DECISION & ORDER The defendant is charged with Assault in the First Degree, in violation of Penal Law (PL) section 120.10(2), in relation to an incident that allegedly occurred on December 2, 2022. The defense moves to suppress evidence, namely an identification. This court conducted a Rodriguez hearing on July 10, 2023. The People presented one witness at the hearing, Police Officer Arthur Dreyzin. The defendant did not present any witnesses. After the testimony was concluded, the court heard oral arguments from both sides. The court makes the following findings of fact and conclusions of law: FINDINGS OF FACT Police Officer Arthur Dreyzin has been employed by the New York City Police Department (NYPD) for four years (tr at 7). Officer Dreyzin is assigned as a public safety officer and his duties include addressing quality of life and responding to crimes within the train station (tr at 7). The court credits the officer’s testimony to the extent set forth herein. On December 2, 2022, while off work on leave, Officer Dreyzin received a phone call from his lieutenant, Lieutenant Podber, stating that the Brooklyn Transit Robbery Squad wanted to speak with him (tr at 7, 14-15). Officer Dreyzin then contacted the Brooklyn Transit Robbery Squad and spoke to Detective Patel, who informed the officer that the detective was going to send him a wanted flyer and to “just let him know if [the officer] recognize[d] anybody” (tr at 8, 15). A few minutes later, at approximately 5:19 p.m. on December 2, 2022, Detective Patel sent Officer Dreyzin the wanted flyer via department email (tr at 7-8, 16; see People’s Exhibit 1). Prior to being shown the flyer, the officer was not aware of any investigation (tr at 8). When asked what he did after receiving and looking at the photo, the officer responded, I examined the photo and then I reviewed my body worn camera to see if — right away I realized she looked extremely familiar. So I reviewed my body worn camera. I went back to April 29. And then I saw I had stopped somebody who depicts that same person on the wanted flyer (tr at 16-17). The officer conceded that when he received Detective Patel’s email with the wanted flyer, he “wasn’t certain,” but “was “pretty sure that he knew who that was” (tr at 20). According to the officer, he was drawn to review his body worn camera because the defendant was wearing the same coat at the time [he] stopped her” as was depicted in the wanted flyer (tr at 12). According to the officer, “right away [he] realized she resemble[d] somebody [he] had previously stopped [and] as [he] reviewed his body worn camera, [he] started putting two and two together” (tr at 18). The officer stated that he does not normally stop many females and that is the reason she “really stuck out to” him (tr at 18-19). Of the approximate 100 summonses the officer issued between April 29 and December 2, 2022, two had been issued to women (id.). The officer claimed he reviewed “approximately three” body worn camera footages, of all the instances where he gave summonses to females between April 29, 2022 and December 2, 2022 (tr at 18-19). Over the course of 10 to 12 minutes, he reviewed the entirety of these “approximately three” body worn camera footages on his cell phone, in his home, with no one else present (tr at 21-23). The officer then recognized the defendant from when he and his partner, Officer Nencici, stopped the defendant for not paying her fare on April 29, 2022, in the Sutter Avenue subway station (tr at 9-10). This was the “one and only time” that the officer ever interacted with the defendant (tr at 9, 20-21). The defendant was asked for identification, which she produced, and then Officer Dreyzin’s partner, Officer Nencici, issued her a summons (tr at 10). Officer Dreyzin stood a few feet away from the defendant during the interaction and indicated that the lighting conditions were “very good” (tr at 11). The interaction lasted approximately six minutes (tr at 10-11, 20). The defendant had a hood on the entire time, but, according to the officer, it was not covering her face (tr at 21, 24). After looking at the wanted flyer and reviewing his body worn camera, Officer Dreyzin let Detective Patel know he recognized the defendant (tr at 11-12). CONCLUSIONS OF LAW At a Rodriguez hearing, the People have the initial burden to prove that the identification procedure was “merely confirmatory” (People v. Rodriguez, 79 NY2d 445, 452 [1992]). To meet their burden, the People must show that the witness and the defendant are known to one another, or, if no relationship exists, that the witness “knows [the] defendant so well as to be impervious to police suggestion” (id. at 452). To determine whether an identification is confirmatory, the court may consider various factors, including the number of times the witness viewed the defendant prior to the crime, the duration and nature of the encounters, the setting of the encounters, the period over which the viewings occurred, the time elapsed between the crime and any previous viewings, and whether the two had any conversations (id. at 451; People v. Sanchez, 75 AD3d 911, 912 [3d Dept 2010]). A court’s finding that an identification is confirmatory is equivalent to the conclusion that, “as a matter of law, the witness is so familiar with the defendant that there is ‘little to no risk’ that police suggestion could lead to a misidentification” (Rodriguez, 79 NY2d at 450). The mere labeling of an identification as “confirmatory,” even where the identification is made by a police officer, does not make it so (see People v. Boyer, 6 NY3d 427, 432 [2006], citing People v. Wharton, 74 NY2d 921, 923 [1989]; see also People v. Mato, 83 NY2d 406, 410-411 [1994]). “Comprehensive analysis, not superficial categorization, ultimately governs”…because even “trained and perhaps well-intentioned police officers may too easily fall prey to the pressures and official routinization of depersonalized identifications” (People v. Gordon, 76 NY2d 595, 601 [1990]). “Where the nature and circumstances of the encounter and identification may warrant, a [Wade] hearing should and undoubtedly will be held” (Wharton, 74 NY2d at 923). In addition to the Rodriguez factors set forth above, courts assessing the confirmatory nature of a police officer’s identification consider whether “the viewing…occurred at a place and time sufficiently connected and contemporaneous to the arrest itself so as to constitute the ordinary and proper completion of an integral police procedure” and whether the officer was “experienced and expected to observe carefully the defendant for purposes of later identification and for completion of his official duties” (Wharton, 74 NY2d at 922-923). Courts