The People, Respondent,v.Todd Holley, Appellant.

Brief

N.Y.November 17, 2015

To be argued by STEPHEN KYRIACOU, JR. (15 MINUTES) COURT OF APPEALS STATE OF NEW YORK ____________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TODD HOLLEY, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT SEYMOUR W. JAMES, JR. LAWRENCE T. HAUSMAN Attorneys for Defendant-Appellant The Legal Aid Society 199 Water Street New York, New York 10038 Tel: (212) 577-7989 Fax: (646) 616-4989 STEPHEN KYRIACOU, JR. Of Counsel to Defendant-Appellant Boies, Schiller & Flexner LLP 575 Lexington Avenue New York, New York 10022 Tel: (212) 909-7603 Fax: (212) 446-2350 NOVEMBER 17, 2014 i TABLE OF CONTENTS Preliminary Statement ................................................................................................ 1 QUESTIONS PRESENTED ...................................................................................... 4 SUMMARY OF ARGUMENT ................................................................................. 5 STATEMENT OF FACTS ......................................................................................11 Introduction ..........................................................................................................11 Mapp/Dunaway, Huntley and Wade Hearing .......................................................11 The Incident ..........................................................................................................12 The Photo Array ...................................................................................................14 Appellant’s Arrest .................................................................................................16 The Line-Up .........................................................................................................17 Defense Counsel’s Argument on the Suppression Motion ..................................19 The People’s Argument on the Suppression Motion ...........................................19 The Hearing Court’s Ruling on the Suppression Motion .....................................22 Trial .......................................................................................................................23 The People’s Case ................................................................................................23 Sentence ................................................................................................................32 POINT I: APPELLANT WAS SUBJECTED TO UNDULY SUGGESTIVE PRE-TRIAL IDENTIFICATION PROCEDURES BECAUSE, FIRST, THE PEOPLE FAILED TO PRESERVE THE COMPUTER-GENERATED PHOTO ARRAY USED TO IDENTIFY HIM AS THE ASSAILANT PRIOR TO HIS ARREST, THEREBY GIVING RISE TO A PRESUMPTION OF UNDUE SUGGESTIVENESS, AND THEN FAILED TO MEET THEIR BURDEN TO REBUT OR OVERCOME THAT PRESUMPTION, AND, SECOND, IN THE LINE-UP USED TO IDENTIFY HIM AFTER HIS ARREST, APPELLANT WAS THE ONLY ONE OUT OF THE SIX LINE-UP PARTICIPANTS WHO MATCHED THE DESCRIPTION OF THE ASSAILANT PROVIDED TO POLICE BY WITNESSES. APPELLANT WAS THEREFORE DEPRIVED OF DUE PROCESS BY THE HEARING COURT’S FAILURE TO ORDER THE SUPPRESSION AT TRIAL OF THE LINE-UP IDENTIFICATIONS AND BY THE ABSENCE OF AN INDEPENDENT SOURCE HEARING ii FOR THE LINE-UP WITNESSES’ SUBSEQUENT IN-COURT IDENTIFICATIONS. ..............................................................................................33 A. The Applicable Legal Standard .......................................................................35 1. Eyewitness Identifications And Undue Suggestiveness ..............................35 2. Undue Suggestiveness In Photo Arrays, The Presumption Of Suggestiveness That Attaches To Unpreserved Photo Arrays And How That Presumption May Be Rebutted Or Overcome .........................................36 3. Undue Suggestiveness In Line-Ups .............................................................40 4. Safeguarding Against Taint Where One Unduly Suggestive Pre-Trial Identification ProcedurePrecedes Another Pre-Trial Identification ................43 5. The Need For Independent Source Hearings For In-Court Identifications Where Pre-Trial Identifications Are Unduly Suggestive .................................43 B. The People’s Failure To Preserve The Photo Array Used To First Identify Appellant Entitled Him To An Inference Or Presumption That The Photo Array Was Unduly Suggestive, Which The People Failed To Rebut Or Overcome Because They Failed To Show That Sufficient Safeguards Against Suggestiveness Existed .........................................................44 1. That Appellant Only Became A Suspect After The Photo Array Identification Does Not Establish A Lack Of Suggestiveness.........................48 2. Far From Providing A Safeguard Against Suggestiveness, Mazuroski’s Failure To Enter Any Information About The Assailant’s Weight Or Body Type When Assembling The Photo Array Actually Created A Substantial Likelihood That Appellant Would Be Singled Out For Identification ............50 3. Sylvie’s Viewing Of Only Twelve Photographs Prior To Identifying Appellant As The Assailant Did Not Safeguard Against Suggestiveness Or Excuse The People From Production; To The Contrary, It Raises Serious Red Flags .............................................................................................56 4. No Other Safeguards Against Suggestiveness Existed ................................61 C. The Line-Up Was Also Unduly Suggestive Because, Out Of The Six Line-Up Participants, Only Appellant Matched The Description Of The Assailant That The Witnesses Had Provided .......................................................62 D. The Foregoing Arguments Were Fully Preserved ...........................................68 E. The Harm Caused By The Hearing Court’s Error ...........................................68 iii POINT II: APPELLANT WAS DEPRIVED OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL WHERE, OVER DEFENSE COUNSEL’S REPEATED OBJECTIONS, THE PEOPLE COMMUNICATED TO THE JURY THAT THE POLICE POSSESSED INDEPENDENT, UNCONFRONTABLE EVIDENCE INDICATING THAT APPELLANT HAD COMMITTED THE CHARGED CRIMES AND ENCOURAGED THE JURY TO SPECULATE ON THE NATURE OF THAT PHANTOM EVIDENCE BY THE ELICITATION OF TESTIMONY PERTAINING TO AN UNSPECIFIED “INVESTIGATION” THAT GAVE POLICE “INFORMATION BEYOND” THAT TO WHICH WITNESSES SPECIFICALLY TESTIFIED AT TRIAL AND WHICH LED TO APPELLANT’S IDENTIFICATION AND ARREST ............................................71 A. The Applicable Legal Standard .......................................................................72 B. The People Improperly Conveyed To The Jury That The Police Possessed Additional Evidence Of Appellant’s Guilt And Encouraged The Jury To Speculate On The Nature Of This Phantom Evidence, Which Appellant Did Not Have Any Opportunity To Confront, And Which Improperly Bolstered The Pre-Trial Identifications Of Appellant ..........................................................75 C. The Foregoing Arguments Were Fully Preserved ...........................................80 D. The Harm Caused By The Hearing Court’s Error ...........................................81 CONCLUSION ........................................................................................................83 iv INDEX TO APPENDIX Certificate Granting Leave .................................................................................... A-1 Corrected Certificate Granting Leave ................................................................... A-2 Order Assigning Counsel on Appeal .................................................................... A-3 Decision and Order of Appellate Division, First Department ................... A-4 to A-6 The Line-Up Photograph ........................................................................... A-7 to A-8 Mapp/Dunaway, Huntley and Wade Hearing Minutes ............................ A-9 to A-48 Voir Dire Minutes ................................................................................ A-49 to A-213 Trial Minutes ...................................................................................... A-214 to A-546 Jury Notes........................................................................................... A-547 to A-548 Sentencing Minutes ............................................................................ A-549 to A-558 Certification ...................................................................................................... A-559 v TABLE OF AUTHORITIES Page(s) Cases Mason v. Scully, 16 F.3d 38 (2d Cir. 1994) ................................................................................... 73 People v. Adams, 53 N.Y.2d 241 (1981) ............................................................................... 5, 35, 70 People v. Bady, 202 A.D.2d 440 (2d Dep’t 1994) ............................................................ 44, 62, 68 People v. Ballott, 20 N.Y.2d 600 (1967) ......................................................................................... 35 People v. Bulgin, 29 Misc. 3d 286 (Bronx Cty. Sup. Ct. 2010) ................................................ 45, 46 People v. Burts, 78 N.Y.2d 20 (1991) ......................................................................... 44, 62, 67, 70 People v. Campos, 197 A.D.2d 366 (1st Dep’t 1993) ................................................................... 6, 39 People v. Carolina, 184 A.D.2d 520 (2d Dep’t 1992) ........................................................................ 41 People v. Cheung, 255 A.D.2d 102 (1st Dep’t 1998) ....................................................................... 67 People v. Chipp, 75 N.Y.2d 327 (1990) ......................................................................................... 36 People v. Clark, 28 A.D.3d 785 (2d Dep’t 2006) .............................................................. 74, 75, 80 People v. Cooper, 182 Misc. 2d 46 (Bronx Cty. Crim. Ct. 1999) .................................................... 37 vi People v. Davis, 169 A.D.2d 508 (1st Dep’t 1991) ................................................................. 40, 41 People v. Dobbins, 112 A.D.3d 735 (2d Dep’t 2013) ........................................................ 6, 38, 42, 46 People v. Dodt, 61 N.Y.2d 408 (1984) ......................................................................................... 44 People v. Gaddy, 115 A.D.2d 658 (2d Dep’t 1985) ........................................................................ 41 People v. Galletti, 239 A.D.2d 598 (2d Dep’t 1997) ........................................................................ 38 People v. Georgison, 299 A.D.2d 176 (1st Dep’t 2002) ................................................................. 39, 61 People v. Green, 188 A.D.2d 385 (1st Dep’t 1992) ............................................................. 6, 38, 46 People v. Harris, 172 A.D.2d 560 (2d Dep’t 1991) ........................................................................ 40 People v. James, 67 N.Y.2d 662 (1986) ............................................................................. 44, 62, 68 People v. LaPorte, 306 A.D.2d 93 (1st Dep’t 2003) ................................................................... 69, 82 People v. Lewis, 20 Misc. 3d 1136(A) (Kings Cty. Sup. Ct. 2008) ............................................... 45 People v. Lloyd, 108 A.D.2d 873 (2d Dep’t 1985) .................................................................. 37, 52 People v. Maldonado, 143 A.D.2d 106 (2d Dep’t 1988) ........................................................................ 41 People v. Malphurs, 111 A.D.2d 266 (2d Dep’t 1985) ............................................................ 43, 56, 62 vii People v. Mason, 138 A.D.2d 411 (2d Dep’t 1988) ............................................................ 56, 57, 58 People v. McRae, 195 A.D.2d 180 (1st Dep’t 1994) ....................................................................... 36 People v. Milligan, 309 A.D.2d 950 (2d Dep’t 2003) .................................................................. 74, 80 People v. Montgomery, 205 A.D.2d 259 (1st Dep’t 1994) ....................................................................... 40 People v. Murphy, 1 A.D.3d 184 (1st Dep’t 2003) ........................................................................... 66 People v. Murphy, 260 A.D.2d 505 (2d Dep’t 1999) ........................................................................ 40 People v. Patterson, 306 A.D.2d 14 (1st Dep’t 2003) ........................................................... 6, 7, 39, 51 People v. Quinones, 228 A.D.2d 796 (3d Dep’t 1996) .............................................................. 6, 38, 46 People v. Riley, 70 N.Y.2d 523 (1987) ..................................................................................... 5, 35 People v. Rivera, 96 N.Y.2d 749 (2001) ................................................................................... 73, 77 People v. Rodriguez, 79 N.Y.2d 445 (1992) ..................................................................................... 5, 35 People v. Rudan, 112 A.D.2d 255 (2d Dep’t 1985) ........................................................................ 37 People v. Shea, 54 A.D.2d 722 (2d Dep’t 1976) .......................................................................... 37 People v. Simmons, 158 A.D.2d 950 (4th Dep’t 1990) ............................................................. 6, 38, 46 viii People v. Smalls, 112 A.D.2d 173 (2d Dep’t 1985) ........................................................................ 49 People v. Smith, 109 A.D.2d 1096 (4th Dep’t 1985) ..................................................................... 43 People v. Stokes, 139 A.D.2d 785 (2d Dep’t 1988) .................................................................passim People v. Tindal, 69 A.D.2d 58 (4th Dep’t 1979) ........................................................................... 43 People v. Tufano, 69 A.D.2d 826 (2d Dep’t 1979) .................................................................... 74, 80 People v. Velez, 169 A.D.2d 661 (1st Dep’t 1991) ....................................................................... 36 Raheem v. Kelly, 257 F.3d 122 (2d Cir. 2001) ............................................................. 36, 41, 42, 48 Ryan v. Miller, 303 F.3d 231 (2d Cir. 2002) ............................................................................... 72 State v. Cromedy, 158 N.J. 112 (1999) ............................................................................................ 81 State v. Henderson, 208 N.J. 208 (2011) ............................................................................................ 81 United States v. Forrester, 60 F.3d 52 (2d Cir. 1995) ................................................................................... 73 United States v. Reyes, 18 F.3d 65 (2d Cir. 1994) ................................................................................... 72 United States v. Silva, 380 F.3d 1018 (7th Cir. 2004) ............................................................................ 73 United States v. Wade, 388 U.S. 218 (1967) .....................................................................................passim ix Statutes 29 Misc. 3d ............................................................................................................... 46 State Penal Law §§ 110/160.05 ........................................................................... 1, 11 State Penal Law § 120.00[1] ...................................................................................... 1 Other Authorities Gary L. Wells & Eric P. Seelau, Eyewitness Identification: Psychological Research and Legal Policy on Lineups, 1 Psychol. Pub. Pol’y & L. 765, 768 (1995) ........................................................................ 54 1 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------- x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TODD HOLLEY, Defendant-Appellant. : : : : : : : : : : : ---------------------------------------------------------- X PRELIMINARY STATEMENT By permission of the Honorable Jonathan Lippman, Chief Judge of the Court of Appeals, granted on July 25, 2014 (A-1), 1 Defendant-Appellant Todd Holley (“Appellant”) appeals from an order of the Appellate Division, First Department, dated April 3, 2014 (A-4-6), affirming a judgment of the Supreme Court, New York County, rendered March 1, 2011, convicting him, after a jury trial, of one count of attempted robbery in the third degree (New York State Penal Law §§ 110/160.05) and two counts of assault in the third degree (New York State Penal Law § 120.00[1]) and sentencing him to an indeterminate term of two to four years on the attempted robbery count, to run concurrently with definite one-year 1 Parenthetical references preceded by “A-” refer to the pages of Appellant’s Appendix. 