Supreme Court, Kings County, June 17, 2021

Kenneth J. Montgomery, Brooklyn, for defendant.

Eric Gonzalez, District Attorney, Brooklyn (Krystyn Tendy of counsel), for plaintiff.

Defendant's motion for reinspection of the grand jury minutes and dismissal of the indictment was withdrawn by defendant on the record. This court treated that branch of the omnibus motion as a motion to reargue the motion for review of the grand jury minutes for legal sufficiency and defects and ordered that the motion be transferred to the Justice who decided that motion. Upon announcing that order, dated April 19, 2021, defendant stated on the record that this branch of his omnibus motion was being withdrawn.

Defendant's motion to suppress identification testimony as the product of an unduly suggestive pretrial identification procedure{**72 Misc 3d at 860} or, in the alternative, for a Rodriguez hearing "to determine the officers [sic] familiarity with the defendant" (Montgomery aff § II at 7) is denied.

The prosecutor gave defendant notice pursuant to Criminal Procedure Law § 710.30 (1) (b) that two police witnesses, Detective Sean Feliciano, and Police Officer James Lukeson, identified defendant in video at the grand jury on November 12, 2019, and November 13, 2019, respectively. The prosecutor states that notice was provided out of an abundance of caution and contends that the police testimony at the grand jury is not an identification procedure within the meaning of Criminal Procedure Law § 710.30 (1) (b).

The Wade hearing requirement of Criminal Procedure Law article 710 applies when an identifying witness will testify "regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case," and "has previously identified him or her . . . as such" (CPL 710.30 [1] [b]; see 710.20 [6]; 710.60 [4]).

This statutory language distinguishes between "two distinct pretrial 'viewings' of a defendant by an eyewitness" (People v Peterson, 194 AD2d 124, 128 [3d Dept 1993]). The first one is an "actual observation of a defendant either at the time or place of commission of the [*2]crime or some other occasion relevant to the case. This is the observation . . . which forms the basis for the witness's prospective trial testimony" (id.). The second is the "separate, police-initiated, identification procedure . . . which takes place subsequent to the observation forming the basis for the witness's trial testimony and prior to the trial" (id.).

[1] In this case, neither Detective Feliciano nor Police Officer Lukeson made an identification as defined by Criminal Procedure Law § 710.30 (1) (b). Neither of them witnessed the charged assault and, thus, neither of them observed defendant "at the time or place of the commission of the offense or upon some other occasion relevant to the case" (id.). At the grand jury, each witness was asked only if he recognized anyone depicted in video or in a photograph. Detective Feliciano recognized defendant not from having observed him during the crime but from having observed him attend a court appearance in October of 2019. Police Officer Lukeson recognized defendant from having arrested him in July of 2019. Because the observations of defendant that form the basis for each witness's{**72 Misc 3d at 861} prospective trial testimony are not observations of defendant at the time or place of the crime, there was no identification procedure within the meaning of the statute and no identification that can be suppressed under Criminal Procedure Law § 710.30 (see People v Moreno, 148 AD3d 827, 828 [2d Dept 2017]; People v Reyes, 69 Misc 3d 963, 965 [Sup Ct, NY County 2020]).

[2] Even if the identification was an identification under Criminal Procedure Law § 710.30, defendant's motion is denied on the alternate ground that the identifications were confirmatory based on prior familiarity and exempt from the Wade hearing requirement (see People v Rodriguez, 79 NY2d 445, 449-450 [1992]).^[FN*] An identification is confirmatory based on prior familiarity when the witness "knew defendant so well that no amount of police suggestiveness could possibly taint the identification" (id. at 453).

The applicability of this exception "depends on the extent of the prior relationship, which is necessarily a question of degree" (id. at 450). The exception "may be confidently applied where the protagonists are family members, friends or acquaintances . . . or have lived together for a time," but not when "the prior relationship is fleeting or distant" or "emanates from a brief encounter" (id.). The prosecutor bears the burden of claiming that a citizen's identification was confirmatory (id. at 452).

To determine whether an identification was confirmatory based on prior familiarity, a court should consider "the number of times [the witness] viewed defendant prior to the crime, the duration and nature of the encounters, the setting, the period of time over which the viewings occurred, the time elapsed between the crime and the previous viewings, and whether the two had any conversations" (id. at 451).

