The People, Respondent,v.Todd Holley, Appellant.BriefN.Y.November 17, 2015APL-2014-00201 To be argued by JOSHUA L. HABER (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - TODD HOLLEY, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov ALAN GADLIN JOSHUA L. HABER ASSISTANT DISTRICT ATTORNEYS Of Counsel MARCH 12, 2015 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................. iii INTRODUCTION................................................................................................................ 1 SUMMARY OF ARGUMENT ........................................................................................... 4 THE EVIDENCE AT THE SUPPRESSION HEARING ............................................ 7 The People’s Case ....................................................................................................... 7 Defendant’s Case ...................................................................................................... 12 The Suppression Court’s Holding .......................................................................... 12 THE EVIDENCE AT TRIAL .......................................................................................... 13 The People’s Case ..................................................................................................... 13 Defendant’s Case ...................................................................................................... 17 POINT I THE RECORD AMPLY SUPPORTS THE LOWER COURTS’ FINDINGS THAT THE PHOTO IDENTIFICATION PROCEDURE AND THE LINEUP WERE FAIR AND NOT UNDULY SUGGESTIVE .............................................................................................. 17 A. Applicable Legal Standards for the Admissibility of Out-of-Court Identification Evidence ................................................................................. 21 B. The photo identification procedure was not unduly suggestive ........ 25 C. Defendant was not entitled to a presumption of suggestiveness. In any event, the hearing evidence sufficiently rebutted any such presumption ................................................................................................... 37 D. Defendant’s claims about how the photo manager system stores and prints photos are unpreserved and have no support at all in the record. ......................................................................................................................... 44 E. Likewise, the lineup was not unduly suggestive, because defendant resembled the fillers and was not made to stand out ................................ 47 POINT II THE BRIEF AND GENERALIZED REFERENCES TO THE POLICE “INVESTIGATION” IN DETECTIVE MAZUROSKI’S TESTIMONY AND THE PEOPLE’S SUMMATION WERE ENTIRELY PROPER ........................................................................................................ 54 A. The Relevant Record .............................................................................. 56 B. Analysis ..................................................................................................... 62 1. Defendant was not deprived of his right to confront witnesses, because the testimony he challenges referred to statements of witnesses whom he cross-examined at trial or statements admitted because defendant opened the door to their admission ............... 63 2. The detective’s “investigative step” testimony was properly admitted to complete the narrative and avoid jury speculation regarding defendant’s presence in a lineup ..................................... 67 CONCLUSION ................................................................................................................... 77 -ii- TABLE OF AUTHORITIES FEDERAL CASES Crawford v. Washington, 541 U.S. 36 (2004) ....................................................... 63-65, 69 Gaston v. City of New York, 851 F. Supp. 2d 780 (S.D.N.Y. 2012) ............................. 24 Mason v. Scully, 16 F.3d 38 (2d Cir. 1994) ....................................................................... 65 Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143 (2011) ........................................... 63-64 Neil v. Biggers, 409 U.S. 188 (1972) .................................................................................. 36 Perry v. New Hampshire, __ U.S. __, 132 S. Ct. 716 (2012) .............................. 21, 28-30 Raheem v. Kelly, 257 F.3d 122 (2d Cir. 2001) ...................................................... 28-29, 32 Ryan v. Miller, 303 F.3d 231 (2d Cir. 2002) ...................................................................... 65 Simmons v. United States, 390 U.S. 377 (1968) ............................................................... 23 Solomon v. Smith, 645 F.2d 1179 (2d Cir. 1981) ............................................................. 52 Tennessee v. Street, 471 U.S. 409 (1985) ..................................................................... 66, 69 United States v. Forrester, 60 F.3d 52 (2d Cir. 1995) ...................................................... 65 United States v. Hall, 2014 WL 2464943 (S.D.N.Y. 2014) ................................. 24, 31, 36 United States v. Matera, 489 F.3d 115 (2d Cir. 2007) ...................................................... 69 United States v. Reyes, 18 F.3d 65 (2d Cir. 1994) ................................................ 64-65, 67 United States v. Rosa, 11 F.3d 315 (2d Cir. 1993) ............................................................ 23 United States v. Silva, 380 F.3d 1018 (7th Cir. 2004) ...................................................... 65 United States v. Stewart, 433 F.3d 273 (2d Cir. 2006) ..................................................... 69 United States v. Wade, 388 U.S. 218 (1967) ............................................... 20-21, 27-28, 47 Wilson v. Mazzuca, 570 F.3d 490 (2d Cir. 2009) .............................................................. 23 -iii- STATE CASES Cowley v. People, 83 N.Y. 464 (1881) ............................................................................... 24 People v. Adams, 167 A.D.2d 160 (1st Dept. 1990) ........................................................ 50 People v. Adams, 53 N.Y.2d 241 (1981) ........................................................................... 21 People v. Alvarez, 70 N.Y.2d 375 (1987) .......................................................................... 39 People v. Amuso, 39 A.D.3d 425 (1st Dept. 2007) .......................................................... 49 People v. Ashby, 289 A.D.2d 588 (2d Dept. 2001) .......................................................... 25 People v. Aska, 91 N.Y.2d 979 (1998) ............................................................................... 69 People v. Balint, 92 A.D.2d 348 (1st Dept. 1983) ............................................................ 34 People v. Bhuggo, 241 A.D.2d 301 (1st Dept. 1997) ....................................................... 24 People v. Blair, 148 A.D.2d 767 (3d Dept. 1989) ............................................................. 68 People v. Bratton, 133 A.D.2d 408 (2d Dept. 1987) ........................................................ 39 People v. Breitenbach, 260 A.D.2d 389 (2d Dept. 1999) ................................................ 53 People v. Brisco, 99 N.Y.2d 596 (2003) ............................................................................ 37 People v. Brown, 47 A.D.3d 826 (2d Dept. 2008) ........................................................... 50 People v. Bulgin, 29 Misc.3d 286 (Bronx Cty. Sup. Ct. 2010) .................................. 23, 46 People v. Campos, 197 A.D.2d 366 (1st Dept. 1993) .................................... 24-26, 30, 35 People v. Carolina, 184 A.D.2d 520 (2d Dept. 1992) ...................................................... 53 People v. Caserta, 19 N.Y.2d 18 (1966) ............................................................................. 68 People v. Chipp, 75 N.Y.2d 327 (1990) ........................................ 20-21, 26, 29, 38, 48, 51 People v. Clark, 28 A.D.3d 785 (2d Dept. 2006) ......................................................... 76-77 People v. Collier, 14 Misc.3d 1235(A) (Richmond Cty. Sup. Ct. 2007) ......................... 23 People v. Cook, 254 A.D.2d 92 (1st Dept. 1998) ............................................................. 51 -iv- People v. Davis, 169 A.D.2d 508 (1st Dept. 1991) .......................................................... 53 People v. Delamota, 18 N.Y.3d 107 (2011) ...................................................................... 23 People v. Dobbins, 112 A.D.3d 735 (2d Dept. 2013).......................................... 40-43, 53 People v. Douglas, 4 N.Y.3d 777 (2005) ........................................................................... 76 People v. Drayton, 70 A.D.3d 595 (1st Dept. 2010) ........................................................ 23 People v. Eastman, 85 N.Y.2d 265 (1995) ........................................................................ 63 People v. Edmonson, 75 N.Y.2d 672 (1990) .............................................................. 33, 38 People v. Epps, 48 A.D.3d 307 (1st Dept. 2008) ............................................................. 52 People v. Figueroa, 204 A.D.2d 103 (1st Dept. 1994) ..................................................... 50 People v. Gaddy, 115 A.D.2d 658 (2d Dept. 1985) ......................................................... 53 People v. Gairy, 116 A.D.2d 733 (1st Dept. 1986) .......................................................... 52 People v. Galletti, 239 A.D.2d 598 (2d Dept. 1997) ........................................................ 18 People v. Gee, 99 N.Y.2d 158 (2002) ................................................................................ 21 People v. Gelzer, 224 A.D.2d 443 (2d Dept. 1996) ......................................................... 51 People v. Georgison, 299 A.D.2d 176 (1st Dept. 2002) .................................................. 35 People v. Gilbert, 295 A.D.2d 275 (1st Dept. 2002) ........................................................ 26 People v. Giles, 73 N.Y.2d 666 (1989)............................................................................... 29 People v. Grant, 43 A.D.3d 800 (1st Dept. 2007) ............................................................ 49 People v. Harris, 172 A.D.2d 560 (2d Dept. 1991), aff’d, 80 N.Y.2d 796 (1992) ........................................................................................... 52 People v. Hayes, 17 N.Y.3d 46 (2011) ............................................................................... 39 People v. Hernandez, 70 N.Y.2d 833 (1987) .............................................................. 24, 38 People v. Holley, 116 A.D.3d 442 (1st Dept. 2014) .............3-5, 18-19, 37, 43, 47, 50, 55 People v. Holt, 67 N.Y.2d 819 (1986) ............................................................................... 