2 terms on each of the misdemeanor assault counts (Hon. Ruth Pickholz, at hearing; Hon. Juan Merchan, at trial and sentence). On August 28, 2014, this Court granted leave to appeal as a poor person and assigned Seymour W. James, Jr. of The Legal Aid Society as counsel on appeal. (A-3.) Appellant is currently on parole. The issues raised in Point I of this brief, regarding the propriety of (i) the photo array used to first identify Appellant, and (ii) the post-photo array line-up in which Appellant was identified again by the photo array witness and for the first time by an additional witness, are fully preserved for this Court’s review. The photo array issue is fully preserved by defense counsel’s on-the-record arguments during the suppression hearing that, because the People failed to preserve the photographs used in the photo array, Appellant was entitled to a presumption that the array was unduly suggestive, which presumption the People failed to rebut by any of a number of means that were available to them. (See A-41-42.) The line-up issue is fully preserved by defense counsel’s on-the-record arguments during the suppression hearing that only Appellant, and none of the five fillers used in the line-up, matched the description of the suspect, such that Appellant was singled out for identification. (See A-42-43.) The issue raised in Point II of this brief, regarding the People improperly conveying to the jury that there existed other evidence indicating that Appellant 3 was guilty of the charged crimes that was not presented at trial and that Appellant therefore could not confront is fully preserved for this Court’s review, as well. This issue is fully preserved by defense counsel’s on-the-record arguments that permitting the People to ask the testifying police officer whether his “investigation [led him] to a particular person” would “mislead the jury and make them draw factually false inferences” or speculate as to whether Appellant was “arrested on another charge that then brought him [onto] the Detective’s radar” or whether “someone with knowledge of the incident [tipped] off the detective which led them to Mr. Holley,” and that this testimony could therefore “bolster the police officer’s credibility” and unduly prejudice Appellant, leading to a potential “confrontation clause issue.” (A-72-73, A-82-83.) 4 QUESTIONS PRESENTED 1. Whether, (a) Appellant was subjected to unduly suggestive pre-trial identification procedures where (i) the People failed to preserve the computer- generated photo array used to identify him before his arrest, thus giving rise to a presumption that the photo array was unduly suggestive, and then failed to meet their burden to rebut or overcome that presumption, and (ii) in the line-up used to identify him after his arrest, he was the only one out of the six participants who matched the description of the suspect provided to police by witnesses, and (b) whether Appellant was therefore deprived of due process by (i) the hearing court’s failure to order the suppression of the line-up identifications, and (ii) the absence of an independent source hearing for the line-up witnesses’ subsequent in-court identifications. 2. Whether Appellant was deprived of his due process right to a fair trial where, over defense counsel’s repeated objections, the People conveyed to the jury that the police possessed independent, unconfrontable evidence indicating that Appellant had committed the charged crimes and encouraged the jury to speculate on the nature of that phantom evidence by the elicitation of testimony pertaining to an unspecified “investigation” that gave police “information beyond” that to which witnesses specifically testified at trial and which led to Appellant’s identification and arrest. 5 SUMMARY OF ARGUMENT As this Court has stated, “[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor – perhaps it is responsible for more such errors than all other factors combined.” People v. Rodriguez, 79 N.Y.2d 445, 449 (1992). As this Court has also stated, unlike “the exclusionary rule applicable to confessions and the fruits of searches and seizures,” which is “essentially at variance with the truthfinding process” because “generally reliable evidence of guilt is suppressed because it was obtained illegally[,] . . . the rule excluding improper pretrial identifications bears directly on guilt or innocence. It is designed to reduce the risk that the wrong person will be convicted as a result of suggestive identification procedures employed by the police.” People v. Adams, 53 N.Y.2d 241, 250-51 (1981). For these reasons, this Court has held that unduly suggestive pre-trial identification procedures violate due process and are not admissible to determine the guilt of an accused. People v. Riley, 70 N.Y.2d 523, 529-31 (1987); accord Adams, 53 N.Y.2d at 250-52. This case presents not one, but two instances of such unduly suggestive pre-trial identification procedures. First, Appellant was initially drawn into this case by way of an unduly suggestive computer-generated photographic array procedure. For the People to 6 satisfy their initial burden of establishing the reasonableness of a photo array, the People can simply produce the contents of the photo array at the suppression hearing so that the hearing court can determine for itself whether the array presented photographs to the viewing witness in such a way as to unduly suggest an identification. The People’s failure to preserve a photo array and produce it before a hearing court gives rise to an inference or presumption that the array was unduly suggestive. See, e.g., People v. Dobbins, 112 A.D.3d 735, 736 (2d Dep’t 2013); People v. Quinones, 228 A.D.2d 796, 796-97 (3d Dep’t 1996); People v. Green, 188 A.D.2d 385, 386 (1st Dep’t 1992); People v. Simmons, 158 A.D.2d 950, 950 (4th Dep’t 1990). This inference or presumption can be rebutted or “dispelled by [police] testimony . . . detailing the procedures used to safeguard against suggestiveness,” including the volume of photographs viewed, People v. Campos, 197 A.D.2d 366, 367 (1st Dep’t 1993), or “detailed testimony about how the computer selected a fair grouping of photographs,” People v. Patterson, 306 A.D.2d 14, 15 (1st Dep’t 2003). The photo array at issue in the instant case was not preserved, thereby entitling Appellant, in the first instance, to an inference or presumption that it was unduly suggestive, and the evidence adduced at the hearing did not establish that there existed sufficient safeguards against suggestiveness to rebut that inference or presumption. 7 As an initial matter, Appellant was identified after the photo array witness viewed only twelve photographs. The production of this small volume of photographs at the suppression hearing would not have burdened the People at all. Indeed, given the proliferation in recent years of computer-based photo arrays as opposed to physical photo arrays in book form, the preservation and production of a photo array of any volume no longer presents any real burden for the People, who can preserve such photo arrays with a few mouse clicks and keystrokes. Additionally, the viewing of such a small volume of photographs prior to a positive photo array identification cannot be said to have in any way militated against the presence of suggestiveness. Relatedly, and most importantly, far from “detailed testimony about how the computer selected a fair grouping of photographs,” Patterson, 306 A.D.2d at 15 (emphasis added), the testimony adduced at the suppression hearing established that there existed a substantial likelihood that the photo array contained an unfair grouping of photographs. Specifically, despite the fact that witnesses had told him that the suspect was a 30-to-40-year-old, 6’0-to-6’2” “skinny” black male, the officer conducting the photo array did not enter a weight range for the suspect into the computer that generated the array, even though the system allows one to do so. The officer’s very general search returned over 3,000 images depicting every 30-to-40-year-old, 6’0”-to-6’4” black man arrested anywhere in Manhattan over a 8 four-year timespan, from 2007 to 2010. These returns would have included photographs of individuals of all weights and body types – from individuals even skinnier than Appellant to the obese. There is therefore a substantial likelihood that, among the mere twelve photographs shown to the photo array witness prior to her initial identification, the photograph of Appellant stood out as the only one matching the description of the suspect as “skinny.” The speed and ease with which Appellant was identified from a miniscule subset of this large pool of results of this very general search also raise serious red flags about whether this was a bona fide identification or merely an identification of the first skinny person whose photograph the photo array witness saw. Thus, while the police officer who conducted the photo array testified that he did not consider Appellant a suspect prior to the array, which some cases have considered to be a safeguard against suggestiveness, that alone cannot be sufficient to rebut the presumption of undue suggestiveness in light of (i) the small volume of photographs viewed by the photo array witness; (ii) the issues with the data used to construct the photo array; (iii) the fact that no other conceivable safeguard against suggestiveness was present; and, perhaps most important in this context, (iv) the fact that Appellant argues not that he was purposefully singled out for identification in the photo array, but that the careless construction of the array created a circumstance in which he happened to have the misfortune of being the 9 only one to match the description of the suspect in the mere twelve returns that the photo array witness looked at before identifying him. As such, the People plainly could not have rebutted the presumption to which Appellant was entitled, had the hearing court given it to him. Second, once he was identified and arrested as a result of the unduly suggestive photo array, Appellant was further denied his due process rights by an unduly suggestive line-up in which he was identified again by the same photo array witness and for the first time by an additional witness. The unduly suggestive photo array identification tainted the photo array witness’s line-up identification and, in any event, the line-up was unduly suggestive on its own. As noted above, witnesses described the suspect as a 30-to-40-year-old, 6’0”-to-6’2” “skinny” black male. Out of the six line-up participants, only Appellant matched all four aspects of this description, as none of the five fillers even fell within the ten-year age range the witnesses provided for the suspect, nor could any of them be characterized as “skinny,” as is readily apparent from the photograph of the line-up included with Appellant’s submission. Indeed, the People even admitted in filings before the Appellate Division that the physical appearances of three of the five fillers diverged significantly from that of Appellant in ways which were at the heart of the witnesses’ description of the suspect. Thus, to line-up witnesses who had described the suspect as 30 to 40 years old and “skinny,” Appellant stood out 10 like a sore thumb as the only person who matched the description of the suspect, thereby making the line-up unduly suggestive. Moreover, in addition to the undue suggestiveness of the pre-trial identification procedures outlined above, Appellant was deprived of his due process right to a fair trial where, over defense counsel’s objection, the People conveyed to the jury that the police possessed independent, unconfrontable evidence indicating that Appellant had committed the charged crimes and encouraged the jury to speculate on the nature of that phantom evidence by the elicitation of testimony pertaining to an unspecified “investigation” that led to Appellant’s identification and subsequent arrest. This testimony left the jury with the impression that the investigating officer had been supplied with additional, unspecified information that led him to identify Appellant and place him in the line-up based on good, solid police work when, in actuality, Appellant was identified and placed in the line-up based only on the fundamentally flawed photo array identification discussed above. Because the defense could not possibly have confronted this phantom evidence, Appellant was significantly prejudiced at trial, which could have been avoided if only the trial court had simply followed defense counsel’s eminently reasonable suggestion and instructed the jury that they were not to speculate as to how or why Appellant was placed in the line-up. 11 For all these reasons, this Court should reverse Appellant’s conviction and order a new trial, to be preceded by an independent source hearing to determine whether there is an untainted, independent basis for the line-up witnesses’ in-court identifications of Appellant. STATEMENT OF FACTS Introduction Appellant Todd Holley was charged, by New York County Indictment 2676/10, with one count of attempted robbery in the third degree, P.L. §§ 110/160.05, a class D felony, and two counts of assault in the third degree, P.L. § 120.00(1), a class A misdemeanor, on the basis of an incident alleged to have occurred in Manhattan’s Prince Street subway station on May 30, 2010. Appellant was alleged to have forcibly attempted to steal one individual’s purse and to have intentionally caused injury to two other individuals. Mapp/Dunaway, Huntley and Wade Hearing On November 23, 2010, a joint Mapp/Dunaway, Huntley and Wade hearing was held in New York County Criminal Court before the Honorable Ruth Pickholz. Detective Greg Mazuroski (“Mazuroski”), who conducted the investigation that led to Appellant’s arrest and eventual conviction, was the only witness called by the People. Appellant presented no evidence at the hearing. 12 The Incident Mazuroski testified that he was assigned to investigate an incident that was alleged to have occurred in the Prince Street subway station on the evening of May 30, 2010. (See A-11.) He interviewed three eyewitnesses in connection with the incident: Ju Eun Lee, Yoori Han and Sylvie Lee. 2 (See A-12.) Mazuroski stated that Ju Eun told him that while she was walking with her cousin Yoori along the southbound R Broadway Local train platform in the station, she felt her purse being lifted off her shoulder. (See A-12.) Upon turning around, she saw a black man (the “Assailant”) “with his hands on the strap” of her purse. (A-12.) Yoori then came to her cousin’s aid, grabbing hold of the purse, and the two cousins struggled with the Assailant, eventually regaining control of the purse, which the Assailant released before fleeing on foot. (See A-12-13.) After the Assailant fled, two bystanders, Sylvie and Yolanda Lin 3 (neither of whom knew Ju Eun or Yoori) approached the cousins and stated that they would go with them to report the incident. (See A-13.) The four women then walked to the Prince Street subway station’s MTA booth and began telling an MTA employee stationed there about what had happened, at which point the Assailant 2 To avoid confusion between Ju Eun Lee and Sylvie Lee, they will be referred to herein as “Ju Eun” and “Sylvie,” respectively. Yoori Han will also be referred to by her first name, “Yoori,” for the sake of consistency. 3 Yolanda Lin did not participate in any identification procedures and did not testify at Appellant’s trial. 13 “came back down the stairs, manipulated the turnstile, went [o]nto the platform, paced back and forth, [then] walked back out and approached” them. (A-14.) The Assailant punched and kicked Yoori before proceeding to punch Sylvie. (See A-14.) The MTA employee then hurried the four women into a closet or small room inside the station. (See A-14.) The police responded to the scene and canvassed for the Assailant without success. (See A-15.) Mazuroski personally “look[ed] for video in the area” but failed to “discover any video that would have captured th[e] incident.” (A-15.) The witnesses told Mazuroski that the Assailant was a black man, “approximately six foot to 6’2”, 30 to 40 years old, [with] unke[mpt] hair, [and wearing a] black three quarters length or waist-length jacket” (A-14), a blue knit winter cap, black shoes and black pants (see A-30). On direct examination, Mazuroski first testified that the witnesses did not provide him with “any body type” or “build” of the Assailant. (A-15.) However, on cross-examination, after being shown a form containing Ju Eun’s description of the Assailant, Mazuroski changed his testimony, acknowledging that both Ju Eun and Yoori had told him the Assailant was “skinny.” (A-29-30.) Mazuroski did not testify that any of the witnesses told him that they had difficulty making out the Assailant’s weight or body type because of any of the clothing he was wearing. 14 Possessing this description of the Assailant as a skinny black male, 30 to 40 years old, 6’0”to-6’2”, Mazuroski set out on the investigation that would culminate in Appellant’s arrest and eventual conviction. The Photo Array Three days after the incident, on June 2, 2010, the police had not yet generated a suspect. (See A-17.) That afternoon, Mazuroski called Sylvie and asked her to come to his office to attempt to identify the Assailant via a computer- generated photo array. (See A-15-16.) When Sylvie arrived, Mazuroski “told her [they were] going to locate photos which are on [his] computer, and [he was] going to enter a description and [she was] to tell [him] if she recognize[d] anybody.” (A-16.) Mazuroski, who did not yet have any suspects in mind, opened the NYPD’s computerized photo image manager system (“PIMS”), which provides police with a searchable index of “arrest photographs,” and entered only certain of the physical characteristics of the Assailant that the witnesses had told him: male, black, 30 to 40 years old, 6’0” to 6’4”. 