For the reasons that follow, defendant's motion for various sanctions because of a claimed Brady violation from the loss of a surveillance tape is denied, as is his motion to suppress identification and statement evidence.

Defendant is charged with Robbery in the First, Second and Third Degrees (PL §§ 160.15[4], 160.10[1], 160.05), Burglary in the First, Second and Third Degrees (PL §§ 140.30[4], 140.25[2], 140.20), Grand Larceny in the Fourth Degree (PL § 155.30[5]), Petit Larceny (PL § 155.25), Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40) and Menacing in the Second Degree (PL § 120.14[1]). He moved to suppress statement and identification evidence. The Honorable William Mogulescu ordered a Huntley/Wade/Dunaway/Crews hearing.

This Court conducted a hearing, and expanded its scope to permit defendant to explore the facts surrounding the loss of a surveillance videotape of the vestibule of 1580 Metropolitan Avenue, Bronx, New York, recorded on December 20, 2012, during the alleged incident. The People called [*2]one witness, Police Officer Hairo Franco of the 43 Precinct, and introduced eight exhibits.^[FN1] The defense called Police Officer Michael Bonifacio of the 43 Precinct, and Officer Harry Plaza and Lieutenant Evangelos Pilios of Parkchester South Condominium Public Safety. This Court found the witnesses credible, and I credit their testimony to the extent indicated below.^[FN2] Based on their testimony, the exhibits, and the arguments of counsel, I make the following findings of fact and conclusions of law.

On December 20, 2012, D.B. reported to police that he had been robbed at 1580 Metropolitan Avenue in the Bronx (H 13).^[FN3] Police Officer Michael Bonifacio of the 43 Precinct, who was on patrol duty with his partner, Officer Reyes, heard a radio run at approximately 8:10 pm and arrived at 1580 Metropolitan Avenue, which is part of the Parkchester South Condominium, at approximately 8:22 pm (H 145-46, 219).^[FN4] The officers went to the victim's apartment, where Bonifacio believed that Reyes spoke with the victim (H 147-48).

No one was arrested for the robbery that evening (H 19).

Officer Harry Plaza, who has worked at Parkchester for 17 years and has been a criminal investigator for Parkchester South Condominium for seven years, routinely works with the New York City Police Department to provide surveillance videos and still photographs of possible suspects taken from surveillance videos for crimes that take place on Parkchester property (H 157, 162-63, 164, 170, 188). Parkchester South Condominium comprises "a lot of buildings" over 90 acres. The Parkchester condominiums are divided into four quadrants — north, south, east and west — and Parkchester South Public Safety, also referred to during the hearing as "Parkchester Security," [*3]is responsible for three of the quadrants, including the east quadrant, where 1580 Metropolitan Avenue is located. Security for the development includes over 120 cameras (H 159, 176, 219-20). The Special Operations Unit of Parkchester South Condominium maintains video surveillance for the south, east and west quadrants (H 217, 220). Parkchester Security is a public safety department. Its officers are peace officers who receive training sanctioned by the Department of Criminal Justice Services and who can conduct investigations and make arrests.^[FN5] However, while Parkchester Public Safety's authority "is received from One Police Plaza," its officers are not members of NYPD and they do not carry weapons (H 177-78).^[FN6]

In accordance with policy, as soon as Plaza heard that a robbery had been reported, he began searching for possible suspects so that he could provide still photographs to the police (H 170, 187). That evening by approximately 10:34 pm, Plaza had located video surveillance of the vestibule of 1580 Metropolitan Avenue and had made two still photos of possible suspects, which he chose based on a description given by the victim that came over the radio. Plaza gave the photos to Bonifacio (H 160-61, 163,171, 187-88).^[FN7] Those photos show the lobby and vestibule of 1580 Metropolitan Avenue, a set of mailboxes and two doors, one to the outside and one between the vestibule and the lobby. PX 7 shows a black male in a black jacket with white stripes on the sleeve, what appears to be a red sweatshirt with a hood and a red and black baseball-type hat, as well as a black male in a green winter jacket and a blue baseball-type hat. PX 8 shows a black male in a blue coat and what appears to be a black sweatshirt hood, standing by the door between the lobby and vestibule (H 150, 203-04, PX 7, PX 8). Plaza recalled that he showed the video from which he made these still photographs to Bonifacio that evening (H 161, 199), but Bonifacio did not remember seeing it (H 149-50, 151), and Bonifacio never possessed a video of the interior of 1580 Metropolitan Avenue from December 20, 2012 (H 151). Neither Plaza nor Bonifacio recalled seeing a gun in either a surveillance video or a photograph. Indeed, Plaza did not recall any mention of a weapon and he did [*4]not make a still photograph showing anyone with a gun (H 150, 153, 163, 189, 195, 198). If Plaza had seen a gun on the video, he "would have grabbed a still of it, and saved it to the server" (H 198).

Police Officer Hairo Franco interviewed D.B. on December 20th at 11:05 pm (H 78). D.B. told Franco that he

got off the subway. He was followed for approximately three or four blocks. During this time one male was talking to him and another male was behind him. Once they got into the building, [one of the males] said he wanted his property, asked for his phone and his chain off his neck.

(H 13-14; see also H 19, 78, 79.) D.B. also told Franco that one of the robbers "showed him a firearm" (H 14) "[a]s he opened the front door of . . . 1580 Metropolitan Avenue" (H 17).^[FN8] D.B. described the person who displayed the firearm as "a male Black in his early 20's" (H18). Franco had D.B. look at photos on Photo Manager, a system that contains photographs of people who have previously been arrested (H 19, 20-21, 78, 85-86). D.B. looked at hundreds of photographs on Photo Manager of black males in their early 20's, but defendant's photo was not among the ones D.B. looked at and D.B. did not identify anyone from the Photo Manager (H 21-22, 122).