68 -v- People v. Jackson, 70 N.Y.2d 884 (1987) ..................................................................... 75-76 People v. Jackson, 98 N.Y.2d 555 (2002) ................................. 5, 20-22, 29, 38, 42, 49, 51 People v. James, 262 A.D.2d 139 (1st Dept. 1999) .......................................................... 68 People v. Jenkins, 88 N.Y.2d 948 (1996) ........................................................................... 69 People v. Jerome, 111 A.D.2d 874 (2d Dept. 1985) ........................................................ 25 People v. Johnson, 83 N.Y.2d 831 (1994) ......................................................................... 35 People v. Johnson, 92 N.Y.2d 976 (1998) ................................................................... 44, 47 People v. Jones, 160 A.D.2d 333 (1st Dept. 1990) ..................................................... 68, 71 People v. Jones, 43 A.D.3d 1296 (4th Dept. 2007) .......................................................... 32 People v. Kinchen, 60 N.Y.2d 772 (1983) ......................................................................... 45 People v. Lee, 207 A.D.2d 953 (4th Dept. 1994) ............................................................. 22 People v. Lee, 96 N.Y.2d 157 (2001) ..................................................................... 23, 30-31 People v. Lewis, 20 Misc. 3d. 1136(A) (Kings Co. Sup. Ct. 2008) ................................. 31 People v. Lindsay, 42 N.Y.2d 9 (1977) .............................................................................. 23 People v. Lloyd, 108 A.D.2d 873 (2d Dept. 1985) ........................................................... 32 People v. Logan, 58 A.D.3d 439 (1st Dept. 2009) ..................................................... 22, 48 People v. Maddox, 238 A.D.2d 280 (1st Dept. 1997) ...................................................... 48 People v. Maldonado, 143 A.D.2d 106 (2d Dept. 1988) ................................................. 53 People v. Mason, 138 A.D.2d 411 (2d Dept. 1988) .................................................... 25-26 People v. Massie, 2 N.Y.3d 179 (2004) .............................................................................. 66 People v. McBride, 14 N.Y.3d 440 (2010).......................... 5, 20, 22, 30, 38, 47-48, 51, 53 People v. McLean, 15 N.Y.3d 117 (2010) ......................................................................... 45 People v. Mendoza, 35 A.D.3d 507 (2d Dept. 2006) ................................................. 68, 71 -vi- People v. Montgomery, 205 A.D.2d 259 (1st Dept. 1994), aff’d, 88 N.Y.2d 1041 (1996) ......................................................................................... 52 People v. Murphy, 1 A.D.3d 184-85 (1st Dept. 2003) ..................................................... 48 People v. Nieves, 205 A.D.2d 173 (1st Dept. 1994), aff’d, 88 N.Y.2d 618 (1996) ........................................................................................... 29 People v. Nieves, 294 A.D.2d 152 (1st Dept. 2002) .................................................. 68, 71 People v. Parson, 94 A.D.3d 577 (1st Dept. 2012) .......................................................... 72 People v. Patterson, 306 A.D.2d 14 (1st Dept. 2003) ..................................... 24-25, 34-35 People v. Pealer, 20 N.Y.3d 447 (2013) ........................................................................ 63-64 People v. Perkins, 124 A.D.3d 915 (2d Dept. 2015) ........................................................ 22 People v. Perkins, 307 A.D.2d 1001 (2d Dept. 2003) ...................................................... 52 People v. Porco, 17 N.Y.3d 877 (2011) ............................................................................. 76 People v. Ragsdale, 68 A.D.3d 897 (2d Dept. 2009) ............................................ 68, 70-71 People v. Rahming, 26 N.Y.2d 411 (1970) ........................................................................ 38 People v. Reid, 19 N.Y.3d 382 (2012) ................................................................................ 66 People v. Resek, 3 N.Y.3d 385 (2004) ............................................................................... 58 People v. Reynoso, 2 N.Y.3d 820 (2004) ........................................................................... 69 People v. Riley, 70 N.Y.2d 523 (1987) ............................................................................... 37 People v. Rivera, 96 N.Y.2d 749 (2001) ................................................................ 67, 71-72 People v. Robinson, 123 A.D.3d 1062 (2d Dept. 2014) ...................................... 39, 41-43 People v. Romero, 7 N.Y.3d 911 (2006) ........................................................................... 62 People v. Rudan, 112 A.D.2d 255 (2d Dept. 1985) ......................................................... 32 People v. Saez, 233 A.D.2d 121 (1st Dept. 1996) ............................................................ 51 People v. Sanchez, 21 N.Y.3d 216 (2013) ......................................................................... 20 -vii- People v. Sanders, 271 A.D.2d 289 (1st Dept. 2000) ....................................................... 68 People v. Sergeant, 244 A.D.2d 702 (3d Dept. 1997) ................................................ 24, 34 People v. Shea, 54 A.D.2d 722 (2d Dept. 1976) ............................................................... 32 People v. Slavin, 1 N.Y.3d 392 (2004) ............................................................................... 31 People v. Stansberry, 205 A.D.2d 317 (1st Dept. 1994) .................................................. 68 People v. Stokes, 139 A.D.2d 785 (2d Dept. 1988) .................................................... 40-41 People v. Thomas, 161 A.D.2d 543 (1st Dept. 1990) ...................................................... 47 People v. Tosca, 98 N.Y.2d 660 (2002) ........................................................................ 69-70 People v. Trowbridge, 305 N.Y. 471 (1953) ................................................................ 67-68 People v. Truesdale, 299 A.D.2d 289 (1st Dept. 2002) .............................................. 25-27 People v. Tucker, 25 A.D.3d 419 (1st Dept. 2006) .......................................................... 68 People v. Velez, 169 A.D.2d 661 (1st Dept. 1991) .......................................................... 32 People v. Whitaker, 64 N.Y.2d 347 (1985) ........................................................................ 44 People v. Williams, 157 A.D.2d 759 (2d Dept. 1990) ...................................................... 68 People v. Williams, 5 A.D.3d 1043 (4th Dept. 2004) ....................................................... 24 People v. Wimbush, 210 A.D.2d 517 (2d Dept. 1994) .............................................. 24, 34 People v. Wright, 54 A.D.3d 695 (2d Dept. 2008) ........................................................... 72 State v. Henderson, 208 N.J. 208 (N.J. 2011) ................................................................... 27 FEDERAL CONSTITUTIONAL PROVISIONS U.S. Const. Amend. VI, XIV .............................................................................................. 63 STATE CONSTITUTIONAL PROVISION & STATUTES N.Y. Const., Art. I, § 6 ......................................................................................................... 63 CPL 470.05(2) ....................................................................................................................... 44 -viii- Penal Law § 110 ...................................................................................................................... 1 Penal Law § 120.00(1) ............................................................................................................ 1 Penal Law § 160.05 ................................................................................................................. 1 OTHER AUTHORITIES 31 Carmody-Wait 2d § 174:46 ...................................................................................... 23, 28 Charles M. Grinstead, Introduction to Probability (2d. Ed. 2012) ................................ 35 Hibel, New York Identification Law § 4.09(10) (2013 ed.) ............................................. 27 http://www.nhlbi.nih.gov/health/educational/lose_wt/BMI/bmi_tbl.p df ....................................................................................................................................... 30 -ix- COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- TODD HOLLEY, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION1 By permission of the Honorable Jonathan Lippman, Chief Judge of the Court of Appeals, defendant Todd Holley appeals from an order of the Appellate Division, First Department, dated April 3, 2014. That order unanimously affirmed a March 1, 2011, judgment of the Supreme Court, New York County (Ruth Pickholz, J. at suppression hearing; Juan M. Merchan, J. at trial), convicting defendant, after a jury trial, of one count of Attempted Robbery in the Third Degree (Penal Law §§ 110/160.05) and two counts of Assault in the Third Degree (Penal Law § 120.00[1]). Defendant was sentenced to concurrent prison terms of two to four years for 1 Page references preceded by “A” and “DB” are to defendant’s Appendix and Brief, respectively. attempted robbery and one year for each assault conviction. Defendant has served his sentence. On May 30, 2010, at about 8:00 p.m., Ju Eun Lee and her friend Yoori Han were on a subway platform in Manhattan’s Prince Street station when defendant approached them from behind and grabbed Ju Eun Lee’s purse. Ju Eun Lee and Han held onto the strap and tugged back and forth with defendant until defendant let go and fled empty-handed. Two bystanders, Sylvie Lee and Yolanda Lin, observed the incident and escorted the cousins to report the crime to a transit agent in the station. While the four women recounted the incident to the agent, defendant reappeared and charged at them. He punched and kicked Han, punched Sylvie Lee in the face, and then ran out of the station. Soon after the attack, the police responded to the scene and canvassed the area with the victims, but they were unable to identify a suspect. Detective Greg Mazuroski interviewed the women, and Han and Ju Eun Lee described the assailant as a skinny black man, unshaven with unkempt hair, around six feet tall, and between 30 to 40 years old. Sylvie Lee gave a similar description. Three days after the incident, Sylvie Lee used the New York City Police Department’s computerized “photo manager system” to look at more than 100 arrest photos of men who matched the perpetrator’s description and had been arrested in Manhattan between 2007 and 2010. From those mug shots, Sylvie Lee identified three different photos, all