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Successive Photo Arrays Okay/Statement Made Voluntarily After Refusing to Waive Miranda Rights Admissible for Impeachment Purposes

The Fourth Department dismissed an attempted murder charge because “the jury may have convicted defendant of an unindicted [attempted murder], resulting in the usurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine the charges”… . [The indictment charged one shooting but proof at trial alleged two shootings which were considered by the jury.] In the course of the decision, which also discussed the criteria for severance of defendants and the admissibility for impeachment purposes of a statement made voluntarily after a refusal to waive Miranda rights, the Fourth Department determined that the submission of multiple photo arrays with the defendant in them did not require suppression of the identification evidence:

Contrary to defendant’s … contention, Supreme Court did not err in refusing to suppress identification evidence. ” Multiple photo identification procedures are not inherently suggestive’ ” … . “While the inclusion of a single suspect’s photograph in successive arrays is not a practice to be encouraged, it does not per se invalidate the identification procedures’ ” … . Here, although there was not a significant lapse of time between the presentation of the arrays …, the record establishes that different photographs of defendant were used, that the photographs of defendant appeared in a different location in each photo array … .

We … conclude that the court did not err in determining that defendant’s statements to the police during a brief exchange, made by defendant after he refused to waive his Miranda rights, were voluntary and thus were admissible for impeachment purposes … . Here, the People met their initial “burden at the Huntley hearing of establishing that defendant’s . . . statements were not the product of improper police conduct’ ” … , and “[d]efendant presented no bona fide factual predicate in support of his conclusory speculation that his statement[s were] coerced”…. .  People v Wilson, 2014 NY Slip Op 06394, 4th Dept 9-26-14

 

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