Opinion
Index No. 6815-2019
03-31-2023
The People of the State of New York, v. Travis Davis KABAL REYES, Defendants.
For the People: Assistant District Attorney Steven Bravo, Kings County District Attorney's Office, 350 Jay Street, Brooklyn, NY 11201 For the Defendant Travis Davis: Justin Bonus, 118-35 Queens Blvd., Suite 400 Forest Hills, NY 11375 For the Defendant Kabal Reyes: Douglas Rankin, 175 Pearl Street, Ste 215, Brooklyn NY 11201
Unpublished Opinion
For the People: Assistant District Attorney Steven Bravo, Kings County District Attorney's Office, 350 Jay Street, Brooklyn, NY 11201
For the Defendant Travis Davis: Justin Bonus, 118-35 Queens Blvd., Suite 400 Forest Hills, NY 11375
For the Defendant Kabal Reyes: Douglas Rankin, 175 Pearl Street, Ste 215, Brooklyn NY 11201
Jane C. Tully, J.
The defendants are charged with attempted murder in the second degree and other related charges. The defendants move to suppress identification evidence. On February 23, 2022, November 21, 2022, and February 21, 2023, this Court conducted a combined Dunaway/Wade hearing. The People called four witnesses: Lieutenant Jaclyn Keane, Detective George Harvey, Detective Armando Saitta, and Police Officer Christopher Lillis. Counsel for the defendant Davis called Police Officer Alexander Bido as a witness. At the conclusion of the hearing, the Court heard oral arguments from Counsel for the defendant Reyes. The People and Counsel for the defendant Davis submitted written arguments.
Based upon the credible testimony, the applicable law, oral arguments, and a review of papers submitted by the parties, the Court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
Lieutenant Jaclyn Keane has been employed with the NYPD for 13 years. On October 30, 2019, Lieutenant Keane was assigned to the 79th precinct, as a patrol supervisor. At approximately 10:12 am, Lieutenant Keane was in uniform and a marked police vehicle, with Police Officer Ardolino, when there was a ShotSpotter activation at 170 Madison Street, in Brooklyn. Lieutenant Keane responded to 170 Madison Street in less than five minutes, where she observed police officers standing around shell casings and noticed construction workers on the scene. Lieutenant Keane also observed a double-parked vehicle with a shattered passenger front side window, and a bullet hole in the passenger front door, in the same vicinity as the shell casings. The construction workers pointed out the complainant, identified as Mekhi Murray. Mr. Murray informed Lieutenant Keane that the construction workers were moving a dumpster when a driver in a dark grey Honda started honking and yelling. Mr. Murray told the driver to calm down and the driver told Mr. Murray to "remember his face," and drove down Madison Street. Mr. Murray informed Lieutenant Keane that the driver returned on foot with a second individual. Mr. Murray stated that the individuals shot at him multiple times and ran down Madison Street, in the same direction that he had observed the grey Honda drive before the shooting. Mr. Murray described the driver of the grey Honda and the first shooter as an African American male wearing a grey hoodie with "bushy hair." Mr. Murray described the second shooter as a darker skin African American male wearing a "green camo [camouflage] hoodie or jacket." The incident occurred in the daytime, and it was bright and clear. Mr. Murray told Lieutenant Keane that he would be able to identify the shooters. Mr. Murray stated that the shooters' faces were not covered, that he saw the shooters' faces, and nothing obstructed his view of the shooters. Lieutenant Keane admitted that she did not ask Mr. Murray to describe the facial features of the shooters. Mr. Murray did not inform Lieutenant Keane that the shooters had beards. Mr. Murray did not describe the height of the shooters. Lieutenant Keane did not ask Mr. Murray how long the interaction between him and the shooters lasted. However, Lieutenant Keane testified that the shooters were close enough to Mr. Murray that when they pointed the firearms at him, Mr. Murray told the shooters "That doesn't make you tough, shoot." After speaking with Mr. Murray, Lieutenant Keane transmitted a description of the shooters and the grey Honda over the police radio. Shortly thereafter, Lieutenant Keane received a call from Sergeant Xylas, who informed her that police officers stopped an African American male wearing a green camouflage hoodie, matching the description of the second shooter at Tompkins and Hancock Avenues, a few blocks from the scene. Lieutenant Keane invited Mr. Murray to conduct a showup