Appeal from an order of the Criminal Court of the City of New York, Richmond County (Matthew A. Sciarrino, J.), dated September 26, 2008. The order, insofar as appealed from, granted the branch of defendant's motion seeking to suppress identification evidence.

ORDERED that the order, insofar as appealed from, is affirmed.

Defendant was charged with menacing in the second degree (Penal Law § 120.14), criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]) and endangering the welfare of a child (Penal Law § 260.10). Defendant moved for, among other things, the suppression of identification evidence.

At a Wade hearing, Police Officer Joseph Perroto testified that he had received a radio transmission involving a dispute with a knife. In response, he went to an address, where he and his partner spoke to the complainant. The complainant indicated that a black male had brandished a knife at her daughter and had made a threatening remark at that time. The complainant provided the officers with a description of the assailant and of his clothing. Officer Perroto proceeded to immediately canvass the area and observed an individual matching the description of the suspect in a group of four or five teens a block and a half from the crime scene. The officer detained the suspect and separated him from the other teens. When the complainant arrived at the scene within a half hour after the incident, defendant was standing with a police officer 25 feet from the group of teens with whom he had been. After the complainant made a positive identification, defendant was placed under arrest.

The Criminal Court, among other things, suppressed the identification evidence, determining that the identification procedure used by the police had been unduly suggestive because defendant had been standing approximately 25 feet from a group of teens at the time the [*2]complainant made the identification.

Showup identifications are generally disfavored because they are inherently suggestive by nature (see People v Ortiz, 90 NY2d 533, 537 [1997]; People v Duuvon, 77 NY2d 541, 543 [1991]). However, street showups of suspects caught near the crime scene are not presumptively infirm (see People v Brisco, 99 NY2d 596, 600 [2003]). Showup identifications "must be scrutinized very carefully for unacceptable suggestiveness and unreliability" (Duuvon, 77 NY2d at 543). Under the totality of the circumstances presented, defendant established that the police conduct was so suggestive as to create a substantial likelihood of misidentification requiring suppression.

Accordingly, the order granting defendant's motion to suppress the identification evidence is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 28, 2011