Opinion
2013-03-6
In the Matter of ANDREW S. (Anonymous), respondent. Presentment Agency, appellant. (Appeal No. 1). In the Matter of Joseph B. (Anonymous), respondent. Presentment Agency, appellant. (Appeal No. 2). In the Matter of Darrin B. (Anonymous), respondent. Presentment Agency, appellant. (Appeal No. 3). In the Matter of Danny G. (Anonymous), respondent. Presentment Agency, appellant. (Appeal No. 4).
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Deborah A. Brenner of counsel), for appellant. Daniel H. Levy, Brooklyn, N.Y., for respondent Andrew S.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Deborah A. Brenner of counsel), for appellant. Daniel H. Levy, Brooklyn, N.Y., for respondent Andrew S.
Erwin Weisberg, Brooklyn, N.Y., for respondent Joseph B.
Anna Stern, New York, N.Y., for respondent Darrin B. (no brief filed).
Steven Banks, New York, N.Y. (Tamara A. Steckler and Elana E. Roffman of counsel), for respondent Danny G.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and SANDRA L. SGROI, JJ.
In four related juvenile delinquency proceedings pursuant to Family Court Act article 3, the Presentment Agency appeals from four orders (one in each proceeding) of the Family Court, Kings County (Ambrosio, J.), each dated December 13, 2011, which dismissed the respective petitions, with prejudice. The appeals bring up for review the granting, after a hearing (Freeman, J.), of the motion of the respondent Andrew S., and those branches of the separate omnibus motions of the respondents Joseph B., Darrin B., and Danny G., which were to suppress identification testimony.
ORDERED that the orders are affirmed, without costs or disbursements.
The Presentment Agency has the initial burden of demonstrating that the pretrial identification procedures were reasonable and not unduly suggestive ( see Matter of Jamel G., 51 A.D.3d 918, 919, 858 N.Y.S.2d 728;Matter of Kassan D., 282 A.D.2d 747, 747, 724 N.Y.S.2d 334).
Here, the evidence presented by the Presentment Agency contained inconsistencies as to, inter alia, the number of individuals present in a group of persons from which the complainant identified the alleged perpetrator, whether the complainant viewed one or two groups of individuals, and whether the police prompted the complainant to make an identification. There was also conflicting testimony as to whether two of the individuals identified by the complainant were apprehended only after a further pursuit and further identification procedure, the specifics of which were not elicited.
Under these circumstances, the Family Court did not err in finding that the Presentment Agency failed to meet its initial burden of establishing the reasonableness of the identification procedure and the lack of any suggestiveness of that procedure ( see People v. Ortiz, 90 N.Y.2d 533, 538, 664 N.Y.S.2d 243, 686 N.E.2d 1337;People v. Coleman, 73 A.D.3d 1200, 1203, 903 N.Y.S.2d 431).
Accordingly, the Family Court properly granted the motion of the respondent Andrew S., and those branches of the separate omnibus motions of the respondents Joseph B., Darrin B., and Danny G., which were to suppress identification testimony, and, thereafter, properly dismissed the petitions as based on legally insufficient evidence.