Decision After Hearing The defendant is charged with violating Penal Law 245.00A (Public Lewdness). In order to determine the validity of the defendant’s arrest and the admissibility of identification evidence of the defendant, a Wade hearing was ordered and conducted before the undersigned on January 22, 2020. The People called Police Officer Taggart and Police Officer Saponieri as their two witnesses. The defendant did not testify. In accordance with CPL §710.60(6), the court makes the following findings of fact and conclusions of law: Findings of Facts Police Officer Dennis Taggart, Shield number 3337, a fourteen-year veteran of the Nassau County Police Department assigned to the Second Precinct, credibly testified that on June 7, 2019, he worked the day tour from 7:00 AM through 7:00 PM and was assigned to cover East Norwich, Oyster Bay, and Syosset in the County of Nassau, State of New York. While on tour, he operated a marked patrol car 205 and was in uniform. Officer Taggart was working alone except for patrol purposes, his partner was Officer Paul Saponieri. who was in a separate marked patrol car. On June 7 2019, Officer Taggart received a radio run call from a 911 dispatcher reporting that a person exposed their genitals in public to a victim at approximately 10:30am. The complaining witness stated that she was walking through a parking lot located at 151 Pine Hollow Road in Oyster Bay, NY when a driver of a van called her over to the van to ask if she knew of a healthy place to eat. Upon walking up to the van, the victim found the driver masturbating inside the van. The victim then took a picture of the license plate of the vehicle and provided a description of the driver to the 911 dispatcher of a male Hispanic who was approximately 30 years old with a mustache. Upon Officer Taggart’s arrival at the scene (a CVS parking lot) at approximately 10:40a, he was flagged down by a woman who identified herself as the victim. The complainant/victim provided confirmation that she called 911 by showing a picture on her cellphone of the van and its license plate of the man she alleged to have exposed himself to her. The complainant further noted that the suspect had on dark green work clothing and the van left the scene by pulling out onto Pine Road and going North. Officer Taggart testified that Officer Saponieri arrived at the scene of incident approximately fifteen minutes after his arrival. After examining the complainants’ photograph of the van and its license plate, Officer Taggart identified the van as a white Ford Econoline 250. Officer Taggart began his investigation by running the license plate number through his car computer. The search resulted in the license plate being traced to 12 King Road in Bayville, NY. Officer Taggart then radioed police officers in area to respond to that address and provided the description of the van and driver that was relayed to him. Officer Maxim in car 202 responded to 12 King Road in Bayville, NY at approximately 11:00am and requested another unit, after which Officer Breslin in car 203 responded as well. Officer Taggart testified that he took a 32B statement from the complainant regarding what happened while on the scene at 151 Pine Hollow Road in Oyster Bay, NY, which she signed. Officer Taggart further testified that while speaking with the complainant that he received a phone call at approximately 11:30am from Officer Maxim. According to Officer Taggart, upon arrival to 12 King Road, Bayville, NY (where the van in question was registered), Officers Maxim and Breslin met a male who stated that the van belonged to his business and that the van and the driver were out at a job site at 117 Horseshoe Road in Mill Neck, NY…Officer Taggert further testified that Officers Maxim and Breslin did find the van and the man matching the description at said Mill Neck location and determined that he was the sole driver of said vehicle. Officers Taggert stated that said location in Mill Neck is situated north of the CVS parking lot on Pine Hollow Road in Oyster Bay, NY. Officer Taggart then notified Officer Saponieri, who was approximately ten to fifteen feet away from the complainant and about ten feet away from him, that he was going to 117 Horseshoe Road in Mill Neck, NY to confirm that the van and driver were on the scene. Officer Taggart also stated that he instructed Officer Saponieri to take the complainant is his car to see if she could identify the suspect. Officer Taggart instructed the complainant that she would get into Officer Saponieri’s marked police car to see if she could identify the suspect and that was the last time he spoke to her. Upon Officer’s Taggart’s arrival at 117 Horseshoe Road, he observed a man standing near the bottom of the driveway and alongside Officers Breslin and Maxim who were at the lower edge of the driveway by the street. Officer Taggart also noted that a white van was further up the driveway in relation to the man and that the man was not in handcuffs nor did he appear distressed in any way. Officer Taggart stated that Officer Saponieri arrived with the victim at 117 Horseshoe Road and that after further investigation, that the man identified near the driveway was placed under arrest at approximately 12:08p. Officer Taggart identified the suspect at 117 Horseshoe Road as the defendant in the courtroom during this proceeding wearing a blue and white checked buttoned shirt. On cross examination, he stated he was at least 10 feet or more away from the complainant when discussing whether a suspect had been found for possible identification. Officer Paul Saponieri, a thirteen-year veteran of the Nassau County Police Department credibly testified that on June 7, 2019, he was assigned to the Second Precinct as a Patrol Officer in Oyster Bay.and