DECISION AND ORDER On February 19 and 20, 2019, this Court conducted a combined Wade and Huntley hearing. Detective Jean Gaillard testified for the People. The defendant did not present any evidence. The Court heard oral argument from the parties. The defendant’s motion is granted in part and denied in part. The Court makes the following findings of fact and conclusions of law.Findings of FactDetective Jean Gaillard testified that he has been employed by the New York Police Department for approximately 12 years and is currently assigned to the 69th Precinct Detective Squad. In August of 2016, he was assigned to investigate a shooting that had taken place on August 28, 2016 in the vicinity of East 95th Street and Conklin Avenue in Brooklyn.As part of the investigation, Galliard conducted a photo array with Stafford Tapper on January 8, 2017.1 Travain Nibbs, the defendant, was the subject of that photo array and his photograph was located in position number 5. Gaillard first read Tapper photo array viewing instructions from a pre-printed form, that he paraphrased at the hearing.2 In sum, Gaillard instructed Tapper that he would be looking at six photographs, that he should keep in mind that individuals’ appearances can change, and that he should take as much time as he needed to look at the photos. Tapper looked at the photo array and indicated that he did not recognize anyone. As Gaillard and Tapper were leaving the interrogation room, Gaillard placed the photo array into the case folder and another photograph — a profile view of Travain Nibbs’ face — became visible underneath other papers inside of the folder.3 Tapper then said, without prompting, “that’s him.” Tapper asked to see the photo array again and pointed to the person in photograph 5, indicating that’s him, that’s the shooter.4Shortly thereafter, Gaillard issued an I Card for Travain Nibbs. On April 20, 2017, Gaillard was notified that Travain Nibbs had been arrested in the same precinct — the 69th Precinct — on an unrelated marihuana possession charge and, after locating Nibbs within the precinct holding cells, Gaillard assembled a lineup.5 He obtained the fillers for the lineup from the neighborhood, whom he had wear identical black do-rags to disguise any differences in hair style, wear identical white t-shirts, and sit under a black sheet, to disguise any differences in size and clothing.6Gaillard contacted Tapper by phone and asked if he was available to view a lineup. Tapper indicated that he was, and arrived at the precinct shortly thereafter. While Tapper waited in the precinct’s waiting area, the defendant was kept in the interrogation room with the door closed. There are no windows into the interrogation room so that Tapper, in the waiting area, could not see defendant in the interrogation room. The defendant, who chose his own seat, was seated in position number 4. Prior to viewing the lineup, Gaillard read Tapper lineup viewing instructions from a pre-printed form.7 Tapper viewed the lineup and told Gaillard that he recognized number 4 as the one who had “killed that boy.”8After conducting the lineup, Gaillard and Detective McDonough spoke with the defendant. That conversation, which commenced at approximately 7:40 p.m., was video recorded.9 Prior to speaking with the defendant, Gaillard provided him with Miranda warnings. Gaillard read the warnings from a pre-printed form. The defendant answered “yes” aloud to each question and agreed to speak with the detectives. The defendant then asked if he could stop answering questions at any time — McDonough answered yes and added that that was his prerogative. The detectives then engaged in a conversation with the defendant that lasted approximately 20 minutes. The defendant, who appeared relaxed, often reclining back in his chair, denied having shot the decedent. During the interview, McDonough indicated that he would get the defendant something to eat and drink and asked if he needed to use the bathroom.10 The defendant, rather than responding, appeared to reiterate his position — that he was not responsible for the decedent’s death. The conversation lasted a few minutes longer and then ended when McDonough told the defendant that his arrest was going to be processed and that he would be transported to central booking. Prior to the video recorded statement, neither Gaillard nor McDonough threatened the defendant or made him any promises in exchange for his statement.Shortly after the video recorded statement concluded, and as Gaillard was fingerprinting the defendant, the defendant asked, in substance, when did you figure out it was me, yesterday, last night, last week, what if I had left the country? Gaillard responded, in substance, we are detectives. Gaillard testified