4 (A-17, A-32.) Mazuroski did not enter a weight range for the Assailant into PIMS despite the fact that both Ju Eun and Yoori had told him that the Assailant was “skinny,” and despite the fact that PIMS allows one to enter such a range. (See A-29-30.) Mazuroski characterized the 4 Mazuroski testified that he expanded the height range beyond the 6’0”-to-6’2” range relayed to him by the witnesses because the witnesses could not have known the Assailant’s exact height and because he “wanted to make sure we gave a significant variance of the height of the” Assailant. (A-17.) 15 description that he entered as “very general.” (A-17.) The search captured all people fitting this “very general” description who had been arrested anywhere in Manhattan over a four-year period, from 2007 to 2010. (A-17.) Within less than a minute, PIMS generated “over 3,000 photos” matching Mazuroski’s “very general” description. (A-17, A-30, A-32.) The computer screen displayed the photographs in groups of six, meaning that there were at least 500 pages of results. (See A-18.) Mazuroski sat with Sylvie while she viewed the photographs, clicking from screen to screen. (See A-17-18.) Sylvie made her first identification of the Assailant on page two of at least 500, stating, “that’s the guy from the subway, that’s him.” (A-17, A-20.) The individual that Sylvie identified on page two as the Assailant was Appellant. (See A-18.) Thus, Detective Mazuroski’s “very general” description, which produced over 3,000 returns comprising all 30-to-40-year-old, 6’0”-to-6’4” black men who had been arrested anywhere in Manhattan over the four years from 2007 to 2010, produced Appellant’s photograph within the first twelve returns. (A-17.) Despite the early positive identification, Mazuroski continued to show Sylvie additional pages of photographs because he “wanted to give her the opportunity to continue to look.” (A-32.) Sylvie then picked out different photographs of Appellant on pages 13 and 14 of the photo array. (See A-19-20.) After Sylvie’s third 16 identification of Appellant, on page 14 of the photo array, Mazuroski concluded the array. (See A-32.) Appellant’s Arrest Mazuroski took the NYSID number from the photographs that Sylvie identified and did a “SKIMS” search to see if the individual depicted in them was assigned to a bed at a homeless shelter within New York City. (See A-21.) This search eventually located Appellant at a shelter in the Bedford-Stuyvesant neighborhood of Brooklyn, far from the Manhattan subway station where the incident occurred. (See A-21, A-33.) Five days after Sylvie viewed the photo array, on June 8, 2010, Mazuroski and another officer traveled to the shelter in an unmarked squad car. (See A-21-22, A-33-34.) The officers were not in uniform, but they were armed and their shields were displayed. (See A-34.) Mazuroski testified that though they did not have a warrant, they had probable cause to arrest Appellant based on Sylvie’s photo array identification. (See A-21, A-33.) Upon their arrival at the shelter, an attendant told them that Appellant was checked in. (See A-34.) The officers found Appellant in bed in a dormitory room. They walked him out into the main area, cuffed him and drove him back to the Manhattan Transit Robbery Squad. (See A-34.) Mazuroski did not testify that he saw any of the distinctive clothing that the Assailant had been wearing at the time of the incident – a “black three quarters 17 length or waist-length jacket,” a blue knit winter cap, black shoes and black pants – when he found Appellant lying in bed in dormitory room. (See A-14, A-21, A-30, A-33-34.) The Line-Up Later that day, June 8, 2010, Mazuroski called Sylvie and Yoori and asked each of them “to come and view a line-up” at the Robbery Squad. (A-23-24.) Mazuroski did not tell them “that there was a person in custody.” (A-36.) Prior to Sylvie and Yoori’s arrival, Mazuroski and his partner went to the Bowery Mission to look for five “fillers” for the line-up. (A-25.) Mazuroski asked individuals to act as fillers based on his opinion as to their “resemblance” to Appellant, testifying that he sought individuals of the “same race, complexion and approximate age” as Appellant. (A-25-26.) Mazuroski did not measure or weigh Appellant (see A-26), but he knew that Appellant was 32 years old (see A-38), that his “pedigree . . . indicated he was 6’1” to 6’2”, [and that] “he looked like . . . [h]is weight [was] around 160 pounds” (A-40). Once Appellant and the five fillers were congregated in the line-up room, Mazuroski directed Appellant to choose a position. (See A-26.) Appellant selected Position #5, and the fillers then took the remaining positions. (See A-27.) The following chart shows (i) the age range, build and height range of the Assailant as reported to Mazuroski by the witnesses; (ii) the self-reported ages, 18 weights and heights of the five fillers, as recorded in a line-up report that Mazuroski filled out; and (iii) the known age of Appellant and his weight and height as approximated by Mazuroski: The Assailant Position #1 (Filler) Position #2 (Filler) Position #3 (Filler) Position #4 (Filler) Position #5 (Appellant) Position #6 (Filler) 30-40 y.o. 47 y.o. 45 y.o. 57 y.o. 22 y.o. 32 y.o. 44 y.o “skinny” 250 lbs. 195 lbs. 200 lbs. 180 lbs. 160 lbs. 210 lbs. 6’1 - 6’2” 6’1” 6’2” 5’11” 6’1” 6’1” - 6’2” 5’9” (See A-14, A-26, A-29-30, A-36-38, A-40.) 5 Appellant and each of the five fillers were seated, so as to offset “discrepancies in height.” (A-47.) All of the line-up participants also wore identical hats to conceal any differences in their hairstyles. (See A-27, A-47.) Mazuroski did not testify to taking any measures to conceal the varying weights and body types of the line-up participants. Upon their arrival at the Robbery Squad, Sylvie and Yoori were placed in separate rooms. (See A-24.) Sylvie viewed the line-up first. (See A-27.) She indicated that Appellant, seated in Position #5, was the individual “from the Prince Street incident.” (A-27.) Once Sylvie left the viewing room, Yoori was brought in to view the line-up. (See A-28.) Yoori also indicated that Appellant, seated in Position #5, was “[t]he person from the Prince Street incident.” (A-28.) Sylvie and Yoori did not interact between their two identifications. (A-27-28.) 5 A photograph that Mazuroski testified “fairly and accurately represented the line-up as it appeared on June 8th, 2010” (the “Line-Up Photograph”) was also entered into evidence at the hearing. (A-25-26.) This photograph is included at A-7 to A-8 of the Appendix. 19 Defense Counsel’s Argument on the Suppression Motion Defense counsel argued that Mazuroski’s failure to enter any information pertaining to Appellant’s weight into PIMS, despite the fact that the witnesses had “indicated [to him that] the perpetrator was skinny,” could have brought up “a whole slew of people that would not match Mr. Holley’s appearance and would run the risk of having Mr. Holley as a tall skinny person stand out in those photographs.” (A-41.) Defense counsel also argued that the People were under an obligation to preserve the photo array and that Appellant was entitled to “a negative inference that the array was unduly suggestive” because “absolutely none of [the photo array pages] were preserved” and there was “no evidence with respect to the appearance of those pages.” (A-42.) Defense counsel also argued that “the line-up was unduly suggestive based on the major difference [in] weight and height with respect to fillers.” (A-42.) Defense counsel compared the description of the Assailant, Appellant’s pedigree information and the ages and weights of the fillers, arguing that there was “such a difference” Appellant “stands out” so much that an identifying witness’s “view would be drawn to him based on the age and weight of these fillers.” (A-42-43.) The People’s Argument on the Suppression Motion The People argued that the case law cited by defense counsel regarding the People’s obligation to preserve photo arrays was inapposite because it was a 20 non-binding Second Department case and referred to photo arrays in “paper form,” not on a computer. (A-44.) The People also argued that “[t]here was nothing to preserve regarding [PIMS] considering every time if he were able to print that out it could indicate to the eyewitness that he had done something and the issue here is suggestiveness.” (A-45.) The People made two arguments in an attempt to counter defense counsel’s argument that Mazuroski’s failure to enter any information pertaining to the Assailant’s weight would cause the photographs of any person who happened to match the Assailant’s description as “skinny” to stand out against photographs of people who, while they otherwise matched the description of the Assailant, had different body types or were heavier than the Assailant. First, the People pointed out that because “part of the description [related to the Assailant wearing] a big black jacket,” the witnesses would not have had “a particular view of the body type under winter clothing.” (A-44-45.) Second, the People stated that “beyond that . . . to accept defense counsel’s argument that none of the 3000 individuals that were generated by a 6 foot to 6’4[”] male black. . . . In the photo array that it would exclude anyone else who appears to have Mr. Holley’s body type, which I would suggest is unreasonable.” (A-45.) The People also argued that the photo array was comprised of “mugshots,” “not full body picture[s],” and that “[i]t’s not as if you can see the full body type” 21 in the photographs. (See A-45.) The People made this argument despite the fact that (i) none of the photographs in the photo array were preserved or entered into evidence at the hearing, and (ii) while Mazuroski testified that the photographs in the photo array were “arrest photographs,” there was no hearing testimony as to whether they showed only the faces of those pictured or whether someone’s approximate weight or “body type” could be discerned from them. (Compare A-32 with A-45.) The People also reminded the hearing court that Mazuroski had testified that he “did not have a suspect in mind” when he entered the information into PIMS and argued that, because of this, there was “no possible way for him to be suggestive.” (A-45.) The People thus concluded that there was “ample probable cause to arrest” Appellant based on the photo array identifications. (A-46.) As far as the line-up was concerned, the People argued that the variance between (i) the similar height of both Appellant and the Assailant, and (ii) the heights of several of the fillers was not relevant because everyone was seated. (See A-45-46.) The People also reminded the hearing court of Mazuroski’s use of identical hats to conceal the line-up participants’ varying hairstyles. (See A-45- 46.) Regarding the significant variance in ages, the People noted that “it’s based [on] how everyone looks. We’ve all heard of individuals that are 32 and look like 22 they are 47 or are 47 and they look 32. The [Line-Up Photograph] looks similar and far from suggestive.” (A-46.) The People did not directly address the significant variance in weights and body types between (i) the similar weight and body type of both Appellant and the Assailant, and (ii) the weights and body types of all of the fillers. The Hearing Court’s Ruling on the Suppression Motion The hearing court denied the suppression motion “in all respects.” (A-46.) First, the court found that there was probable cause to arrest Appellant based on the descriptions of the Assailant and Sylvie’s identification of Appellant on PIMS. (See A-46-47.) The court stated that the photo array was “not suggestive in any way,” without acknowledging Mazuroski’s failure either to preserve any of the photographs or to enter any information regarding the Assailant’s weight into PIMS. (A-47.) Second, after pointing out that “[a] line-up under the law must be fair, not perfect,” the court found that “the line-up was not suggestive,” noting that, “looking at the [Line-Up Photograph], there is nothing that highlight[ed] [Appellant] which would suggest to a witness to pick him out.” (A-47-48.) While the court pointed out that the differences in height were neutralized by having the line-up subjects sit down, and that differences in hairstyles were neutralized by having the line-up subjects wear hats, it made no specific mention of the 23 significant differences in the line-up participants’ ages and weights. (See A-47- 48.) Trial Appellant’s trial began on January 13, 2011 in New York County Supreme Court, with the Honorable Juan Merchan presiding. On the first day of trial, a jury was empaneled. (See A-88-211.) The second day of trial, January 18, 2011, began with the trial court delivering its preliminary instructions. (See A-225-43.) The People then gave their opening statement (see A-243-45), which was followed by defense counsel’s opening statement (see A-245-50). The People’s Case The People called Ju Eun Lee, Yoori Han and Sylvie Lee as witnesses on January 18, 2011, each in turn. The three witnesses’ accounts of (i) the initial May 30, 2010 encounter on the subway platform, during which the Assailant allegedly grabbed Ju Eun’s purse and then struggled with both Ju Eun and Yoori for possession of it (see A-254-59, A-303-08, A-354-58); (ii) the subsequent encounter near the MTA booth, during which the Assailant allegedly punched and kicked Yoori and punched Sylvie (see A-259-63, A-308-12, A-358-63); and (iii) the witnesses’ provision of a description of the Assailant to Mazuroski that same day (see A-263, A-312-13, A-363), were all substantially similar to that which was conveyed by Mazuroski during his hearing testimony, set forth above. 24 Each of Ju Eun, Yoori and Sylvie also identified Appellant in open court as the Assailant. (See A-257, A-305-06, A-355-56.) Both Yoori and Sylvie testified about the June 8, 2010 line-up at which they identified Appellant as the Assailant. The witnesses’ testimony was, again, substantially similar to what had been conveyed by Mazuroski during his hearing testimony, set forth above. (See A-313-16, A-364-65.) Detective Greg Mazuroski testified on the third day of trial, January 19, 2011. Mazuroski’s testimony relating to the incident on May 30, 2010 and to the June 8, 2011 line-up was substantially similar to his prior hearing testimony, set forth above. (See A-397-406.) Mazuroski’s testimony relating to Sylvie’s photo array identification of Appellant and his subsequent arrest of Appellant was limited to a statement that he “conduct[ed] further investigation with information beyond” the descriptions that he received immediately after the incident, and that this investigation led him to Appellant. (A-402.) Prior to Mazuroski’s testimony, the People had repeatedly implored the trial court to allow them “to inquire from the detective that based on photo arrays observed by one of the witnesses, that that investigation led him to finding Mr. Holley.” (A-72.) The People stated that if Mazuroski were not permitted to explain that the photo array was what led him to Appellant, “it could leave the jury with a perception that he received descriptions from these witnesses of a black 25 male approximately 6-foot with baggy black clothing and went out on the street and picked up the people who fit that description, which seems quite disingenuous and misleading for the jury,” as there was “clearly a much greater link to Mr. Holley being brought in for the lineup than just fitting that description.” (A-72-73.) The People also requested that, in the alternative, they be permitted to ask Mazuroski simply whether his “investigation [led him] to a particular person,” and whether he had “information beyond those descriptions” that led him to that individual. (A-73.) Defense counsel stated that while permitting any questions about the photo array would be “unduly prejudicial” to Appellant, the “alternative proposition” put forward by the People appeared “reasonable.” (A-73-74.) The court then held that it “would be unduly prejudicial” to “go into photo arrays,” but permitted the People to “ask whether there was an additional investigation conducted” and whether, “as result of that investigation,” a “particular individual” was identified. (A-75.) The People then requested “some sort of instructions to the jury that [Appellant] was put into that lineup lawfully and [that the jury was] not to consider how the police were led to him or directed to him.” (A-75-76.) Defense counsel “opposed those instructions” and the court denied the application, stating that the issue could be revisited later. (A-76.) The next day, defense counsel made the following remarks: 26 I had an evening to do some research and think about it. And I submit that this did you take an investigatory step question may be problematic. . . . I understand the People’s concern, they don’t want the jury to infer that the police acted inappropriate[ly], just grabbed someone off the street for no reason. . . . [O]n the other hand . . . I think that if the question is asked, it will lead to an undue prejudice toward Mr. Holley. Specifically the jury will infer what is that investigatory step for instance what is he arrested on another charge that then brought him within the Detective’s radar or did the police do good, solid police work. And it may bolster the police officer’s credibility as well. Or did someone with knowledge of the incident at this point [tip] off the detective which led them to Mr. Holley and this leads to the potential of an implicit previously nonexistent confrontation clause issue. And I think that, to put it another way, what this will do . . . is mislead the jury and make them draw factually false inferences from that statement. It’s not uncommon for the situation to occur in a criminal trial where photos lead to a lineup. So I don’t think we should invent some unfathomed form of relief, I feel the appropriate relief will be short preliminary instructions, general limiting instructions that . . . [the jury is] not to speculate as to how or why Mr. Holley was placed in the lineup. (A-82-83.) The People opposed the general limiting instructions requested by defense counsel and asked that the court allow its prior ruling stand and allow Mazuroski to testify to having conducted an investigation that led to Appellant’s identification as the Assailant. (See A-84-86.) The court stated that “for the time being at least [its] ruling [would] remain[] the same.” (A-87-88.) The next trial day, the People made clear just what they intended to ask Mazuroski: 27 I have gone over it with him, . . . and just to be clear, the questions I intend to ask are . . . without telling us did you conduct an investigation with information beyond the description, and did that investigation lead you to a particular suspect, who was that. (A-217.) Defense counsel then noted his objection again, stating that he had nothing further to add because he had previously made his position clear and addressed his concerns. (See A-217.) The court then stated that, because it seemed “that the resolution that [was] reached originally [was] a fair one and [the] best way to handle it, [its] ruling [would] stand.” (A-219.) The court concluded that the People would be “permitted to go into the nature of the investigation” so long as they “steer[ed] clear of anything having to do with a photo array.” (A-221.) The court’s reasoning was that the People were entitled to “insure that their pursuit of justice is not hampered by giving the jury the impression that the detective didn’t do a good job or that . . . the detective jumped to conclusions.” (A-218.) The exact exchange between the People and Mazuroski at trial proceeded as follows: Q. Okay. Now, to be clear you began this investigation the evening of May 30, 2010 correct? A. Yes. Q. Without telling us what it was, did you conduct further investigation with information beyond the descriptions you have just told us about? 