of which depicted defendant. -2- Based on those identifications, the police located and arrested defendant on June 8, 2010. When the police confronted defendant, he said, “I don’t do robberies,” and, “I know what this is about. It was [a] set up by a guy I know in Queens.” Later that day, Sylvie Lee and Yoori Han independently viewed a lineup, and they both identified defendant as the attacker from the subway station. By New York County Indictment No. 2676/10, filed on June 18, 2010, a Grand Jury charged defendant with one count of attempted third-degree robbery and two counts of third-degree assault. On November 23, 2010, the Honorable Ruth Pickholz presided over a hearing in which defendant moved to suppress the identification evidence and his statements. The court denied defendant’s motion. On January 13, 2011, defendant proceeded to a jury trial before the Honorable Juan Merchan. On January 20, 2011, the jury convicted defendant on all counts, and on March 1, 2011, Justice Merchan sentenced defendant as discussed above. On appeal to the Appellate Division, defendant claimed, among other things, that the suppression court erred by not finding the photo manager and lineup procedures unduly suggestive. He also argued that the People’s case was improperly bolstered when Detective Mazuroski testified at trial that, along with the victims’ descriptions of the assailant, “further investigation” led to defendant’s arrest. In a decision and order dated April 3, 2014, the Appellate Division, First Department, unanimously affirmed defendant’s conviction. People v. Holley, 116 A.D.3d 442 (1st Dept. 2014). The First Department upheld the court’s decision to -3- deny defendant’s suppression motion regarding the photo manager procedure, finding that, “as a whole, the entire procedure” was “not unduly suggestive.” Id. at 442. The court emphasized that the detective who conducted the photo manager procedure “entered sufficient information about the description of the perpetrator” in the computer system “to ensure that the computer generated a fair selection of photos.” Id. Similarly, the five-judge panel viewed the photograph of the lineup and “conclude[d]” that the lineup was fair and “not unduly suggestive.” Id. at 442-43. The court also summarily rejected defendant’s challenge to Detective Mazuroski’s “brief background testimony” at trial about the police “investigation.” Id. at 443. Before this Court, defendant renews his claim that the hearing court erred by not suppressing identification evidence stemming from the photo manager procedure and the lineup. He also repeats his argument that the People’s case was unfairly “bolstered” by the detective’s narrowly tailored testimony that, before arresting defendant, the police conducted an “investigation.” SUMMARY OF ARGUMENT Defendant’s challenges to the two identification procedures present mixed questions of fact and law that are beyond this Court’s review power. Those claims are also meritless in light of well-settled case law and common sense. Indeed, despite defendant’s repetitious and heated rhetoric, he lodges only one substantive complaint against the computerized “photo manager” procedure through -4- which Sylvie Lee observed around 100 photos matching her description of the assailant and identified 3 photos-all of which depicted defendant. Defendant, who is thin, argues that the police should have included a weight range in the computer’s search criteria. But, there was no evidence at the suppression hearing showing that Sylvie Lee-the only witness who actually participated in the photo identification procedure-had ever described the perpetrator’s body type. In any case, the hearing evidence demonstrated that the photo manager search perfectly mirrored her descriptions in regard to the assailant’s race, age, and height. Accordingly, as the lower courts here correctly concluded, the police entered “sufficient information” in the photo manager system to ensure that it “generated a fair selection of photos” that were “not unduly suggestive.” Holley, 116 A.D.3d at 442; see People v. McBride, 14 N.Y.3d 440, 447-48 (2010); People v. Jackson, 98 N.Y.2d 555, 559 (2002). So, too, the fact that the police had not focused on a suspect-combined with the voluminous number of photos displayed-ensured that defendant’s picture did not unfairly stand out. There is similarly no merit to defendant’s claim that he was entitled to an inference or presumption of suggestiveness based on the police’s failure to produce at the suppression hearing the photos that Sylvie had viewed on the computer screen. None of the cases that defendant cites support his claims that he was automatically entitled to a rebuttable inference or presumption of suggestiveness. Instead, well- settled case law dictates that no such presumption is necessary when, as here, the -5- photo identification procedure occurred before the police had identified a suspect and the witness viewed a voluminous number of photos. There is also no record support for defendant’s unpreserved and speculative claims about the purported ease with which the photo compilation could have been maintained and reproduced. In any event, even applying defendant’s proposed inference or presumption, the same conclusion obtains: the photo procedure was not suggestive. The lineup was also undeniably fair. Six judges-one at the trial level and five on appeal-have looked at the photo of the lineup and have rightly concluded that it did not unfairly highlight defendant. Defendant stresses differences between a few of his measurements and those of some of the fillers, but what actually mattered is that the stand-ins appeared substantially similar to defendant. Lastly, the trial court properly exercised its discretion when it permitted Detective Mazuroski to testify that defendant was placed in a lineup after “further investigation.” That testimony was admitted in lieu of evidence that defendant was put in the lineup only after Sylvie Lee had selected his photographs, so as to spare defendant any prejudice from such evidence while still preventing the jury from thinking that the police had acted improperly by arbitrarily placing him in the lineup. Contrary to defendant’s claims, this testimony did not abridge his right to confront witnesses, because Sylvie Lee did testify and was cross-examined at trial. Moreover, under well-settled case law, the testimony was properly admitted to explain the police’s actions and to prevent jury speculation. Defendant’s unpreserved challenges -6- notwithstanding, the People’s brief references to that testimony on summation were also entirely proper. Brief additional testimony about the detective’s conversations with non-testifying witnesses was elicited on re-direct examination of the detective, but that was only after defendant opened the door by cross-examining the detective about those statements. In any case, admission of the challenged testimony was at worst harmless error, in light of the powerful evidence proving defendant’s guilt. THE EVIDENCE AT THE SUPPRESSION HEARING The People’s Case On the night of May 30, 2010, DETECTIVE GREG MAZUROSKI was assigned to investigate the attempted robbery of Ju Eun Lee and the assault of two women, Yoori Han and Sylvie Lee, that had occurred earlier that evening in the Prince Street subway station (Mazuroski: A11). Within hours of the incident, Mazuroski separately interviewed Ju Eun Lee and her cousin Yoori Han at the Manhattan Robbery Squad (Mazuroski: A12). Mazuroski also interviewed Sylvie Lee and Yolanda Lin, a witness to the incidents; Sylvie Lee and Yolanda Lin did not know each other or the cousins (Mazuroski: A12-13).2 Ju Eun told Mazuroski that she and Han were on a subway platform in the Prince Street station when she felt her purse being “lifted off her shoulder” 2 Because Ju Eun Lee and Sylvie Lee share the same last name, they will be referred to by their first names. -7- (Mazuroski: A12). Ju Eun grabbed the bag and saw a “black [man] with his hands on the strap” (Mazuroski: A12). Han also grabbed the purse, and she and Ju Eun struggled with the man to hold onto it (Mazuroski: A13). When bystanders began walking towards them, the man let go of the purse and ran away (Mazuroski: A13). Sylvie and Lin observed the incident and offered to assist the cousins (Mazuroski: A13). They walked Ju Eun and Han to the station’s token booth and helped report the crime to a transit employee (Mazuroski: A13). While the four women were speaking to the transit worker, the assailant returned to the station and attacked them (Mazuroski: A14). He punched and kicked Han, punched Sylvie in the mouth, and fled (Mazuroski: A14-15). Police officers arrived on the scene soon after; they canvassed the area with the victims but did not identify a suspect (Mazuroski: A15). All four women described the perpetrator to Mazuroski as a 30-to 40-year-old black man, standing about 6 feet tall, with unkempt hair, and dressed all in black, wearing a three-quarter length jacket and a blue winter cap (Mazuroski: A14, A30, A39). Ju Eun and Han also described him as being “skinny” (Mazuroski: A29-30). Three days later, on June 2, 2010, the police had not yet generated a suspect and invited Sylvie to the Manhattan Robbery Squad to view pictures of people matching the perpetrator’s description (Mazuroski: A15-17). That same afternoon, when Sylvie arrived at the stationhouse, Detective Mazuroski explained to her that he was going to “locate photos” on his computer by entering “a description,” and he -8- wanted her to “tell [him] if she recognize[d] anybody” (Mazuroski: A16-17, A30, A32). Accordingly, Mazuroski ran a search on a “photo manager” computer system for black men, ranging from 6’0” to 6’4” tall, between 30 and 40 years old, who had been arrested in Manhattan between 2007 and 2010 (Mazuroski: A17, A30). Mazuroski did not enter a weight range, even though the system allowed for it (Mazuroski: A30). Based on the description entered, the program returned around 3,000 “arrest photographs from prior suspects,” which were displayed on the screen six at a time (Mazuroski: A30, A32). Mazuroski clicked from page to page and instructed Sylvie to look at all six photos per page and to indicate to him if she recognized someone (Mazuroski: A17-18, A31). On page two, Sylvie recognized defendant’s photo and identified him as the assailant from the subway station (Mazuroski: A18, A21). Instead of stopping there, Mazuroski continued to show Sylvie more photos, because he “wanted to give her the opportunity to continue to look” (Mazuroski: A32, A19). For about one hour, Sylvie viewed about 20 more pages of photos, and she identified two additional, “[d]ifferent” pictures of defendant, one on page 13 and one on page 14 (Mazuroski: A18-21, A31- 32). 