he was in uniform and operating marked patrol car 204. On June 7, 2019, Officer Saponieri worked an adjoining post with Officer Dennis Taggart. According to Officer Saponieri’s account, he was at his post when he received a radio assignment directing him to 151 Pine Hollow Road, in Oyster Bay, NY for an exposure call. Upon Officer Saponieri’s arrival, he found Officer Taggart conducting an investigation and speaking with the complainant. Officer Saponieri stated that he remained in his patrol car while Officer Taggart secured a 32B statement from the complainant. Officer Saponieri stated that Officer Taggart had put out a radio run broadcasting the license plate number over the radio for other officers to locate the vehicle. He further testified that after other officers checked 12 King Road, Bayville, NY, said officers radioed that they obtained information that a suspect matching the complainants’ description was located at 117 Horseshoe Road, Mill Neck, NY. The suspect’s location was broadcasted through a radio run. After Officer Taggart finished with the complainant, Officer Taggart walked over to Officer Saponieri’s car with the complainant to tell him that he should take the complainant to that location to see if she can identify the suspect. Officer Saponieri testified that Officer Taggart left 151 Pine Hollow Road at approximately 11:40am. Officer Saponieri stated that he departed 151 Pine Hollow Road approximately one to two minutes after Officer Taggart. Officer Saponieri drove with the complainant to transport her to 117 Horseshoe Road in Mill Neck, NY, where the suspect had been found. Officer Saponieri estimated that the drive between 151 Pine Hollow Road in Oyster Bay and 117 Horse Show Road in Mill Neck, NY was about eight to ten minutes. Officer Saponieri testified that the complainant was not told anything except that the police had a person that matched the description she provided. Officer Saponieri further testified that he instructed the complainant to sit in the back seat of the patrol vehicle because the tinted back windows would allow her to make an identification of the suspect who would be visible without the suspect seeing her. Officer Saponieri told the complainant that the suspect was located at the edge of the driveway so that he was visible to her to identify. Officer Saponieri testified that his conversation with the complainant was limited to informing her about where he was taking her, where she should sit and the location of the suspect during her transport from the CVS parking lot to 117 Horse Show Road in Mill Neck, NY to identify the suspect who matched the description that she provided. Officer Saponieri arrived at 117 Horseshoe Road approximately three minutes after Officer Taggart. Upon his arrival, he noticed the defendant at the bottom of the driveway near three uniformed police officers at 117 Horseshoe Road. Officer Saponieri testified that the three officers were about three to four feet away from the suspect. Officer Saponieri noted that the defendant was not under arrest or in handcuffs at the time of the identification. According to Officer Saponieri, the complainant made a positive identification of the driver by saying “that’s him” within a second of seeing the defendant. Officer Saponieri said that upon the complaining witness’s positive identification of the defendant that he informed her that he would be taking her back to her car at 151 Pine Hollow Road where her vehicle was. Officer Saponieri testified that the defendant was placed under arrest after the complainant made a positive identification of him. Officer Saponieri made an in-court identification of the suspect as being the defendant wearing a blue and white checked buttoned shirt. Officer Saponieri stated that he completed a second supporting deposition in the field with the complaining witness following her positive identification of the defendant. After arriving back at the second precinct, Officer Saponieri completed a crime report, an arrest report, and an arrest narrative. On cross examination, Officer Saponieri testified that the complaining witness was a caucasian woman. Officer Saponieri also stated he did not tell the complainant anything more than that they had a suspect that they were taking her to see and did not mention anything to her about locating the vehicle in question. Conclusions of Law Preclusion First, the defense moves to preclude the identification notice of the defendant based on the prosecution’s inadequate CPL 710.30 notice due to the inaccurate time of the defendant’s identification citing mainly. People v. O’Doherty, 70 NY 2d 479(1987). In the instant matter, the prosecution submitted its timely notice of intent pursuant to CPLR 710.30 within the fifteen-day statutory requirement of providing pretrial notice to the defendant of its intention to offer identification evidence. A notice of intent should give the time, place, and manner in which the identification is provided. The purpose of such notice is to give the defendant a detailed and sufficient opportunity to investigate the evidence presented and to request a hearing and decision on the matter. See People v. Pacquette, 25 N.Y.3d 575(2015). When such is not provided with accuracy within the four corners of the document because it failed to set forth the accurate time at which the defendant was identified as a suspect based on a typographical error, such an error can be remedied during a pre-trial hearing. Here the defendant had adequate notice of the prosecutions intent to provide identification testimony. A defendant does not waive his or her right to preclusion of identification evidence by participating in Wade hearing after his motion to preclude was denied. See People v. Sang, 212 A.D.2d 1024 (N.Y. 