28 A. Yes. Q. And did that investigation lead you to a particular suspect? A. Yes. Q. Who was that suspect? A. Mr. Holley. Q. And approximately nine days later, on June 8th of 2010, did you, in fact, meet Mr. Holley. A. Yes. Q. Do you see him today in court? A. Yes, I do. Q. Can you please point to him indicating an article of clothing he’s wearing? A. He’s the gentleman in the middle of wearing the white thermal shirt, long-sleeved shirt. THE COURT: Indicating Mr. Holley. (A-402.) After the People questioned Mazuroski on the investigative step he took to identify Appellant as the Assailant, defense counsel crossed Mazuroski on the same topic: Q. Okay. Now, you spoke with this Transit agent? A. Yes. Q. And you also spoke with the other civilian witness, Miss Yolanda Lin, right? A. Yes. Q. And you based part of your investigation on what these people had told you, right? Yes or no? 29 A. Yes. Q. And so you called – when you brought people into the lineup, you asked Miss Sylvie Lee to come, and Miss Yoori Han, right? A. Yes. Q. And you did that partly on some of the things they told you in your interviews with them, right? That’s why you brought them there? Yes or no? . . . A. If you’re asking me did I develop a suspect, yes. (A-419.) The People again returned to the subject on redirect: Q. Again, without telling us, Detective Mazuroski, but beyond speaking to Miss Sylvie Lee, Miss Yoori Han, Miss Ju Eun Lee, Miss Yolanda Lin, and the MTA agent and canvass[ing] for video, did you perform further investigation in this case over the nine days you had it? A. Yes. Q. You generated one suspect? A. Yes. Q. And who was that? A. Mr. Holley. (A-440-41.) The People later requested that the court instruct the jury not to speculate about “Mazuroski’s lawful investigation” (A-447-48) (emphasis added). The trial court denied this application, acknowledging that such an instruction might “bolster the thoroughness of [the] investigation.” (A-447-49.) 30 Defense Counsel’s Summation Defense counsel’s summation focused on the fallibility of eyewitness testimony and the contention that Ju Eun, Yoori and Sylvie were mistaken in their identifications of Appellant as the individual who allegedly attempted to steal Ju Eun’s purse and who allegedly assaulted Yoori and Sylvie. (See A-453-80.) Defense counsel thus argued that there was reasonable doubt as to whether Appellant “was credibly identified as the same person on the subway platform [on] May 30, 2010.” (A-457.) Specifically, defense counsel argued that the two subway encounters about which each of Ju Eun, Yoori and Sylvie testified did not provide an ideal opportunity to view the Assailant. Defense counsel focused on inconsistencies in the testimony provided by each witness and argued that Mazuroski suggested certain details to them. (See A-459-76.) Defense counsel also argued that “[n]one of the[] people in the line-up except Todd Holley had the height, weight and age of the described [Assailant],” and that Appellant was thus “the only possible person in [t]here that could be identified as the one who fit the description.” (A-476-80.) The People’s Summation The People characterized defense counsel’s summation as “basically crediting everything that [Ju Eun , Yoori and Sylvie were] saying except for their identification.” (A-484.) The People then argued that these witnesses were all 31 well situated to observe the Assailant in the Prince Street subway station on May 30, 2010, and that their in-court identifications of him – as well as the line-up identifications made by Yoori and Sylvie – were credible. (See A-482-84, A-489-505.) In addressing the line-up, the People argued that “there was absolutely nothing suggestive” about it. (A-493-96.) The People also returned to their previous discussion of the “investigation” that led Mazuroski to Appellant: Now you also heard from Detective Mazuroski, who I submit testified credibly; he told you part of his investigation, which is that he got information from witnesses, he tried to find video. . . . Then upon further investigation 9 days later, he had one suspect. One. Todd Holley. And, ladies and gentlemen, you will be charged by the Judge [that] you’re not to speculate on what his investigation was or how he came to Mr. Holley. Okay. There is absolutely no evidence here that there was any problem with it and the only evidence that you have to consider is that his investigation led him to Mr. Holley. And after being led to Mr. Holley, based on everything, all of his information with his investigation, he then set up a lineup. He didn’t go out and just grab [a] man off the street that he thought looked like what their description was. He went after his investigation and . . . and found Mr. Holley. And brought him back to the station. (A-492-93.) The People also stated in their summation that the witnesses’ description of the Assailant “aided the detective in his investigation which led to Mr. Holley.” (A-502.) 32 The Jury’s Deliberations After summations, the court charged the jury. (See A-506-30.) The jury then began deliberations, which proceeded through the end of the day on January 19, 2011. Before the court excused the jury for the day, it received a note from them asking for “[t]he evidentiary photo of [the] line-up” and the “description sheets” filled out by Ju Eun and Yoori, which indicated that both witnesses had told Mazuroski that the Assailant was “skinny.” (A-532-34, A-547.) The jury returned the next morning, January 20, 2011, to renew their deliberations. The court subsequently received another note from the jury, this one requesting “testimony regarding [the] witnesses’ identification of [Appellant] from the lineup.” (A-538, A-548.) The requested testimony was then read back to the jury. (See A-539.) The Verdict Shortly thereafter, the jury found Appellant guilty of attempted robbery in the third degree and both counts of assault in the third degree. (See A-541-45.) Sentence On March 1, 2011, the court “impose[d] the maximum sentence,” sentencing Appellant to an indeterminate prison term of two to four years on the C felony count of attempted robbery in the third degree, to run concurrently with two 33 definite one-year prison terms on the two A misdemeanor counts of assault in the third degree. (A-558.) ARGUMENT POINT I APPELLANT WAS SUBJECTED TO UNDULY SUGGESTIVE PRE-TRIAL IDENTIFICATION PROCEDURES BECAUSE, FIRST, THE PEOPLE FAILED TO PRESERVE THE COMPUTER- GENERATED PHOTO ARRAY USED TO IDENTIFY HIM AS THE ASSAILANT PRIOR TO HIS ARREST, THEREBY GIVING RISE TO A PRESUMPTION OF UNDUE SUGGESTIVENESS, AND THEN FAILED TO MEET THEIR BURDEN TO REBUT OR OVERCOME THAT PRESUMPTION, AND, SECOND, IN THE LINE-UP USED TO IDENTIFY HIM AFTER HIS ARREST, APPELLANT WAS THE ONLY ONE OUT OF THE SIX LINE-UP PARTICIPANTS WHO MATCHED THE DESCRIPTION OF THE ASSAILANT PROVIDED TO POLICE BY WITNESSES. APPELLANT WAS THEREFORE DEPRIVED OF DUE PROCESS BY THE HEARING COURT’S FAILURE TO ORDER THE SUPPRESSION AT TRIAL OF THE LINE-UP IDENTIFICATIONS AND BY THE ABSENCE OF AN INDEPENDENT SOURCE HEARING FOR THE LINE-UP WITNESSES’ SUBSEQUENT IN-COURT IDENTIFICATIONS. Identification evidence obtained through unduly suggestive pre-trial identification procedures is inadmissible at trial. Here, Appellant was entitled to a presumption that Sylvie’s photo array identification – the only piece of evidence connecting Appellant to the incident in the Prince Street subway station prior to his arrest – was unduly suggestive because the People failed to preserve the array and 34 produce it at the suppression hearing. The People then failed to rebut that presumption because there existed neither sufficient safeguards against suggestiveness nor any other factors that would excuse their failure to preserve and produce the array. Accordingly, the hearing court should have suppressed Sylvie’s subsequent line-up identification on the ground that it was tainted by the unduly suggestive photo array, and there should have been an independent source hearing to determine the admissibility of Sylvie’s in-court identification. Additionally, the line-up used to identify Appellant after the photo array led to his arrest was also unduly suggestive because, out of the six line-up participants, Appellant alone matched the description of the Assailant provided to police by witnesses. Accordingly, the hearing court should have suppressed the two line-up witnesses’ line-up identifications of Appellant and there should have been an independent source hearing to determine the admissibility of those witnesses’ in-court identifications of Appellant. The hearing court’s failure to suppress the line-up identifications and the absence of an independent source hearing violated Appellant’s right to due process. 35 A. The Applicable Legal Standard. 1. Eyewitness Identifications And Undue Suggestiveness. “The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.” United States v. Wade, 388 U.S. 218, 228 (1967). As this Court has stated, “[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor – perhaps it is responsible for more such errors than all other factors combined.” Rodriguez, 79 N.Y.2d at 449 (internal quotation marks omitted). As this Court has also stated, unlike “the exclusionary rule applicable to confessions and the fruits of searches and seizures,” which is “essentially at variance with the truthfinding process” because “generally reliable evidence of guilt is suppressed because it was obtained illegally[,] . . . the rule excluding improper pretrial identifications bears directly on guilt or innocence. It is designed to reduce the risk that the wrong person will be convicted as a result of suggestive identification procedures employed by the police.” Adams, 53 N.Y.2d at 250-51. It is for precisely this reason that unduly suggestive pre-trial identification procedures violate due process and are not admissible to determine the guilt of an accused. See id.; People v. Riley, 70 N.Y.2d 523, 529-31 (1987); People v. Ballott, 20 N.Y.2d 600, 605-06 (1967). Thus, at a pre-trial hearing, the People have the 36 initial burden of establishing the reasonableness of police conduct and the absence of undue suggestiveness. See People v. Chipp, 75 N.Y.2d 327, 335 (1990); People v. McRae, 195 A.D.2d 180, 186 (1st Dep’t 1994). After the People have satisfied their burden, the burden shifts to the defense to show that an identification was, in fact, suggestive. See Chipp, 75 N.Y.2d at 335. Importantly, undue suggestion “can be created intentionally or unintentionally in many subtle ways.” Wade, 388 U.S. at 229. 2. Undue Suggestiveness In Photo Arrays, The Presumption Of Suggestiveness That Attaches To Unpreserved Photo Arrays And How That Presumption May Be Rebutted Or Overcome. A photo array is unduly suggestive if one photograph draws a witness’s attention, “creat[ing] a substantial likelihood that the defendant would be singled out for identification.” Chipp, 75 N.Y.2d at 336. The importance of a suggestive feature depends on whether – and, if so, how prominently − that feature figured in a witness’s description. See Raheem v. Kelly, 257 F.3d 122, 134 (2d Cir. 2001). Indeed, identification procedures are “unduly suggestive as to a given defendant if he meets the description of the perpetrator previously given by the witness” while others pictured in the photo array do not. Id.; accord People v. Velez, 169 A.D.2d 661, 661 (1st Dep’t 1991) (where perpetrator was described as “a male Hispanic wearing a dark sweatshirt with a hood pulled over his head,” a photo array in which defendant was “wearing a dark sweatshirt with a hood” was deemed unduly 37 suggestive where “[t]he other photographs which the complainant looked at were not introduced”); People v. Rudan, 112 A.D.2d 255, 256 (2d Dep’t 1985) (“The picture of defendant was the only picture that even came close to the witnesses’ previous descriptions. Thus the photo array was unduly suggestive.”); People v. Lloyd, 108 A.D.2d 873, 873 (2d Dep’t 1985) (“[D]efendant was the only person in the array” wearing “the same clothing the claimant had described previously,” and thus “the array pointed to defendant’s picture as being that of the perpetrator.”); People v. Shea, 54 A.D.2d 722, 722-23 (2d Dep’t 1976) (“[t]he photo array was also suggestive in that the defendant’s photograph depicted a subject who alone had an identifying characteristic” described by the witness). In order for the People to satisfy their initial burden of establishing the reasonableness of police conduct and the absence of undue suggestiveness in the context of a photo array, they can simply produce the contents of the photo array at the suppression hearing so that the hearing court can determine for itself whether the array presented photographs to the viewing witness in such a way as to unduly suggest an identification. See, e.g., People v. Cooper, 182 Misc. 2d 46, 49 (Bronx Cty. Crim. Ct. 1999) (“Generally, photographic arrays must be preserved so that the Court can discern any subtle, or not-so-subtle, factors that tend to isolate a defendant’s photograph and unfairly increase the odds of its selection by the witness.”). 38 All four Departments of the Appellate Division have found that the People’s failure to preserve a photo array and produce it before a hearing court gives rise to an inference or presumption that the array was unduly suggestive. See Dobbins, 112 A.D.3d at 736 (“The People’s failure to preserve the original printout of a photographic array gives rise to a presumption of suggestiveness.”); Quinones, 228 A.D.2d at 796-97 (referring to “the general rule that the failure of the police to preserve a photographic array gives rise to a rebuttable presumption that the array was suggestive”); Green, 188 A.D.2d at 386; Simmons, 158 A.D.2d at 950 (“the failure to preserve a photograph of the lineup gave rise to a presumption of suggestiveness”); People v. Stokes, 139 A.D.2d 785, 785 (2d Dep’t 1988) (“[T]he failure of the People to preserve a record of a photographic array shown to a witness shortly after a robbery gives rise to an inference that the photo array was suggestive.”). 6 6 Defense counsel argued at the hearing that Mazuroski’s failure to preserve the photo array shown to Sylvie deprived the hearing court of the ability to review the search returns in order to evaluate the fairness of the array, and should give rise to an inference that the array was unduly suggestive. (See A-42.) Specifically, defense counsel cited People v. Galletti, 239 A.D.2d 598 (2d Dep’t 1997), for the proposition that “there’s an obligation to for [the] People to preserve a photo array.” (A-42.) In Galletti, the Appellate Division, Second Department held that “[b]ecause the People failed to preserve [a] photographic array, . . . it must be presumed that the . . . array was unduly suggestive, and the People failed to rebut that presumption by competent evidence.” Galletti, 239 A.D.2d at 599. Contrary to the People’s claim at the hearing in the present case that this obligation applies only to photo arrays in “paper form” (A-44), courts have held that the principle applies equally to computer-generated photo arrays. See, e.g., Dobbins, 112 A.D.3d at 736. 