The following day, December 21st, Franco was assigned this case and went to 1580 Metropolitan Avenue to look for possible witnesses (H 12, 74, 79-80). He was able to speak with two people who lived in apartments on the lobby floor and four people who lived in apartments on the first floor, but no one had seen anything (H 80-81).

On December 26th, Franco returned to the Parkchester Security office and Plaza gave him a disk containing a short video, showing two males following one male at night, as well as the two still pictures of "the two males inside the building" (H 19, 75-77, 171, 199-200).^[FN9] Thereafter, on the morning of January 4, 2013, Franco went to One Police Plaza to make a media request, that is, a request to show "whatever video pictures we have" on the news. The media request included the date of the incident, what had occurred, the stills from the video surveillance, and a request for anyone with information about the identities of the people in the photos to call the precinct (H 22, 81, 121-24). The media request was shown on News 12 and Franco received a tip on January 6, 2013 (H 82). The tip came from a friend of D.B.'s mother, who had circulated "either [an e-mail] or Facebook" (H 82); D.B.'s mother's friend identified "Jared, Tommy's brother" and an address for Tommy, 1505 Leland (H 83; see also H 23).

Franco was able to identify defendant from this tip and to obtain his photograph, which [*5]Franco put into a photo array (H 23-24, 25). Franco obtained the five other photos for the photo array by asking the computer "to find me similar pictures" (H 28; see also H 93). Of the photos suggested by the computer, Franco decided which ones to use and asked the computer to put defendant's photo "in a random spot" (id.). The resulting photo array contains photographs of six black males with brown eyes, short haircuts and facial hair; defendant's photo is number 6. Each man has hair on his chin; the men in photos 3, 4 and 5, as well as defendant, also have hair on the sides of their faces.^[FN10] The men in photos 1, 4 and 5, as well as defendant, have hair above their upper lips. The men in photos 1 and 3 have medium complexions, while the rest all have dark complexions (PX 1).^[FN11]

On January 7, 2013, Franco and another officer went to D.B.'s home to show him the photo array. At least one of D.B.'s parents was also present (H 34-35, 99, 116). Before showing D.B. the photo array, Franco read him a set of instructions from a Police Department form. Those instructions included that the perpetrator might or might not be among the six photographs D.B. was going to see; that he should not assume that Franco knew who the perpetrator might be; that D.B. was not permitted to ask Franco or anyone else in the room for guidance during the procedure; and that the people in the photographs might not appear exactly as they did on the date of the incident (H 33-34; PX 2). No one indicated to D.B. that police had arrested anyone, that there was anyone in the photo array for whom he should be specifically looking, or which number to choose (H 35). Within a minute, D.B. selected defendant's photograph and identified him as the person who had robbed him (H 35-36, 100). Franco then issued an I-card (H 101).

Defendant turned himself in to Transit District 11 the next day, January 8, 2013, after the I-card team went to his home (H 37A, 101). The I-card team transported him from Transit District 11 to the 43 Precinct at approximately 11 am (H 37A,102). At approximately 2:20 pm, Franco interviewed defendant, who was in a cell and not free to leave (H 103).^[FN12] Police Officer Jones was also present (H 62, PX 5). Neither officer was armed during the questioning (H 63) and neither officer made any promises or threats to defendant to cause him to make a statement (H 71-72). Franco read defendant his Miranda rights from a printed form. Defendant acknowledged in writing that he understood each of his rights and agreed to make a statement (H 64-67, PX 5).^[FN13] Defendant [*6]then told the officers that he

was walking and talking to [D.B.]. [Defendant] stated he did not have a gun or did not rob [D.B.] but had agreed to purchase [D.B.]'s iPhone and jewelry for $300. [Defendant] stated [D.B.] handed over his belongings to him and he was going to pay [D.B.] later that night. [D.B.] and him [sic] were supposed to meet on the oval, but [D.B.] never made it. [Defendant] did admit to being inside of the building and looking at the camera.

(H 71; PX 6.) Defendant refused to make a written statement (H 68, 104).

At 5:20 pm, Franco, Jones and Officer Garrity transported defendant to the Detective Bureau at 1086 Simpson Street for a lineup (H 38-39, 107). Franco also notified D.B.'s parents to bring him there for a lineup (H 39-40, 108). Franco asked Rob Weston to get five young male blacks in their early 20's to act as fillers for the lineup (H 44-45, 113-14). Although the goal in finding fillers was to find people who looked like defendant, Franco did not give Weston any other criteria to use (H 59, 113). Once the fillers were there, defendant chose to sit in seat number 4 and the fillers chose their own seats (H 53-54).

Defendant was kept in a holding cell before the lineup and D.B. and his parents were taken to a waiting room at the opposite end of the hallway on the third floor once they arrived. The cell where defendant was held was not visible from the waiting room and D.B. had no opportunity to see him or the fillers before the lineup (H 41-43, 45, 54).

Franco brought D.B., without his parents, into a small room to view the lineup. Franco did not have any conversation with D.B. while taking him to the viewing area and did not indicate that anyone had been arrested, that he wanted D.B. to select anyone or that defendant would be sitting in a particular seat (H 54-55). Franco read D.B. instructions from a printed form, including that the perpetrator might or might not be among the six people in the lineup; that D.B. should not assume that Franco knew who the perpetrator was; that D.B. was not permitted to ask Franco or anyone else in the room for guidance during the lineup; and that individuals in the lineup might not appear exactly as they did on the date of the incident (H 58-59; PX 4).

