IDENTIFICATION PROCEDURE WAS UNDULY SUGGESTIVE, OFFICER WAS TOLD WHO THE POLICE WERE SEEKING TO IDENTIFY BEFORE VIEWING A SURVEILLANCE VIDEO, ALTHOUGH THE ISSUE WAS NOT PRESERVED FOR APPEAL IN THE MOTION PAPERS, IT IS APPEALABLE BECAUSE COUNTY COURT ADDRESSED IT. 

The Fourth Department, reserving on the appeal until County Court rules on other issues related to the suppression of the identification of the defendant, determined County Court erred when it concluded the identification of the defendant by a parole officer viewing a surveillance video was not an unduly suggestive procedure. The Fourth Department first noted that the issue was not preserved for appeal by the motion papers, but was appealable because County Court considered the issue in its findings. The Fourth Department held the procedure unduly suggestive because the parole officer was told who the police were seeking to identify before viewing the video:

… [W]e agree with defendant that, contrary to the court’s determination that “[t]here was no influence or suggestion” by the investigator, the evidence establishes that the investigator suggested to the parole officer prior to her identification that the person depicted committing the robbery on the surveillance video was defendant … . Instead of requesting the parole officer’s assistance in identifying someone from the video without preemptively disclosing the subject of his investigation, the investigator engaged in a conversation “about her being a parole officer for [defendant].” During the conversation, the investigator “asked [the parole officer] if she was familiar with [defendant].” The parole officer responded that she had “lots of contact” with defendant, so the investigator proceeded to ask her to “come down and view a video.” The investigator subsequently met with the parole officer at the police department and asked her to view the video to determine if she recognized anyone, and the parole officer identified defendant as the person committing the robbery. We conclude that the investigator, by contacting the parole officer and inquiring about her familiarity with defendant prior to the parole officer’s viewing of the video, engaged in … undue suggestiveness … inasmuch as his comments improperly suggested to the parole officer that the person she was about to view was a particular acquaintance of hers, i.e., defendant … . People v Gambale, 2017 NY Slip Op 03658, 4th Dept 5-5-17