39 This inference or presumption can be rebutted or “dispelled by [police] testimony . . . detailing the procedures used to safeguard against suggestiveness.” Campos, 197 A.D.2d at 367. Such “safeguards” include “the ‘sheer volume’ of the photographs viewed, as well as the fact that the police had not yet focused upon defendant as a particular suspect.” Id. (quoting People v. Jerome, 111 A.D.2d 874, 874 (2d Dep’t 1985) (where complainant came to police precinct within hours of crime and was shown approximately 1,000 photographs over a period of two days, resulting in his identification of defendant, sheer volume and scope of that procedure militated against finding of suggestiveness and relieved the People of undue burden of preserving and producing the array at Wade hearing). In the context of a computer-generated photo array, the inference or presumption of suggestiveness can also be dispelled by “detailed testimony about how the computer selected a fair grouping of photographs,” Patterson, 306 A.D.2d at 15, or by sufficiently reconstructing the photo array at the time of the hearing, see People v. Georgison, 299 A.D.2d 176, 176 (1st Dep’t 2002) (“Although the photographic array was no longer available at the time of the hearing, the array was sufficiently reconstructed and any inference of suggestiveness resulting from its loss was rebutted.”). 40 3. Undue Suggestiveness In Line-Ups. While the law does not require that line-up fillers possess physical characteristics identical to those of a defendant, the fillers must be sufficiently similar in appearance to the defendant so that no characteristic or visual clue orients the viewing witness toward the defendant as the perpetrator of the crime being investigated. See People v. Montgomery, 205 A.D.2d 259, 261, 260 (1st Dep’t 1994) (line-up “appropriately suppressed” where fillers were recruited whose average age was “19 years older than the 15-year-old defendant”); People v. Davis, 169 A.D.2d 508, 508 (1st Dep’t 1991) (hearing court “erred in concluding that the lineup identification . . . was not suggestive” where, inter alia, there were “substantial differences in height between the defendant and other individuals chosen as fillers”); People v. Murphy, 260 A.D.2d 505, 505 (2d Dep’t 1999) (“due to disparities between the defendant and the lineup fillers, the lineup procedure was unduly suggestive”); People v. Harris, 172 A.D.2d 560, 560 (2d Dep’t 1991) (“obvious differences in height and age between the defendant” and fillers rendered line-up suggestive). Beyond the required similarity between the appearance of a defendant and the line-up fillers, a line-up is “unduly suggestive as to a given defendant if he meets the description of the perpetrator previously given by the witness and the other lineup participants obviously do not,” as line-ups “in which suspects are the 41 only participants . . . matching important elements of the description provided by the victim . . . substantially increas[e] the dangers of misidentification.” Raheem, 257 F.3d at 134 (internal quotation marks omitted). Thus, New York courts routinely hold as unduly suggestive line-ups in which the point or points of contrast between a defendant’s appearance and the appearance of the fillers figured prominently in witness descriptions of the suspect such that only the defendant actually matched the description given. See Davis, 169 A.D.2d at 508 (hearing court “erred in concluding that the lineup identification . . . was not suggestive” where, inter alia, “[d]efendant was the only person in the lineup wearing clothing that was substantially similar to the clothing described by the complaining witness as worn by the perpetrator of the crime”); People v. Carolina, 184 A.D.2d 520, 520-21 (2d Dep’t 1992) (line-up unduly suggestive where defendant alone wore his hair in the distinctive style described by the witness); People v. Maldonado, 143 A.D.2d 106, 106 (2d Dep’t 1988) (“The hearing court properly suppressed the evidence of the lineups, since the defendant is a light complexioned Hispanic and all of the stand-ins were black.”); People v. Gaddy, 115 A.D.2d 658, 658 (2d Dep’t 1985) (line-up unduly suggestive where description of assailants was that they were “very young, short, and had short hair” and defendant “was the shortest participant in the lineup,” had “very short hair” and “appeared to be the youngest of the six individuals”). 42 Raheem cites a Second Circuit case that deemed unduly suggestive a line-up very similar to the one that took place here: [A]n assailant had been described as 5’7” tall and weighing 145 pounds and a lineup was held in which the defendant, who was 5’6” tall and weighed 130 pounds, was the only person near that description – all but one of the other participants being four-to-six inches taller than the defendant and the remaining participant, though only two inches taller than the defendant, being 65 pounds (i.e., 50%) heavier. Raheem, 257 F.3d at 134 (citing Solomon v. Smith, 645 F.2d 1179, 1183 (2d Cir. 1981). More recently, the Appellate Division, Second Department, found undue suggestion in a line-up that is also strikingly similar to the one at issue here: [A]ccording to the evidence presented at the hearing, the complainant gave a description of the perpetrator which included the physical characteristics of dark skin, age in the mid-20s, height of approximately five feet eight inches, and weight of approximately 160 pounds. Upon our examination of the photographs of the lineup, it is apparent that the defendant was the only person that could have been in his mid-20s. In addition, the only “filler” who appeared somewhat similar in height and weight to the defendant was significantly older and had a lighter skin tone than the defendant. The remaining fillers, who were all much older than the defendant, were also much taller and much heavier than the defendant. These circumstances created a significant contrast to the defendant’s appearance, making identification by suggestion highly likely. Dobbins, 112 A.D.3d at 737. 43 4. Safeguarding Against Taint Where One Unduly Suggestive Pre-Trial Identification Procedure Precedes Another Pre-Trial Identification. If one of several pre-trial identifications by the same witness is found to be improperly suggestive, the People must demonstrate that the suggestive initial pre-trial identification procedure did not taint that witness’s subsequent pre-trial identifications in order to elicit the subsequent pre-trial identification at trial. See People v. Smith, 109 A.D.2d 1096, 1098 (4th Dep’t 1985) (suggestive show-up tainted subsequent line-up); People v. Tindal, 69 A.D.2d 58, 59-60 (4th Dep’t 1979) (suggestive photo array tainted subsequent line-up). These protective measures are required wherever a defendant is first identified via an unduly suggestive identification procedure because, to use the example of an unduly suggestive photo array preceding a line-up, a witness is “apt to retain in his memory the image of the photograph rather than the person actually seen, reducing the trustworthiness of a subsequent lineup . . . identification.” People v. Malphurs, 111 A.D.2d 266, 268 (2d Dep’t 1985). 5. The Need For Independent Source Hearings For In-Court Identifications Where Pre-Trial Identifications Are Unduly Suggestive. Where a witness’s pre-trial identification testimony is improperly admitted at trial, any in-court identification by that witness must also be deemed improperly admitted in the absence of clear and convincing evidence that the witness had an 44 independent source supporting the in-court identification. See People v. James, 67 N.Y.2d 662, 664 (1986). An appellate court “may not make its own finding of an independent source based upon trial testimony,” and must instead order a new trial, to be preceded by an independent source hearing. Id.; accord People v. Dodt, 61 N.Y.2d 408, 417 (1984); People v. Burts, 78 N.Y.2d 20, 23-25 (1991). Thus, if a witness does not testify at a suppression hearing, there can be “no basis to find an independent source for the identification of the defendant, and there must be a new trial.” People v. Bady, 202 A.D.2d 440, 440 (2d Dep’t 1994). B. The People’s Failure To Preserve The Photo Array Used To First Identify Appellant Entitled Him To An Inference Or Presumption That The Photo Array Was Unduly Suggestive, Which The People Failed To Rebut Or Overcome Because They Failed To Show That Sufficient Safeguards Against Suggestiveness Existed. The People cannot dispute that the computer-generated photo array used to identify Appellant as the Assailant before his arrest was unpreserved. It is also beyond dispute that Mazuroski could have preserved the mere one dozen photographs that Sylvie viewed before identifying Appellant as the Assailant. Mazuroski testified that he used the NYPD’s computerized PIMS system to construct the photo array. (See A-16-17.) Case law provides more detail about precisely how PIMS works: The PIMS system is a database of all persons arrested in New York City and is programmable to conduct searches by name, identifying characteristics and precinct. Information of various kinds can be entered into the computer, which can generate pages of potential 45 suspects who meet the selected characteristics. These various pages are displayed one at a time with six images per page on the computer screen. The person viewing the computer screen can scroll through as many or as few pages as is necessary to attempt to make an identification. People v. Lewis, 20 Misc. 3d 1136(A) (Kings Cty. Sup. Ct. 2008) (holding that officer’s failure to “print out the screen that contained all six photos of the array in which the defendant appeared” was “error,” noting that “it would have been a simple matter to do so,” and further holding that “[t]he failure to preserve the array gives rise to an inference that the photo array was suggestive”). It is also possible to print out individual pages of PIMS photo arrays. See id. Moreover, such photos need not be printed out immediately after being viewed by a witness, as “[p]hoto arrays in the NYPD’s [PIMS] system are saved in the form in which they are generated.” People v. Bulgin, 29 Misc. 3d 286, 291 n.8 (Bronx Cty. Sup. Ct. 2010). The People argued during the suppression hearing that if Mazuroski had printed out the pages of the array, it somehow would have been suggestive to Sylvie, the photo array witness. (See A-45.) This argument is not just meritless but nonsensical. For one thing, printing out a PIMS page after a witness has either made or failed to make an identification on that page cannot “indicate” anything “to the eyewitness” that could be considered suggestive, as the identification either has or has not already been made for that page. (See A-45.) Moreover, PIMS 46 photo arrays “are saved in the form in which they are generated” and can be printed out later, when a witness is not present. Bulgin, 29 Misc. 3d at 291 n.8. In any event, Mazuroski never offered, at the hearing or even at trial, any reason for his failure to print out or otherwise preserve the mere two pages of six photographs each that Sylvie viewed before identifying Appellant as the Assailant. Given these facts and the case law cited above, there can be no dispute that Appellant was entitled to an inference or presumption that the photo array was unduly suggestive, which the People could then have attempted to rebut or overcome. See Dobbins, 112 A.D.3d at 736; Quinones, 228 A.D.2d at 796-97; Green, 188 A.D.2d at 386; Simmons, 158 A.D.2d at 950; Stokes, 139 A.D.2d at 785. Here, the only factor weighing against suggestiveness to which the People can possibly point in attempting to rebut or overcome the presumption of is the fact that Mazuroski testified that Appellant was not considered a suspect prior to the commencement of the photo array. Under the circumstances present in this case, however, this factor alone is insufficient to rebut the presumption and establish the absence of suggestiveness for several reasons. First, the fact that Appellant was not considered a suspect prior to the photo array is beside the point here, where Appellant does not argue that Mazuroski purposefully constructed the array in order to suggest his identification as the Assailant. Rather, Appellant argues that Mazuroski’s careless construction of the 47 photo array inadvertently created a circumstance in which Sylvie would have identified the first skinny person she saw as the Assailant, and that it so happened that the first skinny person she saw – on only the second page of the over 500-page photo array, no less – was Appellant. Thus, the fact that Mazuroski did not consider Appellant a suspect prior to conducting the photo array has no impact whatsoever on the question of undue suggestiveness under the unique facts of this case. Second, even if this Court were to find that the fact that Appellant was not a suspect prior to the photo array somehow safeguarded against suggestiveness, any protection that fact may have offered was vastly outweighed by the fact that the photo array was created using a deeply flawed methodology that inexplicably omitted one of the Assailant’s defining physical characteristics (which Appellant, to his great misfortune, shared with the Assailant). Indeed, far from an additional safeguard against suggestiveness, the flawed construction of the photo array actually made it highly likely that Appellant would be singled out for identification. Third, the fact that Appellant was not considered a suspect prior to the photo array, if it is of any import at all under the unique facts of this case, is not meaningfully supplemented by the very small number photographs Sylvie viewed prior to making her identification, and is in fact outweighed by the glaring red flag presented by the fact that Appellant was identified as the Assailant after Sylvie 48 viewed only twelve out of over 3,000 photographs, when she was on only the second page of a photo array of over 500 pages, which was constructed from a “very general” search of every single 30-to-40-year-old, 6’0” to 6’4” black man who had been arrested anywhere in Manhattan at any point over a four-year timespan, from 2007 to 2010. Fourth, the fact that Appellant was not considered a suspect prior to the photo array is not supplemented by any other conceivable safeguards against suggestiveness. Therefore, the lone “safeguard” presented by the fact that Mazuroski did not have Appellant specifically in mind when creating the photo array – which is actually no safeguard at all under the unique facts of this case – is wholly insufficient to rebut the presumption of suggestiveness to which Appellant was inarguably entitled. 1. That Appellant Only Became A Suspect After The Photo Array Identification Does Not Establish A Lack Of Suggestiveness. The fact that Mazuroski testified at the suppression hearing that he had not focused on a suspect prior to showing any photographs to Sylvie is not determinative of suggestiveness or the lack thereof, as the United States Supreme Court has held that “[s]uggestion can be created intentionally or unintentionally in many subtle ways.” Wade, 388 U.S. at 229 (emphasis added); see also Raheem, 257 F.3d at 137 (fact that suggestiveness of line-up may have been unintentional 49 was immaterial, because “[t]he purpose of excluding identifications that result from suggestive police procedures is not deterrence but rather the reduction of the likelihood of misidentification”); People v. Smalls, 112 A.D.2d 173, 174 (2d Dep’t 1985) (“Although the leading of complainant past defendant’s cell was apparently unintentional, it was clearly the product of questionable police practice and was unduly suggestive even if purely accidental.”). Even more importantly, Appellant does not argue in this appeal that Mazuroski somehow purposefully rigged the photo array so as to ensure that Sylvie identified him, or that his arrest and conviction were part of some sinister plan in which he was Mazuroski’s specifically singled-out target. Rather, it is Appellant’s contention that he was unintentionally singled out for identification because: (i) in entering into PIMS all but one of the known physical features of the Assailant – his race and approximate age and height, but not his approximate weight, a distinctive feature that was specifically noted by at least two witnesses – Mazuroski created a situation in which the first photograph of a “skinny” person, whoever that may have been, was likely to be singled out for identification, and (ii) Appellant was very likely, to his great misfortune, the individual pictured in the first photograph of a “skinny” person that appeared in the first two pages of the over-500-page photo array. 