Opinion
Indictment No. 04085-19
08-20-2024
The People of the State of New York v. Shane Smith, Defendant.
Unpublished Opinion
MOTION DECISION
DINEEN ANN RIVIEZZO, J.S.C.
By Indictment No. 04085-19, defendant Shane Smith is charged with Attempted Murder in the Second Degree, among other charges. On March 1, 2024, and May 21, 2024, the court conducted a hearing pursuant to United States v Wade, 388 U.S. 218 (1967). The prosecution called Detectives Lyndon Green and Laurence Dunbar, the administrators of two separate double-blind photo arrays conducted with the same witness within four days of each other.
The court found the witnesses credible and makes the following findings of fact and conclusions of law based on their testimony.
FINDINGS OF FACT
Detective Lyndon Green
Detective Lyndon Green is a retired detective who was employed by the New York Police Department ("NYPD") for over twenty-two years (tr 11). Prior to his retirement, Detective Green was assigned to the 66th Precinct Detective Squad (tr 11). Detective Green testified that he had prior experience administering photo arrays, and that prior to the events at issue, he was not involved in this case and had never investigated defendant Shane Smith (tr 14).
Detective Green testified that on June 29, 2019, he was assigned to the 66th Precinct Detective Squad. On that date, Detective Carreira, of the 61st Precinct, contacted him to request his assistance administering a double-blind photo array (tr 13). Detective Green explained that photo arrays typically contain six photographs with one of the suspect, and that a photo array is "blind" when the administrator does not know the suspect, perpetrator, or anything about the case (tr 12). Detective Green was aware that the photo array was being conducted in connection with a shooting that occurred on June 23, 2019, at East 19th Street and Avenue T in Kings County.
After speaking with Detective Carreira, Detective Green drove to the 61st Precinct Detective Squad to meet up with Detectives Carreira and Burton (tr 13). Detective Green instructed Detective Carreira to put the photo array inside a sealed manilla envelope (tr 13-14). Detectives Green, Burton, and Carreira then drove to 2261 Ocean Avenue, the residence of the witness (tr 14). At first, Detective Green could not recall the name of the witness (tr 15). However, after the prosecution refreshed his recollection, Detective Green correctly named the witness as Abrek Shaulov (tr 14,16). During their drive, the detectives did not discuss the case at all (tr 14-15).
Detective Green met with Mr. Shaulov in the lobby of the building (tr 15-16). Detectives Carreira and Burton were also inside the building and waited near the elevator while the photo array was being administered (tr 18). Detective Green stated that he read the photo array instructions to Mr. Shaulov, gave him the manila envelope, and instructed him to open the envelope and review the photo array (tr 17). Detective Green testified that he observed Mr. Shaulov's eyes as he was viewing the photo array, and that Mr. Shaulov looked at all the photos, one at a time, until suddenly he became fixated on one photograph (tr 17). After several minutes, Detective Green asked Mr. Shaulov if he recognized anyone in the photograph (tr 17). Detective Green recalled that Mr. Shaulov answered, "Well, for now, no" (tr 17). Detective Green then took the photo array back from Mr. Shaulov and returned it, and the accompanying paperwork, to Detective Carreira.
Detective Green recalled that after the photo array, Detective Carreira told Mr. Shaulov that even though he didn't pick anyone from the array, the investigation would still be ongoing (tr 18-19). According to Detective Green, Mr. Shaulov then stated to Detective Carreira, "the person who shot at my vehicle, his photograph is in that photo array, but I want to make sure that my friend is good before I do another one" (tr 19).
