The defendant has moved by omnibus motion for various forms of pretrial relief. A point of particular contention between the parties was the defendant’s application for a Wade hearing. See United States v. Wade, 388 US 218 (1967). The People served CPL §710.30 notice of two identifications, both of which involved police officers who had previously arrested the defendant viewing still frame images of the perpetrator taken from video surveillance. For the reasons stated below, the court grants the hearing. Grand Jury minutes The defendant’s motion to inspect the grand jury minutes is granted. Upon inspection of the grand jury minutes, the court denies the defendant’s motion to dismiss the indictment or reduce a charged offense in the indictment. The minutes reveal that a quorum of the grand jury was present during the presentation of evidence and at the time the People properly instructed the grand jurors on the law. The evidence before the grand jury was legally sufficient to establish a prima facie case for each count in the indictment. The People properly instructed the grand jury. Therefore, the motion to dismiss the indictment for a defect in the People’s instructions on the law to the grand jury is denied. The instructions were not defective as a matter of law. Identification hearing The defense moved to suppress identification of the defendant as unduly suggestive, arguing that the police were focused on the defendant’s clothing when there was nothing unique about what he was wearing. The People respond by saying that there were two identifications made by police officers through use of still photos of surveillance video. Both officers had previously arrested defendant Flowers but were uninvolved in this investigation. One officer testified in the grand jury and the other did not. The People cited People v. Jackson, 23 Misc 3d 1128 (A) (Sup Ct NY Co 2009) and People v. Gee, 286 AD2d 62 (4th Dept 2001), in support of their position that no hearing is warranted because “a video surveillance still shown to witnesses during the course of a police investigation by police officers unaware of the defendant’s identity is not an identification within the meaning of CPL 710.30.” As to the first identification, Sergeant Moyles stated that he interacted for approximately one to two hours in the prior arrests, which were in 2018 and 2020. He indicated that he received the still frame “wanted” photo from the investigating detective, but did not state whether there was any accompanying information with the request. The other officer who viewed video stills did not testify in the grand jury and the circumstances are unclear. Under New York law, an identification procedure is a police-arranged confrontation for the purpose of establishing the identity of the perpetrator. People v. Gissendanner, 48 NY2d 543 (1979). The People tacitly acknowledge this was not a mere confirmatory identification because the perpetrator was not in any way previously seen by these two witnesses. Thus, the fact that the identifications were made based on footage that was proximate in time and place to the crime has little relevance to the issue of whether a hearing is appropriate. Further, the People do not argue that the identifications were removed from the ambit of Gissendanner merely because they were law enforcement officers. See People v. Azor, 114 AD3d 446, 448 (1st Dept 2014)(Richter, J., concurring).1 Police officers are not immune from suggestion from fellow officers. In People v. McGee, 194 AD3d 498, the First Department found the trial court should have suppressed an eyewitness’s identification from a surveillance tape because a detective directed the witness to focus on someone in the video “wearing all brown.” This kind of suggestive direction to a witness can also be made via email, text or other communication. Unless the court holds a hearing, there is little chance that the circumstances surrounding an otherwise innocuous viewing of still photos or video can be explored. While the People maintain that the detective who caused the two officers to view the video stills was unaware of the identity of the suspect, there is nothing in the record to support that conclusion. The two officers who were asked to view the video stills were also officers who previously arrested this defendant. It is unclear how their prior interactions with this defendant came to the detective’s attention and whether he singled them out, or circulated the wanted flyer to the entire precinct. Wrongful convictions based on mistaken identifications continue to trouble the criminal justice system, 55 years after Wade. People v. Marshall, 26 NY3d 495, 501 (2015). The court must err on the side of conducting a pre-trial hearing to determine whether the prosecutor or the police conducted an out-of-court identification procedure that exposed any witness to the defendant’s identity in an unduly suggestive manner. The People bear only the initial burden; the defense bears the ultimate burden to establish undue suggestiveness. People v. Chipp, 75 NY2d 327 (1995). Accordingly, the defendant’s motion is granted to the extent that a Wade/Dunaway hearing is ordered. United States v. Wade, 388 US 218 (1967); Dunaway v. New York, 442 US 200 (1979). Other pretrial hearings The motion to suppress evidence concerning statements is granted insofar as to order a Huntley/Dunaway hearing. People v. Huntley, 15 NY2d 72 (1965); Dunaway v. New York, 442 U.S. 200 (1979). Any applications pursuant to Sandoval and Molineux will be heard immediately before trial. People v. Sandoval, 34 NY2d 371 (1974); People v. Molineux, 168 NY 264 (1901). Discovery The People are reminded of their continuing obligation to provide exculpatory information to the defendant. See Brady v. Maryland, 373 U.S. 83 (1963). The parties are ordered to comply with their obligations set forth in CPL. Article 245. Leave for Further Motions Upon a proper showing, the court will entertain appropriate additional motions based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have raised in this motion. See CPL §255.20(3). This shall constitute the decision and order of the court. Dated: October 13, 2022
