This is a five-in-concert robbery matter. The Court conducted a hearing pursuant to U.S. v. Wade, 388 U.S. 218 (1967) on March 29 and April 5, 7, and 13.^[FN1] This decision and order is only in respect to the four respondents K.A., J.N., T.R., and K.F.

The Court heard credible testimony from Police Officer Michael Hansson, and the parties entered into a stipulation as to what another witness, Sargent Musante, would have testified to. The Court also considered Presentment Agency Exhibits 1 and 2, photographs with chalks added by Officer Hansson to illustrate the location of relevant people on the date and time in question, and Exhibit 8, the arrest photograph of J.N.

Based on the record, the Court makes the following factual findings:

1) On the night of August 18, 2016, at approximately 1:11a.m., Officer Hansson heard a radio run informing him of a robbery at 618 Knickerbocker. The suspects were five to six teens aged 14 to 17, a mix of males and females, blacks and Hispanics. One youth was said to be wearing a red tie-dyed t-shirt, another was wearing a white t-shirt, and another was wearing a blue shirt.

2) Officer Hansson and his partner, Sargent Musante, responded to the call. They were in plain clothes and were in an unmarked police vehicle, with Sargent Musante driving.

3) At the location, Officer Hansson spoke to the complainant, Sean Ebert, who told them he had been mugged in front of 618 Knickerbocker, with certain personal property stolen. He had lacerations to his head but said he did not need immediate medical attention.

4) Ebert gave the same descriptions of the suspects as Officer Hansson had heard over the radio, but Ebert added an additional detail that one of the females "looked like a male." Officer Hansson updated the description over the radio.

5) After speaking to Ebert for a couple of minutes, Officer Hansson and Sargent Musante took him on a canvass of the area. Officer Hansson told Ebert that if he saw anyone who he believes was involved in committing the robbery, to point them out.

6) With Sargent Musante driving, Officer Hansson in the front passenger seat, and Ebert in the back of the vehicle on the passenger side, they canvassed a few blocks in each direction, for approximately 15 minutes. During this period, there was no conversation among the three occupants of the car. Ebert did not identify anyone during the canvass.

7) During the canvass, Officer Hansson received a call on his personal cell phone from a colleague, Officer Mastronardi. Officer Hansson listened to what Officer Mastronardi told him but said nothing in response. He did not have the phone on speakerphone, but held it up to his ear. Officer Mastronardi told Officer Hansson that he had a few people [*2]stopped at the Myrtle/Wyckoff subway station. Officer Hansson told Sargent Musante to drive to that location, without telling him why.

8) The Myrtle/Wyckoff subway station is just a few blocks from 618 Knickerbocker.

9) Two or three minutes after getting the call from Officer Mastronardi, Sargent Musante and Officer Hansson pulled up in front of the Myrtle/Wyckoff station. The time was approximately 1:40a.m. At that location, the entrance to the subway station is up three short steps to the station house, as depicted in PA Exhibit 1. There are clear doors, and from where the car was stopped, Officer Hansson could see into the station and noticed that Officer Mastronardi had some individuals with him sitting on a bench inside. Officer Hansson told Ebert that if he recognized anyone as having participated in the robbery, to point them out. He then left the vehicle and went to the station.

10) Inside the subway station house, Officer Hansson discussed a show-up procedure with Officers Mastronardi and Sohn. Sitting on the bench with those officers, Officer Hansson saw five individuals that he later learned to be the respondents K.A., J.N., T.R., and K.F., as well as N.A.

11) In the short period when Officer Hansson was inside the subway station, Sargent Musante remained in the car with Ebert. Sargent Musante said nothing to Ebert during this period.

12) After making the arrangements for the show-up, Officer Hansson went back to the vehicle. He stood outside the car, next to the rear passenger door. Ebert remained in the rear passenger seat, with the window down.

13) For the show-up, an officer escorted each respondent, individually, out of the station house and onto the top of the stairs under some lights. Each respondent stood at the spot marked "O" (in purple) on PA Ex. 1. Ebert, still in the car, was about 15-20 feet away. As each respondent was brought out, Ebert told Officer Hansson that the person was involved in the robbery. The individual was then escorted by an officer down the stairs depicted in PA Ex. 1, and take off to the side to wait (to the left of the stairs as depicted in Ex. 1). Then the next individual was brought out by an officer, stood under the lights, to the spot marked "O" on Ex. 1.

14) Each individual was identified by the complainant using this procedure. None of the individuals was restrained or handcuffed in any way during the procedure. Each was escorted to the designated area by one uniformed officer without any show of force or weapons. From the vantage point of the car where Ebert was, the individuals he identified were clearly visible, from head to toe, including their face, without obstruction, and the lighting was good.