Upon review of the Photo Array Pre-Viewing Instructions and Photo Array Viewing Report (People's Exhibit 2), the court notes several critical errors. The date and time of the photo array is listed as June 29, 2019, at 10:50, although it is unclear if it was conducted in the morning or evening. The location of the photo array is blank. The witness is listed as Irving Mendez on both reports, not as Abrek Shaulov, as Detective Green testified. In fact, Detective Green testified that because of this, he believed the eyewitness he was administering the photo array to was actually Irving Mendez (tr 33). Detective Green did not know until after the witness handed back the paperwork that it was not Mendez (tr 33). Next, the reports list more than one administrator of the photo array: Detective Green and an Officer Menetta. Detective Green testified that he believed Officer Menetta was the officer who prepared the actual photos for the array (tr 20-22). However, the court notes that the handwriting identified as Detective Green's looks very similar to that of Officer Menetta. The handwriting is unique with the "E" and "N" being almost identical. At the bottom of the Photo Array Viewing Report, in the Confidence Statement Section, the date is indicated as June 25, 2019, not June 29, 2019, at 10:50 (again) and Officer Menetta's name and information appear. It is unclear why this section would be completed when the witness indicted that he did not recognize anyone in the photo array, and thus, there was no need to gage his confidence in the answer.
In contrast, the court notes that in People's Exhibit 1, the Photo Array Pre-Viewing Instructions and Photo Array Viewing Report associated with Detective Laurence Dunbar, there is only one Administrator listed which is Detective Dunbar.
Most troubling to this court is the inconsistency between the Photo Array Viewing Report and Detective Green's testimony at the hearing. Detective Green testified that when he asked Mr. Shaulov if he could identify anyone in the photo array, Mr. Shaulov answered, "Well, for now, no" (tr 17). However, the Photo Array Viewing Report, completed on the date of the photo array, indicates that Mr. Shaulov recognized "No One." (People's 2). Detective Green did not memorialize the actual words he testified to and did not explain why he did not write verbatim on the form the actual words the eyewitness used (tr 32). Further, the explanation given by the eyewitness for why he did not choose anyone at that moment was also not memorialized by Detective Green (tr 27-28). Detective Green suggested on cross-examination that once he gave the paperwork to Detective Carriera, his role was completed and therefore, the eyewitness' statement would not have been memorialized by him (tr 27-28). Because the People chose not to call Detective Carriera, there is no testimony about whether Det. Carriera memorialized this essential explanation. The court is not suggesting that Detective Green's testimony was not credible, rather it was not reliable based on these differences and omissions.
Detective Laurence Dunbar
Detective Laurence Dunbar is assigned to the Brooklyn South Homicide Squad (tr 6). He has been with the NYPD for over twenty years, and with the Homicide Squad for approximately five years (tr 6). In July of 2019, Detective Dunbar was assigned to the 61st Precinct Detective Squad (tr 7). During his time with the NYPD, Detective Dunbar administered over 200 photo arrays (tr 7).
On July 3, 2019, Detective Carreira asked Detective Dunbar to administer a double-blind photo array in connection with the shooting that occurred on June 23, 2019 (tr 8). Detective Dunbar testified that prior to speaking with Detective Carreira, he had not been involved in the investigation and had never met defendant Shane Smith or Mr. Abrek Shaulov (tr 8-9).
Detective Dunbar recalled that Detective Carreira gave him the photo array and that he walked into the precinct detective squad interview room to administer it (tr 8, 10). There was no testimony about how the eyewitness got the precinct, who arranged for him to appear and what might have been said to him in between the two viewings. Detective Dunbar read the previewing instructions to Mr. Shaulov and handed him the photo array (tr 10). Mr. Shaulov identified the defendant from the photo array by pointing at one of the pictures and saying, "that's him" (tr 10-11). Mr. Shaulov signed the photo that he selected, and Detective Dunbar asked a few follow-up questions. First, he asked Mr. Shaulov from where he recognized the person he identified in the photo array (tr 15). Mr. Shaulov answered that the individual was the person who pointed a gun in his face and looked into his eyes from outside of his car (tr 15). Detective Dunbar then asked Mr. Shaulov a confidence question designed to gauge how certain the witness is of the identification (tr 15). Mr. Shaulov answered that he was "absolutely" confident in his answer (tr 16).