50 Thus, because Appellant is arguing that he was unintentionally singled out for identification because of police incompetence, as opposed to arguing that he was intentionally singled out because of active, knowing police malfeasance, the People cannot possibly point only to the fact that the alleged suggestiveness was not purposeful in order to rebut the presumption. And as the following subsections make clear, the fact that Mazuroski had not identified Appellant as a suspect prior to the photo array is the only leg on which the People can possibly stand in attempting to rebut the presumption of undue suggestiveness. Given the weakness of that support in the face of the overwhelming indications that the photo array was, in fact, suggestive, the presumption of undue suggestiveness cannot be overcome in this case. 2. Far From Providing A Safeguard Against Suggestiveness, Mazuroski’s Failure To Enter Any Information About The Assailant’s Weight Or Body Type When Assembling The Photo Array Actually Created A Substantial Likelihood That Appellant Would Be Singled Out For Identification. In the proceedings below, the Appellate Division held, without any real explanation, that the unpreserved computer-based photo array at issue in this case “was not unduly suggestive” because Mazuroski “entered sufficient information about the description of the [Assailant] to ensure that the computer generated a fair selection of photos.” (A-4-6.) The Appellate Division is plainly incorrect, however. While the inference or presumption of the suggestiveness of a computer- 51 based photo array can be dispelled by “detailed testimony about how the computer selected a fair grouping of photographs,” Patterson, 306 A.D.2d at 15, no such testimony exists here. On the contrary, the hearing testimony in this case shows exactly the opposite: that the flawed conduct of the June 2, 2010 photo array in which Appellant was first identified as the Assailant created a substantial likelihood that the twelve photographs that Sylvie viewed prior to identifying Appellant were not “a fair grouping of photographs,” because while Appellant matched all four of the Assailant’s most distinctive physical features, the other eleven men pictured in the first two pages of the photo array can only be said with any level of assurance to have matched only three of those features – race, age and height, but not weight. Id. Despite the fact that both Ju Eun and Yoori told him that the Assailant was 6’0” to 6’2” and “skinny,” Mazuroski did not enter a weight range into PIMS, even though the system allows one to do this. (A-14, A-29-30.) Mazuroski’s self- described “very general” search returned over 3,000 images depicting every 30-to- 40-year-old, 6’0” to 6’4” black man arrested anywhere in Manhattan from 2007 to 2010. (A-17.) These returns would have included photographs of individuals of all weights and body types – from individuals even skinnier than Appellant to the obese. There is therefore a substantial likelihood that among the twelve photographs shown to Sylvie prior to her initial identification, the photograph of 52 Appellant stood out as the only one matching the description of the Assailant as “skinny,” and that the photo array therefore “pointed to [Appellant’s] picture as being that of the” Assailant. Lloyd, 108 A.D.2d at 873. The People offered several arguments during the hearing as to why Mazuroski’s failure to enter any weight range for the Assailant into PIMS did not result in an unduly suggestive photo array. For one thing, the People argued that “part of the description [related to the Assailant wearing] a big black jacket” and that a witness would not have had “a particular view of the [Assailant’s] body type under winter clothing.” (A-44-45.) This argument is contrary to the hearing testimony, however. As an initial matter, by informing Mazuroski that the Assailant was skinny, both Ju Eun and Yoori clearly indicated that they did, in fact, have “a particular view of the [Assailant’s] body type.” (A-44-45.) Moreover, while Mazuroski testified that he was told that the Assailant was wearing a “winter knit” cap (A-30), he did not testify as to the seasonality or bulk of the Assailant’s jacket, but only that it was “three quarters length or waist-length” (A-14). Nowhere did Mazuroski testify that any witness had told him that it was a “winter” jacket or that it was “big” in the sense that it obscured the body type of the wearer. (A-44-45.) Indeed, common sense dictates that one would not be wearing a “big,” bulky or puffy body-type-obscuring “winter” jacket at the end of May, when the incident took place. (A-44-45.) 53 The People also argued that the photo arrays showed only “mugshots” and not “full body” photographs, and that one cannot discern a person’s weight or body type from that person’s mugshot. (A-45.) This argument, too, finds no support in the hearing transcript, for two reasons: (i) none of the photographs in the photo array were preserved or entered into evidence at the hearing, and (ii) while Mazuroski testified that the photographs in the photo array were “arrest photographs,” there was no hearing testimony as to whether they were “mugshots” or otherwise depicted only the faces of their subjects, or whether an individual’s approximate weight or “body type” could be discerned from them. (A-32, A-45.) Indeed, it is common knowledge that many arrest photographs depict a significant portion of an individual’s upper body in addition to their face, as a Google Image search will attest. Thus, the People’s supposition that one cannot tell whether or not an individual is skinny by viewing only “arrest photographs” finds no support in the record or in common sense. A review of the hearing transcript also indicates that the People appear to have misapprehended defense counsel’s position as being that Mazuroski’s failure to include information pertaining to the Assailant’s weight “would exclude anyone else who appears to have Mr. Holley’s body type” from the results. (A-45.) Plainly, however, the argument made by defense counsel was one not of exclusion, but of over-inclusiveness, as he argued that there was a substantial likelihood that 54 the search returned so many photographs of individuals visibly heavier than Appellant – individuals who therefore did not match the description of the Assailant – that Appellant, as a skinny person who did match the description of the Assailant, was singled out for identification. Thus, given the substantial likelihood that Appellant’s photograph stood out like a sore thumb among photographs of other individuals who were not skinny, Mazuroski’s failure to enter a weight range for the Assailant into PIMS created a situation in which Sylvie would have identified the first skinny person whose photograph she saw simply because his skinniness made him stand out as more similar to the Assailant than the rest of the individuals pictured. See Gary L. Wells & Eric P. Seelau, Eyewitness Identification: Psychological Research and Legal Policy on Lineups, 1 Psychol. Pub. Pol’y & L. 765, 768 (1995) (explaining that owing to a psychological process called “relative judgment,” eyewitnesses are prone to select the member of the line-up who most resembles the eyewitness’s memory of the culprit relative to the other members, even when the culprit is not featured in the line-up). Take, for example, the well-known children’s game “One of These Things Is Not Like the Other,” in which a child is shown a number of images and must pick out which image depicts an item that is “not like” the items depicted in the other images. For example, a child might be shown images of a fork, spoon, baseball bat 55 and knife. The child is then supposed to identify the baseball bat as the item that stands out as unlike the other items. The same principles apply to the photo array in this case. While Appellant would surely have stood out if he alone matched the description of the Assailant and was featured on a photo array page in which all the other photographs depicted, for example, elderly white men, he also would have stood out if he was featured on a page in which all the other photographs depicted black males around his age and height but who were visibly heavier than him. And given that Appellant was identified by multiple witnesses as being “skinny,” there is a very good possibility that all of the other eleven individuals pictured on the first two pages of the array were visibly heavier than he was. It also must be noted that Mazuroski testified on direct examination that the witnesses did not provide him with “any body type” or “build” of the Assailant (A-15), but then changed his testimony and admitted on cross-examination that both Ju Eun and Yoori had told him that the Assailant was “skinny,” though he admitted this only after being shown a form containing Ju Eun’s description of the Assailant. (A-29-30.) Appellant submits that Mazuroski’s knowledge of the impropriety of his failure to enter a weight range for the Assailant into PIMS can be inferred from the divergence between his incorrect direct examination testimony at the hearing and his correct cross-examination testimony, which came out only 56 after he was shown a document establishing that his prior direct examination testimony had been false. Sylvie’s subsequent identifications of Appellant on pages 13 and 14 of the photo array were also highly likely to have been tainted by the suggestive page 2 identification, as common sense dictates that there is a substantial likelihood that these subsequent identifications were not identifications of the Assailant, but rather of the same man she had identified on page 2 just minutes earlier. See Malphurs, 111 A.D.2d at 268 (“When a misidentification occurs, the witness is apt to retain in his memory the image of the photograph rather than the person actually seen, reducing the trustworthiness of a subsequent . . . identification.”). 3. Sylvie’s Viewing Of Only Twelve Photographs Prior To Identifying Appellant As The Assailant Did Not Safeguard Against Suggestiveness Or Excuse The People From Production; To The Contrary, It Raises Serious Red Flags. New York State courts have held that the presumption of suggestiveness brought on by the failure to preserve a photo array may be overcome “when the array is so voluminous that the sheer volume and scope of the procedure would create an undue burden upon the People.” Stokes, 139 A.D.2d at 785; accord People v. Mason, 138 A.D.2d 411, 412 (2d Dep’t 1988) (alteration in original) (internal quotation marks omitted) (“when a photographic identification procedure involves showing a witness a preexisting file consisting of a large number of 57 photographs, the sheer volume and scope of [the] procedure militates against the presence of suggestiveness”). The cases from which this means of overcoming the presumption originates, however, all date from the time when photo arrays were comprised of large physical books of arrest photographs, well before the PIMS system provided a database that allowed for easy, near-instantaneous searches of all persons arrested in New York City who match a given set of identifying characteristics. Whereas photos included in the photo array books of the past could only be used for one array at a time (and thus could not be used in other arrays once placed in a book that was to be introduced as evidence at an upcoming suppression hearing), no such limitation exists with PIMS photo arrays, where the same digital arrest photo can be used simultaneously by any number of police officers in any number of photo arrays all over New York City. Moreover, as discussed above, it is possible both to save PIMS photo arrays in the exact same form that they are in when they are shown to an identifying witness and to easily print those arrays out for production at a suppression hearing. The preservation and production of printouts of PIMS photo arrays in this manner does not create anything even resembling the kind of burden for the People that the production of the photo array books of the past used to create when Stokes and Mason were decided. Rather, the People can preserve a PIMS photo array, no 58 matter how large, with just a few mouse clicks and keystrokes. Moreover, the page counts of PIMS printouts will only total one-sixth of the amount of photographs viewed by the identifying witness, as PIMS displays six photographs per page. Given these technological advances, and given the importance of the underlying constitutional rights of persons who are charged with crimes based on computer-based photo array identifications made through the NYPD’s PIMS system, this Court should retire the outdated “sheer volume” means of overcoming the presumption against suggestiveness enshrined in now-antiquated cases like Stokes and Mason and, going forward, require the police and the People to preserve and produce at suppression hearings all photographs viewed by an identifying witness in any PIMS photo array. In any event, assuming that the “sheer volume” means of rebutting or overcoming the presumption is still valid despite the advances of modern technology, the small number of photographs viewed by Sylvia prior to her identification of Appellant as the Assailant clearly does not rebut or overcome the presumption here. To wit, while the search itself returned over 3,000 results, Sylvie did not view all 3,000-plus photographs prior to identifying Appellant, and, in fact, identified Appellant after viewing only twelve photographs. (See A-17, A-30.) Surely, producing these twelve photographs at Appellant’s suppression 59 hearing – which could have been printed out on a mere two pieces of paper – would not have created any significant burden for the People. Nor does the number of returns Sylvie viewed prior to identifying Appellant as the Assailant militate against the presence of suggestiveness, particularly where, as discussed above, the search results were highly likely to have been suggestive owing to Mazuroski’s failure to enter any information at all as to the Assailant’s weight. In their briefing before the Appellate Division, however, the People repeatedly focused on the number of photographs Sylvie viewed both before and after identifying Appellant, not merely the number she viewed prior to her identification. See Resp’t Br. at 19 n.4 (“[A]lthough [Appellant] believes that the police would have had to maintain only the first 12 photos, from which Sylvie identified his photo, the fact remains that Sylvie examined many more photos than that.”) (citation omitted); id. at 20 (“Sylvie looked at about 20 pages of photos, with 6 individual photos displayed per page. Of those 120 or so photos, 3 depicted [Appellant].”) (citations omitted). This disingenuous focus on the number of photographs that Sylvie viewed after identifying Appellant, if countenanced by this court, would invite police abuse and effectively excuse the police and the People from ever having to preserve any computer-based photo arrays, as the police could simply continue showing a witness who had already identified a suspect on the first page of a photo array dozens or hundreds or thousands more photographs, and thus 60 avoid having to present the one operative page of photographs before a hearing court. Indeed, the potential for police abuse in photo arrays provides all the more reason to require the police and the People to preserve and produce at suppression hearings all photographs viewed by an identifying witness in any PIMS photo array. This Court should therefore assess the burden of preserving the photo array at issue here, as well as the question of whether the volume of photographs viewed by Sylvie militated against suggestiveness, on the basis of the two pages of six photographs each that Sylvie was shown prior to making her positive identification of Appellant as the Assailant, not the volume of pages she viewed after making her identification. Moreover, the fact that Sylvie was able to identify the Assailant on the second page and within the first twelve photographs of an over-500-page, over- 3,000-result “very general” search of every single 30-to-40-year-old, 6’0”-to-6’4” black man who had been arrested anywhere in Manhattan over the four years from 2007 to 2010, particularly in light of the likelihood that Appellant stood out as the only “skinny” person in those first two pages of returns, raises serious red flags as to whether this was a bona fide identification or merely Sylvie identifying the first skinny person whose photograph she saw simply because his skinniness made him stand out as more similar to the Assailant than the rest of those pictured. While it 61 is conceivable that Mazuroski’s “very general” search could have hit the proverbial jackpot so quickly, easily and effortlessly (not to mention in spite of his omission of one of the Assailant’s most distinctive physical characteristics from his search criteria), it is certainly curious and improbable. As such, the speed and ease with which Sylvie identified Appellant as the Assailant lend further support to the argument that there is a substantial likelihood that the photo array was unduly suggestive and that a misidentification was made. 4. No Other Safeguards Against Suggestiveness Existed. Though Mazuroski did not preserve any portion of the photo array shown to Sylvie, he could have attempted to sufficiently reconstruct that photo array at the hearing in order to rebut “any inference of suggestiveness resulting from” his failure to preserve it. Georgison, 299 A.D.2d at 176. He made no such effort, however. Nor did Mazuroski testify to the existence of anything other than what has been discussed above that might have offered some conceivable safeguard against suggestiveness. * * * For the reasons set forth above, the hearing court should have found that Sylvie’s photo array identification of Appellant as the Assailant was the product of undue suggestion. Moreover, Sylvie’s line-up identification of Appellant was also tainted by the unduly suggestive photo array, as she viewed the line-up only a few 62 days after she viewed the