15) Ebert did not know how many individuals he was going to be shown during the show-up. He was not told how many to expect, and from where he was sitting in the vehicle, he could not see exactly how many people were inside the station having been detailed by Officers Mastronardi and Sohn.

16) When they were identified by Ebert, J.N. was wearing a red tie-dyed shirt. K.A., T.R., and N.A. all had white shirts. K.F. had a black shirt. Respondents K.F. and J.N. are female, and Respondents K.A., K.F., and N.A. are male. The Court observed that respondent J.N. has a masculine appearance.

17) Following the identification of the respondents, Officer Hansson and Sargent Musante took Ebert to the precinct to complete paperwork, and other officers took the [*3]respondents to the precinct for processing.

18) The precinct was about a two-minute car drive from the Myrtle/Wycoff subway station.

Based on these facts, the Court holds that the identification procedure used was not unduly suggestive, and the application to suppress the identification at fact-finding is denied. While show-ups are by their nature suggestive, the identifications that flow from them are not per se inadmissible if exigent circumstances require prompt identification, People v. Rivera, 22 NY2d 453 (1968), or if the suspects were captured at or near the scene of the crime and can be viewed by the witness immediately, People v. Love, 57 NY2d 1023 (1982); People v. Russo, 271 AD2d 554 (2d Dep't. 2000). Prompt show-ups must be examined further to determine if they are part of an unbroken chain of events or ongoing investigation. People v. Duvon, 77 NY2d 541, 543-45 (1991); People v. Cruz, 129 AD3d 119 (1st Dep't. 2015). Precinct show-ups are unreliable as a matter of law, People v. Riley, 70 NY2d 523 (1987), and identifications based on other types of show-ups may be ruled inadmissible if there are overall indicia of suggestibility, People v. Adams, 53 NY2d 241 (1981).

Here, the presentment agency has met its burden of production to demonstrate that the identification procedure employed by law enforcement was not unduly suggestive, shifting the burden to the respondents to persuade, by a preponderance of the evidence, that it was, People v. Oritz, 90 NY2d 533 (1997), which they have failed to do. The show-up procedure that led to Ebert identifying the respondents occurred within a few blocks of the location of the robbery and within approximately 30 minutes of the incident. Police responded immediately to the 911 call, and after verifying Ebert's description of the perpetrators, Officer Hansson radioed the update. Within a matter of minutes, the complainant was escorted on a canvas of the immediate area, and quickly thereafter, he was driven to the subway station — which was mere blocks from the scene of the incident — for the show-up. The suspects were shown to the complainant one at a time, not as an entire group, reducing the likelihood of misidentification by association. The entire process was quick, contained to a small geographic area, and was part of an unbroken chain of investigation. The suspects matched the description of the perpetrators as described by the complainant in several key respects. Law enforcement officers did not say or do anything to make the identification unduly suggestive.

Respondents' contend that the officers could have taken Ebert back to the precinct to view a line-up or a photo array, a procedure that would have been less suggestive. That may be so. But the standard at a Wade hearing is not whether the identification procedure employed was "suggestive" or whether a less-suggestive one could have been used instead. The standard is whether the procedure employed was unduly suggestive. The Court of Appeals has made clear that show-ups are by their nature suggestive, but not all identifications based on a show-up are excludible from trial. Adopting respondents' rule would create a new per se rule that any identification based on a show-up must be suppressed if another less suggestive procedure "could have been" used instead. But as long as some effort was made to provide for a reliable identification, and as long as the combined effect of the procedures used establish that the process as not unduly suggestive, the identification will be admissible. Adams at 249. That is the case here.

It is important to note that in this case, there were five separate identifications, all employing essentially the same procedure and happening in rapid succession. However, the process for the fifth individual shown to Ebert was slightly, and possibly critically, different than [*4]the process for the first individual. That difference, of course, is that by the time he was shown the fifth individual, Ebert had already identified four others — in a row. Having identified four out of four people shown to him, and knowing that a total of five or six had been involved in the robbery, it is possible that Ebert was primed to identify the fifth person. Nevertheless, because the fifth individual was shown without the others, it cannot be said that the procedure used in this case, even for that fifth individual, was unduly suggestive.

Similarly, if the individual wearing the distinctive red tie-dyed t-shirt was identified early in the process, it is possible the complainant's identification of the subsequent individuals would have suffered from confirmation bias. However, the Court cannot conclude that this would have been unduly suggestive without a more robust factual record. The Court holds that the presentment agency has met its Ortiz burden of production on this issue. Because the ultimate burden in a Wade hearing is on the respondent, and because no evidence was presented as to the order in which each respondent was identified by the complainant, the Court cannot find that the show-up was unduly suggestive as to any specific respondent herein.

Motion by Respondents K.A., K.F., J.N., and T.R. for suppression of identification denied.