The defendants, Jahmar Jenkins, Ottis Moore and Lamont Smith move to suppress physical evidence and to controvert the search warrant. Defendants Jahmar Jenkins and Ottis Moore also move to suppress identification testimony. The defendants are charged in a twenty-five count indictment with the crimes of burglary in the first degree (PL §140.30-2) (two counts), burglary in the first degree (PL §140.30-4) four counts), robbery in the first degree (PL §160.15-4)(four counts), burglary in the second degree (PL §140.25-2) (one count), robbery in the second degree (PL §160.10-1) (four counts), assault in the second degree (PL §120.05-2)(two counts), endangering the welfare of a child (PL §260.10-1) (two counts) and criminal possession of stolen property in the fifth degree (PL §165.40) (one count). Defendants Jahmar Jenkins and Ottis Moore are also charged with crimes of robbery in the second degree (PL §160.10 2A)(two counts), sexual abuse in the first degree (PL §130.65-1) (one count) and forcible touching (PL §130.52) (one count). Defendant Ottis Moore is separately charged with the crime of criminal possession of stolen property in the fifth degree (one count). A combined Wade/ Dunaway/ Payton/ Mapp hearing and hearing to controvert the search warrant was held before this Court on November 26, 2012, December 5, 2012, December 11, 2012, March 14, 2013, September 10, 2013, and November 21, 2013. Detective Gary Mazzei, P.O. Anthony Rivelli and P.O. Justin [*2]Ellis testified on behalf of the People. The defendants did not present any witnesses. (Two photographs were admitted as defense exhibits). Although there were some inconsistences in the testimony of the witnesses, this Court concludes that each of the witnesses gave essentially credible testimony based on their recollection of the events herein. Based on the testimony presented at the suppression hearing, this Court makes the following findings of fact and conclusions of law.

On April 2, 2011, Det. Gary Mazzei, a 22 year veteran of the NYPD, was assigned to the 101 Precinct. He worked a tour that began on April 1, 2011 at 4:00 p.m. and which was scheduled to end on April 2, 2011 at 1:00 a.m. At approximately 1:00 a.m., Detective Mazzei was in his office when he received a radio transmission of a gun point home invasion robbery at 57-07 Shore Front Parkway, Ocean Village Apartments, apartment number 1411, Queens County.

After receiving this radio transmission, Det. Mazzei and his partner, Det. Velsor, responded to the location at approximately 1:30 a.m. and immediately proceeded to the fourteenth floor of the apartment complex. Det. Mazzei observed what appeared to him to be blood outside the front door of apartment 1411. Upon entering the location, he observed a trail of blood inside of apartment 1411 and noticed that the apartment was in disarray. He saw that drawers were pulled out and items such as clothing and jewelry were tossed about. Inside of the apartment, Det. Mazzei met and spoke with two of the complainants, Joseph Narvaez and Manuel Bonilla.

Joseph Narvaez informed Det. Mazzei that he and his uncle, Manuel Bonilla, were visiting his brother, Joe Narvaez, at the location when at approximately 12:30 a.m.,there was a knock on the front door. Joe Narvaez, the third complainant in this case, proceeded to open the door but since no one appeared, he closed it. Shortly thereafter, the occupants heard another knock, described as "banging", on the door. This banging continued for a short time and was followed by a male voice asking if this was where the party was. Joseph Narvaez informed Det. Mazzei that he observed Yenice Feliciano, the fourth complainant, exit the back bedroom of the apartment and unlock the front door. Joseph Narvaez stated that he then observed a masked male and two other males, all brandishing handguns, push their way into the apartment. A struggle ensued between the three men, Joe Narveaz and Yenice Feliciano. The men repeatedly hit Joe Narvaez and Yenice Feliciano about the head with guns causing them to bleed and causing Joe Narvaez to fall to the floor.

Joseph Narvaez described suspect number one as a male Black, heavy set, wearing dark colored clothing, possibly gray or black, and wearing a mask. He described suspect number two as a male Black, thinner and lighter complected than the other two males. He described suspect number three as a male Black, with dark skin tone, braids and bigger than the second suspect.