identification. On the way to Tompkins and Hancock Avenues, Lieutenant Keane received a second radio notification that a vehicle matching the description of the grey Honda was observed at 244 Madison Street, a block from the scene, and in the same direction that Mr. Murray had observed the shooters flee. Lieutenant Keane took Mr. Murray to 244 Madison Street, where Detective Small informed Lieutenant Keane that he had observed an individual taking the plates off the grey Honda, after hearing a description of the vehicle over the radio. While seated in the backseat of the police vehicle, Mr. Murray identified the grey Honda as the vehicle in question. Lieutenant Keane then took Mr. Murray to Tompkins and Hancock Avenues, where she observed a "male black with a green camo jacket" standing with police officers. Mr. Murray did not identify the man as having been involved in the incident, stating that the second shooter had "darker skin" than the individual that had been stopped by the police. Lieutenant Keane then took Mr. Murray back to the scene to speak with the detectives. Lieutenant Keane also informed Detective George Harvey that Mr. Murray identified the grey Honda. At some point, the grey Honda was transported to the 79th precinct.
Detective Harvey has been a member of the NYPD for 28 years and is assigned to the 79th precinct detective squad, where he investigates shootings and homicides. On October 30, 2019, Detective Harvey was notified by patrol officers that a shooting had taken place at 170 Madison Street, at around 10:00 am. Detective Harvey and his partner Detective Lambert responded to the scene, where he spoke to the complainant, Mekhi Murray. Mr. Murray informed Detective Harvey that he was working at a construction site, unloading a dumpster when a driver of a grey Honda started beeping his horn. Mr. Murray told the driver to relax, and the driver became irate, told Mr. Murray to "remember his face" and then drove off. Mr. Murray informed Detective Harvey that he was sitting in his car eating breakfast when the driver of the grey Honda tapped on the passenger side window and was holding a firearm in his hand. Mr. Murray also observed a second man holding a firearm. Detective Harvey does not recall whether Mr. Murray described that the shooters had facial hair. While at the scene, Detective Harvey also spoke with Lieutenant Keane who informed him that the police recovered the grey Honda, down the block on Madison Street. Detective Harvey returned to the 79th precinct, where he observed that the Honda had been transported to the precinct. Detective Harvey admitted that he did not know how the vehicle got to the precinct. Detective Harvey looked inside the cupholder in the center console of the grey Honda and recovered a New York State identification card bearing the name and photo of Travis Davis, and a New Jersey driver's license bearing the name and photo of Kabal Reyes. Detective Harvey could not recall whether the identification cards were vouchered, or whether steps were taken to preserve the identification cards. Detective Harvey could not locate the defendants' identification cards in his files. A photocopy of the original photocopy of the defendants' identification cards was introduced into evidence, as People's Exhibit 1. On October 31, 2019, Detective Harvey created two photo arrays, one for each defendant. With respect to the defendant Davis, Detective Harvey entered the defendant's NYSID number into the NYPD photo manager system, which generated thousands of photos matching the general characteristics of the defendant. Detective Harvey explained that he selected five photos of individuals with the same hair, skin tone, and eyes similar to the defendant to create the photo array, and the computer randomly placed the defendant in the number two position. Detective Harvey could not find a photo of the defendant Reyes in the photo manager system, so he entered the details of the defendant's appearance from the driver's license photo in the system to find photos of individuals with similar characteristics. The system generated thousands of photos. Detective Harvey explained that he selected five photos of individuals with similar characteristics and selected the defendant to be in the number five position on the photo array. Detective Harvey then invited Mr. Murray to the precinct to view the photo arrays. Detective Harvey did not take part in identification procedures with Mr. Murray. When Mr. Murray arrived at the precinct, Detective Harvey brought Mr. Murray to Detective Armando Saitta to administer the photo arrays.
