DECISION AND ORDER Defendant is charged here with three counts of Robbery in the First Degree (PL §160.15[4]) and six counts of Robbery in the Second Degree (PL §§160.10[1], [2] [a]). The People allege that defendant committed the first robbery on January 9, 2021 and the second one on February 13, 2021. The People seek to permission to admit Police Officer Juan Espinal’s opinion testimony that defendant is the person depicted in separate surveillance video clips related to each of the robberies. Defendant has moved to preclude identification evidence based on the People’s failure to serve notice pursuant to CPL §710.30(1)(b). On January 29, 2024, this case was sent to Part 85 for resolution of this pre-trial in limine issue. I heard oral argument on the motion in limine on January 29th and 30th. For the reasons that follow, this court will not permit the People to ask Espinal to identify defendant from any video surveillance footage offered in evidence at trial, unless defendant opens the door to such testimony. Background The January 9, 2021 (“First”) Robbery The People allege that 5. On January 9, 2021, at around 8:30 p.m., three males, wearing distinctive clothing followed two victims (the first and second victims) into the lobby of the apartment building at 41 West 112th Street (Building 8 of the Martin Luther King Jr. Towers development of the New York city Housing Authority) and into an elevator, stopped the elevator door from closing, and pulled the victims out of the elevator. There, one of the males threatened the victims, displaying the butt of a black firearm from his jacket pocket, and demanded property from the victims. The three males then took property from the victims, including one of the victim’s car keys and an iPad. In the course of taking the property, the males struck the first victim in the head with the iPad and struck the second victim about the face with their fists, causing bruising to the first victim’s face and causing one of the second victim’s teeth to chip and a bleeding wound to his face. The first victim later discovered that his black Toyota was missing from the location where he had left it parked in the parking lot outside 41 West 112th Street. 6. Minutes after the robbery, the first victim called 911 to report the robbery and during the call, amid shouting in the background and while clearly excited by the attack against him, stated in substance, “someone just jumped me, they pulled out a gun on me, and took my car,” and gave his license plate number and a description of his car to the dispatcher. 7. Numerous police officers responded to the scene, including officers from both PSA 5 and the 28th Precinct, many with body-worn camera activated. The videos capture officers’ conversations with the victims including their accounts of the robbery. 8. Video surveillance footage from 41 West 112th Street captures the robbery (“King Towers Building 8 Video”). The victims can be observed entering the apartment building and elevator. Seconds later, the perpetrators run into the building behind the victims, stop the elevator from closing, remove the victims from the elevator, and strike them repeatedly and then leave the building, visibly carrying property taken from the second victim. The group of perpetrators includes one male wearing what appear to be light blue jeans, back sneakers, and a black coat with a fur lining around the hood, a gold metallic emblem on the left sleeve, and a gold metallic zipper (“Fur Hood”); one male wearing what appear to be black sweatpants, black and white sneakers, and a black jacket with purple fabric lining the interior of the hood (“Purple Hood”); and one male wearing what appear to be gray jeans, grey sneakers, a white mask, and a blue puffer jacket with a hood (“Blue Puffer”). Purple Hood enters the lobby first among the perpetrators and is depicting [sic] holding his hand inside his chest pocket of his jacket as he approaches the elevator. 9. During the course of their investigation, NYPD officers retrieved license plate reader records maintained by the NYPD related to the license plate readers, which showed that the license plate of the first victim’s vehicle was photographed in the vicinity of the robbery on January 10. 2021, at about 2:35 a.m., approximately six hours after the robbery. Specifically, the vehicle was photographed parked on West 11th Street near of [sic] 20 Lenox Avenue, which is located at the northeast corner of 20 Lenox Avenue and West 112th Street, approximately a half block from the location of the robbery. 10. Video surveillance footage from 20 Lenox Avenue shows four males, including Fur Hood, Purple Hood, Blue Puffer, and one unknown male exit a black sedan, appear to wipe down the handles and doors of the black sedan after exiting it and walk towards 21 West 112th Street, which is in the same apartment complex as 41 West 112th Street. That video depicted Fur Hood, Purple Hood, and Blue Puffer all appeared [sic] to be wearing the same jackets as in the King Towers Building 8 Video and were otherwise wearing the same clothing, except that Fur Hood and Blue Puffer appeared to be wearing different pants and sneakers than they were wearing during the robbery. 11. Video surveillance footage from inside 21 West 112th Street (“Kings Towers Building 9 video”), which is immediately adjacent to 41 West 112th Street in the Kings Towers complex shows the individuals described above as Fur Hood, Purple Hood, and Blue Puffer entering the building at 21 West 112th Street wearing the same jackets and gathering with other unknown individuals in the lobby of 21 West 112th Street. During that time, the suspects had removed their masks and their faces were clearly visible on the video. 12. Police Officer Juan Espinal, Shield # 10296 of the Field Intelligence Unit, and who was previously a Neighborhood Coordination Officer (“NCO”) for PSA 5, which includes the King Towers complex, is familiar with the defendants from numerous interactions with each of them in his role as an NCO, including approximately more than ten (10) interactions with William Hayes and hundreds of interactions on nearly a daily basis with Shamir Doctor and Rameses Smith. On or about January 14, 2021, before officers investigating the robbery had identified any suspects, in the ordinary course of his duty as a Field Intelligence Officer, Officer Espinal viewed wanted fliers depicting the robbery perpetrators’ images from the video surveillance footage at 21 West 112th Street and recognized the defendants depicted in the fliers from his prior interactions with them. Officer Espinal subsequently viewed the video surveillance footage described above and again recognized the defendants as the individuals depicted. Specifically, Officer Espinal recognized Fur Hood to be William Hayes, Blue Puffer to be Shamir Doctor, and Purple Hood to be Rameses Smith.1 (Peo’s Aff 11/20/23
