The defendant is charged with one (1) count of Assault in the Third Degree in violation of PL §120.00(1); one (1) count of Harassment in the Second Degree in violation of PL §240.26(1); and one (1) count of Petit Larceny in violation of PL §155.25. A Dunaway/Wade hearing was granted on consent.At the suppression hearing on May 28, 2019, the People called as its witnesses Mount Vernon City School District Safety Officer, Rochelle Brown and Mount Vernon Police Officer Ravin Palmer. The defendant did not present any evidence.Officer Brown testified that she is the supervisor of safety at Mount Vernon High School, and on Friday, January 11, 2019, several fights broke out at the school. The following Monday, January 14, 2019, she met with a student, K.C., hereafter the victim, who informed her that on January 11, 2019 at approximately 2:15 p.m. while walking inside the school, he was approached by a group of individuals who began to punch and kick him. During the altercation, the victim’s phone fell to the ground and the group left with the phone.During the meeting with the victim, which was also attended by one of his parents and an unidentified Mount Vernon Police Department School Resource Officer, Officer Brown testified that the victim viewed a video of the altercation that was posted on the social media messaging service “Snapchat.” The video of the altercation, which was played at the suppression hearing, was an approximately 30 second chaotic scene that depicted a crowded hallway of students witnessing the victim being hit and stomped on by several students. While the victim was unable to identify the students involved in the altercation, Officer Brown testified that she identified two students, neither of which was the defendant, hitting and kicking the victim. Officer Brown further testified that the victim, although unable to identify the perpetrators, was able to provide a description of at least one other person he remembered was hitting him during the altercation. Based on the victim’s description of a tall, slender, male Hispanic, Officer Brown suspected that it could be one of three students that she was familiar with. Officer Brown directed that the three students be brought to the main office at the high school where she was meeting with K.C., his parent, other school safety officers, and at least one Mount Vernon Police Officer assigned to the school as a school resource officer.Defendant was the first of the three male Hispanic students that were brought in front of the glass window of the main office at Mount Vernon High School. The victim then viewed the defendant through the window and confirmed that the defendant was one of the individuals who attacked him and took his cell phone. The defendant was then arrested and brought to the Mount Vernon Police Department Headquarters for processing.On cross examination, Officer Brown contradicted much of her relevant testimony that was elicited on direct examination. In her witness deposition, dated January 14, 2019, she wrote that after watching the same video that was played at the suppression hearing, she was able to identify the defendant who was wearing a grey and black jacket while kicking the victim. On direct examination she acknowledged that she was unable to identify the victim during the playing of the video. Moreover, on direct examination she also testified that the defendant was wearing a white t-shirt on the date of the incident, which contradicts her deposition statement where she wrote that the defendant was wearing a grey and black jacket.The prosecution also called Police Officer Palmer, whose testimony was limited to the processing of the defendant upon his arrest on January 14, 2019 at the Mount Vernon Police Department headquarters.The threshold issue in deciding the Wade issue is whether the identification procedure was police arranged. If found to be arranged by the school, then the identification must be permitted (see, In the Matter of William J., 203 AD2d 144 [1st Dept.]).The testimony from School Safety Officer Brown revealed that a Mount Vernon Police Officer assigned to the school, was present when the identification procedure of the defendant took place. However, police involvement or presence in an identification does not necessarily make it police arranged (see, People v. Capel, 212 AD2d 415 [4th Dept.].) But, “[w]here the police, by their conduct, have created the conditions for the confrontation with the purpose of having the known suspect and the known witness meet, there is a police arranged confrontation.” People v. Harrell, 151 Misc 2d 803, 807 (Sup Ct., Bronx Cty.).In the case at bar, while there were numerous inconsistencies with the People’s main witness, the police did not create the conditions for the confrontation between the defendant and the complainant. It was the school safety officers that arranged the showup. Therefore, this Court having found that the identification of the defendant was arranged by the school, not the police, must find the pretrial identification of the defendant admissible at trial.Lastly, at the suppression hearing, the defendant failed to meet his burden of proving, by a preponderance of the evidence, that the police did not have probable cause to arrest him ( see, People v. Berrios, 28 NY2d 361, 367-368 [1971]). The facts and circumstances of this case, as developed at the suppression hearing, viewed as a whole, would lead a reasonable person to conclude that an offense was or is being committed and that defendant committed or is committing it (see, People v. Bigelow, 66 NY2d 417, 423 [1985]). It was unnecessary for the People to establish the proof necessary for a conviction or a prima facie case. Rather, the evidence at the hearing established that it was more probable than not that an offense had occurred and that defendant had been the perpetrator (see, People v. Wright, 8 AD3d 304, 307 [2004]). Defendant having been pointed out by the victim as being one of the individuals who had assaulted him constituted sufficient grounds for finding that the police had probable cause to arrest the defendant.Accordingly, defendant’s motion is denied in its entirety.This constitutes the Decision and Order of this Court.Dated: June 3, 2019Mount Vernon, New York
