference to the fact that the persons making the identifications are police officers).

This procedure was clearly unnecessarily suggestive, because, as noted, Zapata had available a photograph of the defendant not showing the defendant wearing the same clothing fitting Martinez's description of the shooter's clothing and not showing the defendant in the company of someone wearing the distinctive white bubble jacket worn by the shooter's cohort. This non-suggestive photograph was actually used in the photographic array of six photographs shown to Martinez 20 minutes later. See People v Bady, 202 AD2d 440 (2d Dept. 1994) (identification procedure may be unnecessarily suggestive where subject is wearing distinctive clothing matching description of clothing worn by perpetrator).

The surveillance video identification of the defendant by Martinez was from videos not showing the actual incriminating events Martinez previously observed on Ocean Avenue, but, rather, from videos of events Martinez had never previously seen. If, instead, the surveillance videos had shown the Ocean Avenue events Martinez had actually observed, then his police-arranged viewing of the surveillance videos would not have been unnecessarily suggestive, but, rather, merely a confirmatory viewing not subject to a Wade hearing because no "selection process" would be involved. People v Gee, 99 NY2d 158, 162 (2002).

In stark contrast to the facts in this case, where the police had a non-suggestive photograph of a likely suspect, the police in Gee had at the time the video was shown to the witness "no suspects and had not even begun to search for any." Gee at 162. The People's argument that Zapata was not "rushing to judgment" by first showing Martinez the surveillance videos and were engaging in "sound police investigatory work" is simply at odds with decades of judicial opinions. See People [*7]v Chipp, at 336, stating that an "unnecessarily suggestive" identification procedure is one that creates a substantial likelihood that the subject will be singled out for identification. It simply cannot be argued with any persuasiveness that Zapata needed Martinez to view the suggestive elevator video in order to determine whether the defendant was the shooter seen on Ocean Avenue.

At the hearing on this motion it was the Court, not the People, who elicited over the People's objection on the grounds of "relevance" testimony from Zapata that he ascertained the defendant's identity as one of the men in the elevator prior to showing Martinez the surveillance videos. Rather then being irrelevant, Zapata's possession of the defendant's photograph and the absence of any good reason to have Martinez look at the elevator surveillance video before showing him a non-suggestive photographic array rendered that identification procedure unnecessarily suggestive.

It should also be noted that the reliability of Martinez's identification of the defendant is greatly enhanced by the defendant's admission that he was present, and by the fact that the defendant was depicted in the videos wearing clothing fitting the clothing described by Martinez and running with and in the elevator with a second young man wearing a distinctive white bubble jacket that was worn by another person involved in the incident. Yet, even though Martinez's video surveillance identification may have been reliable, it was, nevertheless, unnecessarily suggestive, and under New York law had the potential to taint subsequent identifications. See People v Adams, 53 NY2d, 249 (1981) (New York State Constitutional right to due process requires exclusion of evidence of an unnecessarily suggestive identification even if that identification would be found to be reliable and admissible pursuant to Federal Constitutional standards in accordance with Manson v Braithwaite, 432 US 98 [1977]).

B. The Photographic Array Identification

Although the photographic array identification procedure was fairly conducted and the array of photographs was fairly assembled, it took place only 20 minutes after Martinez had identified the defendant in the elevator video. As a result, the photographic identification procedure was rendered unnecessarily suggestive, because Martinez's photographic identification cannot be found to be attenuated from the prior suggestive video identification. People v Wilson, 11 AD3d 204 (2d Dept. 2004) (lineup identification suppressed because it immediately followed a suggestive single photo showup, the time interval between them being too brief to attenuate the taint), revd other grounds 5 NY3d 778 (2005); People v Jurgins, 27 Misc 3d 1228 (A) (Sup. Ct., Bronx County 2010) (suggestive photographic array tainted second photographic array conducted 10 to 12 hours later).

Because evidence of a pre-trial photographic identification, even if found not to be suggestive or not to have been tainted by prior suggestive identification procedures, is not admissible at trial (People v Caserta, 19 NY2d 18, 20 [1966]), the issue to be decided in this case is not whether testimony concerning the photographic identification should be "suppressed" but, rather, whether, testimony concerning the subsequent lineup identification and prospective in-court identification should be suppressed as a result of a finding that the video surveillance identification procedure was unnecessarily suggestive and the subsequent photographic array identification, although fairly conducted, was tainted by the prior identification procedure.