Joseph Narvaez further informed Det. Mazzei that after the three suspects entered the apartment, he and Mr. Bonilla were approached by suspect number three. Suspect number three, while displaying a handgun, instructed them to sit on the couch in the living room. Suspect number three then removed a quantity of money from both Joseph Narvaez and Manuel Bonilla. Joseph Narvaez indicated that he then observed suspect number two and three escort Ms. Feliciano to a back bedroom in the apartment while suspect number one remained in the living room with him and Mr. Bonilla. Joe Narvaez, he said, appeared incapacitated as he laid on the floor. [*3]

Some time later, it is unclear from the evidence how much time passed, Joseph Narvaez heard another knock on the front door of the apartment, whereupon suspect number one proceeded to open the door and immediately slam the door shut. Suspect number one then yelled "security is here" or words to that effect. Immediately thereafter, suspect number two and suspect number three exited the rear bedroom. All three men then fled the apartment using the front door.

Det. Mazzei also separately interviewed Manuel Bonilla at the location. Mr. Bonilla provided essentially the same information regarding the sequence of the events and description of the perpetrators except that Mr. Bonilla added that the masked heavy set man was approximately six feet tall and weighed approximately 200 pounds.

Det. Mazzei did not interview Yenice Feliciano or Joe Narvaez at the location as they were taken to Peninsula General hospital for treatment.

After speaking with complainants, Det. Mazzei proceeded to speak simultaneously to Mr Gidding and Mr. Cortes. Mr. Gidding and Mr. Cortes were both employed as security guards for Ocean Village Apartments. Mr. Gidding and Mr. Cortes informed Det. Mazzei that they were dispatched from the security booth to apartment number 1411 in response to a distress call. It is not clear from the evidence who or what precipitated this call. Mr. Gidding and Mr. Cortes proceeded to apartment 1411 and knocked on the door. A heavy set man wearing a mask and dark colored clothing opened the door while brandishing a handgun. The man immediately slammed the door shut. Mr. Gidding and Mr. Cortes ran down the stairwell from the fourteenth floor to the tenth floor. As they ran, they heard footsteps running behind them. Mr. Gidding and Mr. Cortes stopped running on the tenth floor and entered the hallway. When they got there, they no longer heard footsteps and did not observe anyone past them.

After interviewing Mr. Godding and Mr. Cortes, Det. Mazzei went to the stairwell where the men indicated they ran. There, Det. Mazzei observed what appeared to be a bloody footprint from a sneaker. He also observed and recovered a small jewelry box and second jewelry box, bearing the likeness of the cartoon character, Mickey Mouse, on the stairwell. These items were later shown to Joseph Narveaz and Manuel Bonilla at the location and identified as belonging to Ms. Feliciano. Det. Mazzei noticed and followed what appeared to be a trail of bloody footprints on the stairwell that began on the fourteenth floor and led to the hallway of the twelfth floor. This trail stopped at what appeared to be a blood-stained floor mat in front of apartment number 1203. (A photograph depicting this floor mat was placed into evidence).

Det. Mazzei, and Det. Velsor, knocked on the door of apartment 1203 at approximately 2:30 a.m. By this time, additional units, including Sgt. Synder and at least two additional police officers had arrived on the scene. A person, identified as Monet Paige, opened the door and stepped outside of the apartment. Ms. Paige informed Det. Mazzei that her boyfriend, Lamont Smith, his two friends, two girlfriends and two children were inside of the apartment. Det. Mazzei instructed Ms. Paige to ask all occupants of the apartment to exit. Two unidentified women exited the apartment but Lamont Smith, his friends and the two children remained inside. Det. Mazzei repeatedly asked and demanded that Ms. Paige, (who was increasingly agitated, combative and uncooperative), bring the children out of the apartment. After several minutes, she returned with a child who appeared to be at least 5 years old but the second child remained inside. After 10 to 20 minutes of unsuccessfully attempting to have the infant child removed from the apartment, Det. Mazzei walked to the stairwell and contacted the Queens District Attorney's Office via telephone with regards to obtaining a search [*4]warrant.