Detective Saitta has been a member of the NYPD for 20 years and is currently assigned to the 79th precinct, where he investigates arsons, homicides, shootings, and stabbings. On October 31, 2019, Detective Harvey asked Detective Saitta to administer two double-blind photo arrays with Mr. Murray. Detective Saitta had not met or spoken to Mr. Murray before that day. Detective Saitta was not involved in the investigation and did not know any details about the case. Detective Saitta was not familiar with the defendants and did not know the name of the defendants. Detective Harvey handed Detective Saitta closed manila folders, which contained the photo arrays, previewing instructions, and viewing reports. Detective Saitta did not look inside the manila folders before administering the photo arrays. Detective Saitta did not know where the defendants were positioned on each photo array. Detective Saitta and Mr. Murray were the only ones in the interview room. For each photo array, Detective Saitta read Mr. Murray the previewing instructions and placed the photo array in front of Mr. Murray, at which time, Detective Saitta read Mr. Murray additional instructions. The photo arrays did not include any identifying information, and Detective Saitta did not indicate in any way, who the defendants were. Mr. Murray recognized the defendant Davis as "The second shooter that came back with driver." Mr. Murray told Detective Saitta that he was "it was No. 2." Mr. Murray signed his name under the defendant Davis's photo and signed the confidence statement portion of the viewing report. Mr. Murray also recognized the defendant Reyes as "Driver of grey honda civic who came back and shot at me." Mr. Murray told Detective Saitta that he was "very sure." Detective Saitta testified that Mr. Murray was very confident in his choice, and Mr. Murray signed his name under the defendant Reyes's photo. The photo arrays, previewing instructions, and viewing reports were introduced into evidence, as People's Exhibits 2A through 2C, and 3A through 3C. Detective Saitta informed Detective Harvey of the results of the identification procedures, and Detective Harvey created wanted posters and issued probable cause I-Cards for the arrests of the defendants.
Detective Harvey testified that on November 6, 2019, the defendant Davis was apprehended by Detective Davila at 222 Madison Street, based on the I-Card, and was brought to the 79th precinct. On the day of the defendant's arrest, Detective Harvey texted Mr. Murray a single photograph of the defendant, with the words, "Is this him??" and Mr. Murray responded via text "Yes that's him." A photocopy of the text message between Detective Harvey and Mr. Murray was introduced into evidence as Defense's Exhibit A. Detective Harvey testified that Mr. Murray did not know the defendant personally, but that Mr. Murray had stated that he saw the defendant "numerous" times in the neighborhood.
On January 9, 2020, Detective Saitta received a phone call from Detective Baldi, who had encountered the defendant Reyes during a car stop. The defendant was apprehended on the I-Card issued by Detective Harvey and was taken to the 73rd precinct. Detective Saitta took the call because Detective Harvey was not working that night. Detective Saitta relied on the I-Card to arrest the defendant and brought the defendant back to the 79th precinct. On January 10, 2020, Detective Saitta invited Mr. Murray to view a lineup, which included the defendant. Detective Saitta testified that the lineup included five fillers, three of whom were police officers, and two civilians. Detective Saitta indicated that he looked for fillers who resembled the defendant based on age, skin tone, height, and weight. Detective Saitta testified that all the participants were seated, with a blue sheet placed over their legs to hide the height differences, and all the participants were wearing black skullcaps on their heads to hide any difference in haircuts. During the lineup procedure, Detective Saitta read Mr. Murray the previewing instructions, and Mr. Murray identified the defendant. Mr. Murray recognized the defendant because "He was driving the grey Honda. He shot at me." Mr. Murray told Detective Saitta that he was "sure" of his selection. Photographs of the lineup, the previewing instructions, and the viewing report were introduced into evidence, as People's Exhibits 4A through 4D, and 5A and 5B.