photo array (see A-16), making it substantially likely that Sylvie’s line-up identification was the product of the unduly suggestive photo array identification rather than of her independent recollection of the incident. See Malphurs, 111 A.D.2d at 268. It was therefore error to deny the suppression of Sylvie’s line-up identification of Appellant and to permit her in-court identification without first holding an independent source hearing. See Burts, 78 N.Y.2d at 22- 23. As Sylvie did not testify at the suppression hearing, this Court “may not make its own finding of an independent source” for her in-court identification “based upon trial testimony,” James, 67 N.Y.2d at 664, and must instead order a new trial, to be preceded by an independent source hearing, Bady, 202 A.D.2d at 440. C. The Line-Up Was Also Unduly Suggestive Because, Out Of The Six Line-Up Participants, Only Appellant Matched The Description Of The Assailant That The Witnesses Had Provided. The witnesses described the Assailant as a black man, “approximately six foot to 6’2”, 30 to 40 years old” (A-14), and “skinny” (A-29-30). The hearing court reached its conclusion that the line-up was not suggestive without even discussing the significant disparities between Appellant’s age and weight and the ages and weights of the fillers. (See A-47-48.) Nor did the hearing court acknowledge the fact that. of the six line-up participants, only Appellant actually fit the description of the Assailant that was provided to the police by the witnesses. (See A-47-48.) Instead, the hearing court only acknowledged the steps that 63 Mazuroski took to conceal the line-up participants’ differences in height (which were minor and not the focus of defense counsel’s argument at the hearing) and hairstyle (which were not even addressed by defense counsel at the hearing). (See A-47-48.) As evidenced by the chart below (as well as the Line-Up Photograph), however, (i) Appellant was the only one of the six line-up participants who matched all four aspects of the witnesses’ description of the Assailant; (ii) none of the five fillers even fell within the ten-year age range that the witnesses provided for the Assailant; and (iii) none of the five fillers could be characterized as “skinny”: The Assailant Position #1 (Filler) Position #2 (Filler) Position #3 (Filler) Position #4 (Filler) Position #5 (Appellant) Position #6 (Filler) 30-40 y.o. 47 y.o. 45 y.o. 57 y.o. 22 y.o. 32 y.o. 44 y.o “skinny” 250 lbs. 195 lbs. 200 lbs. 180 lbs. 160 lbs. 210 lbs. 6’1 - 6’2” 6’1” 6’2” 5’11” 6’1” 6’1” - 6’2” 5’9” (See A-7-8, A-14, A-26, A-29-30, A-36-40.) Of course, the relevant inquiry is whether there appeared to be a marked age and weight difference between Appellant and the other line-up participants such that Appellant alone matched the description of the Assailant. Here the appearances of all of the fillers accurately reflected their actual ages and weights, and a filler-by-filler analysis of both the raw data regarding their age, height and weight and the Line-Up Photograph makes clear that the hearing court was 64 incorrect in concluding that “there [was] nothing that highlight[ed] [Appellant] which would suggest to a witness to pick him out.” (A-48.) o The filler in Position #1 did not resemble Appellant or the description of the Assailant in age or weight. At 47 years old, he was fifteen years older than Appellant and nearly a decade outside the age range the witnesses provided for the Assailant. Moreover, he was not “skinny,” outweighing Appellant by nearly 100 pounds. (See A-36-40.) The Line-Up Photograph amply demonstrates that the filler in Position #1 actually appeared much heavier and older than Appellant. (See A-7-8.) In a filing before the Appellate Division, the People even admitted that this filler “appear[s] more heavyset than [Appellant].” Resp’t Br. at 30. o The filler in Position #2 also fell outside the age range the witnesses provided for the Assailant and could not be described as “skinny.” At 45 years old, he was thirteen years older than Appellant and a half-decade outside the age range for the Assailant. Moreover, this filler outweighed Appellant by nearly 40 pounds. (See A-37-40.) The Line-Up Photograph makes clear that this filler also appeared visibly heavier and older than Appellant. (See A-7-8.) o At 57 years old, the filler in Position #3 fell well outside the age range the witnesses provided for the Assailant, and at 25 years Appellant’s senior, he was nearly twice as old as Appellant. Additionally, this filler outweighed Appellant by 40 pounds, despite the fact that he was noticeably shorter than Appellant. (See A-37-40.) These facts are all readily evident from the Line-Up Photograph. (See A-7-8.) The People even acknowledged before the Appellate Division that, “[t]o be sure, the filler sitting in chair number three . . . could be considered visibly older and heavier than [Appellant].” Resp’t Br. at 30. o The filler in Position #4 is the one whose build most resembled Appellant’s build and came closest to the build of the Assailant. At 6’1”and 180 pounds, while not “skinny,” he was far closer to it than any of the other fillers. The problem with this filler, however, is even more glaring than the problems with the 65 others, because, at 22 years old, he was barely out of his teens, and thus far from the age range that the witnesses provided for the Assailant. (See A-37-40.) The Line-Up Photograph makes clear that he was visibly younger than all of the other line-up participants, Appellant included. (See A-7-8.) o The filler in Position #6 was a dozen years older and 50 pounds heavier than Appellant, despite being noticeably shorter than him. (See A-38-40.) The Line-Up Photograph establishes as much. (See A-7-8.) Indeed, the People also admitted before the Appellate Division that the filler in Position #6 “appear[s] more heavyset than [Appellant].” Resp’t Br. at 30. This Court should take away three primary points from the foregoing filler- by-filler analysis. First, the People have admitted before the Appellate Division that the physical appearances of three of the five fillers visibly diverged significantly from that of Appellant, as they admit that “the filler sitting in chair number three . . . could be considered visibly older and heavier than [Appellant]” and “the fillers in chairs one and six appear more heavyset than [Appellant].” Resp’t Br. at 30. The People’s admissions as to the fillers in Positions #1, #3 and #6 are enough on their own to constitute an admission that the line-up was inherently suggestive. 7 Second, all five fillers visibly fell outside of the age range the witnesses provided for the Assailant, as the four fillers who were older than 40 years old (44, 45, 47 and 57 years old, respectively) and the one filler who was 7 As to the fillers in Positions #2 and #4, Appellant submits that the Line-Up Photograph clearly shows that (i) the filler in Position #2 was more than a decade older than Appellant, fell well outside the ten-year age range for the Assailant and was not “skinny,” and (ii) the filler in Position #4 was a full decade younger than Appellant, fell well outside the ten-year age range for the Assailant and also was not “skinny.” (See A-7-8.) 66 significantly younger than 30 years old (22 years old) all appear from the face of the Line-Up Photograph to be at or near their actual ages, and not within the age range that the witnesses provided for the Assailant. (See A-7-8.) Third, none of the five fillers could legitimately be characterized as “skinny,” as they each outweighed Appellant by from 20 pounds up to almost 100 pounds. As noted above, the only filler whose weight even approximated Appellant’s (the filler in Position #5), was, at a mere 22 years old, visibly younger than Appellant, the age range that witnesses provided for the Assailant and all of the other fillers. (See A-7-8.) The fillers in Positions #1, #2, #3 and #6 were all visibly heavier than Appellant, such that they certainly could not be described as “skinny.” 8 Moreover, while Mazuroski testified that all of the line-up participants wore identical hats to conceal any differences in their hairstyles (see A-27, A-47), he took no measures to conceal the significant differences in their weights or body types. Cf. People v. Murphy, 1 A.D.3d 184, 184-85 (1st Dep’t 2003) (line-up not 8 While all of the line-up participants appear seated in the Line-Up Photograph, the People have admitted that, based on that seated Line-Up Photograph, three of the five fillers were visibly heavier than Appellant. In any event, nothing in Mazuroski’s hearing testimony indicates that the line-up participants were never instructed to stand and face a certain direction for the benefit of the viewing witnesses, as is a common practice in line-ups. Indeed, at trial, Yoori testified that when she appeared at the line-up, she saw a “group of six men sitting on a chair with numbers . . . [a]nd then [she] went into a dark room with just a window and then had each person stand up and look around to view their profile.” (A-315-16.) Yoori also testified that she “was told that [she] could do that, [that she] could ask them to turn around to see their profile.” (A-315-16.) Nothing in Mazuroski’s hearing testimony foreclosed the possibility that Sylvie was also given the benefit of viewing the line-up participants standing up. And, of course, a standing profile view of the line-up would have made the significant weight differences between Appellant and the fillers even more readily apparent than they already were when the line-up participants were seated. 67 unduly suggestive where “the body size difference between defendant and the other lineup participants was effectively concealed by the use of cardboard screens”); People v. Cheung, 255 A.D.2d 102 (1st Dep’t 1998) (line-up not unduly suggestive where differences in height and weight were minimized by seating all participants and covering their torsos). Additionally, as noted above, Mazuroski’s hearing testimony indicates that he was aware that he acted improperly in selecting line-up fillers with an apparent total disregard for their resemblance to the description of the Assailant. While he testified on direct examination at the suppression hearing that the witnesses did not provide him with “any body type” or “build of the individual” (A-15), he then admitted on cross-examination, after being shown documents indicating that his direct examination testimony was false, that he had, in fact, been told by the witnesses that the Assailant was “skinny.” (A-29-30). Plainly, to Sylvie and Yoori – witnesses who had described the Assailant as 30 to 40 years old and “skinny” – Appellant stood out like a sore thumb in this hastily thrown together line-up as the only person who matched the description of the Assailant. (A-29-30.) Thus, the line-up was unduly suggestive. It was therefore error to deny the suppression of Sylvie and Yoori’s two line-up identifications of Appellant and to permit their in-court identifications without first holding an independent source hearing. See Burts, 78 N.Y.2d at 22-23. As neither 68 Sylvie nor Yoori testified at the suppression hearing, this Court “may not make its own finding of an independent source” for their in-court identifications “based upon trial testimony,” James, 67 N.Y.2d at 664, and must instead order a new trial, to be preceded by an independent source hearing, Bady, 202 A.D.2d at 440. D. The Foregoing Arguments Were Fully Preserved. The foregoing arguments were fully preserved during the hearing. As to the photo array, defense counsel argued that Mazuroski’s failure to enter any information pertaining to Appellant’s weight could have brought up “a whole slew of people that would not match Mr. Holley’s appearance and would run the risk of having Mr. Holley as a tall skinny person stand out in those photographs.” (A-41.) Defense counsel also preserved the argument that the People were under an obligation to preserve the photo arrays shown to Sylvie. (See A-42.) As to the line-up, defense counsel argued that it was unduly suggestive because “the major difference on weight and height with respect to the fillers” and both Appellant and the description of the Assailant would cause Appellant to “stand[] out” such that an identifying witness’s “view would be drawn to him.” (A-42-43.) E. The Harm Caused By The Hearing Court’s Error. The error in failing to suppress Sylvie and Yoori’s line-up identifications of Appellant and establish the existence of independent sources for their subsequent in-court identifications of him was not harmless. The two line-up identifications 69 and three in-court identifications were the primary evidence against Appellant at trial. The People even acknowledged in their summation that defense counsel’s entire case was predicated on attacking the reliability of these witness identifications. (See A-484 (characterizing defense counsel’s summation as “basically crediting everything that the [witnesses] are saying except for their identification”).) The three in-court identifications were clearly bolstered by evidence regarding the line-up identifications. Nevertheless, it is evident that the “pivotal issue of identification, although sufficient for presentation to the jury, was not free from doubt,” People v. LaPorte, 306 A.D.2d 93, 97 (1st Dep’t 2003) (internal quotation marks omitted), as the jury sent the trial court multiple notes requesting “the evidentiary photo of [the] line-up,” the “description sheets” filled out by Ju Eun and Yoori (which indicated that both witnesses had told Mazuroski that the Assailant was “skinny”) and a read-back of “testimony regarding [the] witnesses’ identification of [Appellant] from the lineup.” (A-532-34, A-538.) And if Sylvie and Yoori’s in-court identifications were suppressed, as they should have been in the absence of an independent source hearing, then the People’s only evidence against Appellant at trial would have been an in-court identification by a sole witness. Indeed, without Sylvie and Yoori’s in-court identifications of Appellant, there was no independent evidence against him other than Ju Eun’s single in-court identification. Appellant was not physically found at 70 the scene, nor was any video showing Appellant found anywhere near the scene (see A-15); Appellant was found a week later living in a shelter in the Bedford- Stuyvesant neighborhood of Brooklyn, far from the Manhattan subway station where the incident occurred (compare A-21, A-33 with A-11); and there was no testimony that, upon arresting Appellant at his dormitory room in the shelter, officers found any of the distinctive clothing that the Assailant had been wearing – namely, a “black three quarters length or waist-length jacket,” a blue knit winter cap, black shoes and black pants (see A-14, A-21, A-30, A-33-34). * * * Accordingly, this Court should reverse Appellant’s conviction, suppress Sylvie’s line-up identification of Appellant and order a new trial, to be preceded by an independent source hearing to determine whether there is an untainted independent basis for Sylvie and Yoori’s in-court identifications of Appellant. See Burts, 78 N.Y.2d at 23-25; Adams, 53 N.Y.2d at 251. 71 POINT II APPELLANT WAS DEPRIVED OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL WHERE, OVER DEFENSE COUNSEL’S REPEATED OBJECTIONS, THE PEOPLE COMMUNICATED TO THE JURY THAT THE POLICE POSSESSED INDEPENDENT, UNCONFRONTABLE EVIDENCE INDICATING THAT APPELLANT HAD COMMITTED THE CHARGED CRIMES AND ENCOURAGED THE JURY TO SPECULATE ON THE NATURE OF THAT PHANTOM EVIDENCE BY THE ELICITATION OF TESTIMONY PERTAINING TO AN UNSPECIFIED “INVESTIGATION” THAT GAVE POLICE “INFORMATION BEYOND” THAT TO WHICH WITNESSES SPECIFICALLY TESTIFIED AT TRIAL AND WHICH LED TO APPELLANT’S IDENTIFICATION AND ARREST. Appellant was also deprived of his right to a fair trial by Detective Mazuroski’s testimony related to the “investigation” he undertook to identify and eventually arrest Appellant, which “investigation,” in reality, consisted primarily of the unduly suggestive photo array discussed above. (A-72-73, A-82-83.) It was reversible error for the People to elicit from Mazuroski testimony pertaining to this “investigation” because it conveyed to the jury that Mazuroski possessed independent evidence indicating that Appellant had committed the charged crimes and encouraged the jury to speculate on the nature of that phantom evidence, which was never presented to it and which Appellant therefore did not have any opportunity to confront. This testimony also improperly bolstered the fundamentally flawed identifications of Appellant by the photo array and line-up 72 witnesses. Appellant was further deprived of his right to a fair trial when the People repeatedly returned to this improper testimony during their summation. This testimony should therefore have been excluded by the trial court, as defense counsel repeatedly requested, and the People’s summation argument regarding it should not have been permitted. A. The Applicable Legal Standard. The introduction of testimony that clearly conveys to a jury that the police possess evidence indicating the guilt of an accused that is not presented to the jury, such as testimony about the investigation that led to the accused’s arrest, is improper in the absence of any compelling need for such testimony, even where such testimony only speaks about such evidence or investigation in very vague and general terms. See United States v. Reyes, 18 F.3d 65 (2d Cir. 1994) (testimony of custom’s agent regarding conversation with two persons implicating defendant constituted hearsay even though jury was not told exactly what words the persons had spoken because agent’s testimony conveyed substance of what they had said); Ryan v. Miller, 303 F.3d 231 (2d Cir. 2002) (testimony that, after speaking with officer who had questioned codefendant, supervising officer told officer questioning defendant to advise defendant of his rights with regard to murder charges was hearsay that implicitly contained codefendant’s accusation of defendant, in violation of Confrontation Clause because testimony created 73 impression for jury that codefendant’s statements led police to focus on defendant as murder suspect); cf. People v. Rivera, 96 N.Y.2d 749, 751 (2001) (noting that an “officer’s testimony that he uncuffed the complainant and arrested defendant after speaking with two bystanders was hearsay,” the introduction of which would have been improper if not for the fact that “it was defendant himself who invited its admission [by] creat[ing] a material gap in the narrative that the People were entitled to explain”) (citing Reyes, 18 F.3d at 65). “‘[T]he principal vice’ of [such hearsay] is that it deprives the [defendant] of the opportunity to cross-examine the declarant.” United States v. Forrester, 60 F.3d 52 (2d Cir. 1995) (quoting Reyes, 18 F.3d at 69); see also Mason v. Scully, 16 F.3d 38 (2d Cir. 1994) (defendant’s confrontation clause rights were violated by testimony of police detective about hearsay statement of non-testifying codefendant). Thus, even where there is a “material gap in the narrative” that the People argue they are “entitled to explain,” Rivera, 96 N.Y.2d at 751, courts must be cognizant of the fact that allowing police “to narrate the course of their investigations, and thus spread before juries damning information that is not subject to cross-examination, would go far toward abrogating [a] defendant’s rights under the sixth amendment and the hearsay rule.” United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004) (Easterbrook, J.). 