Defendant is charged by this indictment with Gang assault in the second degree (PL § 120.06) and Assault in the third degree (PL § 120.00 [1]) for an incident which is alleged to have occurred on August 18, 2024. By decision and order dated June 6, 2025 (Margulis, J.), Rodriguez/Dunaway hearings were ordered. Such hearings were held before this court on September 17, 2025. Based upon a review of the court file, testimony elicited and evidence received at the hearings, post-hearing memoranda, and upon application of the controlling legal principles to the circumstances of this case, suppression of identification evidence is granted.

The People called two witnesses, who testified credibly in all material respects. Detective Raymond Sumsky of the 115th Detective Squad. Det. Sumsky stated that, on August 19, 2024, he was assigned to investigate a robbery. To that end, he met with the complainant at Elmhurst Hospital, who reported that he was at a bar, located at 85-15 Northern Boulevard, drinking with a friend on August 18, 2024 when, at approximately between 3:30 and 4:00 a.m., he went outside and got into a physical dispute with another male, possibly Hispanic. He could not [*2]provide any other description because the incident happened so quickly. Det. Sumsky observed complainant's condition, and he appeared bruised and scraped and to be in pain (and was also complaining of pain).

Det. Sumsky then responded to the incident location, but was not able to obtain any video surveillance therefrom; however, he was able to retrieve surveillance from two nearby locations that depicted the incident. Upon review, Det. Sumsky also observed four to five males assaulting the complainant. Det. Sumsky then created video stills of the perpetrators, generated a wanted flyer, and circulated same. Det. Sumsky also ran the images through facial recognition software and obtained a "hit" on one of them for the defendant. He then did a background check, which revealed that defendant had been previously arrested by Det. Patrick Cahill of the 106th Detective Squad.

Thereafter, Det. Sumsky reached out to Det. Cahill via email to inquire as to whether he recognized any of the individuals, who were wanted for robbery, depicted in the wanted flyers, which he was. From that point, Det. Sumsky issued an I-card for defendant's arrest. Eventually, defendant was arrested by the warrant squad on September 17, 2024. Det. Sumsky then processed the arrest at the precinct.

The People also called Det. Cahill as a witness. He stated that, on August 27, 2024, Det. Sumsky reached out to him regarding an incident which occurred on August 18, 2024. To that end, Det. Cahill reviewed a wanted flyer depicting five male perpetrators, one of whom — male Hispanic with a bald head — he recognized as defendant. He knew defendant from a prior investigation of a felony assault, whereby a complainant positively identified him in a photo array. In connection with that investigation, Det. Cahill reviewed his photograph approximately 15 to 20 times. Furthermore, on December 4, 2023, he believes that the warrant squad brought defendant into the precinct and Det. Cahill arrested him. Det. Cahill then described how he processed defendant's arrest at that time. All areas within the precinct during these interactions were well-lit. Det. Cahill stood as close as a foot away during some of those interactions. He also spoke with defendant, observed his body movements, and clearly saw his facial features. He spent approximately three to four hours with defendant on that date. Det. Cahill reported that, other than a fuller beard, defendant's appearance had not changed much since 2023.

On cross-examination, Det. Cahill indicated that he could not recall what defendant was wearing on December 4, 2023. He stated that his hair was "relatively similar" to what it is today; that his beard "might be" a little fuller today; and that he could not recall if he could view any tattoos on his body. There was also some question as to whether Det. Cahill indeed spent a substantive three to four hours with defendant (as Det. Cahill was driving and not looking at defendant when transporting him to Central Booking, he was processing paperwork in the officer, and attending to other case work and arrestees, etc.). Det. Cahill also indicated, inter alia, that he could not recall when he opened the email containing the wanted flyer, whether other officers were present, and whether he discussed the contents of the email with other NYPD personnel. Finally, after receiving the email, Det. Cahill reviewed the case file from the December 2023 arrest, and recognized defendant "because [he] had compared the photograph of him to the photograph from that arrest."