On October 30, 2019, at approximately 10:12 am, Officer Lillis and his partner Officer Alexander Bido were on patrol, in uniform, and in a marked police vehicle when the officers received a radio dispatch for a "1010 shots fired." The officers responded to 170 Madison Street, within five minutes. Officer Lillis observed when Lieutenant Keane arrived on the scene and spoke with Mr. Murray. However, Officer Lillis did not overhear the conversation. Officer Lillis observed multiple shell casings across the street from 170 Madison Street. He also observed a red vehicle with bullet holes. Officer Lillis and Officer Bido secured the scene and waited for further instructions. About 40 minutes later, Officer Lillis was directed by Lieutenant Keane to complete a complaint report, and Officer Lillis and Officer Bido went to speak with witnesses and with Mr. Murray. A portion of the officers' interaction with Mr. Murray was captured on Officer Lillis's body-worn camera and introduced into evidence as People's Exhibit 6. Officer Lillis also prepared a complaint report, which was introduced into evidence as People's Exhibit 7. Officer Lillis spoke with Mr. Murray, for about 40 seconds. Officer Lillis suggested a height of 6' to 6' 2'' for the shooters, and Mr. Murray agreed. Officer Lillis completed the details portion of the complaint report based on conversations with other witnesses. Under the "Can identify suspect" portion of the complaint report, for suspect No.1, Officer Lillis checked "no." Officer Lillis admitted that he made an error on the complaint report and testified that Mr. Murray did not say that he was unable to identify the shooters. Officer Lillis explained that he had only been an officer for a few months and was still in training and learning the job, so he thought the box regarding whether a witness could identify a suspect was about whether the witness knew the perpetrator personally. Officer Bido also spoke with Mr. Murray and assisted Officer Lillis with completing the complaint report. Mr. Murray described the shooting to Mr. Bido, which was similar to what Mr. Murray told Lieutenant Keane. Mr. Murray gave a description of a height of 6' to 6' 2" and a weight of 180-200 pounds. Officer Bido completed the "Can identify suspect" portion of the complaint report, for suspect #2, and Officer Bido checked "yes." Officer Bido testified that he "believed" that Mr. Murray was able to identify both shooters because "he was the victim."
CONCLUSIONS OF LAW
The People have the initial burden at a suppression hearing of providing evidence of the legality of police conduct in the first instance (see People v Baldwin, 25 N.Y.2d 66, 71[1969]; People v Malinsky, 15 N.Y.2d 86, 91 [1965]). Once the People have met this burden, a defendant bears the burden of proving the illegality of police conduct (see People v Diaz, 146 A.D.3d 803, 804 [2d Dept 2017]). "While the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive" (People v Chipp, 75 N.Y.2d 327, 335 [1990]). "Initially, the People have the burden of producing evidence in support of the fairness of the identification procedure. If this burden is not sustained, a peremptory ruling against the People is justified. If the People meet their burden of production, the burden shifts to the defendant to persuade the hearing court that the procedure was improper" (People v Holley, 26 N.Y.3d 514, 521 [2015]). A photo array is unduly suggestive only if "there was any substantial likelihood that the defendant would be singled out for identification" (People v Burroughs, 98 A.D.3d 583, 583 [2d Dept 2012]), or where "some characteristic of one picture draws the viewer's attention to it, indicating that the police have made a particular selection" (People v Blount, 176 A.D.3d 1092, 1093 [2d Dept 2019]; see People v Robert, 184 A.D.2d 597, 598 [2d Dept 1992]). Moreover, when evaluating a photo array, "there is no requirement that the photograph of a defendant shown as part of a photo array be surrounded by photographs of individuals nearly identical in appearance" (People v Starks, 91 A.D.3d 975, 975 [2d Dept 2012]).