1995). This Court finds the instant case to be clearly distinguishable from the cases cited by the defense in that the sole “typo” error regarding the time, having been revealed to be within two hours or less of the actual time of the identification is not deemed to be an egregious error equitable to errors such no 710.30 notice at all or numerous errors in the notice. The Court finds the correction made well in advance of a potential trial, and before the defense was afforded the opportunity to proceed with cross examination during a Wade Hearing, leaves said error to be of a de minimis nature and thus more analogous to cases where preclusion was not found to be warranted. See People v. Ocasio, 552 NYS 2d 517(1990): People v. Canute, 190 A.D. 2d 745(1993). Thus, Defendant’s application for preclusion pursuant to CPL 710.30 is hereby denied. Suppression In this case, beyond giving a general description, the complaining witness provided a picture of the suspect’s vehicle which showed the vehicle’s color and license plate number. This information provided officers with the opportunity to trace the vehicle’s license plate to a specific owner and subsequent driver. Based upon the credible testimony regarding the 911 call, it is reasonable for the Court to find that the identification of the defendant occurred within two hours after the commission of the crime and at a location within 10 minutes of the crime scene. In People v. Thomas, 164 A.D.3d 619 (2d Dept 2018), it was held that the standard for a show-up identification requires a due-process inquiry as to whether the show-up was reasonable under the circumstances and whether the show-up as conducted was unduly suggestive. Reasonable under the circumstances includes exigent circumstances or temporal and spatial proximity. The evaluation of whether a show-up is reasonable under the circumstances and/or unduly suggestive are mixed questions of law and fact. (see People v. Gilford, 16 N.Y.3d at 868, 924 N.Y.S.2d 314, 948 N.E.2d 920) . In Thomas, the court reasoned that there was no evidence demonstrating that the show-up identification procedure was unduly suggestive because the identification occurred within three hours of the incident and was a part of an ongoing police investigation. The Court finds the facts in this case to be analogous to those in Thomas. Similarly, in People v. Howard, 22 N.Y.3d 388 (2013), the court determined the show-up identification was proper. The court reasoned that based on the victim’s identification of the defendants which occurred approximately two hours after the crime and five miles from the crime scene. There, the defendants were stopped by police officers, who heard a radio message about a robbery when they observed the defendants at a red light, approximately one hour and fifteen minutes after the commission of the crime, and thereafter, the victim was brought to the scene to conduct a show-up identification. Furthermore, the court found that there was no evidence of any discussion of the suspects or verbal suggestions made by police to the victim about the identity of the suspects when the victim arrived at the scene to conduct the show-up forty-five minutes after the defendants were stopped by police. The victim immediately recognized the defendants as the men who robbed him. Thus, the court ultimately reasoned that the show-up was a part of an ongoing police investigation and it was logical for officers to conduct a show-up to determine that they apprehended the robbers in question. In Howard, the court held that the standard for a show-up is for such a procedure to be reasonable under the circumstances and not to be unduly suggestive and such determinations are mixed question of law and fact. The court found that show-ups are permitted following a defendant’s arrest at or near a crime scene or in exigent circumstances such as when the police need to confirm whether they have the correct suspect or should keep looking. Such exigency should be a part of an unbroken chain of events or as a part of an ongoing investigation. The standard of review for mixed questions of law and fact is a question of creditability or where a reasonable mind may differ as to inference to be drawn. This Court finds that the identification herein was reasonable under the circumstances as the defendant was temporarily detained at a relatively close location until police officers confirmed whether he was the correct suspect. Furthermore, This Court finds Officers Taggart and Saponieri’s statements to the complainant were merely instructive and not unduly suggestive. The defendant was not in handcuffs or in any type of restraint form and at least 3 or 4 feet away from officers. In sum, the identification was conducted during what could be considered exigent circumstances and was in temporal and spatial proximity as a part of an unbroken chain of events of an active investigation and not unduly suggestive. Lastly, the defense argued that the race of the complainant and the defendant were relevant in the identification procedure of this case. This court notes that cross-racial identification epitomizes the frailties of human memory, the effects of stress, fear, and memory. However, it is also recognized that the complaining witness’ description of the suspect/defendant while not correct solely regarding the Defendant’s exact racial origin, could be viewed as substantially a match. Whether cross-racial identification is even relevant in light of all of the other facts in the instant case is deemed an issue for the triers of fact to determine at trial. Accordingly, based on the foregoing, the defendant’s motion to suppress the identification evidence is hereby denied. This constitutes the decision and order of the Court. So Ordered: Dated: April 27, 2020