The lineup was conducted at 6:05 pm (H 108) on January 8th. Defendant and each of the fillers were seated, each man wore a ski hat to cover his hair, and each man was covered by a black plastic bag to conceal any differences in clothing. Only their faces were visible (H 54; PX 3). Although the men in the lineup varied in height from 5'3" to 6'1" and in weight from 120 lbs to 240 lbs (H 110-13), these differences are not apparent in a photograph of the lineup (PX 3).^[FN14] The fillers [*7]in the first three seats have moustaches, although the photograph of the lineup is not clear enough to show what if any facial hair defendant and the other two fillers had (id). With the exception of the filler in seat number 3, all of the participants had dark complexions (PX 3).

D.B. identified defendant "from the crime scene" within a minute (H 60-6, 115).

From approximately October 2012 to March 2013, the Special Operations Unit at Parkchester Public Safety experienced problems with its video surveillance system (H 217-18). The system in use at the time, called Net DVR, had two parts, a recorder and a viewer. The viewer part of the system was "for the operator to view live and go back within a 24-hour period to see what's going on" (H 218; see also H 185-86, 231). When the system was operating properly, when a video was recorded by a camera, it went to a primary server, where it was maintained and could be viewed for the next 24 hours. Still pictures could also be pulled from a video during that 24-hour period. Thereafter, the video was put into an electronic folder and automatically transferred to the secondary server, which was an archive (H 223-24, 225, 231-32). The program archive held video for seven or eight months but Lt. Pilios, who was in charge of the Special Operations Unit, could pull video and archive it in a separate location where it would stay forever (H 232). At the time of the alleged robbery the system had

three servers recording[,] one for each quadrant. The problem we were having was the recorder would stop recording at any given date, we don't know, for any quadrant we don't know. By the time we realized it we went back on a daily basis and I personally had to restart the recorder, at least three times a week.

(H 219; see also H 217, 232.) Pilios did not recall how he came to learn that the program was crashing the servers, but once he found out, he had to go into the program every other day or so to make sure it was running (H 225, 232). If the server shut down, video from the primary server had nowhere to go after 24 hours; it would disappear without being saved and could not be retrieved (H 225-26). To solve these problems, the Special Operations Unit updated to a new system called Occularis beginning sometime in early 2013 (H 220). However, switching from one system to the other caused video to be lost (H 220-21).

When Plaza showed video to Bonifacio on the night of December 20, 2012, it was a rewind of what was on the primary server and had not yet been sent to the archive (H 199).

At the time of the hearing, neither Plaza nor Pilios could locate in the archives any video from the interior of 1580 Metropolitan Avenue from December 20, 2012 (H 182, 221). Indeed, even the electronic folder that Plaza had created for the two stills and the outside surveillance tape was empty (H 182). Neither man saw any evidence that the video had been deliberately deleted (H 177, 225). The clear inference from this testimony is that the interior surveillance tape was destroyed because no one at Parkchester either moved it from the viewer to a separate location or made a copy of it before it was destroyed.

Defendant claims that the lost videotape may have captured "the incident in question" (Def Mem p 10), and was Brady material. Arguing that "the Parkchester Public Safety Office [is an] [*8]agent[] of the prosecution" (id. p 9, fn 1), that "the New York Police Department had every opportunity to request and preserve the video surveillance[, and t]he failure of both the police and the prosecutor to do so was careless, haphazard, and grossly negligent" (id. p 11), defendant moves to dismiss the indictment. In the alternative, he urges the Court to dismiss the counts of Robbery in the First Degree and Burglary in the First Degree, to give an adverse inference charge as to each count of the indictment, and to preclude any witness from testifying about the contents of the surveillance tape.^[FN15] He also argues that the People did not establish probable cause for his arrest, first, because they did not call any witness with firsthand knowledge of the initial police response and investigation, and second, because drawing an adverse inference from the destruction of the surveillance tape would negate reasonable cause to arrest. Accordingly, defendant argues that his statement and the lineup identification should be suppressed. He argues further that the photo array and lineup were both unduly suggestive, that the People failed to prove that he knowingly and voluntarily waived his Miranda rights, and that the People also failed to prove that his "oral and written statements" (Def Mem p 36) were voluntary beyond a reasonable doubt. Finally, defendant argues that Franco's testimony was incredible and unreliable, and therefore all identification and statement evidence "and all fruits of the search" must be suppressed (id. p 40).^[FN16]

The People oppose any sanction for the loss of the surveillance tape and also oppose the suppression of any identification or statement evidence. The People claim that they never possessed the videotape and that possession should not be imputed to them. They also claim that even if Parkchester Public Safety were agents of the prosecution, there was no Brady violation because there is no evidence that the videotape contained exculpatory material. Finally, the People argue that the loss of the surveillance tape was not due to bad faith or negligence by either the State or Parkchester. On the remaining issues, the People argue that they did not have to call every officer involved in the investigation as a witness at the hearing, that the photo array and lineup procedures were not unduly suggestive, that defendant validly waived his Miranda rights, that his arguments regarding the possibility of a coerced statement are entirely speculative, and that Franco was a credible and reliable witness.

I address these issues in the order in which they arose at the hearing.

Although the People may not introduce evidence of a photographic identification on their direct case,

a pre-trial photographic identification is still subject to constitutional scrutiny. An unlawfully conducted photographic confrontation can taint a subsequent pre-trial or trial identification and, for that reason, the photographic procedure must meet due process standards. [*9]

Hibel, New York Identification Law, § 4.06[1], p 4-44 (Lexis Nexis 2012 Ed.). "While the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive." People v Chipp, 75 NY2d 327, 335 (1990).

