DECISION/ORDERThe defendant is charged with Robbery in the First Degree (PL §160.15[3]]) and other related charges. On February 22, February 27 and June 14, 2018 the court held a Dunaway/Huntley/Wade/Payton/Mapp hearing after which defense motions were denied in a decision dated August 6, 2018. On September 5, 2018, defense counsel filed a motion to reargue, which was denied on September 17, 2018. On November 8, 2018, based on new information provided by the People, defense counsel moved to reopen the hearing as well as to admit expert testimony. On November 19, 2018 that motion was granted to the extent of reopening parts of the Wade aspect of the hearing. The court also ruled that certain expert testimony aspects would be permitted while the balance would be subject to a Frye hearing. On December 11, 2018, January 7, 2019 and January 10, 2019, this court heard testimony from Jerry Yauri, Segundo Yauri and Detective Chavis relevant to the Wade issue. On December 19 and 20, 2018, this court held a Frye hearing. After the conclusion of the hearings the People and defense counsel submitted written memoranda of law and closing arguments. The defense also submitted a reply which was considered by the court. The court makes the following findings of fact and conclusions of law.FRYE HEARINGDefense counsel presented the testimony of their proposed expert, Dr. Margaret Bull Kovera (“Dr. Kovera”) who testified with regard the areas of (1) attitudes and expectation; (2) partial disguise; (3) diagnosticity of non-identification; (4) suggestibility among children; (5) cross-contamination; (6) clothing bias; and (7) filler quality and dud effect.Relevant StandardNew York still follows the Frye standard with regard to scientific testimony (See e.g., Clemente v. Blumenberg, 183 Misc 2d 923 [Sup Ct, Richmond County 1999], Maltese J.).1 Before scientific testimony may be admitted under Frye, the court must be satisfied that the proposed testimony is based on procedures that are generally accepted as reliable in the relevant scientific community (People v. Wesley, 83 NY2d 417 [1993]).FindingsIn cases concerning eyewitness identifications, expert testimony is appropriate when, in case with little to no corroborating evidence, the proffered testimony is (1) relevant to the witness’ identification of defendant, (2) proffered by a qualified expert (3) on a topic beyond the ken of the average juror and (4) based on principles that are generally accepted within the relevant scientific community (People v. LeGrand, 8 NY3d 449 [2007]). Preliminarily, the court does not find enough corroborating evidence to preclude the use of an expert witness. The court makes the following findings about the proposed testimony in the areas outlined below.A. Relevant to Witness’ IdentificationThe proposed testimony is relevant to the witness’ identification as it goes to the crux of the defense counsel’s defense — that the defendant was incorrectly picked out of a lineup and the various factors which would have caused such a misidentification to occur.B. Proffered by a qualified expertAt the hearing, the defense put forth the testimony of Dr. Kovera and put her curriculum vitae into evidence. Dr. Kovera testified that her work focused on the nature of eyewitness memory and identification and was deemed an expert witness in said area.C. Beyond the Ken of the Average JurorWhile the People argue that some of the concepts discussed by Dr. Kovera are common sense proposition, the court finds that, with the exception of clothing bias which is discussed, infra, the theories and explanations that support those propositions are based in scientific methodology which are beyond the ken of the average juror.D. Based on Principles That Are Generally Accepted(1) Attitudes and ExpectationDr. Kovera explained the phenomena known as attitudes and expectations as follows: “if witnesses have expectations that the perpetrator is in the lineup that’s gonna make them try to make a choice out of the lineup that.” Furthermore, she testified that that police officers have an expectation that the police may expect the witness to choose the suspect and, in that regard, “unwittingly communicate their expectation to the witness through behavioral and nonverbal and verbal cues, and then the witnesses pick up on that and then are more likely to pick the suspect as a result of that.” Based on the study provided and the testimony of Dr. Kovera, the court finds that the phenomena is generally accepted by the relevant scientific community.(2) Partial DisguiseDr. Kovera explained the phenomena known as partial disguise as follows: “when we mask the hair or the hairline we find that there’s reduction in the accuracy of witness identifications. Masking the hairline impedes encoding of the face and it results in less accurate identifications for people who’ve seen these partially disguised perpetrators as opposed to those that…have their heads uncovered.” She testified that this is generally accepted by the scientific community. The defense proffered two studies in support of said proposition. However, in one of the studies submitted by the defense, a survey conducted by Dr. Penrod and Tarika Daftary entitled General Acceptance among Experts of Eyewitness Research Findings: Sources of Influence (Defense Exhibit C), the authors state that with regard to expert willingness to testify, that “there still needs to be additional research in the area to fully convince experts of their reliability (e.g. disguise and change blindness). Therefore as defense counsel’s own proferred study admitting a lack of general acceptance, contradicting their own witness, the court finds that the phenomena of partial disguise is not generally accepted by the relevant scientific community (see e.g.. People v. Banks, 16 Misc. 3d 929 [West. Co. 2007]).(3) Diagnosticity of Non-identificationDr. Kovera explained diagnosticity of non-identification as the idea that non-identifications of the suspect are exculpatory in nature. While Dr. Kovera testified that in her own judgment this theory was generally accepted, she admitted that the very study she cited was “at some level withholding the general conclusions until they get the final wave of the data.” Without more and in light of the contradiction in her statement about the study, the court concludes that the phenomena of partial disguise is not generally accepted by the relevant scientific community.