that he did not ask the defendant anything other than that with which was related to the processing of the defendant’s arrest before the defendant posed the aforementioned questions.Conclusions of LawThis Court fully credits the testimony of Detective Jean Gaillard.WadeThe Photo ArrayThe defendant moves to suppress the photo array that was shown to the three witnesses — Stafford Tapper, Michael Harvey, and Keyryne Gooding. The defendant’s motion is denied.To begin, the photo array itself was devoid of suggestion. Indeed, the photographs in the photo array depict individuals who closely match the physical characteristics of the defendant including approximate age, skin tone, hair style, and facial hair. See People v. Wright, 297 A.D.2d 391 (2d Dept. 2002); People v. Williams, 289 A.D.2d 270 (2d Dept. 2001). Moreover, there is no evidence that the manner in which the photo array was conducted was suggestive. Indeed, Gaillard took precautions to ensure fairness when conducting the photo array, by showing the photo array to the witnesses separately and reading the witnesses standard instructions from a pre-printed form.11Nonetheless, the defendant contends that the People’s failure to serve notice of Tapper’s photo array identification of him as required by C.P.L. §710.30 mandates preclusion. The People concede that they failed to serve notice of Tapper’s photo array identification, but counter that preclusion is not warranted, as the photo array is inadmissible at trial and the defendant received notice of Tapper’s lineup identification of him. While the better practice is to serve notice of a photo array identification, the lack of such notice does not per se mandate preclusion, particularly as a photo array identification is generally inadmissible at trial. See People v. Grajales, 8 N.Y.3d 861 (2007). Indeed, where the People serve notice of an identification procedure involving the same identifying witness, the failure to provide separate notice as to a photo array identification by that witness, does not warrant preclusion. Id. Here, as the defendant does not dispute that the People properly served notice of Tapper’s lineup identification of him, he is, therefore, not entitled to preclusion of the photo array. See People v. Nolasco, 70 A.D.3d 972 (2d Dept. 2010). Accordingly, the defendant’s motion to preclude Tapper’s photo array identification of him is denied.12Alternatively, the defendant argues that Tapper’s photo array identification of him was the result of suggestive police conduct, as, he contends, Gaillard’s “sloppy” yet “inadvertent” exposure of a single profile photograph of him rendered Tapper’s second viewing of the photo array impermissibly suggestive.13 Of course, the exposure of a witness to a single photograph of a defendant carries a risk of undue suggestiveness, thus, entitling a defendant to a pre-trial hearing at which any suggestiveness can be explored. See People v. Marshall, 26 N.Y.3d 495 (2015). While the People bear the burden at such a hearing of establishing the absence of undue suggestiveness, the defendant bears the ultimate burden of demonstrating that suggestiveness, nonetheless, impaired the identification procedure. Id. at 506 (internal citations omitted).To be clear, Tapper initially viewed a proper photo array that was unequivocally devoid of suggestion. In that photo array, he was presented with six photographs of individuals who are rather remarkably similar in appearance, none of whom he identified as the defendant. Nonetheless, as Tapper was on his way out of the interrogation room, he inadvertently glimpsed a partially obscured photograph in Gaillard’s case folder — a profile photograph of the defendant. Without prompting, Tapper immediately exclaimed, that’s him. Nevertheless, Gaillard did not remove that photograph from his folder and hand it to Tapper for examination. Nor did Gaillard suggest that Tapper view the photo array for a second time. Instead, Tapper asked to see the array. Tapper then looked at those six individuals and pointed out number 5 — the defendant — as the man who had been the shooter. Tapper’s identification, after an inadvertent glimpse of an additional photograph of the defendant’s profile, on the heels of an otherwise appropriate and non-suggestive photo array, was neither the result of intentional, nefarious police conduct, nor, under the unique facts and circumstances of this case, so imbued with undue suggestiveness as to render it unreliable. Indeed, the defendant has failed in his ultimate burden — to demonstrate that Tapper’s identification was borne of undue suggestiveness. See generally People v. Sims, 146 A.D.3d 820 (2d Dept. 2017); People v. Dunlap, 9 A.D.3d 434 (2d Dept. 2004). Accordingly, the defendant’s