74 It is also well-established law in New York that the People may not improperly bolster the testimony of their witnesses in a way that unfairly leaves the jury with the impression that the police were supplied with additional, unspecified information leading them to identify a defendant as a suspect. See People v. Milligan, 309 A.D.2d 950, 950-51 (2d Dep’t 2003) (officer’s testimony constituted “impermissible bolstering” where he testified that he arrested defendant after interviewing complainants and had “focused” on defendant after speaking with another suspect); see also People v. Tufano, 69 A.D.2d 826, 826-27 (2d Dep’t 1979) (reversing conviction where officer testified that he arrested defendant shortly after conversation with accomplice). For example, in People v. Clark, 28 A.D.3d 785 (2d Dep’t 2006), the complainant identified the defendant in court and testified that she had previously picked him out of a line-up, during which a police officer had been present. Id. at 786. The People then elicited from the officer that after meeting with the complainant, he had “ascertain[ed] the address of the person who had robbed her.” Id. The officer further testified that he had thereafter “placed the defendant in a lineup, brought the complainant into the [police station] and had her view it, and that following the lineup, he arrested the defendant.” Id. The Court reversed the defendant’s conviction, finding that the officer’s testimony regarding the meeting and subsequent line-up “impermissibly bolstered the complainant’s prior testimony 75 by providing official confirmation of her prior in-court identification of the defendant,” and that such “error was not harmless.” Id. (citations omitted). B. The People Improperly Conveyed To The Jury That The Police Possessed Additional Evidence Of Appellant’s Guilt And Encouraged The Jury To Speculate On The Nature Of This Phantom Evidence, Which Appellant Did Not Have Any Opportunity To Confront, And Which Improperly Bolstered The Pre-Trial Identifications Of Appellant. The People initially sought to introduce evidence establishing that Mazuroski was first led to Appellant by a photo array identification, thereby circumventing the clear prohibition against the introduction of photo array evidence at trials. (See A-71-73.) Defense counsel opposed these efforts, and the trial court properly rejected the People’s application. (See A-73-75.) The People also requested, as an alternative to inquiring specifically about the photo array, that they be permitted to ask Mazuroski whether his “investigation [led him] to a particular person,” and whether he had “information beyond those descriptions” that led him to that individual. (A-72-73.) Defense counsel initially stated that this “alternative proposition” put forward by the People appeared “reasonable.” (A-73-74.) The next day, however, defense counsel stated that, while he understood “the People’s concern [that] they [did not] want the jury to infer that the police acted inappropriate[ly] [and] just grabbed someone off the street for no reason,” he believed that the proposed “investigative step” testimony would “lead to an undue prejudice toward” Appellant, “mislead[ing] the jury and 76 mak[ing] them draw factually false inferences.” (A-82-83.) Specifically, defense counsel stated that the jury would “infer” that the police had performed “good, solid police work,” speculate whether “someone with knowledge of the incident [tipped] off the detective which led them to Mr. Holley,” or speculate as to “what . . . that investigatory step” was, asking, “for instance, [was Appellant] arrested on another charge that then brought him within the Detective’s radar,” and that these inferences and speculations could “bolster the police officer’s credibility,” potentially leading to “an implicit previously nonexistent confrontation clause issue.” (A-82-83.) The trial court nonetheless permitted the People to inquire into Mazuroski’s “investigation,” even after defense counsel later reiterated his objection. (See A-87-88, A-217, A-219.) Mazuroski then testified, on direct, cross and redirect, that he had conducted an “investigation with information beyond the descriptions” that he received from the witnesses at the scene and that it was that “investigation” which led him to place Appellant in the line-up, where he was identified by Yoori and Sylvie. (A-402; see also A-419.) Specifically, Mazuroski was asked whether, “beyond speaking to Miss Sylvie Lee, Miss Yoori Han, Miss Ju Eun Lee, Miss Yolanda Lin, and the MTA agent and canvass[ing] for video,” he “perform[ed] further investigation in this case over the nine days [he] had it” and whether, after investigating for nine days, he “generated one suspect,” and Mazuroski answered 77 in the affirmative, testifying that the “one suspect” he “generated” was Appellant. (A-440-41.) The People also repeatedly focused on this “investigation” in their summation. (See A-492-93, A-502.) The People’s application presented the trial court with the question of whether to allow the People to explain to the jury how Appellant came to find himself in the line-up (albeit in vague terms and without specifically mentioning the photo array, which would have been improper under New York law) or whether to protect Appellant from the inference that he was pulled into the line-up because some additional piece of independent evidence had indicated to police that he was guilty of the charged crimes. Crucially, however, unlike in Rivera, this predicament was not the result of Appellant opening the door to testimony about Mazuroski’s “investigation” by attempting to elicit testimony about the line-up that would convey to the jury that the police had pulled him off the street and placed him in the line-up simply because he matched the description of the Assailant provided by witnesses. See Rivera, 96 N.Y.2d at 751. Unfortunately, the trial court did not handle this question properly. In permitting the People’s proposed “investigative step” line of questioning over defense counsel’s strenuous objections (see A-87-88, A-217, A-219), the trial court improperly gave precedence to the People’s interest in ensuring that their so-called “pursuit of justice [was] not hampered by giving the jury the impression that the 78 detective didn’t do a good job or that . . . the detective jumped to conclusions” (A-218) over Appellant’s significantly more vital constitutional interest in avoiding having the jury inappropriately infer that the police had performed “good, solid police work” and obtained independent evidence indicating that Appellant had committed the charged crimes that was not presented to the jury and that Appellant therefore could not confront (A-82-83). To wit, Mazuroski’s “investigative step” testimony unfairly left the jury with the impression that he had been supplied with additional, unspecified information evidence of Appellant’s guilt. Because the defense could not possibly have confronted this phantom evidence, Appellant was significantly prejudiced at trial. The solution that would have satisfied the competing interests of both the People and Appellant, and that would have avoided the potential for speculation in either direction, was the obvious one suggested by defense counsel: “having the court simply instruct the jury ‘not to speculate as to how or why [Appellant] was placed in the lineup.’” (A-83.) The court’s failure to accept defense counsel’s eminently sensible and reasonable compromise proposal and its decision to instead permit the People to indicate to the jury that the police possessed evidence of Appellant’s guilt that was not presented to it, and that Appellant could not confront, was reversible error. 79 Fully cognizant of the benefits of being permitted to pursue this line of testimony – and thereby convey to the jury the idea that the police possessed additional independent evidence of Appellant’s guilt – the People attempted to push things even further and gain an even greater tactical advantage from the phantom evidence regarding Mazuroski’s “investigation” in their summation. Specifically, the People pointedly reiterated that Mazuroski received information from the witnesses and, “upon further investigation 9 days later, he had one suspect. One. Todd Holley.” (A-492.) This calculated argument made it seem as if Mazuroski had conducted more than a week of extensive investigation leading him to conclude that Appellant was the Assailant, rather than merely calling Sylvie into his office to spend a few minutes looking at twelve photographs in a carelessly and improperly assembled photo array. Indeed, this was a common theme in the People’s summation, where they also stated as follows: [T]he only evidence that you have to consider is that his investigation led him to Mr. Holley. And after being led to Mr. Holley, based on everything, all of his information with his investigation, he then set up a lineup. He didn’t go out and just grab [a] man off the street that he thought looked like what their description was. He went after his investigation and . . . and found Mr. Holley. And brought him back to the station. (A-492-93.) The People also stated in their summation that the witnesses’ description of the Assailant “aided the detective in his investigation which led to Mr. Holley.” (A-502.) Moreover, despite the trial court having denied their 80 application for an instruction that the jury was not to speculate about “Mazuroski’s lawful investigation” (A-447-48) (emphasis added), with the court holding that such an instruction might “bolster the thoroughness of [the] investigation” (A-447- 49), the People took pains to argue on summation that “[t]here is absolutely no evidence here that there was any problem with” the investigation (A-493). In addition to improperly conveying to the jury that the People had independent evidence of Appellant’s guilt that Appellant was not able to confront, Mazuroski’s testimony about his “investigation,” and the People’s repeated summation references to it, improperly bolstered the testimony of the People’s witnesses by unfairly leaving the jury with the impression that the police were supplied with additional, unspecified information leading them to identify a Appellant as the Assailant. See Milligan, 309 A.D.2d at 950-51; see also Tufano, 69 A.D.2d at 826-27; Clark, 28 A.D.2d at 786. C. The Foregoing Arguments Were Fully Preserved. The foregoing arguments were fully preserved for this Court’s review by defense counsel’s on-the-record arguments that permitting the People to ask Mazuroski whether his “investigation [led him] to a particular person” would “mislead the jury and make them draw factually false inferences” or speculate as to whether Appellant was “arrested on another charge that then brought him [onto] the Detective’s radar” or whether “someone with knowledge of the incident 81 [tipped] off the detective which led them to Mr. Holley,” and that this testimony could therefore “bolster the police officer’s credibility” and unduly prejudice Appellant, leading to a potential “confrontation clause issue.” (A-72-73, A-82-83.) D. The Harm Caused By The Trial Court’s Error. This is a pure cross-racial identification case, with absolutely no other evidence connecting Appellant to the charged crimes. 9 Appellant was not physically found at the scene, nor was any video showing Appellant found anywhere near the scene (see A-15); Appellant was found a week later living in a shelter in the Bedford-Stuyvesant neighborhood of Brooklyn, far from the Manhattan subway station where the incident occurred (compare A-21, A-33 with 9 The New Jersey Supreme Court has repeatedly found “that a witness may have more difficulty making a cross-racial identification”: “A cross-racial identification occurs when an eyewitness is asked to identify a person of another race.” State v. Cromedy, 158 N.J. 112, 120 (1999). In Cromedy, after citing multiple social science sources, this Court recognized that a witness may have more difficulty making a cross-racial identification. Id. at 120-23, 131. A meta-analysis conducted after Cromedy, involving thirty-nine studies and nearly 5,000 identifications, confirmed the Court’s prior finding. See Christian A. Meissner & John C. Brigham, Thirty Years of Investigating the Own-Race Bias in Memory for Faces: A Meta-Analytic Review, 7 Psychol. Pub. Pol’y & Law 3, 21 (2001). Cross-racial recognition continues to be a factor that can affect the reliability of an identification. . . . In 1999, the Court in Cromedy directed that the charge be given “only when . . . identification is a critical issue in the case, and an eyewitness’s cross-racial identification is not corroborated by other evidence giving it independent reliability.” 158 N.J. at 132. Since then, the additional research on own-race bias . . . and the more complete record about eyewitness identification in general, justify giving the charge whenever cross-racial identification is in issue at trial. State v. Henderson, 208 N.J. 208, 267, 299 (2011) (emphasis added). 82 A-11); and there was no testimony that, upon arresting Appellant at his dormitory room in the shelter, officers found any of the distinctive clothing that the Assailant had been wearing (see A-14, A-21, A-30, A-33-34). In this type of case, suggesting to the jury that there exists other evidence of a defendant’s guilt that is not being shared with them is incredibly prejudicial. Moreover, as discussed above at Point I, the identification evidence against Appellant at trial was either improperly admitted, very weak or both, and those identifications were bolstered by the testimony and summation argument regarding the phantom “investigation” that landed Appellant in the line-up, where those identifications were made. The jury paid particular attention to the line-up identifications as well, sending the trial court multiple notes requesting “the evidentiary photo of [the] line-up,” the “description sheets” filled out by Ju Eun and Yoori (which indicated that both witnesses had told Mazuroski that the Assailant was “skinny”) and a read-back of “testimony regarding [the] witnesses’ identification of [Appellant] from the lineup.” (A-532-34, A-538.) As such, the “pivotal issue of identification, although sufficient for presentation to the jury, was not free from doubt.” LaPorte, 306 A.D.2d at 97 (internal quotation marks omitted). COURT OF APPEALS STATE OF NEW YORK -----------------------------------------------------------------------~ THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- TODD HOLLEY, Defendant-Respondent. -----------------------------------------------------------------------~ AFFIRMATION OF SERVICE LAWRENCE T. HAUSMAN, an attorney duly admitted to practice before the courts of this State, hereby affirms under penalty of peJjury: That on November Ii, 2014, three copies of the within appellant's Brief and Appendix was served upon Hon. Cyrus R. Vance, Jr., District Attorney [attn: ADA Joshua L. Haber], New York County, attorney for respondent, at One Hogan Place, New York, New York 10013, the address designated by him for that purpose, by depositing true copies of the same in a postpaid, overnight/express and properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Post Office Department within the State of New York. Dated: New York, t,jew York November L{-, 2014