NOTICE: PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF RECEIPT OF THE ORDER BY THE APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST. DECISION ON MOTION In this juvenile delinquency proceeding, Respondents MacKenzie B. and Jahques M. have moved to preclude identification testimony due to inadequate notice from the Presentment Agency. The Court finds that the notice provided by the Presentment Agency was indeed inadequate, as well as erroneous and incurably tainted, so the motion is granted.1 On a recent January morning, Michael Korban2 was on the D train in Brooklyn, on his way to John Dewey High School, when he was robbed at the station at Bay 50th Street and Stillwell Avenue. Following their arrests later that day, MacKenzie B. and Jahques M., both age 16, were initially charged as juvenile offenders in Criminal Court. Their cases were subsequently removed to Family Court as designated felony petitions charging them with committing acts that would constitute Robbery in the Second Degree and related offenses. Within fifteen days of their initial appearances in this Court, the Presentment Agency, consistent with Family Court Act §330.2(2), served and filed voluntary disclosure forms giving Respondents’ counsel notice of identification procedures that were conducted prior to Respondents’ arrests. The notice may have been timely, but it turns out that it was also wrong. According to the VDFs, Michael identified each respondent through three separate yet connected procedures. First, in what was perhaps an excess of caution in providing notice of all possible identifications, the Presentment Agency gave notice of what it called a “witness initiated identification”: Michael had taken a photograph on his cellphone of “some of the perpetrators” during the robbery and then shortly after he got to school Michael showed the photograph to the assistant principal, Jaime Getreu, and later to Detective Benny Au. It turned out that only Jahques M. was the apparent subject of this photo. Second, the VDF disclosed that the assistant principal then showed Michael a series of single photographs on his cellphone and asked Michael if he could identify anyone as a participant in the robbery. Michael positively identified these two respondents as well as a third individual, Kimari T., whose case has since been severed. The third identification procedure noticed in the VDF occurred when Detective Au brought Michael to the assistant principal’s office, where the complainant saw MacKenzie, Jahques, and Kimari through an open door and identified them as the perpetrators. Counsel for both respondents move to suppress identification testimony or, alternatively, for a pre-trial Wade hearing. The Presentment Agency did not oppose a pre-trial Wade hearing on the second and third identifications. On the day that the Wade hearing for both respondents was scheduled to commence, all counsel informed the Court at a bench conference that the Presentment Agency had just learned earlier in the day, and already told Respondents’ counsel, that contrary to the disclosures made weeks earlier in the VDFs, during witness preparation Assistant Principal Getreu denied showing photos to Michael on his cellphone. Moreover, the Presentment Agency disclosed that Assistant Principal Getreu also said during witness preparation that on the day of the alleged robbery, Michael entered the school with Detective Au and pointed out Jahques M., who was standing in the lobby near the security scanners, to the detective. To compound the confusion, Assistant Principal Getreu previously had informed one of the Assistant Corporation Counsels handling this case that MacKenzie B. and Kimari T. were also standing in the scanner area at that time but that during witness preparation he told the other Assistant Corporation Counsel handling the case that he did not see those two individuals at that time. And to top it all off, Detective Au told one of the Assistant Corporation Counsels during witness preparation that Michael did not point out Jahques M., or anyone else for that matter, to him at the scanner area that morning. The Court told all counsel at the bench conference and then again on the record, after the Presentment Agency had placed all this information on the record, that obviously it could not conduct a Wade hearing that day. Until it could determine how to proceed, if at all, the Court said, the Presentment Agency should serve and file amended VDFs. In due course, the Presentment Agency filed amended VDFs that essentially repeated the same information that was disclosed in the original VDFs, but added the information that it supposedly just learned on the morning of the Wade hearing plus the details of two more identifications — that after all three of the respondents were arrested in the school, the complainant “happened to see” them being escorted out of the building by the police, and then later that day at the Transit District 34 police station he again “happened to see” them as he walked down the hallway at the station and again as he was leaving. Michael did not say anything to the police during or immediately after these supposedly chance sightings of the respondents. Counsel for both respondents moved to preclude testimony regarding any identification of