The defendant, Harry Jonas, is charged with Attempted Murder in the Second Degree in violation of Penal Law section 125.25, and other related charges. He now moves to suppress evidence of an identification as unduly suggestive. This court conducted a Wade hearing on July 18, 2022,1 and July 21, 2022.2 The People presented two witnesses: Detective Felicia Simon and Detective Tiffany Gonzalez. The defendant did not present any witnesses. At the end of the testimony, the court heard oral arguments from both sides. I make the following findings of fact and conclusions of law: FINDINGS OF FACT Detective Felicia Simon has been with the New York City Police Department (NYPD) for approximately 20 years, the last six as a detective (tr at 13-14). She is currently assigned to the 67th Precinct (id.). Detective Simon testified credibly that on November 27, 2020 at 10:27 p.m., she became involved in the investigation of a shooting that took place at 593 Lenox Road in Kings County (id. at 17). She received a “shots fired notification” over the radio and also a “10-34″ of a male Black shot at 593 Lenox Road (id. at 17-18). The radio run provided a description of the perpetrator as “a male Black. Possibly 6 to 6’2. Weighed 240 to 300 pounds. Dark complexion” (id. at 22-23). The site of the ShotSpotter provided over the radio was 599 Utica Avenue in Kings County (id. at 23-24). Detective Simon also learned over the radio that the complainant went to Kings County Hospital (id. at 25). After receiving this information, Detective Simon went to Kings County Hospital, where she spoke with Officers Wu and Williams (tr at 24-25). The officers informed her that the complainant, Charles Rasako, stated he was shot once in front of 593 Lenox Road, that the perpetrator had gotten out of a red four-door sedan and called the complainant by name (id. at 25-26). Mr. Rasako further stated that after he explained to the perpetrator that he had to get back to the shelter by curfew, the perpetrator pulled out a firearm and shot five times, hitting him once in the lower left shin (id. at 26). At approximately 11:03 p.m. that evening, Detective Simon, together with her partner Detective Burke, went to interview Mr. Rasako, who was in the hospital’s emergency room (tr at 28). Mr. Charles stated that he was in a lot of pain and asked her to come back at a later date (id. at 28-29, 59). The detective observed that Mr. Charles had a bullet hole in his lower left shin (id. at 29). The detective also spoke to a Dr. Gleyzer at the hospital who informed her that Mr. Charles had sustained a bullet wound to his lower left shin (id.). Later that night, Detective Simon learned of a 911 call placed by a Ms. Herring (tr at 30-31). At approximately 12:27 a.m. on November 28, 2020, the detective spoke with Ms. Herring (id. at 32). Ms. Herring stated that she is a supervisor at the shelter located at 599 Utica Avenue and that Mr. Charles came in bleeding from his left leg (id. at 32-33). Detective Simon went to the shelter with her partner and was informed by Officers Hart and Acosta that five shell casings and one fragment were recovered from the scene (id. at 33-35). On November 28, 2020 at 3:00 p.m., Detective Simon returned to Kings County Hospital to follow-up with Mr. Charles and was informed that he was discharged (tr at 36-37). At approximately 4:30 p.m. that day, Detective Simon went to the address on the complaint, 599 Utica Avenue, and was able to speak with Mr. Charles (id. at 37-39). Mr. Charles informed the detective that on November 27, 2020 he was headed to the shelter when he was approached by the perpetrator, who got out of a four-door, red sedan (id. at 39). The perpetrator called out his name and asked him to come over, to which Mr. Charles responded that he had to get to the shelter before curfew (id. at 39). Mr. Charles further stated that the perpetrator then pulled out a firearm and fired five shots, hitting him once in the left leg (id. at 39). Mr. Charles then ran to the shelter (id. at 39-40). When asked by Detective Simon if he knew the perpetrator, Mr. Charles said he’s known the individual for “a couple of years,” that “he goes by the name ‘Big Boy,’ ” “ hangs out on East 3-8 and Church,” “lives on East 4-3 between Linden and Lenox,” and “drives a white van” (tr at 41). He indicated that he knew the perpetrator from “social gatherings” (id. at 40, 82, 95). He further stated that the perpetrator and his brother were arrested in connection with an incident that occurred in the basement of “3-8 and Church Avenue” (id. at 40, 80). Mr. Charles described the perpetrator as a male Black with a dark skin complexion, approximately 6 feet to 6’2″ tall and weighing approximately 245 to 300 pounds (id. at 40-41, 81). Based on this information, the detective developed Harry Jonas, the defendant, as the person of interest (id. at 44-45) On November 29, 2020, Detective Simon created a photo array which consisted of six people including the defendant as the person of interest (POI) (tr at 43). She created the photo array by inputting into the database “the same characteristics such as: facial hair, complexion, weight, age” that matched the POI based on what she observed of the POI and “also from [] the description that was given” (id. at 43, 45-46). The defendant was randomly placed into position No.4 in the photo array (id. at 51). After creating the photo array, Detective Simon gave it to Detective Gonzalez (tr at 49). Other than asking Detective Gonzalez to conduct the double-blind photo array, Detective Simon did not give Detective Gonzalez any information about the suspect