During the hearing, Detective Dunbar was handed the Photo Array Pre-Viewing Instructions and Photo Array Viewing Report, marked as People's Exhibit 1 (tr 13). Detective Dunbar testified that he read each of the previewing instructions before administering the actual array, and that the photos were the same as the actual photo array that was shown to Mr. Shaulov (tr 14). Detective Dunbar stated that Mr. Shaulov selected photo number five, defendant Shane Smith (tr 14).
After administering the photo array, Detective Dunbar returned the photo array to Detective Carreira and advised him that Mr. Shaulov identified photo number five (tr 16). According to Detective Dunbar, Detective Carreira then asked Mr. Shaulov why he did not identify the defendant the first time. Mr. Shaulov answered that he wanted to check with his friend - the victim of the shooting - to make sure he wanted him to cooperate with the police (tr 16, 18). Considering Detective Green's testimony about Mr. Shaulov's statement post-viewing, it is unclear to the court why Detective Carreira would again ask this question when, according to Detective Green, the eyewitness told Detective Carreira directly, in essence, that he wanted to check with his friend before making an identification. Detective Dunbar stated that he was unaware that Mr. Shaulov previously had been shown an array with no positive identification. (tr 16-17).
The implication of this testimony, not explored at the hearing, is that similar to the first photo array, Detective Carreira was nearby or possibly within hearing distance at some point during or immediately after the photo array procedure.
CONCLUSIONS OF LAW
Defendant asserts that the successive photo arrays were fundamentally unfair and moves to suppress the identification. It is widely accepted that unduly suggestive identification procedures are inadmissible as due process violations (People v Chipp, 75 N.Y.2d 327, 335 [1990], cert denied 498 U.S. 833 [1990]). The People have the initial burden of proving the reasonableness of the police conduct, but the ultimate burden of proving that the identification procedure was unduly suggestive lies with the defendant (Id.) If the defendant shows that the procedure was unduly suggestive, then the People may establish an independent source by clear and convincing evidence (Id.). Here, the People did not meet their initial burden of proving the reasonableness of the police conduct due to the inconsistencies in the paperwork, the inconsistencies between the testimony of the detectives and the failure to call Detective Carriera, a critical link between the viewing of the two photo arrays.
Under New York law, the use of unduly suggestive photo arrays in identification procedures violates due process (Id.). In determining whether a photo array is unduly suggestive, courts consider whether there was any substantial likelihood that the defendant would be singled out for identification (People v. Green, 107 A.D.3d 915, 967 N.Y.S.2d 753 [2d Dept 2013]). A photo array is considered suggestive when some characteristic of an individual's picture draws the viewer's attention to it, indicating that police have made a particular selection (People v Redding, 132 A.D.3d 700, 17 N.Y.S.3d 495 [2d Dept 2015]; People v Smith, 122 A.D.3d 1162, 997 N.Y.S.2d 524 [3d Dept 2014]). Minor differences in the photos generally do not render an array unduly suggestive if they are not sufficient to create a substantial likelihood that the defendant would be singled out (see People v Green, 107 A.D.3d 915, 967 N.Y.S.2d 753 [2d Dept 2013](slight differences in background color or photo quality typically do not make an array impermissibly suggestive); People v Fernandez, 30 A.D.3d 626, 815 N.Y.S.2d 358 [3d Dept 2006](defendant's photograph being of different resolution did not make the array unduly suggestive)).
While including a single suspect's photograph in multiple photo identification procedures is not encouraged, successive photo arrays are not per se unduly suggestive, and many courts have allowed successive photo arrays even when the defendant's is the only photo repeated (People v. Dunlap, 9 A.D.3d 434, 435, 780 N.Y.S.2d 171, 172 [2d Dept 2004]) (in successive photo arrays, the different pictures of the defendant were placed in different locations on the array). In its reasoning, the Dunlap court noted that different photographs of the defendant were used, which reduced the risk of irreparable misidentification from a witness repeatedly viewing the same photograph of a defendant (Id.; see also People v Beaty, 89 A.D.3d 1414, 1416, 932 N.Y.S.2d 280,282 [4th Dept 2011] (successive photo array admissible where different photos used); People v Dickerson, 66 A.D.3d 1371, 1372, 887 N.Y.S.2d 387, 388 [4th Dept 2009] (successive photo array admissible where different photos used)).