At approximately 2:55 a.m., while on the telephone with the A.D.A. Richard Giordano, Det. Mazzei heard a commotion before observing police officers enter the apartment. Det. Mazzei then also entered the apartment and observed police officers escorting, Ottis Moore and Jahmar Jenkins, both in handcuffs, from a front bedroom. He observed Lamont Smith, also handcuffed, being escorted from a rear bedroom in the apartment. While inside of the apartment and right after entering the apartment, Det. Mazzei noticed and recovered a clear plastic baggy containing gold jewelry underneath a bathroom sink which had an opened door. He stated that he immediately noticed that the packaging of this jewelry, resembled the packaging of jewelry he observed in apartment 1411 earlier. This jewelry was later shown to Ms. Feliciano at the hospital who identified such as belonging to her.

Det. Mazzei was directed to a rear bedroom in apartment 1203 in order to retrieve shoes for Otis Moore and Lamont Smith who were both shoeless when they were escorted out of the apartment. Once inside the rear bedroom, he retrieved a black pair of Nike sneakers. Det. Mazzei advised this Court that he observed what appeared to be blood on the bottom of these sneakers and proceeded to process them as arrest evidence. Det. Mazzei was then directed to the first bedroom for shoes and there he found a pair of boots and a pair of sneakers that he gave to Otis Moore and Lamont Smith to wear.

During this time, a silver semi-automatic handgun, wedged in dirt on the ground, was recovered by unnamed police officers from the south side of the apartment building. The handgun was found underneath an opened window of apartment 1203's rear bedroom. In addition, the police also recovered a plastic bag containing jewelry and another pair of sneakers that appeared to have blood on the bottom of it.

On April 2, 2011 at 5:15 a.m., at the 101 Detective Squad, Det. Mazzei conducted interviews of Yenice Feliciano and Joe Narvaez. Joe Narvaez and Yenice Feliciano told Det. Mazzei essentially the same sequence of events repeated by Joseph Narvaez and Manuel Bonilla and provided essentially the same description of the individuals responsible. Yenice Feliciano added that a lighter skinned male and a darker skinned male took her to the rear bedroom of apartment 1411 and demanded that she hand over all valuables. The men rummaged through drawers, tossed about clothing and removed several pieces of jewelry. At the precinct, Ms. Feliciano viewed the jewelry recovered from underneath the window and she identified this jewelry as belonging to her.

Det. Mazzei obtained a search warrant for apartment 1203 at approximately 5:00 p.m. on April, 2, 2011. The warrant was executed at approximately 7:30 p.m. that same day but no additional evidence was recovered at that time.

On April 2, 2011, at the 101 precinct, Det. Mazzei also utilized the NYPD photo manager system to create three separate photo arrays. (The photo manager system is a database kept by the New York City Police Department which contains the photographs of individuals who have been previously arrested. A description of a known subject is inputted into the database with the type of crime and computers then return photographs based on that description of a known subject and type of crime). In this case, Det. Mazzei separately inputted the photographs of each of the defendants. The computer then generated thousands of photographs of people with similar features for each defendant. Det. Mazzei then chose five "filler" photographs for each of the defendants. All four complainants were present to view the photo arrays and Det. Mazzei made four copies of the same [*5]three photo-arrays for each witness. (These photographs were placed in evidence at hearing).

At approximately 5:45 a.m. on April 2, 2011, at the 101 Precinct, Joseph Narvaez viewed three photo arrays as prepared by Det. Mazzei. Joseph Narvaez sat at the desk of Det. Mazzei and first viewed the photo array which contained the photograph of defendant Jahmar Jenkins. Det. Mazzei asked Joseph Narvaez if recognized anyone with regards to the incident that happened a few hours earlier. Joseph Narvaez responded that he recognized number five, the photograph of Jahmar Jenkins. Joseph Narvaez informed Det. Mazzei that he recognized the person depicted in photograph number five as the person who carried a gun and who was wearing a grey shirt and a "doo" rag. Joseph Narvaez advised Det. Mazzei that this person told him to sit on the couch and stated to him in sum and substance "I'm gonna shoot that nigger". He also stated that person depicted in this photograph was one of the individuals who walked into the back with his sister.