A court can summarily deny a motion for a Wade hearing on the ground that the identification was confirmatory if the prosecutor's omnibus motion allegations establish that the [*3]witness was sufficiently familiar with defendant to make the identification confirmatory, and those allegations are not{**72 Misc 3d at 862} controverted by the defense (see People v Rodriguez, 47 AD3d 417, 417 [1st Dept 2008] [prosecutor's undisputed "claims that defendant and the victim worked together for several months, and that the victim knew defendant's first name, established a relationship familiarity that ensured the identification was not susceptible to police suggestion"]; People v Foster, 217 AD2d 558, 559 [2d Dept 1995] ["a pre-Wade hearing to determine the extent of the witnesses' prior familiarity with the defendant was not required because the defendant did not controvert the People's assertion that the eyewitnesses had known the defendant for many years"]).

The prosecutor's allegations and the grand jury materials are sufficient to establish that both police witnesses were sufficiently acquainted with defendant to make their identifications confirmatory. Detective Feliciano surveilled defendant in court and at the courthouse about one month before testifying at the grand jury. The photograph that Feliciano took of defendant sitting outside the courtroom reveals the clear view and excellent lighting conditions under which Feliciano observed defendant. Police Officer Lukeson arrested defendant in July of 2019 and spent between five and six hours with him processing his arrest. The bodycam video of Lukeson's interaction with defendant during a vehicle stop that led to the arrest shows the officer's interaction with defendant and the excellent viewing conditions that the officer had of defendant. The nature of these encounters and their temporal proximity to the grand jury proceeding supports the conclusion each officer had sufficient time with defendant to become familiar with him and recognize him at the grand jury.

Defendant did not controvert the information and allegations about how each officer knew him. He did not deny knowing either of them or deny having any prior contact with either of them, even though the grand jury minutes and bodycam video containing that information were provided to defendant as discovery before he filed his motion. Neither did defendant reply to either set of motion papers filed by the prosecutor to specifically contest or dispute any of the prosecutor's allegations. Under these circumstances, defendant has not raised any factual question about witness familiarity that needs to be explored or resolved at a Rodriguez hearing.

This decision is consistent with People v Rodriguez (79 NY2d 445 [1992]), which ruled that the trial court was required to conduct a hearing before finding that an identification was{**72 Misc 3d at 863} confirmatory based on prior familiarity. In that case, the prosecutor did not allege that the identifying witness and the defendant were known to each other. The prosecutor alleged, instead, that the identifying witness was a store clerk who had seen the defendant as a customer in a grocery store "[a]t least four dozen times" (id. at 447).

In finding these allegations insufficient to find that the identification was confirmatory, the Court explained that the prosecutor did not allege that familiarity was based on a mutual relationship between the witness and defendant (see id. at 452, 453), and that the allegations about how often the store clerk had seen the defendant in the store did not establish that the identification was merely confirmatory: "It is indeed possible that a store clerk, having seen a customer 'four dozen' times, would be immune to police suggestion. It is also conceivable, however, that such a witness could be influenced by suggestiveness to make a misidentification" (id. at 450-451). The Court further explained, "Without more information, the trial court had no basis for ruling, in essence, that this witness was impervious to suggestion" (id. at 451).

By contrast, in this case, the prosecutor's allegations about Police Officer Lukeson's prior familiarity did not rest solely on a claim that he merely "had seen" (id. at 448) defendant in the past. Lukeson met defendant and interacted with him for between five and six hours during a vehicle stop that led to an arrest. They stood face-to-face during the vehicle stop and spoke to each other about why defendant had to be taken into custody: to clear up whether the outstanding warrant appearing in the computer had recently been resolved. This encounter and the arrest processing demonstrate that defendant and the officer knew each other and had a mutual relationship sufficient to establish that the identification was merely confirmatory.

Although the allegations about Detective Feliciano are grounded in his observations of defendant, the allegations here are much more developed than an allegation that he merely "had seen" defendant. Feliciano conducted surveillance of defendant at the courthouse when defendant was there for a court appearance. Feliciano observed him under excellent viewing circumstances in a well-lit courthouse. The photograph of defendant sitting outside court shows the excellent viewing conditions under which Feliciano observed defendant. This encounter establishes that Feliciano was sufficiently acquainted{**72 Misc 3d at 864} with defendant to make the identification confirmatory.

Moreover, in finding that a hearing was required in Rodriguez, the Court also cited that the defendant had specifically denied personally knowing or having prior familiarity with the store clerk (id. at 453). In this case, however, as noted already, defendant did not specifically deny knowing or being acquainted with the detective or the police officer. By not specifically denying any information about how the detective or the police officer knew defendant, the defense motion did not raise an issue of fact about any witness's familiarity that needed to be resolved at a hearing.

The motion for the reservation of the right to file additional motions is denied without prejudice and with leave to renew subject to Criminal Procedure Law § 255.20 (3).