or what the complainant had said (id. at 49-50). Detective Simon described a double-blind photo array as one that is administered by another member of the NYPD “who has nothing to do with the case or know anything about the case” (id. at 16). Detective Tiffany Gonzalez has been with the NYPD for eight years, and has been a detective with the 71st Precinct Detective Squad since October 2021 (tr at 131-132). She testified credibly that on November 29, 2020 at 11:00 a.m., in response to a request from the 67th Precinct, she arrived at 599 Utica Avenue to conduct a photo array (id. at 132-133, 144-145). Detective Gonzalez was given the folder containing the photo array, but was otherwise not given any information about the photo array or the case (id. at 133-134, 135-136, 145-146). The photo array, the photo array report summary, and the photo array pre-viewing instructions and the photo array viewing report were admitted into evidence without objection as People’s Exhibit #1 (id. at 139). Detective Gonzalez conducted the identification procedure in a room at 599 Utica Avenue (tr at 136). She and the complainant were the only two people in the room during the photo array (id.). Detective Gonzalez read Mr. Charles the pre-viewing instructions verbatim as they appear in People’s Exhibit #1 (id. at 139). After Mr. Charles was read the instructions, he was given the photo array (id. at 140). Detective Gonzalez then asked Mr. Charles the questions listed on the photo array viewing report admitted into evidence as People’s Exhibit #1 (id. at 140-141). Mr. Charles responded that he recognized number four, that he “knew him from before” and “recognized him from the night of the shooting” (id.). Mr. Charles then signed his name under the photo of the person he recognized (id. at 141). Detective Gonzalez also read Mr. Charles the confidence statement that appears on People’s Exhibit #1 regarding how confident Mr. Charles was that he recognized this person and Mr. Charles responded, “Very sure” (id. at 142). Mr. Charles then signed the photo array viewing report in the detective’s presence (id.). Once the photo array was completed, Detective Gonzalez gave the photo array folder to Detective Simon and had no other involvement with this case (id. at 143-144). On December 5, 2020, Detective Simon arrested Harry Jonas, identified as the defendant herein, at the 67th Precinct Detective Squad (tr at 52). CONCLUSIONS OF LAW At a Wade hearing, the People have the initial burden of “producing evidence in support of the fairness of the identification procedure” (People v. Holley, 26 NY3d 514, 521 [2015]; see also People v. Chipp, 75 NY2d 327, 335 [1990]). If the People meet their burden, the onus shifts to the defendant to prove that the procedure was “improper” or “unduly suggestive” (Holley, 26 NY3d at 521; Chipp, 75 NY2d 327 at 335). Here, the People have sufficiently satisfied their burden of demonstrating that the creation of the photo array was reasonable and not unduly suggestive. Detective Simon testified that she “put six people in the photo array including [the]…person of interest, with the same characteristics such as facial hair, complexion, weight, age, all together; so, that they could look similar, alike” (tr at 43). She further explained that she generated the other images by “basically…put[ting] the same facial hair and everything,” that she selected the attributes such as “height, weight, all of those things” by “[taking] it from the POI. [She] looked at the POI’s height, and stuff. And also, from of [sic] the description that was given to [her]” (id. at 45-46). The defendant contends that the identification must be suppressed because the photo array was unduly suggestive. Specifically, he argues that the defendant “is the only one not directly facing the camera. You can’t see both his ears. His head is slightly turned [and] that makes him stick out” (tr at 168). He further argues that the photos of the defendant and filler #3 are “the brightest photos,” that “it’s almost as if a light is being shined on those two photos” (id. at 169). With respect to the defendant’s contentions about the positioning and brightness of the photos, these factors do not render the photo array unduly suggestive or otherwise suggest that the police encouraged a particular selection by including a characteristically unique photograph of the defendant in the array (see People v. Sosa-Marquez, 177 AD3d 1003, 1004 [2d Dept 2019] ["The fact that the defendant's photograph had what he described as an 'awkward orange hue' was not, in and of itself, sufficient to establish that the array was unduly suggestive"]; People v. Mata, 174 AD3d 647, 647 [2d Dept 2019] [that defendant's photograph was slightly larger and that his photo background was brighter than the backgrounds of the fillers' photos did not render the photo array unduly suggestive]; People v. Redding, 132 AD2d 700, 700 [2d Dept 2015] [defendant's photo which had a lighter background and was of poorer resolution insufficient to render photo array unduly suggestive]; People v. Boria, 279 AD2d 585, 586 [2d Dept 2001] ["Although the background of the defendant's photograph was slightly darker than the others and his head somewhat smaller, the differences were not of such quality as would taint the array"]; People v. Matthews, 101 AD3d 1363, 1364 [3d Dept 2012] [the photographic array was not rendered unduly suggestive despite the defendant being the only one looking down or because it appeared that the size of his image was reduced, elongating his face]; People v. Smiley, 49 AD3d 1299, 1300 [4th Dept 2008] ["the