(4) Suggestibility Among ChildrenDr. Kovera testified that especially among children, they could be susceptible to suggestibility by statements and other non-verbal cues from police, parents. In support she cited to the study Ryan J. Fitzgerald and Heather L. Price entitled Eyewitness Identification Across the Life Span: A Meta-Analysis of Age Differences. Dr. Kovera testified that the concept that children are more suggestible and susceptible to erroneous identifications is widely accepted and the People do not contest as much. Accordingly, the court finds that the phenomena is generally accepted by the relevant scientific community.(5) Cross-contaminationDr. Kovera testified that the concept of cross-contamination stands for the proposition that by sharing accounts of a single event, witnesses can cross-contaminate and in effect alter their respective memories of the event. The People do not contest that the concept is generally accepted by the relevant scientific community and court finds as much.(6) Clothing BiasDr. Kovera explained that clothing bias holds that if a subject in a lineup is the only person wearing clothes similar to those worn by the perpetrator of the crime, then that that increases the likelihood of false identification. While the court finds that the phenomenon of clothing bias is generally accepted by the relevant scientific community, Dr. Kovera was unable to articulate any acceptable explanation of clothing bias that would be beyond the ken of an average juror. Therefore, testimony in the area of clothing bias will be precluded.(7) Filler Quality/Dud EffectDr. Kovera testified that the dud effect or dud alternative effect occurs when a lineup consists of dissimilar fillers, thereby increasing the confidence of the identifying witness without increasing the accuracy. She testified, and the People do not contest that it is generally accepted by the relevant scientific community. Contrary to the People’s argument, such testimony does not present an end run around this court’s previous determination that the lineup was not unduly suggestive. The suppression hearing merely addresses whether the lineup is admissible. Defense counsel is within her rights to argue that despite its admission, the lineup was conducted in a suggestive manner. The “weight to be accorded such identification testimony, once it is found to be admissible after a Wade hearing pursuant to CPL article 710, is a matter solely within the province of the trier of facts” (People v. Ruffino, 110 AD2d 198, 201 [2nd Dept 1985]).WADE HEARINGFindings of FactAt the hearing, the People presented testimony of Jerry Yauri, Segundo Yauri and Detective Douglas Chavis (“Detective Chavis”). The court finds their testimony to be credible and makes the following findings of facts:On May 19, 2016 at approximately 3:30 PM Segundo Yauri was riding the train with his sons, Jerry and Chris, ages 14 and 9 respectively, along with his wife Dina and son Andy. At that time, Chris started crying and pointed to an individual he stated had stolen his chain. The individual started walking away and Segundo gave chase, grabbing the individual by the hoodie. At the next train stop Segundo took the individual out onto the platform and called for police. Once the police arrived he was told to let go of the individual by the police officer. The officer spoke to the individual and then turned to Segundo. At that moment the individual ran. As the officer gave chase the individual was pushed onto the tracks. The individual dropped papers onto the tracks and ran away. Segundo called Detective Chavis to tell him what happened. Later that day, Segundo, along with Jerry returned to the train station. Once there Detective Chavis collected the papers that had fallen. Detective Chavis’ partner, Officer Burgos, took the name and date of birth from the paper work. A short time later Detective Chavis showed Segundo and Jerry a picture of an individual on his phone. Segundo and Jerry both confirmed that it was the individual from the train. Segundo stated that he told Chris the name of the person they identified, that he was not Asian but was Hispanic. He also told Chris that the individual was from their neighborhood. Jerry testified that he did not discuss the photo identification with his brother Chris.Conclusions of LawWhen a defendant challenges an identification procedure as unduly suggestive, the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness (see People v Coleman, 73 AD3d 1200 [2nd Dept 2010] People v Stephens, 143 AD2d 692 [2nd Dept 1988]).As the People have already conceded, the court finds that the showing of a single photograph to Jerry Yauri was unduly suggestive (see People v. Thornton, 236 AD2d 430 [2nd Dept 1997]). Therefore his lineup identification of the defendant will be suppressed. Subsequent to the identification, Segundo Yauri told Chris (1) that an identification took place; (2) that the suspect was Hispanic, not Asian as they previously believed and (3) that the suspect was from the neighborhood. The court finds that this information did not irreparably taint the lineup identification of the defendant by Chris so as to require suppression. More specifically, the court finds that nothing communicated to Chris highlighted the defendant in such a manner as to command his attention and cause him to forgo scrutiny of other potential suspects (see Miriam Hibel, New York Identification Law: Due Process and Undue Suggestiveness § 4.03 (Matthew Bender)). Defense counsel will, however, be permitted to present testimony through Dr. Kovera regarding the possible effect that the information communicated to Chris Yauri may have had on his identification. Finally, as the court previously found, the lineup itself was not suggestive.Accordingly, it is hereby:ORDERED, that the defendant’s motion to suppress his identification by Chris Yauri is denied; and it is furtherORDERED, that the defendant’s motion to proffer expert testimony in the field of eyewitness identification is granted as to Attitudes and Expectation, Suggestibility Among Children, Cross-contamination and Filler Quality/Dud Effect as well as the areas outlined in this court’s previous decision dated November 19, 2018.2This case is scheduled for decision on March 11, 2019.This opinion shall constitute the decision and order of the court.Dated: March 11, 2019
