A Dunaway/Wade hearing was held before this Court on August 17, 2022. The People called two witnesses at the hearing: Detective Timothy Winter and Detective Yisel Cabrera. The Court credits each of their testimony. This decision summarizes the testimony below, as the Court’s findings of fact, and constitutes the Court’s conclusions of law. Findings of Fact On May 10, 2021, Detective Timothy Winter of the NYPD’s 106th Precinct Detective Squad began investigating a slashing that occurred earlier that day near 109-23 127th Street in Queens. Detective Winter reviewed a complaint report, which identified Rudy Hernandez as the complainant, Angel Osorio as an eyewitness to the slashing, and defendant Pablo Bradshaw as the suspect. That same day, he obtained a photograph of defendant from the NYPD database and went to Jamaica Hospital to interview Mr. Hernandez. Detective Winter arrived at the hospital around 8:00 p.m. and interviewed Mr. Hernandez soon after he had undergone surgery to treat wounds to his arm, torso, and face, which he had sustained during the slashing. Mr. Hernandez, who was employed as a construction worker, said that he and another construction worker he knew as “Blackie” had gotten into an altercation at their current job site earlier in the day. Mr. Hernandez stated that he had previously worked with “Blackie” at several other construction sites. During the altercation, “Blackie” placed an axe to Mr. Hernandez’s face and threatened to kill him. Mr. Hernandez later noticed that, in addition to having a cut under his eye, he was bleeding from his arm and torso. After Mr. Hernandez stated that he had worked with “Blackie” at the current construction site and other jobs, Detective Winter showed the photograph of defendant to him. Mr. Hernandez responded that the person in the photograph was the person he knew as “Blackie” who had attacked him earlier at the construction site. Detective Winter then created a photo array with defendant’s photograph in position two to be shown to Angel Osario, another employee at the construction site who had witnessed the altercation between defendant and Mr. Hernandez. Detective Winter asked another detective, Yisel Cabrera, to administer the photo array to Mr. Osario without revealing to her any details or information about the case or the suspect. Detective Cabrera administered the photo array to Mr. Osario on May 11, 2021 at approximately 12:00 p.m. She read him the instructions in Spanish and informed him that the suspect may or may not be included in the photo array. Mr. Osaro identified defendant and stated that he recognized him from work. Detective Winter spoke with Mr. Osario by telephone the next day. Mr. Osario told him that during an altercation, defendant had assaulted Mr. Hernandez with an axe. Based on the photo array identification, as well as his interviews of Mr. Hernandez and Mr. Osario, Detective Winter issued an investigation card (“I-Card”) for defendant which indicated that there was probable cause to arrest him in relation to the assault case. As a result of a surrender agreement, defendant was brought to the 106th Precinct by the NYPD Warrant Squad on June 3, 2021 and placed under arrest. Conclusions of Law A. Legality of Defendant’s Arrest The police have probable cause to arrest an individual when they have “information sufficient to support a reasonable belief that an offense has been [committed] or is being committed or that evidence of a crime may be found in a certain place.” People v. Jones, 202 AD3d 821, 825 [2d Dept 2022]. While mere suspicion or conduct equally susceptible to innocent or culpable interpretation is not sufficient, probable cause does not require proof beyond a reasonable doubt. People v. Guthrie, 25 NY3d 130, 133 [2015]; People v. Alexander, 200 AD3d 790 [2d Dept 2021], lv denied 37 NY3d 1159 [2022]; People v. Kamenev, 179 AD3d 837 [2d Dept 2020], lv denied 35 NY3d 1027 [2020]. It is well settled that a “witness’s identification of [a] defendant at a photographic array furnishe[s] probable cause for his arrest.” People v. Ballinger, 62 AD3d 895 [2d Dept 2009], lv denied 13 NY3d 794 [2009]; People v. Pena, 95 AD3d 541 [1st Dept 2012]; People v. Walton, 309 AD2d 956 [2d Dept 2003]. Considering the totality of the circumstances (People v. Geddes, 171 AD3d 1210 [2d Dept 2019], lv denied 33 NY3d 1069 [2019]), the photo array identification of defendant, as well as the firsthand information obtained from Mr. Hernandez, the complainant, and Mr. Osario, an eyewitness, established probable cause for defendant’s arrest. People v. Edmondson, 191 AD3d 1015 [2d Dept 2021], lv denied 36 NY3d 1119 [2021]; People v. Brown, 180 AD3d 1063 [2d Dept 2020], lv denied 35 NY3d 968 [2020]; People v. Mendoza, 49 AD3d 559 [2d Dept 2008]. B. Suppression of Identification Testimony When a defendant seeks to suppress identification evidence, the People bear the initial burden of “establishing the reasonableness of the police conduct and the lack of any undue suggestiveness.” People v. Sosa-Marquez, 177 AD3d 1003, 1004 [2d Dept 2019]. Once the People meet this burden, the defendant “bears the ultimate burden of proving that a pretrial identification procedure was unduly suggestive.” People v. McDonald, 138 AD3d 1027, 1028 [2d Dept 2016]. 