also regard the quality of the officer’s initial viewing to be a critical factor in its analysis (see Boyer, 6 NY3d at 432). As stated by the Court of Appeals, “[w]hen there is a risk that the quality of the initial observation has eroded over time, we have consistently held that police identifications do not enjoy any exemption from the statutory notice and hearing requirements” (id. at 432-433). Throughout the years, the Court of Appeals has issued numerous decisions on the issue of whether a particular identification by a police officer is merely confirmatory. In People v. Wharton, for example, after a face-to-face encounter with the defendant, the purchasing undercover officer in a planned “buy and bust” radioed a description of the defendant to a backup team of officers who immediately arrested the defendant (Wharton, 74 NY2d at 922). The purchasing officer identified the defendant within five minutes of the arrest and again three hours later at the precinct (id. at 922). In deeming the identification confirmatory, the court found significant the fact that the encounter was a planned “buy and bust” operation involving an experienced officer who was trained to focus on the suspect so that he could later identify the suspect to the back-up team (id. at 922-923). In contrast, in People v. Newball, 76 NY2d 587, 591-592 (1990), the Court held that an officer’s identification of a person she observed at a buy and bust operation 28 days earlier was not merely confirmatory. The facts there were as follows: On October 21, 1986, the “ghost” officer, from a distance of approximately 50-75 feet away, observed the purchasing undercover officer attempt to buy drugs from a male (id. at 589). The purchasing officer radioed a description of the seller to the back-up team, but the subject left the area before the team’s arrival (id.). On November 18, 1986, 28 days later, while involved in another buy and bust operation, the purchasing officer fortuitously observed the seller from the prior sale and radioed his description to the back-up team which included the “ghost” officer from the prior sale (id.). The “ghost” officer arrived at the location and identified the defendant as the person she had seen with the purchasing officer on October 21 (id.). The Court held that the ghost officer’s prior viewing of a person for only a few minutes from a distance of no closer than 50 feet was nothing more than a “distant and fleeting” relationship which was insufficient to place the subsequent identification, made 28 days later, within the ambit of a confirmatory identification (Newball, 76 NY2d at 591-592). Citing People v. Collins, 60 NY2d 214, 219 (1983), the Court cautioned, “in cases where the prior relationship is fleeting or distant it would be unrealistic to ignore the possibility that police suggestion may improperly influence the witness in making an identification” (Newball, 76 NY2d at 591). In making its determination, the Court concluded that the “ghost” officer’s “identification of defendant cannot be said to have constituted the ‘completion of an integral police procedure,’ since it lacked any continuity with her initial viewing of [the] defendant on October 21″ (Newball, 76 NY2d at 592). Of particular importance in the Court’s ruling was the significant four-week lapse of time between the initial viewing and the later identification (id.). In this case, prior to the identification at issue herein, Officer Dreyzin had only interacted with the defendant one time on April 29, 2022, where, notably, his partner, not he, ultimately issued the defendant a summons for fare evasion. The entire encounter lasted approximately six minutes. Other than requesting identification from the defendant, which the defendant provided, there was no testimony regarding any conversation between the officer and the defendant. More than seven months later, on December 2, 2022, the officer is asked to look at a wanted flyer to see if he recognizes “anybody.” The wanted flyer depicts a single individual and seeks information regarding an assault, the details of which are included in the flyer (People’s Exhibit 1). The officer noted that the person in the flyer looked “extremely familiar,” but it was not until he conducted an independent review of approximately three of his body worn camera footages going back to April 29, 2022, that he then “recognized” and “identified” the person in the wanted flyer as the person he and his partner stopped and issued a summons to some seven months prior. Here, the officer’s brief six-minute interaction with the defendant which resulted in the issuance of a summons does not establish that he was so familiar with the defendant as to render a subsequent identification of her confirmatory (cf. People v. Patoir, 72 Misc 3d 858, 863 [Sup Ct, Kings County 2021] [where officer "met [the] defendant and interacted with him for between five and six hours during a vehicle stop that led to an arrest,” and “they stood face-to-face during the vehicle stop and spoke to each other about why defendant had to be taken into custody,” officer was found to be sufficiently familiar with the defendant such that his subsequent identification of the defendant was merely confirmatory]). Moreover, the fact that the officer had to review his body worn camera before indicating whether or not he recognized the person in the wanted flyer suggests that the quality of the officer’s initial observation had eroded with the passage of time. This was not a situation where the officer, aware that he would be called upon to make a later identification, carefully focused on the defendant so that he could later make such an identification (compare Wharton, 74 NY2d at 923, with Boyer, 6 NY3d at 433). This was a situation where seven months after he and his partner had a six-minute encounter with the defendant, the officer was asked to see if he recognized the lone individual depicted on a wanted flyer. As established by the record before this court, Officer Dreyzin’s memory of the defendant was fleeting at best. As in Newball, the significant lapse of time between the initial encounter and the later identification, in this case seven months, calls into question the reliability of the officer’s identification. After considering the relevant factors set forth above, this court finds that the People have failed to meet their burden of establishing that Officer Dreyzin was sufficiently familiar with the defendant as to deem his December 2, 2022 identification of her merely confirmatory. CONCLUSION For the foregoing reasons, defendant’s motion is granted solely to the extent that a Wade hearing is ordered. This constitutes the Decision and Order of the court. Dated: July 31, 2023