3 3 On direct examination, Mazuroski approximated that Sylvie saw “20” pages of photos after identifying defendant on page 2 (Mazuroski: A19). On cross examination, Mazuroski answered, “Yes,” when asked if he “stop[ped] at page 14 when the third -9- (Continued…) Based on those identifications, Mazuroski searched a database of homeless shelters and located defendant in a shelter in Bedford-Stuyvesant, Brooklyn (Mazuroski: A21, 33). On June 8, 2010, Mazuroski and Police Officer DeMaria approached defendant at the shelter. After they introduced themselves as police officers, defendant declared, “I don’t do robberies and I know what this is about, this is a set up [sic] from somebody in Queens” (Mazuroski: A21-22, A34). Mazuroski and DeMaria arrested defendant and transported him to Manhattan (Mazuroski: A21- 22). In the car, Mazuroski said to defendant, “[Y]ou cleaned up” (Mazuroski: A23). Defendant answered, “[I]t’s getting hot so I cut my hair” (Mazuroski: A23). At the precinct, Mazuroski read defendant his Miranda rights, and defendant exercised his right to remain silent (Mazuroski: A23). Later that day, Mazuroski contacted Han and Sylvie and asked them to come to the Robbery Squad to view a lineup; they both complied (Mazuroski: A23-24, A36). The lineup was composed of defendant and five fillers (Mazuroski: A25; A7-8 [People’s Hearing Exh. 1 (lineup photo)]).4 Mazuroski and DeMaria found the fillers at the “Bowery Mission” and selected them based on their race, complexion, identification was made” (Mazuroski: A32). Because Mazuroski said “20” in response to a specific question about the number of pages viewed, his testimony about stopping on page 14 apparently was meant to convey only that he paused the procedure after page 14 to record Sylvie’s third identification of defendant. 4 Defendant’s Appendix contains black-and-white photos of the lineup (see A7-8). Upon request, the People will provide the Court with color versions of these photos. -10- ______________________ (…Continued) approximate age, and overall “resemble[ance]” to defendant (Mazuroski: A25; see A7- 8). Defendant-who was 32 years old, about 6’1” tall and weighed about 160 pounds-chose to be in position 5 in the lineup (Mazuroski: A26-27, A38, A40; see A7-A8). Filler 1 was 47 years old, stood 6’1” tall, and weighed 250 pounds; filler 2 was 45 years old, 6’2”, and 195 pounds; filler 3 was 57 years old, 5’11”, and 200 pounds, filler 4 was 22 years old, 6’1”, and 180 pounds; and filler 6 was 44 years old, 5’9”, and 210 pounds. Everyone in the lineup was seated, and they all wore blue baseball caps, turned backwards (Mazuroski: A37-38; A7-8). Before viewing the lineup, Sylvie and Han waited in separate parts of the station and did not interact (Mazuroski: A24-25). Sylvie viewed the lineup first, at around 2:00 p.m. (Mazuroski: A27). Mazuroski was in the room with her and said, “I want you to look at the line-up. If there’s anybody you recognize [tell me] which position it is and where you recognize them from” (Mazuroski: A17). Sylvie observed the lineup and identified defendant, in position five, as the man from “the Prince Street incident” (Mazuroski: A17). Sylvie exited the room, and Han entered about ten minutes later (Mazuroski: A28). Han was given the same instructions, and she too identified defendant as the perpetrator (Mazuroski: A28). At the suppression hearing, the People did not produce the photos that Sylvie viewed during the photo identification procedure conducted on June 2, 2010 (see A32, 34-35). -11- Defendant’s Case Defendant presented no evidence at the suppression hearing. The Suppression Court’s Holding Justice Pickholz denied defendant’s suppression motion “in all respects” (A46- 48). Based on Detective Mazuroski’s “totally credible” testimony, the court found that the pictures in the “photo manager” procedure “were not suggestive in any way” (A46-47). The court noted that Sylvie “immediately recognized the perpetrator after page two,” and that Sylvie “kept identifying the same person” when the officers showed her more photos “just to be sure” (A47). The court also held that the “line-up was not suggestive” (A47). The court recognized that “[a] lineup under the law must be fair, not perfect,” and that police are “[o]bviously . . . not going to get six people that look exactly like the defendant. That would be impossible” (A47). Justice Pickholz observed that “hats were given” so as not to draw attention to defendant’s hair (A47). Similarly, everyone in the lineup was seated to counteract “discrepancies in height” (A47-48). Ultimately, after “looking at the [lineup] photograph,” the court concluded that “there [was] nothing that highlight[ed] the defendant which would suggest to a witness to pick him out” (A48). -12- THE EVIDENCE AT TRIAL The People’s Case JU EUN LEE and YOORI HAN, eighteen and twenty-four years old respectively, were close friends who lived together and referred to each other as cousins (J. Lee: A253-54; Han: A302-03). On May 30, 2010, at around 8:00 p.m., they took a southbound R train from Herald Square and exited together at the Prince Street subway station (J. Lee: A254; Han: A303). SYLVIE LEE, a bystander who did not know the cousins, exited the train at the same time and noticed Ju Eun Lee and Han walking on the platform in front of her (S. Lee: A354-57, 368). Moments later, defendant approached Ju Eun from behind and attempted to take her purse by lifting the strap off of her shoulder (J. Lee: A255-56, A271, A276- 79; Han: A304-06, A324; S. Lee: A355-56, A369-70). Ju Eun clung to the purse, and Han seized the strap, tugging it back and forth with defendant (J. Lee: A355, A357, A380; Han: A304-06; S. Lee: A356, A370-01). The subway station was well lit, and Ju Eun and Han saw defendant’s face at close range (J. Lee: A256, A260; Han: A307, A311-12). Sylvie witnessed the struggle from one subway-car length away and had an unobstructed view of defendant’s back and “the side of him” (S. Lee: A357, A370). Defendant let go of the purse and fled when onlookers from the train, which was still in the station, began walking towards him (J. Lee: A255, A258, A281-84; Han: A304, A307, A326; S. Lee: A356-57, A372). -13- Ju Eun and Han were both crying, and Sylvie, along with Yolanda Lin, another bystander, escorted them through the turnstiles to report the incident to a transit agent standing next to the token booth (J. Lee: A259, A284-86; Han: A308, A328-29; S. Lee: A357-58, A380, A372-73; see Mazuroski: A420). While the four women were describing the incident to the agent, defendant reentered the station and passed through the turnstiles onto the southbound platform (J. Lee: 260-63, A287-89; Han: A308-09, A330-31; S. Lee: A359, A374-76). Han recognized him “right away” as the same man who tried to take Ju Eun’s bag minutes earlier (Han: A309). Defendant turned around, made eye contact with Han, and immediately jumped back over the turnstiles and charged at all four women (J. Lee: A260-62, A288-91; Han: A310, A331-33; S. Lee: A359-61, A376-79). Sylvie saw defendant’s face, which featured unkempt facial hair (S. Lee: A361, A380). Defendant repeatedly punched and kicked Han in the head and body while Han hugged Ju Eun to shield her from defendant’s blows (J. Lee: A260-62, A290-91; Han: A310-11, A332-31, A336-37; S. Lee: A361, A377-78). Defendant then punched Sylvie in the face and ran away as the transit agent shuttled the women to a secure room in the station (J. Lee: A262, A291-92; Han: A310-11, A336-37; S.Lee: A361-62, A379). Han’s left arm was cut and bleeding, and she experienced pain, swelling, and bruising for two weeks (Han: A337). Sylvie had multiple cuts inside her mouth, bruising on her face, and she was in pain for one week (S. Lee: A379). -14- Meanwhile, the transit agent contacted the police, who responded to the scene soon after defendant had fled (J. Lee: A272, A293). The four women provided a description of the assailant; they canvassed the area with the police but were unable to identify a suspect (J. Lee: A272-73, A293; Han: A338). Later that night, DETECTIVE GREG MAZUROSKI, of the Manhattan Transit Robbery Squad, was assigned to the case (Mazuroski: A395-97, A414-15). At around midnight, Detective Mazuroski interviewed Ju Eun and Han in his office (J. Lee: A263, A273, A295; Han: A312-13, A322, A339-43, A351; Mazuroski: A397-98). The women recounted the details of the attack and described the assailant as a thin black man, around 30 to 40 years old, unshaven with unkempt hair, standing about 6’0” tall, weighing between 160 to 180 pounds, and dressed in black with a winter hat and a loose-fitting three-quarter length jacket (J. Lee: A 296-99; Han: A312-13, A340- 43, A351; Mazuroski: A399-400; People’s Trial Exh. 1 [Ju Eun’s written description]; People’s Trial Exh. 2 [Han’s written description]).5 At some point, Mazuroski also spoke to Sylvie and the transit agent, and they both provided the same general description of the assailant (S. Lee: A355, A363; Mazuroski: A401, A437-38).6 Based 5 Yolanda Lin told Mazuroski that she did not believe she could identify the perpetrator (Mazuroski: A420), and she did not testify at trial. 6 Mazuroski testified that, at some unspecified point in time, he spoke with Sylvie, who described the assailant as having a “thin build” (Mazuroski: A353). Sylvie did not testify to the description of the perpetrator that she had provided the police after the incident. -15- on those descriptions and “further investigation,” Mazuroski identified defendant as a suspect (Mazuroski: A402, A440-41). On June 8, 2010, Mazuroski separately called Sylvie and Han and told them that there was a suspect in custody; upon Mazuroski’s request, they both came to the robbery squad stationhouse to view a lineup (Han: A314, A343-44; S. Lee: A364, A380-81; Mazuroski: A404, A419). Mazuroski did not contact Jeu Eun, because she was in school (Mazuroski: A404). The trial evidence describing the assembly and composition of the lineup was substantially similar to the evidence presented at the suppression hearing (see Mazuroski: A404-07, A425-27; A7-8 [People’s Trial Exh. 3 (photo of lineup)]). Sylvie and Han arrived at the station separately at around 1:45 p.m.; they waited in separate areas and did not communicate with each other before or after independently viewing the lineup (Han: A313-14, A343-45; S. Lee: A364, A381-82). Nor did they see defendant or the fillers before viewing the lineup (Mazuroski: A408, A411, A413; Han: A313-15, A343-45; S. Lee: A381). Sylvie went first (Mazuroski: A411-12) and “immediately recognized” defendant in seat number five as “the person who attacked” her (S. Lee: A365). Han viewed the same lineup about ten minutes later (Han: A343; Mazuroski: A404, A412- 13). Han recognized defendant “from the moment [she] walked in” the room (Han: A316). But before identifying him, she asked the police to have each man stand up in -16- profile, which they did (Han: A315). She then identified defendant as the assailant from the subway station (Han: A315-16). At trial, Ju Eun, Han, and Sylvie all identified defendant as the perpetrator from the Prince Street