the respondents as well as of any in-court identification of the respondents by the complainant. They argued that the amended VDFs were still inadequate to give them sufficient timely notice of the time, place, and manner of each identification procedure. On the merits, they argued that there could not be any attenuation of the identifications here, police-arranged or not, because one flowed into the next, tainting all of the identifications. The Presentment Agency answered that its notice in the original VDF was sufficient, that some of the identification procedures did not have to be noticed in the first place because they were not police-arranged, and that in any event, all manner of identification could be explored by Respondents’ counsel on cross-examination. Family Court Act §330.2(2), referring to the analogous sections of the Criminal Procedure Law, requires that within fifteen days of the initial appearance, the Presentment Agency serve upon respondent notice of intent to offer identification evidence. The Presentment Agency is required to “inform the respondent of the time, place, and manner in which the identification was made” or show good cause for its failure to do so. People v. Lopez, 84 NY2d 425, 428 (1994). Notice does not have to be precise, but it does have to be sufficient enough to afford the respondent a meaningful opportunity to move for suppression. Lopez, supra; see also People v. Perilla, 247 AD2d 326 (1st Dept., 1998) (an inconsequential defect in the identification notice, such as the name of the correct police officer who conducted the lineup, did not render the notice insufficient). Inadequacy of notice cannot be cured by discovery, much less by cross-examination at a hearing or trial, because the whole point of the 15-day notice requirement is to quickly resolve pre-trial motions, not to subsequently allow a respondent to be able to defend him or herself at trial. Lopez at 428-429. The statutory remedy for failure to comply with the notice requirement is preclusion of identification evidence, regardless of a showing of prejudice. Id. at 428, F.C.A. §330.2(8). And this means all identification evidence is precluded; “[t]he prosecution cannot then elicit an in-court identification by any witness whose testimony is affected by the notice violation.” Bogacz, New York Juvenile Delinquency Practice, §4-1[a][1], p, 408, 3rd Edition, Lexis/Nexis (2010) [emphasis supplied]; see also People v. Perez, 177 AD2d 657-658 (2nd Dept., 1991), citing People v. McMullin, 70 NY2d 855 (1987). In this case, the original VDFs plainly did not tell the whole story about the identification procedures conducted here. The information that the Presentment Agency said it learned the day of the suppression hearing — a major discrepancy between Michael’s account of the photo identifications and the assistant principal’s — and the belated disclosure on amended VDFs of supposedly inadvertent sightings of Respondents by Michael in the school and at the police station, just added to the confusion and completely deprived Respondents’ counsel of any meaningful opportunity to challenge the identification procedures. This situation closely resembles the one presented in Matter of Deavan W., 145 AD3d 569 (1st Dept., 2016). The VDF served by the Presentment Agency gave notice of an identification procedure that the detective then testified about at the pre-trial Wade hearing. The Court denied suppression. But at the trial, the complainant gave a contradictory account of the identification procedure. Also, on the day of the suppression hearing, the Presentment Agency had disclosed to the respondent’s counsel that the arresting detective’s partner recalled the identification happening differently. The Appellate Division reversed the Family Court’s fact-finding determination. It held that the discrepancy between the information in the VDF and the complainant’s trial testimony, which conflicted with the detective’s suppression hearing testimony, should have led to preclusion, notwithstanding the oral disclosure to the respondent’s counsel the day of the suppression hearing. In a less drastic scenario, the Appellate Division affirmed the Family Court’s granting of a preclusion motion when the Presentment Agency’s VDF gave erroneous information regarding the time and location of a showup. The Appellate Division said that this outcome was required “without regard to whether the respondents were prejudiced by the lack of notice.” Matter of Courtney C., 114 AD3d 938 (2nd Dept., 2014). Finally, in Matter of Justin G., 126 AD3d 971 (2nd Dept., 2015), the Appellate Division affirmed the Family Court’s granting of preclusion when the Presentment Agency mistakenly gave notice of only the co-respondent’s identification. While it was the Court that directed the Presentment Agency here to provide counsel with amended VDFs, upon further consideration the Court has determined that this was not sufficient to bring the Presentment Agency into compliance with the statute. And even if a showing of prejudice is not required, the Court nevertheless finds that both Respondents were indeed prejudiced by the untimely and consequentially inaccurate notice in the original VDFs. Any and all identification testimony is precluded. Dated: August 7, 2019 Brooklyn, NY