1. The Single-Photograph Identification The Court of Appeals has instructed that the display of a single photograph of the defendant to a witness generally “carries the risk of undue suggestiveness.” People v. Marshall, 26 NY3d 495, 506 [2015]; People v. Rodriguez, 79 NY2d 445, 453 [1992]; see also People v. Francis, 190 AD3d 566 [1st Dept 2021], lv denied 36 NY3d 1097 [2021]; People v. Thornton, 236 AD2d 430 [2d Dept 1997]. However, when the People establish that a witness has “sufficient familiarity with defendant such that [a] single-photograph identification of defendant was confirmatory,” (People v. McBayne, 204 AD3d 549, 550 [1st Dept 2022]), that identification is not considered unduly suggestive and will not be subject to suppression. People v. Richardson, 200 AD3d 984 [2d Dept 2021], lv denied 38 NY3d 930 [2022]; People v. Jackson, 151 AD3d 746, 746 [2d Dept 2017]["witness was asked to identify the defendant in a single photograph, and that the identification was merely confirmatory"]; People v. Whitlock, 95 AD3d 909 [2d Dept 2012], lv denied 19 NY3d 978 [2012]. The rationale behind such a rule, the Court of Appeals has explained, is that “suggestiveness is not a concern” when “the protagonists are known to one another.” Rodriguez, 79 NY2d at 449; Richardson, 200 AD3d at 985. In other words, a witness who is familiar with defendant is deemed to be “impervious to police suggestion” (People v. Morrison, 59 AD3d 569, 569 [2d Dept 2009], lv denied 12 NY3d 918 [2009]), leaving “little or no risk that comments by the police, however suggestive, will lead the witness to identify the wrong person.” Richardson, 200 AD3d at 985. Whether a witness and defendant are sufficiently familiar depends upon “on the length and quality of prior contacts between witness and defendant.” People v. Waring, 183 AD2d 271, 274 [2d Dept 1992]. Other factors to be considered include: (a) the number of times the witness viewed defendant prior to the crime; (b) the duration and nature of those encounters; (c) the setting time period over which those encounters occurred; and (d) whether the witness and defendant had any conversations. Rodriguez, 79 NY2d at 451; People v. Coleman, 73 AD3d 1200, 1202 [2d Dept 2010]; People v. Jenkins, 230 AD2d 806, 807 [2d Dept 1996]. Here, the People established that the complainant’s identification of defendant from a single photograph was “merely confirmatory.” People v. Ellis, 198 AD3d 674 [2d Dept 2021], lv denied 37 NY3d 1145 [2021]. Detective Winter’s testimony established that the complainant and defendant were current coworkers, that they had previously worked on several other job sites together, and that the complainant knew defendant’s nickname. In addition, the fact that the argument between the complainant and defendant, as well as the slashing, occurred at the job site further enhances the People’s argument that the complainant’s identification of defendant was merely confirmatory. People v. Rodriguez, 47 AD3d 417 [1st Dept 2008]; People v. Legette, 256 AD2d 593 [2d Dept 1998]. Accordingly, under the totality of the circumstances, the Court finds that the single-photograph identification by the complainant was merely confirmatory. 2. The Photo Array Identification A photo array is unduly suggestive if “some feature or characteristic of one of the depicted individuals is so unique or distinctive that it draws the viewer’s attention to that photograph, thereby indicating that the police have selected that particular individual.” People v. Bowman, 194 AD3d 1123, 1126 [3d Dept 2021], lv denied 37 NY3d 963 [2021]. While the various persons included in a photo array must be sufficiently similar in appearance to the defendant (People v. Lago, 60 AD3d 784 [2d Dept 2009]), there is no requirement that they be “nearly identical in appearance” to the defendant. People v. Chipp, 75 NY2d 327, 336 [1990]; see also People v. Staton, 28 NY3d 1160 [2017] [photo array was proper although defendant was older than other fillers]; People v. Linear, 200 AD3d 1498 [3d Dept 2021], lv denied 38 NY3d 951 [2022] [photo array was proper even though defendant was the only bald person featured]; People v. Marryshow, 162 AD3d 1313 [3d Dept 2018] [photo array was not suggestive despite differing skin tones of the persons featured]; People v. Quintana, 159 AD3d 1122 [3d Dept 2018] [photo array was not unduly suggestive even though defendant's neck tattoo was partially visible]. The Court concludes that the photo array procedure in this case was not unduly suggestive, as “nothing about defendant’s [appearance] was likely to unduly draw the viewer’s attention to his photo or indicate that he was the perpetrator of the charged crimes.” People v. Serrano, 173 AD3d 1484, 1487 [3d Dept 2019]. The photo array displayed to Angel Osario featured individuals similar in age and general physical characteristics to those of the defendant and were not exhibited to the witness in a suggestive manner. See People v. Richardson, 200 AD3d 984 [2d Dept 2021], lv denied 38 NY3d 930 [2022]; People v. Bell, 188 AD3d 904 [2d Dept 2020], lv denied 36 NY3d 1049 [2021]. This is especially so since the detective who conducted the photo array procedure had no information concerning details or the suspects of the investigation. See People v. Pleasant, 149 AD3d 1257 [3d Dept 2017]. Accordingly, since the photo array procedure was not unduly suggestive or likely to taint the witness’s identification testimony, the Court declines to suppress the identification testimony. Accordingly, defendant’s motion to suppress identification evidence is denied. This constitutes the decision and order of the Court. The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney. Dated: September 21, 2022