subway station (J. Lee: A257; Han: A306, A350; S. Lee: A357). Defendant’s Case Defendant presented no evidence at trial. POINT I THE RECORD AMPLY SUPPORTS THE LOWER COURTS’ FINDINGS THAT THE PHOTO IDENTIFICATION PROCEDURE AND THE LINEUP WERE FAIR AND NOT UNDULY SUGGESTIVE (Answering DB, Point I). Three days after the attempted robbery and assault, the police had not yet focused on a suspect and invited Sylvie Lee, one of the assault victims, to view prior- arrest photos of people matching Sylvie’s description of the perpetrator. Sylvie described the assailant’s race, height, and age, and she viewed more than 100 photos of men who matched the characteristic she provided. Sylvie identified the assailant in three different photos, and all of those photos depicted defendant. Six days later, Sylvie and Yoori Han independently viewed a lineup that included defendant and five fillers, and both women identified defendant as the assailant. At a suppression hearing, defendant challenged both the photo identification procedure and the lineup. As to the photo identification procedure, he asked the -17- court to “make a negative inference” that the procedure was suggestive, because the People did not produce the photo compilation at the hearing (A42 [citing People v. Galletti, 239 A.D.2d 598 [2d Dept. 1997]). Defendant, who is thin, also argued that the detective’s database search did not filter out photos of men who were heavier than him, despite the fact that the assailant had been described as “skinny” by the two victims who, unlike Sylvie, did not participate in the photo identification procedure (see A41). In addition, defendant complained that the lineup was unduly suggestive because he was the only person in the lineup who matched the description of the suspect (A42-43). The hearing court rejected these arguments. Based on the detective’s “totally credible” testimony, the court found that the pictures Sylvie viewed during the photo manager procedure “were not suggestive in any way” (A46-47). As to the lineup, the court viewed the lineup photo produced at the hearing and concluded that “there [was] nothing that highlight[ed] the defendant which would suggest to a witness to pick him out” (A48). The court found that the “hats” worn by all the lineup participants concealed any differences in hair and having everyone seated minimized any “discrepancies in height” (A47-48). The Appellate Division unanimously upheld these findings. Holley, 116 A.D.3d at 442-43. Regarding the photo manager procedure, the First Department found that, “as a whole, the entire procedure” was “not unduly suggestive.” Id. at 442. The court looked to the hearing record and determined that the “detective’s -18- testimony about how the computerized procedure operate[d] sufficiently established its fairness.” Id. The court also emphasized that the detective who conducted the procedure “entered sufficient information about the description of the perpetrator” in the computer system “to ensure that the computer generated a fair selection of photos.” Id. And, the court found that “[t]he fact that the police failed to preserve the arrays viewed by the witness [did] not warrant a different conclusion.” Id. Moreover, the court viewed the photograph of the lineup and concluded that the lineup was fair and “not unduly suggestive,” reasoning that “any differences between defendant and the other participants, including an age disparity not fully reflected in the participants’ actual appearances, and a weight disparity that was minimized by having the participants seated, was not so noticeable as to single defendant out.” Id. Defendant now asks this Court to overturn the rulings of the suppression court and the Appellate Division. He again argues that he was entitled to an inference or presumption of suggestiveness because of the detective’s failure to produce the photos at the hearing. He claims that the People did not rebut that presumption because Detective Mazuroski did not filter out photos of “obese” or very skinny men even though the two victims who did not look at any photos had described the assailant as “skinny.” Defendant also renews his argument that the lineup was “unduly suggestive,” because he was the only person in the lineup who matched the description of the suspect. -19- The question of whether an out-of-court identification procedure is suggestive is a mixed question of law and fact. Thus, when the suppression court’s determination is undisturbed by the Appellate Division and is supported by the evidence in the record, that determination is “beyond this Court’s review.” McBride, 14 N.Y.3d at 448; see People v. Sanchez, 21 N.Y.3d 216, 225 (2013); Jackson, 98 N.Y.2d at 559. While defendant faults the hearing court for not addressing the detective’s failure to produce the photo compilation at the Wade hearing (see DB: 22), defendant does not argue that the hearing court or the Appellate Division applied the wrong legal standard when they determined that the photo procedure was not unduly suggestive. Indeed, both the hearing court and the Appellate Division “implicitly found” that, regardless of whether an inference or presumption of suggestiveness is applied, the hearing evidence ultimately showed the photo identification procedure did not run the risk of making defendant unfairly stand out. See People v. Chipp, 75 N.Y.2d 327, 339 (1990) (lower courts’ “implicit finding” accorded no less deference than “express finding”). The record, as demonstrated below, supports those findings. And, in any event, defendant was not entitled to a presumption of suggestiveness in the first place. In the same vein, the evidence, including the photo of the lineup viewed by both lower courts, fully supports the courts’ conclusion that the lineup was a fair one. Thus, the lower courts’ conclusions that the identification procedures here were proper are precisely the sorts of determinations of mixed questions of fact and law that are beyond this Court’s review. McBride, 14 N.Y.3d at 448. -20- A. Applicable Legal Standards for the Admissibility of Out-of-Court Identification Evidence. A police-arranged pretrial identification procedure violates a defendant’s right to due process if it is “unduly suggestive.” Chipp, 75 N.Y.2d at 337; see People v. Adams, 53 N.Y.2d 241, 251-52 (1981) (pretrial identifications are not “admissible if the procedures were unnecessarily suggestive”). “Although the People have the initial burden of establishing the reasonableness of the police conduct in a pretrial identification procedure, the defendant bears the ultimate burden of proving that the procedure was unduly suggestive.” Jackson, 98 N.Y.2d at 559 (quoting Chipp, 75 N.Y.2d at 335) (quotation marks omitted). Thus, a “properly conducted” photo identification procedure or lineup is generally reliable “unless it is shown that some undue suggestiveness attached to the procedure.” Chipp, 75 N.Y.2d at 335. Due process does not require that the defendant be “surrounded by people nearly identical in appearance”; it mandates only that the defendant cannot unfairly stand out from the other participants. People v. Chipp, 75 N.Y.2d at 335-336. Thus, “improper suggestive[ness]” can take place when “other participants in [the] lineup [are] grossly dissimilar in appearance to the suspect.” Perry v. New Hampshire, __ U.S. __, 132 S. Ct. 716, 727 (2012) (quoting United States v. Wade, 388 U.S. 218, 233 [1967]) (emphasis added); see People v. Gee, 99 N.Y.2d 158, 163 (2002) (lineup unfair where defendant generally resembles the offender but is “markedly different” from the fillers). -21- This Court has recognized that, irrespective of the type of identification procedure used, a person cannot be unfairly singled out for identification where a defendant’s allegedly conspicuous feature was “never mentioned” by the witness who participated in the identification procedure. Jackson, 98 N.Y.2d at 559. Likewise, this Court has affirmed a finding of no suggestiveness where the defendant’s supposedly distinct characteristic was not actually “distinctive” or “unusual” at all. McBride, 14 N.Y.3d at 447-48. For example, in McBride, even though the defendant was the only lineup participant wearing the same “gray hooded sweatshirt” that the viewing witness had described, this Court determined that the defendant did not unfairly stand out, because defendant’s sweatshirt was not particularly “distinctive.” Id. at 448 (noting also that the sweatshirt did not feature prominently in the witness’s description). And, in People v. Lee, 207 A.D.2d 953, 954 (4th Dept. 1994), even though the defendant was the “thinnest man in the lineup,” and the victim had described the assailant “as having a thin build,” the Fourth Department found that the defendant’s thinness was no so distinctive that it made him stand out. When there are differences in appearance between a suspect and lineup fillers, courts have found that they can be sufficiently mitigated by, among other measures, having all the men wear the same “hats,” see, e.g., People v. Perkins, 124 A.D.3d 915, 915 (2d Dept. 2015), and by having them all sit down throughout the lineup. See, e.g., See McBride, 14 N.Y.3d at 448; People v. Logan, 58 A.D.3d 439 (1st Dept. 2009). -22- In New York, police are authorized to conduct pre-trial photo identification procedures to establish a defendant’s identity, but the evidence stemming from those procedures is generally inadmissible at trial. People v. Lindsay, 42 N.Y.2d 9, 12 (1977); see Wilson v. Mazzuca, 570 F.3d 490, 503 (2d Cir. 2009). Photo identification procedures are typically conducted under two different sets of circumstances. First, when the police have identified a suspect, they might, similar to a lineup, put the suspect’s photograph into an array with five or six other photographs portraying similar-looking fillers. See, e.g., People v. Delamota, 18 N.Y.3d 107, 117-19 (2011); People v. Lee, 96 N.Y.2d 157, 163 (2001); see also United States v. Rosa, 11 F.3d 315, 330 (2d Cir. 1993); People v. Drayton, 70 A.D.3d 595 (1st Dept. 2010). The police can construct these photo arrays by using “snapshots,” see, e.g., Simmons v. United States, 390 U.S. 377, 382 (1968) (cited by defendant), or a computerized “photo manager” program that finds prior-arrest photos of people matching the known suspect’s physical characteristics and displays them next to the suspect’s photo, see, e.g., People v. Bulgin, 29 Misc.3d 286, 290-91 (Bronx Cty. Sup. Ct. 2010) (cited by defendant); People v. Collier, 14 Misc.3d 1235(A), at *3 (Richmond Cty. Sup. Ct. 2007). In contrast, as was the case here, when the police do not have a suspect, they might show witnesses a “general canvassing array.” 