Det. Mazzei then showed Joseph Narvaez the photo-array which contained the photograph of Lamont Smith. Joseph Narvaez indicated that he was unable to recognize anyone.

Det. Mazzei then showed Joseph Narvaez photo-array which contained the photograph of Otis Moore. Joseph Narvaez indicated that he was unable to recognize anyone.

On April 2, 2011, at approximately 5:55 a.m., Manuel Bonilla viewed the three photo-arrays prepared by Det. Mazzei. Mr. Bonilla first viewed the photo array containing the photograph of defendant Jahmar Jenkins. Det. Mazzei asked Manuel Bonilla and all of the witnesses the same preliminary questions asked of Joseph Narvaez. Manuel Bonilla responded that he recognized the person depicted in photograph number five, the photograph of Jahmar Jenkins, as the person who pushed in the door of the apartment, carried a black gun and walked into the back bedroom with Yenice.

Det. Mazzei then showed Manuel Bonilla the photo-array which contained the photograph of Lamont Smith. Mr. Bonilla indicated that he was unable to recognize anyone.

Det. Mazzei then showed Manuel Bonilla a photo-array which contained the photograph of Ottis Moore. Mr. Bonilla indicated that he was unable to recognize anyone.

On April 2, 2011 at approximately 6:00 a.m., Joe Narvaez viewed the three photo-arrays prepared by Det. Mazzei. He first viewed the photo array containing the photograph of defendant Jahmar Jenkins. Mr. Narvaez indicated that he was unable to recognize anyone.

Joe Narvaez next viewed the photo array containing the photograph of Lamont Smith. Mr. Narvaez indicated that he was unable to recognize anyone.

Joe Narvaez then viewed the photo array containing the photograph of Ottis Moore. Joe Narvaez indicated he recognized the person depicted in photograph number three, the photograph of Ottis Moore, as the person who hit him on the head with handgun a few hours earlier.

On April 2, 2011 at approximately 6:25 a.m., Yenice Feliciano viewed three photo-arrays prepared by Det. Mazzei. Ms. Feliciano first viewed the photo array containing the photograph of defendant Jahmar Jenkins. Ms. Feliciano indicated that she was unable to recognize anyone.

Det. Mazzei then showed Yenice Feliciano the photo-array which contained the photograph of Lamont Smith. Ms. Feliciano indicated that she was unable to recognize anyone.

Yenice Feliciano then viewed the photo array containing the photograph of Ottis Moore. Ms. Feliciano indicated she recognized the person depicted in photograph number three, the photograph of Ottis Moore, as the person who pushed and knocked her to the ground and who struck her in the head with a gun. [*6]

On April 21, 2011, Det. Mazzei removed defendant Jahmar Jenkins pursuant to a take-out order and took him to the 101 precinct for the purposes of a line-up. The defendant and five fillers obtained from a group home and the Police Athletic League (PAL) gym site were placed in a room (Mr. Scott Dufault, Esq. was present at the line-up on behalf of the defendant). Joe Narvaez, Yenice Feliciano, Joseph Narvaez and Manuel Bonilla all came to the 101 Det. Squad to view this lineup. Prior to the lineup, Det. Mazzei advised this Court that the four witnesses were brought to a "juvenile room" which is an office room on the second floor of the precinct. Each witness was then separately escorted by Det. Mazzei to the viewing area in his office. After each witness completed viewing the lineup, the witness was then escorted out of the viewing area into a separate kitchen area of the precinct. At the end of the identification procedure, each witness was instructed not to discuss what was said or observed during the identification procedure. All of the witnesses were asked the same three questions: (1) Do you recognize someone? (2) What number? And (3) Where do you recognize that person from?

