Following a Wade hearing, the Court makes the following findings of fact and conclusions of law.

On May 5, 2008, P.O. Villaran received a radio dispatch following a 911 call from a complainant who stated her car was keyed by a woman while parked in the Commack Plaza Shopping Center in Commack, Smithtown, Suffolk County, New York. Police Officer Villaran responded to the location. There he met the complainant who gave him a description of the woman who keyed her car and the license plate number and make of the car, a Mercedes Benz, that the suspect drove to leave the shopping center after the incident. P.O. Villaran did not take notes of the physical description of the suspect given by the complainant. He ran the plate number from his police car computer. From the police computer P.O. Villaran retrieved the make and model of the car registered under that license plate number as well as the name of the owner, her date of birth, height and eye color. P.O. Villaran did not have the capability to bring up a picture of the suspect on the police computer. The description of the owner of the vehicle matched the description of the suspect described by the complainant. P.O. Villaran submitted an Incident Report to his supervisor who forwarded the paperwork to the 4th Precinct Crime Control section.

On May 6, 2008, Det. Rall was assigned the investigation. Det. Rall testified that he telephoned the complainant, Andrea Director, and left a message at both telephone numbers she provided. Det. Rall testified that he spoke to the complainant once on the phone before he met her in person to view the photo array. He testified that the complainant on the phone gave a physical description of the suspect; however, Det. Rall did not make notes and does not remember the description given. On May 7, 2008 he received a photo of the suspect taken from her driver's license. From the driver's license photo and the information provided on the suspect's driver's license and plate registration, the Suffolk County Police Identification section compiled a photo array using the Suffolk County Police Profile System. The profile system uses sex, age, height, weight, hair color, type of hair and ethnicity to compile an array. Det. Rall did not take [*2]part in compiling the photo array, nor did he take part in arranging the placement of the suspect's picture in the photo array.

On May 9, 2008 the complainant came to the 4th Precinct to view a photo array and give a written statement. Det. Rall met the complainant and brought her to his desk. In the room was Sgt. Kelly Lynch who was doing paperwork. Det. Rall stated that the complainant did not speak with anyone other than himself and did not leave the room until viewing the photo array and providing a written statement. Det. Rall placed the photo array on the desk in front of the complainant. He read the printed statement below the six photos.

Viewer: You will be asked to look at a group of photographs. The fact that the photos are shown to you should not influence your judgment in any way. You should not conclude nor guess that the photographs contain the picture of the person who committed the crime. Keep in mind hair styles, beards and mustaches are easily changed. Please do not indicate to other witnesses that you have or have not made an identification.

The complainant immediately identified photo number 4 as the picture of the person who keyed her car. The complainant circled number 4 and placed her initials next to the number. The complainant then filled in the blanks below the Viewer paragraph. She indicated her name, address and that she identified photo number 4 as the person who keyed her car. The name of the suspect, Zeinab Elbaz, was written in the appropriate blank. The complainant signed her name as did Det. Rall and he included the central complaint number, the date and time of the viewing.

Det. Rall thereafter took a written statement from the complainant. The complainant explained what happened and the Detective wrote the statement. The complainant reviewed the written statement and made corrections, specifically, changing the color of the Mercedes Benz from white to grey, as well as making spelling/grammatical changes. The complainant initialed the changes and signed her name. The process took about 15 minutes. Det. Rall closed the case investigation by issuing a Field Appearance Ticket for the defendant, Zeinab Elbaz.

At a Wade hearing, the prosecution has the initial burden of demonstrating that the identification process was not so unduly suggestive as to be "conducive to irreparable mistaken identification." Stovall v. Denno, 383 US 293, 302 (1967). The identification must be examined for undue suggestiveness under the "totality of the circumstances." People v. Chalmers, 163 AD2d 528 (2nd Dept. 1990). Once the prosecution has met its burden, the burden shifts to the defense to prove, that the pretrial identification procedure was, in fact, unduly suggestive. See People v. Rahming, 26 NY2d 411 (1970).

Defense counsel claims that the initial identification by the complainant was unduly suggestive and insufficiently attenuated from the photo array to obviate the improper suggestiveness; the officers never memorialized the complainant's description of the suspect thereby affording no objective way to gauge the "fillers" used in the array for similarity between the suspect and the "fillers"; the photo array contains "fillers" whose facial features, pose, apparel [*3]and weight differ greatly from defendant's photo; and that the People have failed to show by clear and convincing evidence that the photo identification procedure was not tainted and unduly suggestive because the police witnesses' testimony is unsubstantiated by proof that the complainant independently provided a description of the suspect.

Although the better practice would be to memorialize the description of the suspect, in this case the complainant memorialized the license plate number and P.O. Villaran confirmed that the description of the sex and age of the registered owner of the vehicle matched the description of the suspect given by the complainant. P.O. Villaran testified that the police car he drove to the scene did not have the ability to produce a picture of the registered owner of the suspect's car. Therefore, the Court finds that the complainant's initial description of the suspect's sex and age was not tainted by improper police procedure or that the police procedure was unduly suggestive in pinpointing a particular person since it was the complainant, not the police, who provided the license plate number that produced the sex and age of the registered owner of the suspect's care.

Moreover, Det. Rall testified that photos of the "fillers" used for the photo array were compiled after the police identification section retrieved the suspect's photo from the driver's license of the registered owner of the suspect's car. Using the Suffolk County Police Profile system, the 4th Precinct Police Identification section used the sex, age, height, weight, hair color, type of hair and ethnicity taken from the suspect's driver's license photo to compile five other photos of similar women. In essence, the descriptors used to compile photos of the "fillers" were tailored to the driver's license photo of the suspect. The court finds no undue suggestiveness in the procedure used since, again, the complainant provided the license plate number that led to the suspect's photo and similar "filler" photos used to compile the photo array.

Last, the defense argues that facial features, pose, apparel and weight of "fillers'" photos differ greatly from the defendant. There is no requirement that the fill-ins be nearly identical [in smile, weight and apparel]. See People v. Chip, 75 NY2d 327. Here the photos are of women who are substantially the same age and weight, have substantially the same hair length and texture. The photos are all full face and from the shoulders up. Also, the women in photo number four and photo number five appear to have a smile on their faces. Therefore, the Court finds that the procedure used to compile the photo array and the photo array itself was not so unduly suggestive as to preclude an in-court identification by the complainant.

Dated:J. D. C.