The People satisfied their initial burden of demonstrating that the creation of the photo array, as to the defendant Davis was reasonable and lacked undue suggestiveness. The fillers in the photo array appear to resemble the defendant in race, age, skin tone, hairstyle, facial hair, pose, and general features (see People v Bell, 188 A.D.3d 904, 906 [2d Dept 2020] [participants generally resembled the defendant in weight, attire, hairstyles, and skin tone, and the small scar or birthmark on the defendant's face did not render the identification procedure unduly suggestive]; People v Zamfino, 160 A.D.3d 779, 780 [2d Dept 2018][ men depicted appeared to be close in age to the defendant and had facial features, hairstyles, facial hair, and skin tones similar to the defendant]; People v Ferguson, 55 A.D.3d 926, 927 [2d Dept 2008] [ men were close in age, and had similar features, hairstyles, facial hair, and skin tones as the defendant]). The fact that Mr. Murray did not inform Lieutenant Keane that the second shooter had a beard has nothing to do with the suggestiveness of the procedure because here, all the fillers had similar beards and facial hairs that were sufficiently similar in appearance to the defendant (see People v Sosa-Marquez, 177 A.D.3d 1003, 1004 [2d Dept 2019]; People v Bianchini, 198 A.D.3d 912, 914 [2d Dept 2021]). Likewise, the photo array as to the defendant Reyes was reasonable and lacked undue suggestiveness. Similarly, the fillers in the photo array appear to resemble the defendant in race, age, skin tone, hairstyle, facial hair, pose, and general features. The defendants' photos did not stand out in any way, which would draw a viewer's attention to their particular photos (see People v Wahhab 118 A.D.3d 925, 926 [2d Dept 2014]; People v Dailey, 86 A.D.3d 579, 579 [2d Dept 2011]), and any minor differences in the photo arrays did not create a "substantial likelihood that the defendant[s] would be singled out for identification" (People v Staton, 138 A.D.3d 1149, 1150 [2d Dept 2016]).
There is no authority for the proposition that the failure to preserve or voucher the defendants' identification cards render the photo arrays unduly suggestive. A photocopy of the defendants' identification cards was introduced into evidence. Moreover, the photo arrays were preserved and introduced into evidence in "the precise arrangement and order in which they were shown to the witness" (Holley, 26 N.Y.3d at 523). Even if the failure to preserve the defendants' identification cards gave rise to the presumption of undue suggestiveness, this presumption was rebutted by Detective Harvey's testimony about how he created each photo array (see People v Castello, 176 A.D.3d 730, 732 [2d Dept 2019]; People v Busano, 141 A.D.3d 538, 540 [2d Dept 2016]), as well as through Detective Saitta's testimony detailing how he administered the photo arrays (see People v Legall, 176 A.D.3d 867, 868 [2d Dept 2019]; People v Jones, 211 A.D.3d 748, 749 [2d Dept 2022]). The lack of investigative steps taken by the police, the failure by the police to follow certain procedure protocols, and the failure by the police to complete the required paperwork are not factors that bear on whether the photo arrays were unduly suggestive. "The purpose of a Wade hearing is to test identification testimony for taint arising from official suggestion during 'police-arranged confrontations between a defendant and an eyewitness'" (People v Dixon, 85 N.Y.2d 218, 222 [1995], quoting People v Gissendanner, 48 N.Y.2d 543, 552 [1979]). Detective Harvey, who created the photo arrays, did not take part in the identification procedures. Detective Harvey handed Detective Saitta closed manila folders with the photo arrays, and the paperwork. Detective Saitta did not know any details about the case, or who the suspects were at the time he administered the photo arrays. Detective Saitta did not know where the defendants were positioned on the photo arrays (see eg. People v Hawkins, 167 A.D.3d 1071, 1072 [3d Dept 2018]; People v Pleasant, 149 A.D.3d 1257, 1258 [3d Dept 2017]). There is no evidence that Detective Saitta encouraged Mr. Murray to identify the defendants, or that he pointed to the defendants as the suspects. Therefore, the defendants did not meet their ultimate burden of proving that the identification procedures were unduly suggestive or improper. "Without such a showing on the part of the defendant[s], there is neither a need for nor a burden on the People 'to demonstrate that a source independent of the pretrial identification procedure exists for the witness's in-court identification'" (People v Jackson, 98 N.Y.2d 555, 559 [2002], quoting Chipp 75 N.Y.2d at 335). As such, the motion to suppress identification evidence as to the defendants Davis and Reyes based on the photo arrays is DENIED.