Det. Mazzei conducted the lineup starting at approximately 1:50 p.m. on April 21, 2011. (Photographs of the lineup were admitted into evidence at the hearing). Joe Narveaz was the first witness to view the lineup. Mr. Narveaz indicated that he was unable to identify anyone.

The next witness to view the lineup, at approximately 1:55 p.m., was Ms. Yanice Feliciano. In response to the aforementioned three questions, Ms. Feliciano responded "yes" she recognized "number five". She indicated that recognized him "from the robbery". Jahmar Jenkins was seated in position number five, the number he chose, wearing number five.

At approximately 2:00 p.m., Mr. Joseph Narvaez ,viewed this lineup. In response to the aforementioned three questions, Joseph Narvaez responded "yes" he recognized "number five" "from the robbery, the dark-skinned one with a gray sweatshirt".

Manuel Bonilla viewed this lineup at approximately 2:05 p.m. In response to the aforementioned three questions, Mr. Bonilla responded "yes" he recognized "number five". He indicated that number five "robbed us".

On May 3, 2011, Det. Mazzei removed defendant Ottis Moore

pursuant to a take-out order and took him to the 101 precinct for the purposes of a line-up. All four complainants were again present to view this lineup. As with the April 21, 2011 lineup, the witnesses were placed in the same locations, given the same directions and asked the same three questions.

Manuel Bonilla was the first witness to view the lineup at 3:15 p.m. (Photographs of the lineup were admitted into evidence at the hearing). Mr. Bonilla indicated that he was unable to identify anyone.

Joe Narvaez was the next witness to view the lineup at approximately 3:20 p.m. In response to the aforementioned three questions, Joe Narvaez responded "yes" he recognized "number four". He indicated that recognized him as "the guy who pointed the gun at me". Ottis Moore was seated in position number four, the number he chose, wearing number four.

At approximately 3:25 p.m., Mr. Joseph Narvaez ,viewed this lineup. In response to the aforementioned three questions, Joseph Narvaez responded "yes" he recognized "number four" "From the robbery, wearing a red shirt".

A short time later, at approximately 3:30 p.m.,Yenice Feliciano viewed the lineup. In response to the aforementioned three questions, Ms. Feliciano responded "yes" she recognized "number four" "from the home invasion robbery".

Upon arrival, P.O. Rivelli observed a woman, later identified as Monet Paige, in the opened doorway of the location holding in front of her a male child who appeared to be between the age of five and seven. According to P.O. Rivelli, he, not Det. Mazzie, asked her to lower the music that was playing loudly, which she did. He then asked her to remove the child she was holding from the apartment. Officer Rivelli advised this Court that despite repeated requests, Ms. Paige, ignored him. Ms. Paige refused to maintain eye contact with him, appeared nervous, and remained focused on the other rooms inside of the apartment. After several minutes, Ms. Paige brought the child she was holding into the hallway.

P.O. Rivelli asked Ms. Paige the whereabouts of the second child but was met with shrugs and head nods. He then heard the sound of a child crying and saw Ms. Paige use her body to gesture in the direction of the other rooms. Ms. Paige locked eyes with him P.O. Rivelli at one point but did not speak. This standoff continued for approximately five minutes when P.O. Rivelli noticed in the window, approximately 30 feet away, the reflection of a man standing in the living room area against a wall. P. O. Rivelli observed the man holding a crying child and saw that the man appeared to be speaking to Ms. Paige, although he unable to understand what was being said. Based on the aforementioned observations, along with the continued cries of the child, Ms. Paige's refusal to enter the apartment, the presumed blood in the hallway, and the nature of the crime that occurred a few hours earlier, P.O. Rivelli believed that the child was in danger. He then pushed or "nudged" Ms. Paige aside and entered apartment 1203 through the opened front door.

