1. The People’s motion to reargue is GRANTED 2. Upon re-argument, this Court adheres to its prior decision. Decision and Order Procedural history On November 2ND, 2022, prior to the commencement of a Dunaway/Wade hearing, the People withdrew their identification notice, pursuant to C.P.L. §710.30(1)(b), of the two identification procedures by the complainant — (1) the identification on July 20th, 2020 at 10:46 p.m. at the 101st Precinct by the complainant while viewing Argus surveillance video and (2) the identification on November 9th, 2021 12:40 p.m. by the complainant in the District Attorney’s Office while viewing video surveillance. At that time, this Court advised the People withdrawal may result in the identifications being precluded. Thereafter, a Dunaway/Wade hearing was conducted with respect to a third identification by Detective Zappia. At the conclusion of the hearing, defendant moved for suppression of the officer’s identification and preclusion of both of the complainants’ identifications. By written decision, dated January 4TH, 2023, the Court granted the defendant’s motion to preclude both identification procedures by the complainant and denied suppression of the confirmatory identification made by Detective Joseph Zappia. As part of a motion-in-limine prior to the commencement of trial, the People asked the Honorable Cassandra Mullen to permit the People to introduce the video surveillance at trial and to allow the complainant to identify the defendant on the video “as the person who shot him” as he had previously done at the precinct, at the District Attorney’s office and in the Grand Jury. Defendant by both an oral and written motion moved to confirm the court’s suppression and preclusion ruling, prompting the Honorable Cassandra Mullen to adjourn the above-mentioned matter back before this Court on February 6TH, 2023. On February 17TH, this Court held oral arguments on the motion. The People specified that they seek to 1) introduce all videos at trial, 2) have the complainant be shown the video surveillance at trial and identify the defendant as the “person who shot him” and 3) illicit testimony that complainant observed the video surveillance prior to trial. Prior to rendering a decision, the Court requested and received the video surveillance footage that was shown to the complainant and used to identify the defendant as the person who shot him during the identification procedures at the precinct, at the District Attorney’s office and in the Grand Jury. On March 7th, 2023, in a seven-page written decision, the Court precluded the People from having the complainant identify the defendant as the person who shot him on the surveillance videos at trial and precluded the complainant from identifying the defendant in-court. On April 10th, 2023, the People filed the instant motion to reargue this Court’s preclusion decision1. The People aver that the Court “misapprehended certain facts, and in applying those facts to the law made rulings which amount to a misapprehension of the applicable legal standards.” The People specify that the court confused which video was shown to the complainant, (stating it was the argus video and not the compilation video) and the Court incorrectly concluded that the complainant and the Detective identified the defendant from the same video. They also maintain that they properly withdrew identification notice, arguing that the complainant’s identification of the man (the defendant) on the video as the person that shot him, was pre-arrest, pre-suspect and therefore not an identification procedure pursuant to C.P.L. §710.30(1)(b). They rely on the holdings of People v. Doyle, 134 Misc2d 338, People v. Gee, 99 NY2d 158 (2002), People v. Peterson, 194 AD2d 124 (3d Dept. 1993); People v. Hall, 168 AD3d 761 (2d Dept. 2019); People v. Gissendanner, 48 NY2d 543 (1979); People v. Johnson 192 AD3d 1612 (2d Dept 2017), People v. Deverow 153 AD3d 550 (2d Dept. 2017) and People v. Edmondsen 75 NY2d 672 (1990). Defendant opposes the motion to reargue, relying on his extensive previous oral and written arguments. The People’s motion to reargue is GRANTED. Question/Issue: The question at issue, is whether a witness’ identification of a perpetrator while viewing video surveillance depicting time periods and/or locations other than the time and place of occurrence of the charged crime to police officers qualifies as an identification procedure, requiring notice and a suppression hearing. Conclusions of Law The People rely in part of the very same cases that the Court cited in the January 4th, 2023 written decision, People v. Gee, supra, and People v. Hall, supra. The People admit that the underlying facts of the Gee case involved the complainant’s viewing video surveillance that depicted the very crime she herself witnessed. They further admit that based on those specific circumstances, that the Court of Appeals found that the witness identification did not constitute an identification procedure or require a suggestiveness analysis. However, they argue “several courts have continued to rely on this seminal ruling…regardless of if this video actually depicts the crime.” However, they fail to