31 Carmody-Wait 2d § 174:46. A canvassing array consists of a large selection of photos that the police might compile by entering information about an unknown culprit into a police computer that -23- generates a large selection of prior-arrest photos of people matching those characteristics. See, e.g., People v. Patterson, 306 A.D.2d 14 (1st Dept. 2003); People v. Williams, 5 A.D.3d 1043 (4th Dept. 2004); see also Gaston v. City of New York, 851 F. Supp. 2d 780, 783-84, n. 3 (S.D.N.Y. 2012); United States v. Hall, 2014 WL 2464943, at *1-*2 (S.D.N.Y. 2014). This is an electronic version of a practice the police traditionally used when they had no suspect; they often showed witnesses “books or drawers” of mug-shot photos to see if the witness recognized anyone as the assailant. Patterson, 306 A.D.2d at 14; see, e.g., People v. Hernandez, 70 N.Y.2d 833, 834 (1987) (robbery suspect first identified when a witness recognized his picture in a police “drawer” of photos); see People v. Bhuggo, 241 A.D.2d 301 (1st Dept. 1997) (finding that “the identification procedure,” which consisted of “using a book of photographs, was not suggestive”); People v. Sergeant, 244 A.D.2d 702 (3d Dept. 1997) (same); People v. Wimbush, 210 A.D.2d 517, 518 (2d Dept. 1994) (same); see also Cowley v. People, 83 N.Y. 464, 477 (1881) (noting approvingly the practice of showing witnesses “Rogues’ Gallery” pictures to identify “fugitives from justice”). In the canvassing array situation, courts have recognized that the People can “meet their burden of going forward to establish the lack of suggestiveness” of a computer-generated photo compilation, or of books or drawers of mug shots, “without producing the photographs at the [suppression] hearing.” Patterson, 306 A.D.2d at 14-15; see, e.g., Bhuggo, 241 A.D.2d at 301; People v. Campos, 197 A.D.2d 366, 367 (1st Dept. 1993). That is because, in these situations, “the ‘sheer volume’ of -24- the photographs viewed, as well as the fact that the police had not yet focused upon defendant as a particular suspect,” provide a “safeguard against suggestiveness.” Campos, 197 A.D.2d at 367 (quoting People v. Jerome, 111 A.D.2d 874 [2d Dept. 1985]); see also People v. Truesdale, 299 A.D.2d 289 (1st Dept. 2002); People v. Ashby, 289 A.D.2d 588 (2d Dept. 2001); People v. Mason, 138 A.D.2d 411 (2d Dept. 1988). Because of these inherent safeguards, any potential suggestiveness can be “dispelled by the testimony of the detectives detailing” how the mug-shot book was shown to a witness or how the computerized photo manager procedure was administered. Campos, 197 A.D.2d at 367; see Patterson, 306 A.D.2d at 14-15 (noting that “[a] detective gave detailed testimony about how the computer selected a fair grouping of photographs”). B. The photo identification procedure was not unduly suggestive. The photo identification procedure in this case falls squarely within the category of a general canvassing array, in that the police had yet to focus on a particular suspect and generated a large volume of prior-arrest photos matching the physical characteristics of the assailant. Detective Mazuroski interviewed three victims-Sylvie Lee, Ju Eun Lee, and Yoori Han-who all described the perpetrator as a black man, around 6’1” tall, between 30 and 40 years old (Mazuroski: A14, A30). Ju Eun Lee and Yoori Han also described the assailant as “skinny.” By contrast, there was no hearing evidence that Sylvie had ever provided a description of the assailant’s body type (see Mazuroski: A39). Having no suspect, Mazuroski invited Sylvie Lee, -25- one of the victims, to look through prior-arrest photos of men matching the assailant’s race and approximate height and age (Mazuroski: A15-16). Mazuroski entered those features into the police photo manger database of people who had been arrested in Manhattan between 2007 and 2010 (Mazuroski: A17, A30). The photo manager system generated around 3,000 photos of men matching those features (Mazuroski: A30). For around one hour, Sylvie looked at about 20 pages of photos, with 6 individual photos displayed per page (Mazuroski: A19, A30). Pages 2, 13, and 14 each contained one photo depicting defendant (Mazuroski: A18-21, A31-32). Nothing about this compilation created “a substantial likelihood” that defendant was “singled out for identification.” Chipp, 75 N.Y.2d at 336. As discussed, all of the men in the photos had “reasonably similar physical characteristics as defendant.” People v. Gilbert, 295 A.D.2d 275, 277 (1st Dept. 2002). They were all of the same race and approximate age and height. In addition, “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,” further established “the lack of suggestiveness.” Campos, 197 A.D.2d at 367; see also Truesdale, 299 A.D.2d at 289-90; Mason, 138 A.D.2d at 411-12. Indeed, as the hearing court observed, even after Sylvie identified defendant on the second page of photos, the detective prompted her to look through many additional pages “to be sure” that she had identified the correct person (see A47). -26- Critically, because the procedure was conducted before the police had identified defendant as a suspect, there was no reason for the police “to call the victim’s attention to any particular photographs.” Truesdale, 299 A.D.2d at 289-90. In that regard, Mazuroski administered the procedure in a “double-blind” fashion, meaning that “neither the person conducting the identification procedure nor the viewing witness kn[ew] who, if anyone, [was] the suspect among the persons displayed to the witness.” Hibel, New York Identification Law § 4.09(10) (2013 ed.). Double- blind procedures have been described as the “optimal protocol for [an] identification procedure,” because they substantially reduce the risk that the administering officer will “send signals to the viewing witness, consciously or not, influencing the selection.” Id. (emphasis added); see State v. Henderson, 208 N.J. 208, 248 (N.J. 2011) (noting one expert’s opinion that “double-blind lineup administration is the single most important characteristic that should apply to eyewitness identification procedures”). Thus, the double-blind nature of the canvassing array, combined with the voluminous number of photos displayed and the nexus between those photos and Sylvie’s description of the assailant, ensured that defendant’s picture did not unfairly stand out. Defendant concedes that the police did not intentionally “rig[ ]” the canvassing array (DB: 49). But, relying on the Supreme Court’s seminal decision in Wade, 388 U.S. at 229, he claims that the blind nature of the procedure had “no impact” on whether it was suggestive, because the police could have “unintentionally” displayed -27- the photos in a manner that highlighted his photos (DB: 47-50). Notably, however, the Supreme Court has recently explained that “the risk of police rigging was the very danger to which the Court responded in Wade when it recognized a defendant’s right to counsel at postindictment, police-organized identification procedures.” Perry, 132 S. Ct. at 726-27 (emphasis added). In any event, defendant misses the critical point: if the police do not even have a suspect in mind, they simply cannot suggest- “intentionally” or “unintentionally,” consciously or subconsciously-to a witness that the witness select a particular person. See 31 Carmody-Wait 2d § 174:46 (“Any assessment of the risk of suggestiveness must make a distinction between the situation where the police are using a general canvassing array because they have no suspect in mind, and a focused array, in which they have a suspect around whom they have specifically constructed the array.”). In arguing that the procedure was suggestive, all defendant can point to is that he is skinny and Detective Mazuroski did not enter any weight approximation in the photo manager search (DB: 49-50). Initially, defendant’s thinness was irrelevant to Sylvie’s photo identification, because the hearing evidence did not indicate that Sylvie had described the assailant’s weight or body type to the police. As even defendant acknowledges, “[t]he importance of a suggestive feature,” such as a person’s weight, depends on whether that feature figured prominently “in a witness’s description” of the assailant (DB: 36 [citing Raheem v. Kelly, 257 F.3d 122, 134 [2d Cir. 2001]). Of course, because defendant’s weight did not figure into Sylvie’s description at all, the -28- lack of a weight range in the search criteria could not have unfairly singled out defendant for identification. Jackson, 98 N.Y.2d at 559; see Kelly, 257 F.3d at 134. 7 In any event, the procedure could only have been unduly suggestive if defendant’s weight or body type was “grossly dissimilar” to that of the other men in the photos. Perry, 132 S. Ct. at 727. But common sense and the existing record shows that was not the case. First, defendant does not complain that Mazuroski showed Sylvie a photo depicting defendant as skinny surrounded only by photos of men who weighed significantly more than he did. Indeed, defendant acknowledges that the canvassing array would have included photos of men of all weights and body types (DB: 8). Instead, defendant merely complains that Mazuroski did not limit the weight range so that exclusively skinny people were shown (DB: 49). It is unremarkable, however, that the photo compilation may have included people of varying body weights, because it is well settled that “[t]here is no requirement” that a defendant “be surrounded by people nearly identical in appearance.” Chipp, 75 7 Defendant does not claim that there was evidence at the hearing that Sylvie Lee had ever approximated the assailant’s weight. At trial, Detective Mazuroski testified that, at some unspecified point in time, Sylvie had described the assailant as having a “thin build” (Mazuroski: A401). However, Mazuroski did not indicate when exactly Sylvie had provided this description, i.e, whether she provided it before viewing the photographs. In any event, it is well-settled that “[e]vidence received at trial is not a proper basis upon which to review the propriety of a determination made at a pretrial hearing.” People v. Nieves, 205 A.D.2d 173, 184 (1st Dept. 1994), aff’d, 88 N.Y.2d 618 (1996); see, e.g., Chipp, 75 N.Y.2d at 336 (looking only to evidence at pre-trial hearing to determine whether an identification procedure was suggestive); see generally People v. Giles, 73 N.Y.2d 666 (1989) (evidence developed at trial cannot be used to make a suppression ruling). -29- N.Y.2d at 336; see, e.g., Perry, 132 S. Ct. at 727; McBride, 14 N.Y.3d at 447-48; Lee, 96 N.Y.2d at 163. That is especially true where, like here, a suspect has not yet been identified and the photo compilation is voluminous. See Campos, 197 A.D.2d at 367 (finding, in circumstances similar to here, no undue suggestiveness without even discussing whether the defendant resembled the other men’s photos).8 There is also certainly no reason to suspect that the photos Sylvie viewed primarily portrayed men who were obviously heavier than he was. There was certainly no evidence that defendant appeared distinctively emaciated. On the contrary, standing 6’1” tall and weighing 160 pounds, defendant was totally ordinary (Mazuroski: A26-27, A38, A40; see A7-8).9 In fact, even defendant acknowledges that there would be people even thinner than him featured in the photo complication (DB: 51). That concession negates his unfounded claim that it was “highly likely” that his photo depicted the first “skinny” person to appear in the initial 12 photos of the canvassing array (DB: 47, 49). At any rate, defendant’s slenderness was not so distinct 8 Defendant repeats the same unfounded assertion that he made to the Appellate Division, claiming that Mazuroski knew it was “improper” not to include a weight range in the database search. Defendant relies on the facts that on direct examination, Mazuroski testified that none of the witnesses had provided a weight, but on cross-examination, when his recollection was “refresh[ed]” by viewing both women’s written descriptions (Mazuroski: A29-30), Mazuroski acknowledged that Ju Eun and Han had described the assailant as “skinny” (DB: 55-56). In reality, this episode merely evinces a garden-variety failure of memory. Moreover, although this attack is in essence one on Mazuroski’s veracity, the hearing court found Mazuroski’s testimony “totally credible” (A46). 