motion to suppress the photo array is denied.The LineupThe defendant further moves to suppress the lineup that was viewed by the same three witnesses who viewed the photo array. The defendant’s motion is denied.The lineup was devoid of suggestion. To be sure, the participants closely resemble the physical characteristics of the defendant, including approximate age, skin tone, and facial hair. See People v. Ravenell, 307 A.D.2d 977 (2d Dept. 2003); People v. Robert, 184 A.D.2d 597 (2d Dept. 1992). Moreover, Gaillard took steps to ensure the fairness of the lineup by having the lineup participants wear identical do-rags, thereby eliminating any discrepancies in hair style, and wear identical white t-shirts and sit behind black bunting, thereby eliminating any size and clothing differences. See People v. Brown, 47 A.D.3d 826 (2d Dept. 2008); People v. Ortiz, 273 A.D.2d 482 (2d Dept. 2000). So, too, Gaillard kept the identifying witness separate from one another and the defendant and used standard lineup instructions that he read from a pre-printed form.14Despite the foregoing, the defendant argues that Tapper’s lineup identification of him must be suppressed as Tapper’s prior photographic viewings tainted the subsequent lineup. Having concluded, however, that Tapper’s inadvertent viewing of the single profile photograph did not render the photo array unduly suggestive, there can be no taint of suggestiveness carried over to the lineup. See generally People v. Sorenson, 112 A.D.2d 1016 (2d Dept. 1985). And, it bears repeating, the lineup itself was devoid of suggestion.In any event, the lineup occurred more than three months after Tapper’s photo array identification of the defendant. Indeed, that lapse of time was sufficient to attenuate any possible taint of suggestiveness. See People v. Dixson, 147 A.D.3d 484 (2d Dept. 2017); People v. Perez, 128 A.D.3d 465 (2d Dept. 2015); People v. Kelley, 220 A.D.2d 456 (2d Dept. 1995); People v. Young, 167 A.D.2d 366 (2d Dept. 1990); People v. Allah, 158 A.D.2d 605 (2d Dept. 1990). Accordingly, the defendant’s motion to suppress the lineup is denied.Other Identification IssuesDuring oral argument at the close of the hearing, the People informed the Court that they were seeking to have both Tapper’s and Harvey’s “identifications in court ruled upon,” presumably referring to potential in-court identifications by those witnesses at trial. As the Court found that neither Tapper’s photo array nor lineup identification of the defendant was unduly suggestive, there is nothing to prevent the People from asking him to make an in-court identification of the defendant at trial. With respect to Harvey, however, the People’s application is unclear, as Harvey did not identify anyone in the photo array and with respect to the lineup, identified the defendant, not as the shooter, but as someone he recognized from the neighborhood.Additionally during oral argument at the close of the hearing, the People informed the Court that they were seeking a ruling as to Gooding’s “identification” of the defendant. It is difficult, however, to ascertain precisely to what “identification” the People are referring. To the extent that the People are seeking to have Gooding make an in-court identification of the defendant, as Gooding never identified the defendant as the shooter, the grounds for such an application are unclear. To the extent that the People instead contend that a text message to Gaillard was an identification, that text message — ambiguous at best — does not an identification make.15 Indeed, while the text, alleged to be from Gooding, indicates “[y]‘all have the right person” and “he is the one I saw,” there is no explanation as to whom he is referring and at what place and time he saw that person. Moreover, the reliability of the text message is called into question by the remainder of that message. For example, the text indicates “[y]‘all got him 3 days ago,” but the defendant was arrested the day before the text message was sent. So, too, the text indicates “I thought you was going to show me the lineup,” but when that message was sent on April 21, 2017, Gooding had already viewed a lineup. To the extent that the People instead contend that an ADA confronting Gooding with a photograph of the lineup was an identification, while the record is silent as to the precise substance and nature of the ADA’s and detectives’ prior conversation with Gooding, showing him a photograph of the lineup at which he failed to identify the defendant as the shooter, was tantamount to telling him to take another look as he had gotten it wrong. Only then did Gooding indicate that he could identify number 3 — a filler — and number 4 — the defendant — from the truckyard. Nonetheless, and