Upon entering the apartment, P.O. Rivelli was immediately followed by P.O. Ellis. P.O. Rivelli went to the rear bedroom of the apartment where he had heard the child crying. There, he observed defendant Lamont Smith on top of a bunk bed, in a seated position, holding an infant child. P.O. Rivelli repeatedly instructed defendant Lamont Smith to release the baby as his sergeant pointed a taser at Lamont Smith causing an infrared dot to appear on his body. The child was subsequently released and taken by Officer Rivelli outside the apartment and given to an unnamed uniformed officer. Upon returning to the apartment, P.O. Rivelli observed all three defendants being escorted out of the apartment in handcuffs.

According to P.O. Ellis, a short time after his arrival, P.O. Ellis left the fourteen floor and went to the twelfth floor using the stairwell and observed what appeared to be blood on the stairwell and what appeared to be blood in front of apartment 1203. P.O. Ellis stated that both he and P.O. Rivelli pleaded and demanded that Ms. Paige, who stood at the opened door way, bring any and all children out of the apartment. Ms. Paige responded "I can't"..."I can't". Ms. Paige's demeanor to him appeared nervous and fidgety and she continuously paced back and forth. He then heard crying sounds from a child and heard a male voice whisper in what he described was an aggressive manner, "shut the fuck up". Based on Ms. Paige's behavior he concluded that this male was speaking to her. About this time, P.O. Ellis heard his partner exclaim "he's got the baby!" while pointing to the window. P.O. Ellis then looked towards the window and observed a person holding a child through the reflection in the glass. Seconds later, both he and Officer Rivelli, almost simultaneously, ran into the apartment. Officer Ellis turned left into the first bedroom and found Ottis Moore underneath a comforter on a mattress. He found Jahmar Jenkins inside the box spring under the mattress and placed the men in custody. Officer Ellis transported Ottis Moore to the 101 Precinct and at the Precinct recovered paperwork bearing the name of Yanice Feliciano from Ottis Moore's left pants pocket.

CONCLUSIONS OF LAW

The defendants seek suppression of all physical evidence recovered claiming that the police illegally entered and searched apartment 1203 at 57-07 Shore Front Parkway. The defendants also seek to controvert the search warrant. Defendants Jenkins and Moore also seek suppression of identification testimony. This Court will first address the issue of standing.

This Court finds that the defendants lack standing to challenge the search of apartment 1203. The evidence presented at the hearing was that Ms. Paige was the legal tenant of the apartment and that she lived there with her two children. There is no evidence that any of the defendants stayed at this apartment for any substantial period of time. Since there is no automatic standing in this situation, this Court finds that the defendants are required, and have failed, to demonstrate a personal legitimate expectation of privacy in apartment 1203. See People v Ramirez- Portoreal, 88 NY2d 99(1996); see also People v Ortiz, 83 NY2d 840 (1994); People v Ponder, 54 NY2d 160 (1981).

However, assuming argumendo that the defendants have standing to challenge the entry and seizure of evidence in this case, their applications to suppress would fail for the reasons set forth below.

The Fourth Amendment, made applicable to the states by the Fourteenth Amendment, prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest. See, Payton v New York, 445 US 573 (1980). It is well-settled law that there is an emergency exception to this general warrant requirement. Under the emergency doctrine, police officers may enter premises without a warrant to protect individuals in impending danger or assists victims of crimes that just occurred. See People v Mitchell, 39 NY2d 173 (1976). In Mitchell, the Court of Appeals formulated a three prong test for determining whether the warrantless entry of police into a protected area falls under the emergency doctrine exception:

(1) The police must have reasonable grounds to believe

that there is an emergency at hand and an immediate [*9]

need for their assistance for the protection of life

or property. (2) The search must not be primarily

motivated by an intent to arrest and seize evidence.

(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.

This Court finds that the police officers had reasonable grounds to believe that there was an emergency at hand and the safety of a child needed to be ensured based on the following: information that weapons were involved in a gun point home invasion a few floors away, the observation of a trail of blood inside the complainants' apartment, the bloody footprints on stairwell leading to the doormat of apartment 1203, the discovery of the complainant's property on said stairwell, the nervous and confrontational behavior of Monet Paige, the observation of a reflection of a man holding the baby, the cries of the baby and the muffled male voice aggressively stating "shut the fuck up". Thus, this Court finds that the both first and second prong of the Mitchell test and the rule adopted by the Supreme Court in Brigham City v Stuart are satisfied.