differences in skin tone and head size of the individuals depicted in the photo array were not so great as to indicate that the police were urging a particular selection"]; People v. Sylvester, 32 AD3d 1226, 1227 [4th Dept 2006] ["The fact that defendant's photograph was clearer than the other photographs in the array does not require suppression"]; cf. People v. Shea, 54 AD2d 722, 722 [2d Dept 1976] [photo array found to be impermissibly suggestive where defendant's color photograph was not an official " 'mug shot,' " was much smaller in size than the others, revealed defendant's name, and defendant's picture alone depicted a subject with the identifying characteristic of a blonde afro]). The defense also argues that the clothing descriptions of the fillers and the defendant differ in that the defendant is wearing a white shirt and the others are wearing dark clothes. A review of the photo array shows that the defendant is wearing a dark blue shirt with a small white section on the left shoulder. Fillers 5 and 6 are wearing shirts that appear to be the same shade of blue as the defendant’s shirt. Fillers 1 through 3 are also wearing dark shirts. All the fillers, including the defendant, are wearing dark, non-descript clothing. The fact that the defendant’s shirt also has some white on the left shoulder is not so distinctive as to have him stand out from the fillers (People v. Lundy, 178 AD3d 1389, 1390 [4th Dept 2019] ["Although the defendant was the only one wearing a red shirt, it was 'not so distinctive as to be conspicuous particularly since the other individuals [in the photo array] were dressed in varying, nondescript apparel’ ” [internal citations omitted]). This is particularly so here where there was no clothing description of the perpetrator was provided. The defendant further argues that the photo array is suggestive because “either he or number 6 are the only people who really look heavy set,” whereas numbers 2, 3 and 5, as conceded by Detective Simon “were medium to normal builds” (tr at 168). He argues that he has a “wide jaw” and “wide neck” when compared to the others (id. at 169). This contention is insufficient to establish that the array was unduly suggestive (People v. Staton, 28 NY3d 1160, 1161 [2017] [photo array not unduly suggestive where defendant appeared older than the fillers and was the only participant with salt-and-pepper hair]). “A photographic display is suggestive where some characteristic of one picture draws the viewer’s attention to it, indicating that the police have made a particular selection” (People v. Robert, 184 AD2d 597, 598 [2d Dept 1992]). It is well-settled that, when evaluating a photo array, the law does not require that the fillers’ photos be nearly identical in appearance to that of the defendant’s (see e.g. People v. Starks, 91 AD3d 975, 975 [2d Dept 2012]). The court has reviewed the photo array admitted into evidence as People’s Exhibit #1. Contrary to the defendant’s contentions, the men depicted in the array were sufficiently similar in appearance to him so that the procedure was not rendered unduly suggestive (see People v. Howard, 50 AD3d 823, 823 [2d Dept 2008] [the persons depicted in the computer-generated photo array were sufficiently similar in appearance to defendant that pre-trial identification procedure was not unduly suggestive]; People v. Ragunauth, 24 AD3d 472, 472 [2d Dept 2005] [participants in photo array were sufficiently similar to defendant in appearance so there was little likelihood the defendant would be singled out for identification]; People v. Robert, 184 AD2d 597, 598 [2d Dept 1992] [each person in the photographic array were "close in age, had a similar hairstyle [a short afro], skin tone, and facial characteristics”]). Each person in the photo array, including the defendant, has a similar hairstyle, a dark complexion and appears to be close in age. Moreover, the complainant told Detective Simon that he has known the perpetrator for years from social gatherings and also provided information about where the perpetrator lived, where he frequented and the type of car he drove. This information reflected a sufficient familiarity with the defendant, thus alleviating a concern of suggestiveness (see People v. Gissendanner, 48 NY2d 543, 552 [1979]; People v. Fowler, 25 Misc 3d 1222[A] [Sup Ct, Kings County 2009]; New York v. Hairston, 2016 NY Slip Op 32715[U] [Westchester County Ct 2016]). In addition, the photo array herein was administered in a double-blind procedure. Pursuant to Criminal Procedure Law (CPL) section 60.25(1)(c), for a photographic array to be admissible, it is required that the administrator of the array not know who the suspect is and where the suspect is located within the array. “The ‘blind/blinded’ criterion is intended to deny the administrator of an identification procedure the knowledge that could prompt him to send signals, even unwittingly, to the viewing witness” (Hibel, New York Identification Law §4.06[4], at 4-62 [2021]). The photo array in this case was prepared by Detective Simon and administered by Detective Gonzalez. Detective Gonzalez had no knowledge of the target of the identification procedure or his position in the array. Here, the defendant has failed to meet his ultimate burden of demonstrating that the photographic array was impermissibly suggestive and gave rise to a substantial likelihood that he would be singled out for identification (see Holley, 26 NY3d at 525). Accordingly, the defendant’s motion to suppress the identification is denied. This constitutes the Decision and Order of the court. Dated: August 19, 2022