despite the earlier seemingly contradictory text message — Gooding still did not identify the defendant as the shooter.HuntleyThe defendant moves to suppress two statements made by him to Detective Gaillard — a post-Miranda video recorded statement and a statement made during arrest processing.The Post-Miranda Video Recorded StatementFirst, the defendant argues, and the People concede that they failed to serve C.P.L. §710.30 notice of the defendant’s post-Miranda video recorded statement. The defendant, therefore, moves to preclude the People from using that statement at trial as part of their case in chief. The People counter that the defendant, by moving in his omnibus motion to suppress any and all statements, waived that lack of notice. Additionally, the People argue that their omission should be excused in light of the Huntley hearing that was granted with respect to the defendant’s other, properly noticed statement, and which encompassed both the unnoticed and noticed statement.In certain circumstances, a defendant who moves in an omnibus motion to suppress any and all statements, may be deemed to have waived the notice requirement as to an unnoticed statement. See e.g. People v. Goss, 281 A.D.2d 298 (1st Dept. 2001). Of course, a defendant can only waive notice as to a statement that has been brought to the defendant’s attention, either by the People, or by some other means. See People v. St. Martine, 160 A.D.2d 35 (1990). Here, the defendant, who received notice of a single statement made during arrest processing, was unaware of the post-Miranda video recorded statement until it was played in open court during the suppression hearing.16 At the time, therefore, that the defendant filed the omnibus motion seeking, inter alia, suppression of any and all statements, he had no knowledge of the video recorded statement. Thus, the defendant could not have waived the lack of notice as to that statement. See People v. St. Martine, 160 A.D.2d at 35.Nor should the lack of notice be excused simply because the defendant was fortuitously granted a Huntley hearing in connection with a separate, properly noticed statement. To so hold would render the notice requirement useless and vitiate the statute in its entirety. See People v. O’Doherty, 70 N.Y.2d 479 (1987). Accordingly, the defendant’s motion to preclude the People from using the video recorded statement as part of their case in chief is granted.17Notwithstanding, the People have demonstrated beyond a reasonable doubt that the defendant’s post-Miranda video recorded statement was voluntarily made. See People v. Huntley, 15 N.Y.2d 71 (1965). A statement is voluntary when, under the totality of the circumstances, the statement is not the product of promises, threats, force, or any other coercive behavior. See People v. Anderson, 42 N.Y.2d 35 (1977); People v. Kimes, 37 A.D.3d 1 (1st Dept. 2006); People v. Sullivan, 224 A.D.2d 460 (2d Dept. 1996). In the instant matter, the defendant was provided with sufficient Miranda warnings and verbally acknowledged his understanding of those warnings. Indeed, the defendant expressly waived the Miranda warnings and agreed to speak with detectives. Moreover, there is simply no evidence that the defendant was subjected to force, threats, or other coercive behavior. To be sure, the defendant, who appears to be relaxed throughout, maintained that he was not responsible for the decedent’s death. Indeed, the defendant’s demeanor, combined with the substance of his few and largely exculpatory comments, demonstrates that the statement was voluntarily made. Accordingly, the defendant’s post-Miranda video recorded statement may be used by the People in the event that the defendant testifies on his own behalf at trial.18 See People v. Maerling, 64 N.Y.2d 134 (1984).The Statement Made During Arrest ProcessingFinally, the defendant moves to suppress a statement that he made to Detective Gaillard during arrest processing. The uncontradicted hearing evidence unequivocally demonstrates that the defendant’s statement was unsolicited and entirely spontaneous. Indeed, at no time did Gaillard induce, provoke, or encourage the defendant to make the statement, see People v. Browne, 144 A.D.3d 834 (2d Dept. 2016); People v. Galarza, 159 A.D.3d 1584 (4th Dept. 2018), and the statement was not made in response to express questioning, or its functional equivalent. See People v. Ellis, 58 N.Y.2d 748 (1982); People v. Slattery, 147 A.D.3d 788 (2d Dept. 2017); People v. Powell, 125 A.D.3d 1010 (2d Dept. 2015). Accordingly, the defendant’s spontaneous statement was voluntarily made. The defendant’s motion, therefore, is denied.ConclusionThis constitutes the Decision and Order of this Court.Dated: Brooklyn, New YorkFebruary 27, 2019