A photo array is not unduly suggestive where " the subjects depicted in the photo array [were] sufficiently similar in appearance so that the viewer's attention [was] not drawn to any one photograph in such a way as to indicate that the police were urging a particular selection' [citation omitted]" and where the officer conducting the photo array neither told the witness that a suspect's photograph was in the array nor instructed the witness that he was required to make an identification. People v Weston, 83 AD3d 1511, 1511-12 (4th Dept), lv denied, 17 NY3d 823 (2011); see also People v Prado, 276 AD2d 383 (1st Dept), lv denied, 95 NY2d 967 (2000); People v Santiago, 32 Misc 3d 1244(A), * 4 (Sup Ct, Bronx County 2011) (Donnelly, J.) (photo arrays not unduly suggestive, where all of the photos were sufficiently similar that defendant did not stand out and his distinctive features were shared by at least some of the people whose photos were in array); People v Davis, 27 Misc 3d 1226(A), * 3 (Sup Ct, Bronx County 2010) (Duffy, J.) (photo array not unduly suggestive, where there were no significant differences in photos to draw attention to defendant and there was nothing unduly suggestive surrounding witness's viewing of photo array).

Here, the photo array was not unduly suggestive. The six photos in the array showed men with similar haircuts, facial hair and skin tone, and they all appeared to be of similar age. Defendant did not stand out in any way. Moreover, Franco administered the photo array in an entirely neutral manner. He instructed the witness, inter alia, not to assume that Franco knew who the robber was or that the robber's photo was actually in the array. Franco did not direct D.B.'s attention to any particular photograph.

D.B. told Franco that he did not see the media request before looking at the photo array (H 24-25). Defendant rejects this testimony as "unlikely" (Def Mem p 29), and then poses a series of questions that he suggests should all be answered in the negative:

[D.B.'s mother] did not show this link to her son, the victim in this case? The email that was circulated by the complainant's mother was not forwarded to him? Did the fact that the police had pictures of the two people who robbed him not come up over dinner conversation? Not only is it highly likely that the complainant was showed [sic] a picture of [defendant] prior to the photographic procedure, he would have been shown this photograph in a highly suggestive context. The purpose of the News 12 broadcast was to identify two suspects in an armed robbery. . . . This, of course, would render the photographic procedure unduly suggestive because the complainant would have been unduly influenced to identify [defendant].

(Def Mem p 30.) As the People correctly argue (Peo's Mem p 18), these arguments for suppression are entirely speculative. Moreover, even if D.B. had discussed the News 12 broadcast with his mother, this would not implicate the manner in which Franco conducted the photo array or mandate a finding of undue suggestiveness in the police-arranged identification procedure. People v Johnny H., 111 AD3d 576 (1st Dept 2013) (fact that there may have been a civilian-arranged single-photo identification made prior to police procedure and without any police involvement was not basis for suppression of identification evidence); see also People v Chuyn, 35 Misc 3d 1216(A), * 8 (Sup Ct, [*10]New York County 2012) (police officers' decision to send witness to bring his wife and daughter downstairs to look at showup, without instructing him not to say anything to the women "of a suggestive nature," was reasonable under circumstances and did not create undue suggestiveness).

Accordingly, I find that the photo array was not unduly suggestive. It did not taint the subsequent lineup identification, and may be used at trial for any purpose that is deemed proper. People v Santiago, supra, 32 Misc 3d 1244(A) at * 4; People v Bulgin, 29 Misc 3d 286, 304 (Sup Ct, Bronx County 2010) (Best, J.) (because identification from photo array was not unduly suggestive, People could introduce evidence of it at trial if defendant opened the door) (collecting cases).

It is well established that police have probable cause to arrest when, absent materially impeaching circumstances, a complainant identifies a defendant as the perpetrator of the crime. People v Read, 74 AD3d 1245, 1246 (2d Dept 2010); see also People v Radcliffe, 23 AD3d 301 (1st Dept 2005) (police had probable cause to arrest when victim identified defendant's photo from array), lv denied, 6 NY3d 817 (2006); People v De La Cruz, 223 AD2d 472 (1st Dept) (to the same effect), lv denied, 88 NY2d 846 (1996); People v Palacio, 121 AD2d 282 (1st Dept 1986) (to the same effect), lv denied, 68 NY2d 916 (1986); People v Allick, 26 Misc 3d 1237(A), *5 (Sup Ct, Bronx County) (Gross, J.) (to the same effect).

Relying on People v Gonzalez, 80 NY2d 883 (1992), defendant argues that the People failed to meet their burden of going forward to prove the legality of his arrest because the only witness whom they called at the hearing, Officer Franco, did not have any "firsthand, personal knowledge of the initial [police] response to the 911 call and [initial] investigation" (Def Mem p 23) or any "firsthand, personal knowledge of [his] warrantless arrest and seizure . . . prior to Officer Franco's interrogation of" him (id.). This argument fails, however, because, in his omnibus motion, defendant conceded that "[o]n January 8, 2013, defendant turned himself into the precinct" (Def Omnibus Mot of 4/23/13 p 5), a fact which he concedes at various other points in his post-hearing memorandum of law (Def Mem pp 7, 36, 39). It is well established that

[s]tatements made in Defendant's moving papers constitute admissions as to those facts. People v. Brown, 98 NY2d 226, 232 (2002) (statements made by defense counsel in moving papers were admissions as to those facts and could be used to impeach defendant); People v. Bedell, 233 AD2d 518, 518 (2d Dept 1996) (defendant's moving papers alleged facts that placed him at scene of crime and constituted an admission), app denied, 89 NY2d 1088 (1997); People v. Castlli, 94 AD3d 678 (1st Dept 2012) (statements made by counsel are considered admissions of defendant). See also Prince Richardson on Evidence § 8-219, at 530 (Farrell, 11th Ed) (informal judicial admission is evidence of the fact or facts admitted).