At a Rodriguez hearing, the People bear the burden of demonstrating that the [*3]identification of a defendant is merely confirmatory in nature because "the witness knows defendant so well as to be impervious to police suggestion" (People v Rodriguez, 79 NY2d 445 [1992]; see People v Coleman, 73 AD3d 1200 [2d Dept 2010]); that is, if the witness is sufficiently familiar with a defendant, "any suggestibility in a photographic identification would be vitiated" (People v Griffin, 225 AD2d 792 [2d Dept 1996]). "The confirmatory identification exception requires a case-by-case analysis which rests on the length and quality of prior contacts between [the] witness and [the] defendant, but always requires a relationship which is more than fleeting or distant" (Coleman, 73 AD3d at 1202 [internal quotations and citation omitted]). The Court of Appeals has outlined several factors relevant to the issue of familiarity: (1) the number of times the witness viewed the defendant before the crime; (2) the duration, nature, and setting of the encounters; (3) the period of time over which the viewings occurred; (4) the time elapsed between the crime and the previous viewings; (5) whether the witness and the defendant had any conversations; and (6) whether the witness communicated to the police their recognition of the defendant prior to making the identification (Rodriguez, 79 NY2d at 451; see Coleman, 73 AD3d at 1202). If the People successfully establish that the identification procedure was merely confirmatory, a defendant will not be entitled to a Wade hearing to litigate the issue of suggestiveness (see Rodriguez, 79 NY2d at 452).

Here, the People have failed to meet their burden of establishing that this identification procedure was merely confirmatory in nature. It cannot confidently be said that Det. Cahill knew defendant "so well" as to be impervious to any police suggestion. First, and perhaps most notably, the fact that Det. Cahill could not independently recollect defendant's identity underscores the lack of sufficient familiarity the detective had with him (i.e., he had to cross-reference a prior case file and compare photographs in order to provide a suspect to Det. Sumsky) (see e.g. People v Casanova, 119 AD3d 976 [3d Dept 2014]; People v Gravesande, 79 Misc 3d 1234[A], Sup Ct, Kings County 2023]). Second, upon reviewing the nonexclusive list of factors which determine the issue of familiarity, denoted above, and under the totality of the circumstances, it cannot be said that Det. Cahill was familiar enough with defendant to obviate the need for a determination on suggestiveness. The two only had one encounter; Det. Cahill did not spend a full three to four hours with defendant as suggested (his time was divided with other arrestees, paperwork, concentrating on driving defendant, etc.); their conversation was limited to Det. Cahill introducing himself, telling him why he was being arrested, and explaining the steps involved in processing his arrest; Det. Cahill provided little description of defendant other than "male Hispanic, bald head"; he could not say with confidence whether his appearance had changed between the date he arrested him and now; and there was an eight-month gap between a fairly brief encounter and the identification. On the scale of familiarity, these protagonists lean more heavily toward the "brief encounter" rather than "family members, friends or acquaintances" (Rodriguez, 79 MY2d 445 [1992], citing People v Collins, 60 NY2d 214 [1983]; see also Coleman, 73 AD3d at 1202; People v Thomas, 225 AD2d 641 [2d Dept 1996]).

The court notes that the People did not present any argument with respect to the Wade portion of the hearing, which was clearly ordered by the omnibus court (see decision and order dated June 6, 2025, mentioned, supra, at 4: "a RODRIGUEZ hearing is ordered to determine whether the identification by the witness was truly confirmatory in nature, and, if not, whether the single photograph identification procedure was unduly suggestive").

However, nonetheless, the court shall discuss the issue of suggestiveness of the procedure as would be raised in a Wade issue, finding that the People have failed to meet their burden of [*4]production on that issue. While not dispositive, the People did not present the subject wanted flyer for the court's viewing. Further, the People did not provide the email exchange between Dets. Sumsky and Cahill (the wording of which could not be recalled by either witness), or the details of a phone call between them, which may or may not have been made, as evidence at the hearing. Further, Det. Cahill could not recall where he was when he made the identification, and who — if anyone — was present with him. What was adduced at the hearing however, was the fact that Det. Sumsky initially ran the photograph through facial recognition software and obtained defendant's information, thereafter contacting Det. Cahill specifically and directly because he knew that the latter arrested him, thereby further calling into question the suggestiveness of the procedure.

Given the above, the issue of a so-called Dunaway basis for suppression of evidence is rendered moot.^[FN1]

Accordingly, suppression of identification evidence is granted.^[FN2]