9 According to the National Institute of Health, a person standing 6’1” tall and weighing 160 pounds falls smack in the middle of the “Normal” weight range. See http://www.nhlbi.nih.gov/health/educational/lose_wt/BMI/bmi_tbl.pdf -30- that his photo would have unfairly stuck out, even among photos of heavier men. See Lee, 96 N.Y.2d at 163 (“slight” or “subtle” differences among photos in six-photo array not unduly suggestive). Moreover, as the database contained only prior-arrest photos (Mazuroski: A32)-in other words, mug shots-the photos, by definition, depicted only faces. See People v. Slavin, 1 N.Y.3d 392, 403 (2004) (Ciparik, J. dissenting in part) (noting that “[t]ypical arrest photographs consist of front and side view ‘mug shots’ of the face”). Hence, the men’s body types hardly mattered, since Sylvie was looking at them only from the neck up.10 Further, the very idea of “thinness” is vague and imprecise. Different people could have different opinions on whether a person was “thin.” Indeed, because all three women described the assailant as wearing a “three quarters length or waist- length” coat (see Mazuroski: A14), it makes sense that a witness might have had difficulty accurately estimating the perpetrator’s weight. Thus, it was perfectly 10 Defendant argues that there is “no support in the hearing transcript” to support an inference that the photos were “‘mugshots’ and not ‘full body’ photographs” (DB: 53). That is incorrect. Mazuroski confirmed on cross-examination that all of the pictures were “arrest photographs” (Mazuroski: A32). Of course, “arrest photos” and “mug shots” are synonymous. See, e.g., Hall, 2014 WL 2464943, at *1 (referring to arrest photos from the “photo manager” system as “mugshots”); People v. Lewis, 20 Misc. 3d. 1136(A), at 4-5 (Kings Co. Sup. Ct. 2008) (cited by defendant) (explaining how the police used the photo manager system to print a picture of an “individual’s face” [emphasis added]). Notably, during the suppression hearing, the People asserted that the photos were “mugshots” and “not full body pictures” (A45). Defense counsel did not object, and neither counsel nor the court disputed the prosecutor’s statement. Thus, everyone at the suppression hearing plainly understood that the photos were mug shots. -31- reasonable for Mazuroski-who had no idea what the assailant actually weighed-to have not included a weight range in the computer search. The case law on which defendant relies is easily distinguishable because, unlike here, those cases involved comparatively small lineups or photo arrays in which defendants possessed highly distinctive and specific physical features that, unlike the fillers, uniquely matched the witnesses’ descriptions of the assailants. See People v. Rudan, 112 A.D.2d 255, 256 (2d Dept. 1985) (white man with a mustache); People v. Shea, 54 A.D.2d 722, 722-23 (2d Dept. 1976) (“a blonde ‘afro’”). Similarly inapposite are cases defendant cites in which the defendants wore clothing that made them clearly stand out. See Kelly, 257 F.3d 257 F.3d at 135-36 (a “black leather coat”); People v. Velez, 169 A.D.2d 661, 661 (1st Dept. 1991) (an Hispanic man wearing “a dark sweatshirt with a hood pulled over his head”); People v. Lloyd, 108 A.D.2d 873, 873 (2d Dept. 1985) (defendant wore “a T-shirt with ‘Brooklyn’ inscribed across the front”). Here, by contrast, there is nothing particularly unique about being thin- whatever that means, precisely. And, of course, defendant was not yet a suspect when Sylvie viewed the photos, which made it impossible for the police to tailor the display in the same manner discussed in the cases on which defendant relies. See People v. Jones, 43 A.D.3d 1296, 1298 (4th Dept. 2007) (no undue suggestiveness where “the individuals depicted were not all similar in appearance because the police had not yet -32- focused on defendant as a particular suspect, and the police showed the witness over 50 photographs before he identified defendant”). In that regard, although defendant attempts to compare the canvassing array procedure to a children’s game (DB:54-55), a more apt analogy is to the commonly accepted law enforcement practice of canvassing neighborhoods with a witness in a patrol car to see if the witness recognizes anyone on the street as the assailant. See People v. Edmonson, 75 N.Y.2d 672, 678 (1990). In street canvasses, similar to canvassing arrays, the police have no “reason to believe that the victim’s assailant [will] be among the pedestrians” on the street. Id. at 677. Thus, in Edmonson, this Court unanimously countenanced a “videotaped canvass” procedure, where the police videoed pedestrians in a particular neighborhood and “zoomed in” on the defendant’s face and the faces of other random people who “matched the victim’s general description of her assailant.” The Court found no undue suggestiveness, and emphasized that the defendant “was viewed without any suggestive comment or conduct by police,” who did not know that the assailant had been captured on the video. Id. at 677-78. In addition, using language that applies equally here, the Court contrasted the video canvass procedure with a lineup by noting that the video does “not focus attention on so few a number of individuals, nor does it even suggest that a suspect is among them.” Id. The photo manager procedure here also compares favorably to traditional mug-shot book procedures. Mug-shot books are generally organized so that all the -33- pictures depict people of similar race and gender, but they do not provide for precise narrowing of characteristics like age, weight, and height. See People v. Sergeant, 244 A.D.2d 702, 703 (3d Dept. 1997) (“book of ‘mug shots’ of previous arrestees of the same race and gender); Wimbush, 210 A.D.2d at 518 (“book containing mug shots of 200 black males”); People v. Balint, 92 A.D.2d 348, 359 (1st Dept. 1983) (several mug shot books of “photographs of black males”). By contrast, the photo manager system allows the police to compile photo displays that account for these additional variables. It makes little sense for defendant to complain that Mazuroski did not employ a single variable, when courts have readily accepted a viewing procedure that did not employ even more variables. This case is highly analogous to Patterson, 306 A.D.2d at 14, where the First Department found no suggestiveness even though the police failed to preserve the computer-based photo compilation. In Patterson, the police “had no knowledge of defendant and no suspects in mind.” Id. In search of a suspect, the police had witnesses view “computer screens that were comparable to books or drawers of police photographs.” Id. Presumably, many of those mug shots looked nothing like the defendant. Nonetheless, given the nature of the identification procedure, the Appellate Division found that the People had “me[t] their burden of going forward to establish the lack of suggestiveness.” Patterson, 306 A.D.2d at 14-15. Here, the People also clearly met their burden of going forward, as the procedure was similar to -34- that in Patterson, and in fact superior to it, in that it was composed of photos that corresponded to defendant’s race, height, and age.11 It is of no moment that, as defendant points out, Sylvie identified him within the first 12 photos of a 3,000 photo display. Defendant asserts that this raises a “glaring red flag” that “calls into question whether this was a bona fide identification” (DB: 47, 61). But defendant never advanced this argument before the hearing court, and it is thus unpreserved for appeal. People v. Johnson, 83 N.Y.2d 831, 834 (1994). In any event, the mere fact that defendant’s photo randomly appeared on the second page of the compilation does not indicate that his photo unfairly stood out. After all, since the photo manager system automatically generated the pages, it was just as statistically likely for defendant’s picture to have appeared on page two as any other page. See Charles M. Grinstead, Introduction to Probability, at 2-3 (2d. Ed. 2012)12 (explaining that when a computer is programmed to generate a “random number” between 0 and 1, each time the program is run “each integer has the same probability of being chosen”). Thus, under circumstances similar to those here, a federal judge 11 As this discussion demonstrates, defendant is wrong to characterize Patterson as a case in which the First Department found an “inference or presumption of suggestiveness” (see, e.g., DB: 39). Similarly, despite defendant’s claims, the First Department did not find an “inference of suggestiveness” in Campos, or in People v. Georgison (see, e.g., DB: 39), but only noted in both cases that, to the extent such an inference existed, it was easily dispelled by the totality of the hearing record. See People v. Georgison, 299 A.D.2d 176, 176 (1st Dept. 2002); Campos, 197 A.D.2d at 367. 