People v. Rodriguez, 35 Misc 3d 1233(A), *2 (Sup Ct, Bronx County 2012) (Duffy, J.). Therefore, because "[c]onsent is a valid substitute for probable cause," People v. Hodge, 44 NY2d 553, 559 (1978), the People did not have to demonstrate that defendant was lawfully seized by the police when [*11]he went to Transit District 11, contrary to his present claim (Def Mem p 24). See also People v. Vogler, 201 AD2d 890, 890 (4th Dept 1994) ("consent is a valid substitute for probable cause [citation omitted] and obviates the need to consider whether defendant was in custody or seized in the constitutional sense . . . and whether the police had reasonable suspicion to justify defendant's detention"), lv denied, 83 NY2d 916 (1994); People v Cook, 96 AD2d 1059, 1059 (2d Dept 1983) ("Dunaway concentrated on the violation of the constitutional rights of a suspect who has been seized by law enforcement officers upon less than probable cause, detained and interrogated. In the case at bar, defendant was subjected to no such abrupt seizure, removal and detention. Rather, defendant voluntarily turned himself in to the police. . . .") (emphasis supplied).^[FN18]

Moreover, defendant did not adduce any evidence at the hearing from which I could conclude that his voluntary surrender was somehow transformed into an illegal arrest. People v. Thomas, 291 AD2d 462, 463 (2d Dept 2002) ("It is the People's burden to demonstrate the legality of police conduct in the first instance [citations omitted]. The defendant, however, bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him (citations omitted), and that the police lacked probable cause to arrest him [citation omitted]."). [*12]

Even if this Court were to accept defendant's baseless contention that he was illegally seized at Transit District 11, which I do not, suppression of the statement and lineup identification would still not be required.

[E]vidence discovered subsequent to an illegal arrest is not indiscriminately subject to the exclusionary rule (citation omitted). Instead, the People "must have somehow exploited or benefitted from [the] illegal conduct" such that there is a connection between the violation of a constitutional right and the derivative evidence' obtained by the police" (citation omitted).

People v Jones, 21 NY3d 449, 454 (2013) (where sergeant who arrested defendant did not have probable cause, but spoke with detective who did within 30 minutes of arriving at precinct with defendant, which led to detective's case file and photograph of defendant, any taint from illegal arrest was attenuated before lineup was conducted). Here, there is simply no evidence in the record that any attempt was made to question defendant or otherwise "exploit his detention" before he arrived at the 43 Precinct, where Franco already had probable cause to arrest him. Thus, even assuming arguendo that defendant was illegally seized before arriving at the 43 Precinct, there would be no basis to suppress the lineup identification, People v Jones, supra; People v Jones, 2 NY3d 235 (2004) (suppression of lineup identification following arrest in violation of Payton v New York, 445 US 573 [1980], not required, because lineup subsequent to Payton violation does not follow directly from an arrest without probable cause); People v Webb, ___ Misc 3d ____ (A), 2014 WL 763235, * 14 (NY Sup.) (Sup Ct Kings County Feb. 26, 2014) (Goldberg, J.) ("the unknown facts surrounding the defendant's being taken into custody and brought to the 88th Precinct have no bearing on whether the lineup identification should be suppressed, because there was probable cause to arrest the defendant at the time of the lineup"). Similarly, there would be no basis to suppress defendant's statement, which was made to the officer who had probable cause to arrest him some three hours after his arrival at the 43 Precinct and which was preceded by Miranda warnings, see People v Bradford, 15 NY3d 329 (2010) (proof supported finding of attenuation, where defendant's detention was not motivated by bad faith or nefarious purpose, he was not subjected to pre-Miranda questioning and was confronted with statements from civilians clearly establishing probable cause to arrest before he confessed); People v Rogers, 52 NY2d 527 (three hours between illegal arrest and interrogation preceded by Miranda warnings; police had recovered physical evidence in the interim unrelated to defendant's arrest), cert. denied, 454 US 898 (1981); People v Wilkinson, 5 AD3d 512 (2d Dept) (defendant's statement attenuated from illegal arrest, where detective who had probable cause to arrest learned of arrest approximately five hours before defendant made statement, then obtained second confirmatory photographic identification from civilian witness and administered Miranda warnings), lv denied, 2 NY3d 809 (2004); People v. Goodwin, 286 AD2d 935 (4th Dept) (taint of defendant's illegal arrest was dissipated where his confession was not obtained until six hours later, after the police had acquired probable cause), lv denied, 97 NY2d 682 (2001). There is no evidence of any police misconduct to deter by suppressing the statement or lineup.

Finally, I decline defendant's invitation (Def Mem pp 27-28) to draw an adverse inference from the loss of the surveillance tape to negate a finding of probable cause to arrest. As the cases cited above, pp 15-16, clearly establish, D.B.'s report of an armed robbery and his identification of defendant as one of the robbers provided probable cause to arrest defendant. The testimony at the hearing was that D.B. told Franco that one of the robbers displayed a firearm "[a]s he opened the [*13]front door of his building" (H 17), and there is no evidence in the hearing record that D.B. gave inconsistent versions of where he was when the firearm was displayed.^[FN19] The hearing testimony established that the lobby camera was fixed in place and did not move (H 205-06), and the firearm may have been displayed outside of the camera's range, or within camera range but blocked by someone's position in front of the camera. The loss of the surveillance tape does not undermine my conclusion from the hearing record that the police had probable cause to arrest based on the report of a crime by an identified civilian.