C. The Arrest [*8]

The defendant was arrested on May 7, 2009, when he appeared at the Precinct with his father. At that time there was probable cause to arrest him based on Martinez's identifications of the defendant on the elevator surveillance video and the photographic array as the shooter. Thus, the defendant was lawfully in custody both when he was subsequently placed in a lineup later that day and when he made his statement to the police after being identified at the lineup. Accordingly, the Dunaway portion of the defendant's motion is denied.

D. The Lineup Identification

In this case, the lineup was properly conducted and not unnecessarily suggestive. Thus, the only grounds on which to suppress Martinez's testimony about the lineup identification and prospective in-court identification would be that the unnecessarily suggestive video surveillance identification tainted the immediately following photographic identification, which, in turn, tainted the lineup identification, which, in turn, would taint the prospective in-court identification at trial. The defendant waived his right to be present during Officer Martinez's Wade hearing testimony. Therefore, Martinez did not make an in-court identification of the defendant at the Wade hearing.

Where, as in this case, there is an unnecessarily suggestive identification procedure, testimony regarding both a subsequently held identification procedure and prospective in-court identification may be allowed if the subsequent identifications have either "an independent source" from the prior tainted identifications or there is a substantial time gap between the suggestive and non-suggestive pre-trial identifications so as to "attenuate" the taint.

The "independent source" inquiry focuses on whether there is clear and convincing evidence that the identifying witness formed a sufficient mental image of the perpetrator at the time of the incriminating observation so as not to be influenced by the prior unnecessarily suggestive identification procedure, thereby permitting testimony regarding subsequent identifications. United States v Wade, 388 US 218, 240 (1967); People v Rahming, 26 NY2d 411, 416-417 (1970). The defendant vigorously argues that the People have not met this burden. This subject will be discussed further below.

Pursuant to the attenuation doctrine, identification evidence may be admitted at trial if the causal connection between the identification evidence and the previously occurring unnecessarily suggestive identification procedure has been so attenuated that the taint of the initial misconduct has been dissipated. See Wong Sun v United States, 371 US 471, 487 citing, Nardone v United States, 308 US 338, 341 (1939). An "attenuation" analysis is conceptually distinct from an "independent source" analysis . See People v Davis 294 AD2d 872 (4th Dept. 2002) (appellate court finds both attenuation and independent source); People v Floyd, 122 AD2d 72 (2d Dept. 1986) (appellate court finds no need to address issue of independent source where lineup identification was attenuated from arguably suggestive photographic identification).