The defendants may request the appropriate sanctions at trial for the lost or destroyed evidence.
The People bear the initial burden of going forward to show that the police acted lawfully in their arrest of the defendant (Baldwin, 25 N.Y.2d at 70). Probable cause requires the "existence of facts and circumstances which, when viewed as a whole, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense has been or is being committed, and that the defendant committed or is committing that offense" (People v Wright, 8 A.D.3d 304, 307 [2d Dept 2004], citing People v Bigelow, 66 N.Y.2d 417, 423 [1985]). It "does not require proof sufficient to warrant a conviction beyond a reasonable doubt" (People v Guthrie, 25 N.Y.3d 130, 133 [2015]). Moreover, a "police officer can make a lawful arrest even without personal knowledge sufficient to establish probable cause, so long as the officer is acting upon the direction of or as a result of communication with a fellow officer or another police agency in possession of information sufficient to constitute probable cause for the arrest" (People v Jacob, 81 A.D.3d 977, 977 [2d Dept 2011], quoting People v Ketcham, 93 N.Y.2d 416 [1999]). The People met their burden of establishing that the police had probable cause to arrest the defendants. Not only did Mr. Murray identify the defendants in the photo arrays as the men who shot at him, Detective Harvey also spoke directly with Mr. Murray who described the grey Honda, as well as the shooters. The police recovered the grey Honda a short distance from the scene, and in the direction that Mr. Murray had observed the men flee after the shooting. Moreover, Detective Harvey recovered identification cards, bearing the defendants' names and photos in the grey Honda. The information provided by Mr. Murray, which was corroborated by police observation, in addition to the identifications of the defendants as the shooters from the photo arrays provided sufficient probable cause for the defendants' arrests (see People v Diaz, 83 A.D.3d 958, 958 [2d Dept 2011]; People v Taylor, 61 A.D.3d 537, 538 [1st Dept 2009]).
Detective Harvey testified that the defendant Davis was arrested pursuant to the I-Card on November 6, 2019. Detective Harvey's testimony "mandated the inference that defendant was arrested with probable cause by another officer, based on the issuance of that I-Card" (People v Wayman, 188 A.D.3d 538, 539 [1st Dept 2020]), and the defendant has offered no evidence to the contrary. There is no evidence to support the conclusion that Mr. Murray could not identify the second shooter, or that Detective Harvey texted Mr. Murray the single photo of the defendant on November 6, 2019, because Mr. Murray did not make an identification of the defendant in the photo array. On the contrary, the evidence established that on October 31, 2019, Mr. Murray selected the defendant Davis, whom he recognized as the second shooter. Mr. Murray signed his name under the defendant's photo and signed the confidence statement portion of the viewing report. The evidence further established that the incident occurred at 10:00 am when it was bright and clear. Mr. Murray did not inform Officer Lillis or Officer Bido that he could not identify the shooters. Officer Lillis testified that he only spoke with Mr. Murray for about 40 seconds. Officer Lillis further explained that he was a new officer, still in training and learning the job, and that he made an error when he checked "no" under the "Can identify suspect" portion of the complaint report. Officer Bido also spoke with Mr. Murray, and Officer Bido checked off "yes" on the same complaint report, indicating that Mr. Murray could identify the shooters. Notably, before speaking with Officer Lillis or Officer Bido, Mr. Murray informed Lieutenant Keane of the specific details of the incident, including a description of the vehicle and a description of the shooters. Mr. Murray informed Lieutenant Keane that he observed the shooters' faces, nothing was obstructing his view of their faces, and that he would be able to identify the shooters. Moreover, Mr. Murray's negative identification of a black male, wearing a green camouflage jacket, who matched the clothing description of the second shooter, on October 30, 2019, close in time, and near the scene of the shooting, "demonstrated that he was able to distinguish the actual perpetrator from another suspect who was dressed in nearly identical clothing and shared common racial and gender characteristics with the perpetrator" (People v Wilder, 93 N.Y.2d 352, 357 [1999]). Under these circumstances, and since Mr. Murray had already identified the defendant Davis in the photo array on October 31, 2019, the subsequent viewing of the single photo was merely confirmatory (see People v Richardson, 200 A.D.3d 984, 984 [2d Dept 2012] [after the police arrested the defendant, the detective returned to the hospital and showed the complainant a single, recent photograph of the defendant, and the complainant confirmed that the photograph depicted the man who had shot him]; People v Benn, 177 A.D.3d 759, 761 [2d Dept 2019][subsequent identification of the defendant, which occurred once the defendant had been apprehended was merely confirmatory of the initial identification]). Therefore, the motion to suppress the single photo identification evidence is DENIED.