For all of these reasons, there is no basis to suppress either defendant's custodial statement or the lineup identification on the basis of a Fourth Amendment violation. This branch of defendant's motion is denied.

For the Huntley portion of the hearing, the People had the burden of proving beyond a reasonable doubt that defendant's was voluntary. People v Huntley, 15 NY2d 72,78 (1965). Where a defendant was interrogated while in custody, the People must also establish, beyond a reasonable doubt, that defendant knowingly and voluntarily waived his Miranda rights. People v. Hawkins, 254 AD2d 96 (1st Dept), lv denied, 92 NY2d 982 (1998). "An individual may validly waive Miranda rights (citation omitted) so long as the immediate import of those warnings is comprehended.'" People v Singh, 285 AD2d 563, 564 (2d Dept), lv den, 97 NY2d 688 (2001).

The People have met their burden here. Franco advised defendant of his constitutional rights, which defendant acknowledged that he understood, both orally and in writing. Defendant then voluntarily made a statement admitting that he had an interaction with the complainant regarding a cellphone and jewelry, but denying that he had robbed him. Two police officers witnessed the statement.

Defendant claims that his statement should be suppressed because "we do not know what happened to [him] during those approximately three hours" "between the time officers transported [him] to the precinct and the time the officers began their questioning" (Def Mem p 36). He assumes that "questions were asked [during those three hours] (given that the alternative . . . is not believable)" (id. p 37); because the People did not call a witness who was present when defendant went to Transit District 11, "the Court has no way of knowing whether those circumstances render [his] oral statements involuntary" (id. p 38). Defendant then speculates:

the officers who arrested and/or transported [him] could have held a gun to his head and told him that the had no choice but to confess to the robbery/burglary. . . . could have threatened [him] in other ways. Physical force could have been used. The officers could have made promises to [him] and/or his family members. . . . [or] could have made statements . . . suggesting to him details about the alleged crime that he should include in his statements. . . . [or] could have told [him] that he had no choice but to make a statement and if he made a statement he would be treated leniently. . . . [or] could have told him during the ride to the 43 precinct that the would be released if he gave a statement. [*14]

(Id.) Defendant concludes that his oral and written statements (id. p 36) must be suppressed because the People did not call a witness with "firsthand, personal knowledge" of what occurred when he turned himself in at Transit District 11, when he was transported to the 43 Precinct, or between his arrival there and Franco's questioning of him (id. p 39).

First, to the extent that defendant moves to suppress his "written statement," that motion is denied, because he did not make a written statement (H 68, 104). Moreover, simply raising theoretical possibilities about coercive tactics does not require suppression, where there is no evidence in the record at all that defendant was actually threatened or forced in any way to make statements to the police.

[I]t is, of course, the People's burden to establish, beyond a reasonable doubt, that [a defendant's] statements were voluntarily made. This does not mean, however, that the People are mandated to produce all police officers who had contact with the defendant from arrest to the time that the challenged statements were elicited.

[Where] the defendant presented no bona fide factual predicate which demonstrated that [other] officers possessed material evidence on the question of whether the statements were the product overtly or inherently of coercive methods, . . . the People could meet their burden through the testimony of the officer who elicited the confession.

People v Witherspoon, 66 NY2d 973, 973-74 (1985); see also People v Morales, 77 AD3d 482, 482-83 (1st Dept) (People not required to produce arresting officer's partner, who had initial brief conversation with defendant, because defendant did not present bona fide factual predicate demonstrating that non-testifying officer possessed material evidence on question of whether statements were product overtly or inherently of coercive methods), lv denied, 15 NY3d 954 (2010); People v Fisher, 19 AD3d 1034, 1034 (4th Dept) ("Defendant presented no bona fide factual predicate' in support of his conclusory speculation that his statement was coerced and that he might not have been advised of his Miranda rights [People v Witherspoon . . .]"), lv denied, 5 NY3d 805 (2005); People v Drumm, 15 AD3d 910, 910-11 (4th Dept) (rejecting claim that People's failure to call Irondequoit police officer who apprehended him rendered proof of voluntariness of statements insufficient as a matter of law; People demonstrated legality of police conduct and defendant's waiver in first instance by calling Monroe County Sheriff's investigator, who established that defendant validly waived Miranda rights, and defendant presented no bona fide factual predicate demonstrating that apprehending officers possessed material evidence on question of whether statements were product overtly or inherently of coercive methods), lv denied, 4 NY3d 853 (2005); People v Kollar, 286 AD2d 630, 630 (1st Dept 2001) ("The People were not required to call additional officers to testify regarding the time period defendant waited at the stationhouse for the lead detective to arrive, as the People had met their burden of showing the legality of the police conduct surrounding the questioning, and defendant presented no bona fide predicate which demonstrated that other officers possessed material evidence' [People v Witherspoon . . .]"), lv denied, 97 NY2d 730 (2002); People v Dunlap, 216 AD2d 215, 217 (1st Dept 1995) ("The hearing court erred in holding that the People were required to produce all of the police officers who had contact with defendant from arrest to the time he made his statement. If, as here, the defendant does not present a bona fide factual predicate which demonstrates that the other officers possess material [*15]evidence on the issue of whether his statement was voluntary, the prosecution may meet its burden through the testimony of the officer who elicited the statement [citations omitted]."). As the People correctly argue (Peo Mem p 25), defendant's claim that his statement should be suppressed rests entirely on speculation.

For all of these reasons, defendant's motion to suppress his statements is denied.