Attenuation Analysis

In this case, the unnecessarily suggestive video identification and the properly held though tainted photographic array both took place on March 1, 2009. The lineup identification took place on May 7, 2009 over nine weeks later. The passage of this significant amount of time, in accordance [*9]with the following cases, was sufficient to attenuate the taint of the unnecessarily suggestive video identification: People v Leibert, 71 AD3d 513 (1st Dept. 2010) (six weeks between photo showup and lineup sufficient time to remove any taint, especially where defendant's appearance changed at time of the lineup); People v Thompson, 17 AD3d 138 (1st Dept. 2005) (two months between identification of defendant from wanted poster for a different case hanging on precinct bulletin board and lineup identification sufficient to attenuate any suggestiveness); People v Davis, 294 AD2d 872 (4th Dept. 2002) (almost three months between showup identification and lineup attenuated any taint); People v Butts, 279 AD2d 587 (2d Dept. 2001) (six weeks between allegedly suggestive photographic array and lineup attenuated any possible taint); People v Hamilton, 271 AD2d 618 (2d Dept. 2000) (six weeks between "inappropriate remark" by police officer after witness identified defendant's photograph from a properly conducted photo array and subsequent lineup identification was sufficient to attenuate any taint); People v Dread, 245 AD2d 1076 (4th Dept. 1997) (two months between photographic identification where victim's boyfriend who was not a witness to the crime, said, "oh yeah, that's him" and lineup identification sufficient to attenuate any possible taint); People v Lee, 207 AD2d 953 (4th Dept. 1994) (five months between showing witness two successive photo arrays each containing different pictures of the defendant with the second array showing the defendant wearing a jacket similar to the jacket described as worn by the perpetrator and lineup identification was sufficient to attenuate any possible taint); People v Alton, 169 AD2d 529 (1st Dept. 1991) (more than four weeks between allegedly suggestive photo array where defendant had a "receding hairline" and lineup identification "render [ed] prejudice unlikely"); People v Young, 167 AD2d 366 (2d Dept. 1990) (more than two months between allegedly suggestive photo array and lineup identification sufficient to attenuate any possible taint and no evidence adduced at the hearing that at the lineup procedure the complainant was merely identifying the individual in the photographic array rather than the man who had robbed and assaulted him);People v Cordilione, 159 AD2d 864 (3d Dept. 1990) (seven weeks between possible suggestive photo arrays and lineup sufficiently attenuated any possible effects of suggestiveness); People v Allah, 158 AD2d 605 (2d Dept. 1990) (19 days between presumptively suggestive photo array because it was lost and not produced at the Wade hearing and the lineup identification was sufficient to attenuate any taint and there was no evidence adduced at the hearing that the complainant was merely identifying the man she had selected in the photo array); People v Greenwood, 156 AD2d 159 (1st Dept. 1989) (five and-a-half weeks between "questionable" photo identification procedure and lineup sufficiently "attenuated in time" to find lineup not tainted by prior "procedural irregularities"); People v Smith, 154 AD2d 633 (2d Dept. 1989) (more than five months between photographic identification procedure and lineup sufficiently attenuated in time of nullify any possible taint); People v Celestin, 150 AD2d 385 (2d Dept. 1989) (six months between allegedly suggestive photographic identification and lineup would be sufficient to attenuate any taint); People v Russell, 140 AD2d 556 (2d Dept. 1988) (approximately four months between a photographic identification that "may well have been tainted" and a lineup was sufficiently attenuated to nullify any taint); People v Smith, 140 AD2d 647 (2d Dept. 1988) (approximately two months between allegedly suggestive photographic identification based on police comments that a suspect is included in the array and lineup would have been sufficient to attenuate any taint); People v Torres, 137 AD2d 734 (2d Dept. 1988) (seven months between unnecessarily suggestive single photo showup identification and lineup sufficient to attenuate any taint); People v Allen, 134 AD2d 598 (2d Dept. 1987) (18-months between [*10]allegedly suggestive photographic array and lineup would have negated any undue suggestiveness); People v Watts, 130 AD2d 695 (2d Dept. 1987) (two months between unnecessarily suggestive photographic identification and the lineup was sufficiently attenuated in time to nullify any taint); People v Floyd, 122 AD2d 71 (2d Dept. 1986) (over four months between allegedly suggestive photographic identification and lineup was sufficient to attenuate any possible taint); People v Ruffino, 110 AD2d 198, 201 (2d Dept. 1985) (3½ months between unduly suggestive photographic identification and lineup sufficiently attenuated any taint); People v Johnson, 106 AD2d 469 (2d Dept. 1984) (two months between presumptively suggestive photographic identification based on a failure to preserve the array and the lineup identification was sufficiently attenuated).

Based on the above cases representing over twenty-five years of consistent holdings by the Appellate Division in all four Departments, the nine-week interval in this case between the suggestive video identification and the fairly conducted lineup identification compels the conclusion that this time interval was sufficient to attenuate the lineup identification from the tainted video surveillance identification.

In this regard, it is significant that there is no claim that the defendant's appearance in the surveillance video did not match Martinez's description of the shooter, indicating that Martinez had the ability to recall accurately what he saw. In addition, there was no evidence at the Wade hearing that Martinez's identification of the defendant at the lineup was based merely on his recollection of the defendant's appearance in the surveillance video rather than on his recollection of the appearance of the shooter on Ocean Avenue. See People v Young, supra at 366 and People v Allah, supra at 605.