cite to any cases that support their argument. While the Hall Court did not address whether C.P.L. §710.30(1)(b) applied to an identification the complainant made while viewing a video depicting the defendant and others prior to the crime, it did analyze the video and the circumstances surrounding the showing of the video and determined that the showing of such a video was not inherently suggestive and did not trigger an independent source hearing. In reaching that determination, the Court considered what the video depicted and whether the defendant was singled out, unfavorably portrayed, and/or prejudiced in any way by police conduct or comment. Here, the Court could make no such determination, since the People chose to withdraw all notices as to the complainant’s identifications and thus not introduce any testimony or video, that would allow the court to similarly decide prejudice. Furthermore, unlike in Hall, this complainant was shown the video or multiple videos several times, including once at the precinct, once at the District Attorney’s office and once in the Grand Jury. The Court was provided with no information as to the surrounding circumstances of any of those procedures. The People likewise misinterpret the holdings in People v. Gissedanner, supra, People v. Johnson, supra and People v. Edmonson, supra. In Gissendanner, the identity of the perpetrator was not in issue and therefore no suggestibility analysis or suppression hearing was necessary. The holdings in Johnson and Edmonson, directly contradict the People’s position. In both cases, suppression hearings were conducted and the Courts made determinations on the suggestiveness of the witnesses’ video surveillance identifications. Moreover, the People failed to address the case that is directly on point and that was cited by this Court, People v. Jones, 173 A.D.3d 1062, (2d Dept. 2019), in which the Second Department found that the identification by a complainant when shown a video of the assailant by the police, not depicting the actual crime, “was a police arranged identification procedure, even though the police did not arrange the content of the videos.” The Jones Court noted that the complainant viewed the videos “at the deliberate direction of the State” (Id at 1065; see also People v. Dixon, 85 N.Y.2d 218, 223 (1995). Furthermore, the People rely on People v. Peterson, supra, for the proposition that an observation is different than an identification, presumably arguing that the police showing of the Argus surveillance video to the witness was for “observation” purposes, and therefore not within the purview of C.P.L. §710.30(1)(b). However, they fail to acknowledge and/or distinguish the rest of the court’s findings that directly contradict their position. In Peterson, the Appellate Division explained that CPL 710.30(1)(b) “contemplates…two distinct pretrial “viewings” of a defendant by an eyewitness. First is the witness’s actual observation of a defendant either at the time or place of commission of the crime or some other occasion relevant to the case…Second,…is a separate, police-initiated identification proceeding… where the witness points at a defendant and says, “That’s the one.” Id at 128. Here, the observation would have been at the time the witness was shot and the identification would have been when the complainant viewed the video surveillance, pointed at the person on the video and indicated that was the person who shot him, both at the precinct and at the District Attorney’s office. Finally, the People rely on People v. Doyle, supra, for the proposition that they are not bound by any improperly served C.P.L. §710.30 notice and that they can properly withdraw at any time. The Court agrees and did permit the People to withdraw both of the complainants’ identification notices prior to commencing the suppression hearing. Omitted and ignored in the People’s arguments, are Doyle’s other findings: 1) that C.P.L. §710.30(1)(b) does not require hearings when “there is no issue as to the defendant’s identity, or the defendant and the witness were previously known to each other or the viewing consisted of an undercover officer’s confirmation that the right person had been arrested,” none of which applies in the instant matter; and more significantly, 2) that the People “face the sanction of preclusion if they withdraw notice and the trial evidence demonstrates that the identification evidence does, in fact, come within the purview of C.P.L. §710.20 (C.P.L. §710.30)”; and 3) that the “People should, therefore, be sure of their position, since an order precluding…identification evidence would not be appealable and would probably result in a dismissal of all charges.” The People’s contention that the Court confused videos is immaterial since the videos were never officially introduced to the Court, and of no moment, since the Court is not conducting a suggestiveness analysis. Accordingly, the Court ADHERES to the prior decision GRANTING defendant’s motion to preclude the complainants’ identifications of the defendant at the precinct and at the District Attorney’s Office. This constitutes the decision and order of this Court. Dated: June 6, 2023