"[C]orporeal lineups, properly conducted, generally provide a reliable pretrial identification procedure and are properly admitted unless it is shown that some undue suggestiveness attached to the procedure." People v Chipp, supra, 75 NY2d at 335. It is well established that "[t]here is no requirement . . . that a defendant in a lineup be surrounded by people nearly identical in appearance [citation omitted]." Id. at 336. "A lineup is nonsuggestive when the participants resemble each other so that defendant is not singled out for identification' [citing Chipp, supra]." People v McBride, 14 NY3d 440, 447-48, cert. denied, 131 S.Ct. 237 (2010). The defendant has the burden of establishing undue suggestiveness. People v Jackson, 98 NY2d 555, 559 (2002); People v Chipp, 75 NY2d at 335; In re Kassan D., 282 AD2d 747 (1st Dept 2001). "Without such a showing on the part of the defendant, there is neither a need for nor a burden on the People to demonstrate that a source independent of the pretrial identification procedure exists for the witness's in-court identification,'" People v Jackson, 98 NY2d at 559 (quoting Chipp).

The lineup here was not unduly suggestive. It consisted of six black males with similar complexions, all of whom were seated and whose haircuts and clothing were covered to eliminate any apparent differences. Although there was an eight-year age difference between the men in the first and last seats, defendant was in the middle seated between men who were within two and four years of his age. In any event, neither these age differences, nor the differences in the participants' respective weights, were apparent. Finally, although the photograph of the lineup does not clearly show each man's facial hair or lack of facial hair, nothing about the appearance of defendant's face makes him stand out. In short, there was nothing about the composition of the lineup that called attention to him. People v McBride, 14 NY3 at 447-48 (affirmed findings by Appellate Division that lineup was not unduly suggestive amply supported by record, where defendant and fillers were all African-American males of similar age and skin tones with short hair and close-cropped beards; participants were seated, mitigating any height differences; and all were wearing nondescript street clothing); People v Caesar, 91 AD3d 503, 503 (1st Dept 2012) (lineup identifications not unduly suggestive, where age disparity between defendant and fillers was not so noticeable as to single out defendant, and where, in any event, age was not a factor in witnesses' descriptions), lv denied, 21 NY3d 1002 (2013);People v Stanley, 85 AD3d 638, 638-39 (1st Dept) (lineup not unduly suggestive, where difference in age between defendant and fillers was not so noticeable as to single defendant out; also, defendant's skin tone was reasonably similar to that of most of the fillers and he did not stand out), lv denied, 17 NY3d 822 (2011); People v Santiago, supra, 32 Misc 3d 1244(A) at * 4 (lineup not unduly suggestive, where defendant chose his own position; fillers appeared to be approximately same age as defendant and have roughly the same skin tone; and where hairstyle and clothing differences were minimized by having all participants wear identical black knit hats and obscuring their clothing with black plastic bags).

Moreover, as with the photo array, Franco administered the lineup in a neutral manner. He read D.B. instructions from a police department form, advising, among other things, that the [*16]perpetrator might or might not be in the lineup and that D.B. should not assume that Franco knew who the perpetrator was. The police did not make any suggestion about whom, if anyone, D.B. should identify.

As with his claim that his statement should be suppressed because something coercive might have happened before he made it, defendant also claims that the lineup identification should be suppressed because someone might have said something to the witness, either en route to 1086 Simpson Street or while he was waiting there in the waiting room, that might have tainted the identification (Def Mem pp 32-33, 33-34). But nothing in the testimony even remotely suggests that the police did anything to suggest whom, if anyone, the witness should select from the lineup. When D.B. arrived with his parents at 1086 Simpson Street, they were escorted to a windowless waiting room on the opposite end of the hallway from where defendant was being held. The waiting room door was closed and there were homicide detectives watching the waiting area. D.B. did not leave the waiting room before the lineup and did not see, or have the opportunity to see, defendant before the lineup. Finally, as the People note (Peo Mem p 21), the witness's parents were not privy to any information about the lineup that they could have used to influence their son's selection.

For these reasons, I find that the lineup was not unduly suggestive, and this branch of defendant's motion is denied.

Brady v. Maryland . . . recognizes a criminal defendant's due process right, under the Fourteenth Amendment, to discover favorable evidence that is material to guilt or punishment and in the People's possession (citation omitted). A Brady violation has three components: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.

People v. Gilman, 28 Misc 3d 1217(A), *14 (Sup Ct, New York County 2010) (internal quotations omitted). Moreover,

[t]he prosecution is deemed to have constructive knowledge of evidence known only to police investigators and not the prosecutor (citation omitted). Brady imposes upon each individual prosecutor a duty to learn of any favorable evidence known to the others acting on the government's behalf in [the defendant's] case, including the police (citation omitted). However, knowledge on the part of persons employed by a different office of the government does not in all instances warrant imputation of knowledge to the prosecutor.

Gonzalez-Pena v. Victor Herbert, Superintendent, et. al, 369 F Supp 2d 376, 389 (WDNY 2005) (internal quotations omitted). Here, the images on the surveillance tape would be relevant and material, and might have been impeaching, either of the complainant or a police officer. Contrary to the People's claim (Peo Mem p 15), the mere fact that Plaza can testify that he would have made a still photo of a gun had he seen one is not enough to conclude that "there is no evidence that any exculpatory material was lost to the defense by not having the tape" (id.). But the dispositive question is whether the answer to the second prong of the Brady test is yes: was the evidence suppressed by the State? It is undisputed that neither the police department nor the prosecution ever physically possessed the video from inside 1580 Metropolitan Avenue. The surveillance tape [*17]remained in the possession of Parkchester Security until it was destroyed.