Here, this case involves two double blind photo arrays administered to Mr. Shaulov four days apart. Each photo array contained six photos configured as two rows of three photos. Notably, the same photo of the defendant was used in both arrays. In the first photo array, defendant is positioned as photo number three on the top right of the array. The fillers are all black men with beards. In contrast to the defendant, all of them have well defined hairlines. In the second photo array, defendant is positioned in the center of the bottom row of the array. There are three new fillers in this array, all bearded black men with round features and defined hairlines. The court finds that the composition of each photo in the arrays is sufficiently similar to defendant and not, on its face, unduly suggestive. The fact that defendant's photo is repeated is, however, problematic especially here, when viewed in context with the other procedural and administrative errors that were made. The repetition of the same photo of defendant adds to the questionable procedure employed herein.
The Court has major concerns with the actual administration of the June 29, 2019, photo array. As set forth in detail above, the photo array reports reflect serious errors, including the date of the photo array, the name of the actual witness and the administrator of the array. Additionally, the Court is troubled by inconsistencies in Detective Green's testimony. The Photo Array Viewing Report (People's Exhibit 2), completed in June of 2019, clearly indicates that Mr. Shaulov did not recognize anyone. However, almost four years later, Detective Green testified that Mr. Shaulov responded, "Well, for now, no". These are two very different answers with different implications. Based upon these serious discrepancies, the People are unable to meet their initial burden of establishing the reasonableness of the police conduct (People v Chipp, 75 N.Y.2d 327, 335 [1990], cert denied 498 U.S. 833 [1990]).
Further, the court is concerned that Detectives Carreira and Burton were present during the June 29, 2019, photo array. Based on Detective Green's testimony, Detectives Carreira and Burton remained near the building's elevator while the photo array was conducted. It is unclear what role these detectives played during the actual administration of the double-blind photo array and the prosecution failed to call these officers to clarify. The court is unable to reconcile Detective Green's testimony that after the photo array Mr. Shaulov told Detective Carreira that he did recognize someone from the photo array, but wanted to speak with his friend, the victim, before making an identification, with the testimony of Detective Dunbar. Detective Dunbar testified that after he finished administering the second photo array Detective Carreira asked Mr. Shaulov why he didn't make an identification the first time. The Court struggles to understand why Detective Carreira would ask this question if Mr. Shaulov had previously told him the reasons for not selecting the defendant. Further, by not calling Detective Carriera as a witness, these questions could not be answered, as well as how the eyewitness came to be at the precinct for the second photo array, and what, if any, conversations occurred between the first and second photo arrays.
While the court agrees with the prosecution that similar procedural flaws are not always necessarily fatal, (People v. Brennan, 261 A.D.2d 914, 915, 693 N.Y.S.2d 773, 774 [4d Dept 1999]; People v Greene, 87 A.D.3d 551, 928 N.Y.S. 74, 2100 NY App. Div. LEXIS 6012 [2d Dept 2011]; People v Hughes, 124 A.D.2d 344, 507 N.Y.S.2d 285 [3d Dept]), here, the court finds that given the totality of the circumstances, including the repetition of the same photo of defendant, the myriad of errors in the identification reports, the inconsistent testimony from Detective Green, and lack of testimony from Detective Carreira, the Court is unable to determine with certainty whether the officers followed proper procedure and whether the identification was not unduly suggestive.
Conclusion
Defendant's motion to suppress the identification is granted.
This constitutes the decision and order of the court.
SO ORDERED.