The defendant argues that Martinez did not really have a good opportunity to view the face of the shooter based on Martinez's failure to select the defendant's photograph on the date of the incident from over 1,500 photographs of black males between the ages of 17 and 20 years old who had been arrested in the 67th and 70th precincts. Although it is not certain that the defendant's photograph was included in the group, Zapata testified that, based on the defendant's arrest history it should have been. Nevertheless, this is but one factor to consider in determining if there was a sufficient attenuation. Under the circumstances of this case, this failure, does not warrant finding attenuation has not been established.

Further, Martinez denied seeing any wanted posters of the defendant either in the 70th Precinct when he came to view the lineup or posted in the neighborhood during the nine weeks between the time of his photographic identification and the lineup.

The People have met their burden of proof, which is by a "preponderance of the evidence," to show that the lineup identification was attenuated from the earlier unnecessarily suggestive video identification. As previously noted, an attenuation analysis is not only a distinct analysis from an "independent source" analysis, but also an "independent source" analysis carries a greater burden of proof which is "clear and convincing evidence." It is beyond the scope of this decision to attempt to explain in detail why these seemingly similar inquiries, i.e., whether a prior unnecessarily suggestive identification procedure requires suppression of testimony of future non-suggestive identifications, should have two different burdens of proof. Suffice it to say, the distinction appears to be that where there is an unnecessarily suggestive identification procedure and no intervening untainted pre-trial identification procedure, any prospective in-court identification, pursuant to United States v Wade, supra, must be shown by clear and convincing evidence to have an [*11]independent source. However, if there is an intervening, fairly conducted identification procedure that is shown by a preponderance of the evidence to be sufficiently attenuated from the prior suggestive identification procedure, then evidence of the fairly conducted procedure and the prospective in-court identification will be permitted.^[FN1] Accordingly, the defendant's motion to suppress evidence of the lineup identification and prospective in-court identification by Officer Martinez is denied.

Independent Source Analysis

The surveillance videos were not introduced in evidence. Thus, it may very well be, as the defendant argues, that Martinez got a better look at the defendant's face when viewing the unnecessarily suggestive elevator surveillance video than he had of the shooter's face on Ocean Avenue.

Therefore, although the People have met their burden to show by a preponderance of the evidence that Martinez's lineup identification and prospective in-court identification are attenuated from the unnecessarily suggestive elevator surveillance video, in the absence of what that video actually showed, this Court cannot find that there is clear and convincing evidence that these identifications have an independent source from that surveillance video. Nevertheless, the lineup and the prospective in-court identification are admissible for the reasons previously stated, and the motion to suppress them is denied. (Ironically, the defendant's nine-week delay in surrendering to the police is the cause of this result. If the defendant had been arrested when Zapata went to his home on March 1, 2009, the day of the video surveillance and photographic identifications, or if the defendant had promptly surrendered, the subsequent lineup identification would not have been sufficiently attenuated and the People would have had to show the prospective in-court identification had an independent source.)

E. The Statement [*12]

The defendant's statement, "I was there but did not shoot," was made following Zapata's reading the defendant his Miranda rights concluding, "Now that I have advised you of your rights, are you willing to answer any questions?" The defendant's statement was not responsive to the question, nor under the circumstances was Zapata's conduct, consisting of advising the defendant and his father of the nature of the investigation and advising the defendant of his Miranda rights, the functional equivalent of interrogation, i.e., conduct likely to elicit an incriminating response. Rhode Island v Innis, 446 US 291, 301 (1980); People v Huffman, 61 NY2d 795, 797 (1984); People v Jefferson, 71 AD3d 694 (2d Dept. 2010); see Berghuis v Thompkins, __US__, 130 S Ct 2250, 2256-2263 (2010) (defendant's silence for almost three hours during an interrogation is not an invocation of the right to remain silent and there was no basis to conclude the defendant did not understand his Miranda rights even though the record was inconsistent as to whether he affirmatively responded when asked if he understood them).

Therefore, although due to the defendant's silence while being advised of his Miranda rights, the People arguably may not have met their burden to show the defendant understood his Miranda rights and voluntarily waived them, the defendant's statement was not the product of unconstitutional custodial interrogation nor otherwise involuntarily made. Therefore, the motion to suppress the statement is denied.

SO ORDERED

JOEL M. GOLDBERG

JUDGE