Defendant does not claim that Parkchester Public Safety is itself a government agency, but rather that "[b]ecause Parkchester Public Safety receives its authority from the New York Police Department, and its investigators have arrest powers, Parkchester Public Safety is an agent of the prosecution" (Def Mem p 1). In support of this claim, he relies on People v. Accavallo, 57 Misc 2d 264 (Nassau County Ct 1968) (holding that special agents of the New York State Department of Labor are agents of the State of New York employed to obtain information from witnesses or suspects that may be used in a prosecution and, as such, are not exempted from the Miranda rule merely because they are not peace officers), and People v. Smith, 82 Misc 2d 204 (Crim Ct, New York County 1975) (holding that special patrolman with the power to arrest, appointed by police commissioner, subject to the orders of and removal by the commissioner, with the power to arrest, was an agent of the government to whom the Fourth Amendment prohibitions applied).

The People oppose this branch of the motion, arguing that "Parkchester is a non-governmental agency; they are a privately-owned security company" (People's Mem p 6).^[FN20] The People argue that possession of the surveillance tape therefore cannot be imputed to them and no Brady violation occurred. They rely on various cases where government agencies were held to be beyond the control of the prosecution. See, eg, People v. Kelly, 88 NY2d 248, 252 (1996) ("records of the State Division of Parole [a State administrative agency] should not generally be deemed to be in the control of 62 county prosecutors, nor any other prosecutorial office subject to the Rosario rule"); People v. Nova, 206 AD2d 132, 135 (1st Dept 1994) (Office of the Chief Medical Examiner is neither an "agency of law enforcement, nor in any manner under the control of the local prosecutor's office"); cf. People v. Handy, 20 NY3d 663 (2013) (ordering new trial for defendant convicted of assault on deputy sheriff inside county jail, where parts of alleged assault were captured on videotape inside the jail but tape was destroyed by agents of the State; trial court should have given permissive adverse inference charge).^[FN21] The People also point to several cases where material in the possession of private security firms or security guards was not constructively possessed by the prosecution. See People v. Brock, 246 AD2d 406 (1st Dept 1998) (lost or destroyed bank surveillance videotape and photographs were not Brady material where they were never in the possession of the prosecutor or the police), lv denied, 91 NY2d 940 (1998), habeas denied sub nom Brock v. Artuz, 2000 WL 1611010 (SDNY 2010); People v. Johnson, 195 AD2d 481 (2d Dept 1993) (memo book notes of private security guards were not Rosario material because they were not made at the direction of the police department nor in the possession and control of the People); People v. Bynes, 193 AD2d 569 (1st Dept) (private security entity was not within the control of the local [*18]prosecutor), lv denied, 82 NY2d 707 (1993).

Neither party has cited a case that stands for the proposition that a local prosecutor will be charged with constructive possession of a videotape maintained by a peace officer employed in the public safety office of a private company. Defendant's cases, Accavallo and Smith, do not address that question and do not help answer it, because Plaza played no role in the arrest or questioning of defendant. The fact that Plaza looked at the tape to find images of possible suspects to give to the police does not change this fact. Cf. People v. Rojas, 29 AD3d 405, 406 (1st Dept) ("The tape of a testifying transit employee's call to her Transit Authority command center was not Rosario material because the People were not in possession of it and the Transit Authority is not a prosecutorial or law enforcement agency, regardless of the extent to which it may cooperate with the police [citations omitted])" (emphasis supplied), lv denied, 7 NY3d 794 (2006). See also People v. Brooks, 57 AD3d 445 (1st Dept 2008) (affirming lower court's denial of defendant's request for an adverse inference charge against the prosecution for absence of videotape allegedly made by the company that owned the drugstore where the crime occurred), lv denied, 12 NY3d 814 (2009);^[FN22] People v. Robertson, 256 AD2d 254, 255 (1st Dept 1998) (rejecting defendant's claim of a Rosario violation where material was allegedly generated by private hospital security personnel and therefore not in the People's control; "Neither the special patrolman status nor the limited law enforcement functions of these private citizens brought them within the law enforcement chain' [citations omitted]"); People v. Bynes, supra. Plaza's peace officer status simply does not transform him from a private security guard into an agent of the State for Brady purposes.

The People have " no constitutional or statutory duty to acquire, or prevent the destruction of, evidence generated and possessed by private parties' (citations omitted)." In re Keena H., 100 AD3d 414 (1st Dept 2012); see also People v. Hayes, 17 NY3d 46, cert denied, 132 SCt 844 (2011). When a surveillance video is in the exclusive possession of a private party it is not Brady material, whether exculpatory or not, even if the police have seen it. People v. Walloe, 88 AD3d 544, 544 (1st Dept 2011) ("although a police officer viewed the tape and requested a copy, he did not thereby constructively possess the tape, which was erased by the bar. Temporary access is not necessarily the equivalent of possession for Brady purposes [citing People v. Hayes])," lv denied, 18 NY3d 963 (2012); see also People v. Hernandez, 107 AD3d 504, 505 (1st Dept 2013) (court properly rejected defendant's request for an adverse inference charge based on an erased surveillance videotape in store where incident occurred; "Regardless of whether the police were in a position to ascertain the existence of this tape or acquire it, they had no duty to do so [citations omitted]"); People v. Brooks, 57 AD3d at 445.

For all of these reasons, this Court cannot conclude, as a matter of law, that the surveillance tape was suppressed by the State. Accordingly, there was no Brady violation, and no sanction is warranted because of an alleged Brady violation.^[FN23]

For all of these reasons, defendant's motion is denied.

This opinion constitutes the decision and order of the court.

Dated:Bronx, New York

March 5, 2014

_______________________________

Miriam R. Best

Acting Justice of the Supreme Court