On January 9, 2020, Detective Saitta was informed that the defendant Reyes had been arrested pursuant to the I-Card issued by Detective Harvey. On January 10, 2020, Detective Saitta conducted a lineup with Mr. Murray, which included the defendant. "While the fillers used in a lineup must be sufficiently similar to the defendant so that no characteristic or visual clue would orient the viewer toward the defendant as a perpetrator of the crimes charge, there is no requirement that a defendant in a lineup be accompanied by individuals nearly identical in appearance" (People v Cintron, 226 A.D.2d 390, 390-391 [2d Dept 1996]). The age discrepancies between a defendant and the fillers in a lineup, without more, is not "sufficient to create a substantial likelihood that the defendant would be singled out for identification" (Chipp, 75 N.Y.2d 327 at 336; see People v Salcedo, 209 A.D.3d 678 [2d Dept 2022]; People v Dunaway, 207 A.D.3d 742, 743 [2d Dept 2022]). The photo of the lineup does not reveal any differences in the age and weight disparities between the fillers and the defendant that were so noticeable or readily apparent as to "orient the viewer toward the defendant as a perpetrator of the crimes charged" (People v Frederick, 211 A.D.3d 1034, 1036 [2d Dept 2022]). The fillers in the lineup appear to resemble the defendant in weight, hairstyle, skin tone, and same general facial features. The evidence established that the police took reasonable steps to conceal any differences in height. All the participants were seated, with sheets placed over their legs. The participants were also wearing black skullcaps on their heads to hide any differences in haircuts (see People v Davis, 281 A.D.2d 429, 429 [2d Dept 2001]; People v Garcia, 215 A.D.2d 584, 585 [2d Dept 1995]). There is no legal precedent to support the claim that the lineup was unduly suggestive merely because the fillers included police officers. Nor was there evidence that Mr. Murray recognized any of the fillers as police officers (see People v Cepeda, 171 A.D.3d 940 [2d Dept 2019]). "The failure to employ a double-blind sequential procedure is not a basis for suppression of the lineup" (People v Kluge, 180 A.D.3d 705, 709 [2d Dept 2020]). Moreover, Detective Saitta's decision to conduct a lineup is not proof that Mr. Murray did not make a prior identification of the defendant Reyes. Rather, the evidence established that Mr. Murray had two encounters with the driver of the grey Honda, and that the driver told Mr. Murray to "remember his face." Mr. Murray observed the driver when he came back to the scene and tapped on his car window while holding a firearm. Mr. Murray stated that the shooters' faces were not covered, that he saw the shooters' faces, and nothing was obstructing his view of the shooters. On October 31, 2019, Mr. Murray recognized the defendant Reyes as the "Driver of grey honda civic who came back and shot at me." Mr. Murray was "very sure" and confident in his choice, and Mr. Murray signed his name under the defendant's photo. Given that the lineup was not unduly suggestive, and the arrest of the defendant was lawful, the motion to suppress the identification evidence based on the lineup is DENIED.
The foregoing constitutes the Decision and Order of the Court.