Testimony Insufficient to Overcome Presumption Photo Arrays, Which Were Not Preserved, Were Unduly Suggestive—Subsequent Line-Up, Which Included Persons Much Older than Defendant, Was Unduly Suggestive—New Trial Ordered

The Second Department determined both identification procedures were unduly suggestive and ordered a new trial.  The People did not preserve the photo arrays and the testimony about the photo arrays was insufficient to overcome the presumption the arrays were suggestive.  The subsequent line-up included persons much older that the 18-year-old defendant and, therefore, was unduly suggestive:

The Supreme Court erred in denying that branch of the defendant's omnibus motion which was to suppress identification testimony. The People's failure to preserve the original photographic arrays viewed by the complainants gave rise to a presumption of suggestiveness, and the People did not present sufficient evidence to rebut that presumption … . The fact that the police failed to preserve the arrays viewed by the complainants does not warrant suppression in and of itself. However, the detective's testimony at the suppression hearing as to how the computerized procedure operated was insufficiently detailed to establish its fairness … . The detective gave inconsistent testimony regarding what age criteria he entered in the computer system to generate each photo array. Furthermore, he did not recall how many screens either complainant viewed before each of them recognized the defendant, or how long it took each to make an identification. Therefore, the evidence did not overcome the presumption that the arrays were suggestive … . Although the police had not yet focused on any particular suspect, it cannot be said that the sheer volume of photographs viewed was sufficient to dispel any inference of suggestiveness, as it is unknown how many photographs were viewed by the complainants … .

We need not address whether the subsequent lineup was sufficiently attenuated in time from the photo identification procedure to nullify any possible taint, because the lineup procedure was also unduly suggestive … . While there is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance, the other individuals in the lineup should sufficiently resemble the defendant so that there is no substantial likelihood that the defendant would be singled out for identification … . Upon our review of a photograph of the lineup viewed by the complainants, it is apparent that the defendant and one of the fillers appear to be of similar ages, but the other three fillers appear visibly older than the defendant … . The age disparity was sufficiently apparent as to orient the viewer toward the defendant as a perpetrator of the crimes charged … . People v Robinson, 2014 NY Slip Op 09024, 2nd Dept 12-24-14