Furthermore, this Court does not find, as the defense argues, that situation at hand is removed from the emergency sphere because of the 20 minute period in which the officers conversed with Ms. Paige and attempted to secure a search warrant. See People v Salazar, 290 AD2d 256 (1st Dept. 1996). As the Court of Appeals has noted in People v. Molanar, 98 NY2d 328 (2002), the fact that police wait a short period of time to explore alternatives to warrantless entry does not turn an emergency into a non-emergency.

As for the third prong, this Court finds as follows: The jewelry seized from inside apartment 1203 underneath a bathroom sink with an opened door, was within Det. Mazzei's plain view, from a lawful vantage point, and lawfully recovered. See People v Jackson, 41 NY2d 146 (1976). Indeed, Det. Mazzei was not conducting a search of the apartment when he discovered this evidence. In addition, this Court finds that the recovery of the bloody sneakers from the rear bedroom was not a result of an illegal search of the apartment but rather a result of an effort to provide shoes for two shoeless defendants. Based on the totality of the circumstances, this Court finds that the warrantless entry of the police into apartment 1203 falls under the emergency doctrine exception and all property recovered inside said apartment to wit: jewelry underneath the bathroom sink and a pair of bloody sneakers was properly recovered.

As for the remaining property recovered from the ground underneath a window, to wit: the two jewelry boxes recovered from the stairwell, and the silver handgun, the bag of jewelry and second pair of bloody sneakers recovered from the ground outside the apartment building, the Court finds that these items were properly recovered by the police. These items were clearly abandoned. See People v Howard, 50 NY2d 583(1980). Furthermore, the defendants do not have a reasonable expectation of privacy in these common areas that are easily accessible to the public. See People v Oakman, 215 AD2d 596 (2d Dept. 1995).

The record shows that the defendants were handcuffed immediately upon being apprehended. This Court finds under the circumstances that it was proper police procedure to detain the defendants with the use of handcuffs. Det. Mazzei responded to the location of a reported gun point home [*10]invasion robbery approximately 40 minutes after the 911 call was placed. From this call and from speaking with two of the complainants and two security guards at the location, he learned that this crime involved three perpetrators with as many as three guns or as few as one. In addition, Det. Mazzie, P.O. Rivelli and P.O. Ellis all observed what appeared to be a blood trail leading from the complainants' apartment on the fourteenth floor to the twelfth floor apartment where the defendants were found. Based on these facts, the officers did in fact have reasonable suspicion that the three individuals refusing to exit apartment 1203 were involved in the home invasion and gun point robbery. Thereafter, after entering the apartment, it was proper to handcuff the defendants for the safety of the police officers and the civilians who stood nearby. Furthermore, contrary to the arguments of defense counsel, the placing of handcuffs on the defendants did not automatically convert a detention into a full-blown arrest requiring probable cause. See People v Persaud, 244 AD2d 577 (1997); see also People v Allen, 73 NY2d 378 (1989). "In a rapidly developing and possibly dangerous situation, the police are entitled to take reasonable measures to assure their safety, including handcuffing a suspect detained on reasonable suspicion...". See Persaud at 578.

Turning to the issue of whether the police had probable cause to arrest the defendants, the record reflects that shortly after the defendants were placed in handcuffs, Det. Mazzei observed jewelry, bearing the same characteristics as those he observed in the complainants' apartment, underneath a bathroom sink with an opened door. Thus, the officers had probable cause to believe that the defendants were in possession of stolen property and were permitted to arrest the defendants for this crime.

This Court finds that the property recovered from defendant Ottis Moore's left pants pocket at the 101 precinct, to wit: miscellaneous paperwork bearing the name of Yanice Feliciano, was lawfully recovered pursuant to a search incident to the lawful arrest of the defendant. See People v Perel,34 NY2d 462 (1974).

As for the defendants' motion to controvert the search warrant, the evidence presented at the hearing revealed that upon execution of the warrant, no additional property was recovered. Thus, the defendants' application is moot and need not be decided by this Court.

This Court turns next to the pre-trial identification procedures conducted in this case. This Court must decide whether these procedures were so unduly suggestive that there was a substantial likelihood of misidentification. See, Neil v Biggers, 409 US 188 (1972). In this case, hours after the crime, all four complainants separately viewed a set of three photo arrays containing the photographs of the all three defendants. The evidence shows that Joseph Narveaz and Manuel Bonilla identified the photograph of Jahmar Jenkins as one of the men involved in the home invasion. Joe Narvaez and Yanice Feliciano identified the photograph of defendant Ottis Moore as one of the perpetrators. The photograph of Lamont Smith was not identified by any of the complainants.

The six photographs of the individuals contained in each of photo arrays are sufficiently similar to defendants in their general physical appearance. At the time the photo arrays were generated, the computer randomly suggested thousands of photographs that were already contained within the database to incorporate in the arrays. Det. Mazzei then chose five "filler" photographs that he believed sufficiently resembled each defendant. The photographs contained within each photo array show no significant differences that would draw the viewer's attention to any particular photograph (People v Chipp, 75 NY2d 327, 336 (1990). Finally, there was no evidence adduced at the hearing to indicate any suggestive [*11]behavior or any undue influence by Det. Mazzei on any of the complainants.

The Court now turns to the two lineups conducted in this case. With respect lineup number one conducted on April 21, 2011, in which defendant, Jahmar Jenkins was the subject, this Court finds that the lineup was, in all respects, fair and not suggestive in its composition. Having viewed the photographs of the lineup, the Court finds that the fillers looked sufficiently similar to the defendant in appearance (People v Jean—Baptiste, 57 AD3d 566 (2d Dept 2008); People v Cintron, 226 AD2d 390, 390—391 (2d Dept 1996); People v Lundquist, 151 AD2d 505, 506 (2d Dept 1989). The police took reasonable steps to conceal the defendant's cornrow hairstyle by placing a cap on all of the lineup participants. People v Meatley, 162 AD2d 721 (2d Dept. 1990). Furthermore, this Court finds that the fillers appear sufficiently similar to the defendant in build, skin tone and age. The Court also finds that the procedure used for the complainants to view this lineup was fair and that no suggestive techniques were utilized either before or during the viewing.

With respect to the second lineup, conducted on May 3, 2011, in which defendant Ottis Moore was the subject, the Court also finds that this lineup was, in all respects, fair and not suggestive in its composition. Having viewed the photographs of this lineup, the Court finds that the fillers also looked sufficiently similar to the defendant in appearance. See Jean—Baptiste at 566(2d Dept 2008). Furthermore, the Court finds that the defendant was in no way specifically and uniquely highlighted. See People v Snyder, 304 AD2d 776 (2d Dept 2003). Likewise, the Court finds that the procedure used for the complainants to view this lineup was fair and that no suggestive techniques were utilized either before or during the viewing.

This Court therefore finds that the People have met their burden of providing evidence that established the reasonableness of the police actions in connection with the identification procedures conducted in this case. This Court also finds that the defendants have failed to meet their burden of proving that the identification procedures utilized herein were unduly suggestive. Furthermore such identification procedures were not the product of an unlawful arrest of the defendants. Accordingly, there is no basis to suppress identification testimony of Joseph Narvaez, Yenice Feliciano, Manuel Bonilla and Joe Narvaez.

Accordingly, defendants' motions to suppress physical evidence are denied in all respects. Furthermore, the motions to suppress identification testimony by defendants Jahmar Jenkins and Ottis Moore are also denied in all respects. Finally, there is no basis to controvert the search warrant insofar as no evidence was recovered pursuant to the execution of the search warrant.

This foregoing constitutes the order, opinion and decision

_______________________

Stephen A. Knopf, J.S.C.