12 This textbook is available online at: http://www.dartmouth.edu/~chance/teaching_aids/books_articles/probability_boo k/amsbook.mac.pdf -35- recently found nothing questionable when a witness identified a defendant as the assailant after the defendant’s photo was the very first picture that appeared in a photo manager search. Hall, 2014 WL 2464943, at *1-*2. So, too, here, that defendant’s photo appeared early in the display in no way renders the procedure suggestive. And, of course, defendant’s appearance on page two does not negate Sylvie’s certainty that he was the assailant. As the United States Supreme Court has long held, “the level of certainty demonstrated by the witness” at the time of an identification is a key factor in determining the identification’s reliability for purposes of assessing the suggestiveness of an identification procedure. Neil v. Biggers, 409 U.S. 188, 199-200 (1972). Therefore, contrary to defendant’s claims, the “speed and ease” of Sylvie’s identification actually supports the hearing court’s finding that the identification was reliable (see A47). Finally, defendant claims that Sylvie’s identification of defendant’s photos on pages 13 and 14 stemmed not from recognizing him as the assailant, but from seeing his photo on page 2 (DB: 56). However, Mazuroski testified that the three photos depicting defendant were all different (Mazuroski: A20). Hence, rather than simply recognizing identical pictures, Sylvie observed distinct photos that required her to probe her memory and decide whether they were all separately ones of the assailant. Of course, if Sylvie had failed to detect any of defendant’s photos, defendant would surely have used that as proof that he was misidentified. Accordingly, the fact that -36- Sylvie recognized multiple photos portraying defendant provided additional proof that her identification was reliable. C. Defendant was not entitled to a presumption of suggestiveness. In any event, the hearing evidence sufficiently rebutted any such presumption. In an effort to compensate for the ample evidence that the photo procedure was not suggestive, defendant now seeks to invoke a presumption of suggestiveness because the police did not preserve the photos Sylvie viewed. But contrary to defendant’s assertion that there can be “no dispute” that he was entitled to such an inference (see DB:46), he points to no appellate decision in New York that has ever applied a presumption of suggestiveness in circumstances analogous to this case. In any event, defendant’s presumption argument is beside the point, because, as demonstrated above, the record supports the lower courts’ implicit findings that any presumption was easily rebutted by Detective Mazuroski’s credible testimony about how he administered the photo procedure. See Holley, 116 A.D.3d at 442; see also A46-47. In the context of eyewitness identifications, this Court has only ever applied a presumption of suggestiveness in cases where the police conduct a showup inside of a police station. See People v. Brisco, 99 N.Y.2d 596, 600 (2003); People v. Riley, 70 N.Y.2d 523, 531 (1987). Beyond showups, however, to determine the ultimate question of suggestiveness, this Court has simply examined all of the circumstances involved in the administration of the particular identification procedure. See, e.g., -37- McBride, 14 N.Y.3d at 448; Edmonson, 75 N.Y.2d at 677-78; Chipp, 75 N.Y.2d at 335-37. For instance, in People v. Rahming, 26 N.Y.2d 411, 415, 417 (1970), similar to here, the police had not yet focused on a suspect and showed the victim “a box of approximately 60 or 70 photographs of parolees and known criminals” from which she identified the defendant’s photo as the assailant. Importantly, the Court “observed” that “the collection of almost 70 photographs had not been produced or made available for inspection.” Id. at 417. Despite that failure, the Court did not suggest that any sort of presumption might apply, and simply concluded that “[o]verall” the procedure was not unduly suggestive. Id. Similarly, in People v. Hernandez, 70 N.Y.2d 833, 835 (1987), this Court found that the “record support[ed]” the conclusion that certain statements made by the police to a witness during a photo identification procedure did not “taint” the fairness of the photo array. The Court again reached that conclusion even though the People had failed to produce the photos that the witness had viewed. See id. Like in Rahming, the Court made no suggestion that any presumption should apply, and held that because other evidence showed that the procedure was not suggestive, “any theoretical prejudice that may have resulted from the accidental loss of the ‘filler’ array photos [was] irrelevant.” Id. (emphasis added); see also Jackson, 98 N.Y.2d at 560 (refusing to apply a “presumption of suggestiveness” where photo of a lineup was lost mid-trial). -38- Although this Court has never done so, lower courts have in some circumstances invoked a presumption of suggestiveness when police have failed to preserve a tangible photo array they have shown to a witness. Even assuming this Court were to agree that such a presumption would be appropriate, it is inapplicable to the situation here. First of all, those cases involve the failure to preserve existing evidence police have generated. See, e.g., People v. Bratton, 133 A.D.2d 408, 409-10 (2d Dept. 1987) (failure to preserve array compiled with photo of known suspect). Defendant is instead insisting that the police were required first to generate a new tangible item, by printing out the viewed screens and then preserving it. However, ordinarily no obligation exists for the police to produce evidence in the first place. See, e.g., People v. Hayes, 17 N.Y.3d 46, 52 (2011); People v. Alvarez, 70 N.Y.2d 375, 381 (1987). Thus, although defendant insists that it would have been easy for the police to preserve the viewed photos here (but see infra at 44-46), that is no basis for applying a presumption here. Second, with the exception of one case decided after defendant filed his brief, see People v. Robinson, 123 A.D.3d 1062 (2d Dept. 2014), no Department has ever applied a presumption of suggestion when, like here, the police had not yet identified a suspect and showed a witness a voluminous compilation of prior-arrest photos on a computer screen. Nor does defendant point to any appellate court decision in New York that has applied such a presumption where the police had no suspect and the -39- witness was shown photos from mug-shot books or drawers of photos. The cases on which he relies for such a proposition simply do not say what he believes they say. Most notably, defendant incorrectly relies on the Second Department’s decision in People v. Stokes, 139 A.D.2d 785, 785 (2d Dept. 1988). In Stokes, the court found no undue suggestiveness based on police testimony that the photo compilation shown to the witness “consisted of several hundred photographs” and “the police had no suspects before the witness made the photo identification.” Id. But even though the court stated that no inference of suggestiveness attached to this fact pattern, id., the court also found “that the People had overcome the presumption of suggestiveness.” Id. Thus, like the lower courts in this case, the Second Department in Stokes implicitly found that no presumption of suggestion exists where “the array is . . . voluminous” and “the police had not yet focused on a particular suspect,” id., but that, in any event, even the application of a rebuttable presumption would lead to the same result. See id. Defendant also relies heavily on People v. Dobbins, 112 A.D.3d 735 (2d Dept. 2013) (DB: 6, 38, 42). In Dobbins, the court applied a rebuttable presumption of suggestiveness because the People failed to preserve “the original printout of a photographic array” for the hearing court’s review. Id. at 736. The court found that the People did not “overcome” the presumption, because the detective who testified at the hearing “did not memorialize and could not recall the specific information that he entered into the photo manager system which generated the photographic array[,] -40- . . . how many photographs the complainant viewed, and for how long the complainant was viewing photographs.” Id.13 Thus, Dobbins involved a single, printed-out photo array. It was thus no different than cases holding that a presumption applies to a constructed photo array shown to a witness; obviously, it does not matter whether the police use a computer or a file of photographs as the source for the photos displayed in the array. Furthermore, although Dobbins does not expressly say so, that the Second Department referred to the display as a single “array” indicates that it must have been compiled after the police had identified a suspect. Notably, the Second Department has made clear in previous cases when photo procedures occur before a suspect is identified, see Stokes, 139 A.D.2d at 785; see also Robinson, 123 A.D.3d at 1063, but said no such thing in Dobbins. In short, Dobbins was not at all like this case. In Robinson, 123 A.D.3d at 1062-63, however, the Second Department did apply a rebuttable presumption of suggestiveness where the People did not produce “original photographic arrays” that were never printed, but had only appeared on computer screens. Citing to Dobbins, the court ruled that the People could not overcome the presumption, because the detective who testified at the hearing “was unable to recall how many screens each complainant viewed . . . how long they viewed 13 As discussed above, the photo manager system can be used either to produce traditional photo arrays with a known suspect or to compile a canvassing array like the one in this case. See supra at 23-24. -41- [the] photographs[,] . . . [and] [t]he detective gave inconsistent testimony regarding what age criteria he entered in the computer system.” Id. at 1062-63. Although the detective had “not yet focused on any particular suspect,” the court still applied the presumption, reasoning “that the sheer volume of photographs viewed was [not] sufficient to dispel any inference of suggestiveness, as it is unknown how many photographs were viewed by the complainants.” Id. at 1063. Thus, the court concluded that the identification testimony should have been suppressed. Id. at 1062. Because the detective’s testimony provided virtually no evidence at all about the photo procedure, the Second Department’s ultimate conclusion is understandable. That court could have simply found that the People had failed “to meet [their] initial burden of establishing the reasonableness of the police conduct.” Jackson, 98 N.Y.2d at 559. The Second Department’s application of a presumption was not only unnecessary, it was also mistaken. Robinson erroneously relied on cases such as Dobbins where an array was physically produced, and where it is typically clear the police knew who the suspect was and specifically selected a handful of photos. Robinson, then, provides no warrant for creating a presumption when this Court has never applied one at all, and lower courts have previously only applied one in circumstances very different to those that pertained in this case. Even assuming arguendo that any such presumption was applicable here, the hearing evidence in this case easily overcame any inference or presumption of suggestiveness. According to defendant’s formulation, the People can overcome such -42- a presumption by showing that the witness viewed many photos, the police had not yet focused on a suspect, and the police provided detailed hearing testimony about how the procedure was conducted (see DB: 39). Applying this rule as envisioned by defendant, the uncontested hearing evidence, as detailed above, demonstrated that Sylvie viewed around 120 photos for about one hour; Mazuroski did not have a suspect in mind when administering the procedure; and Mazuroski’s testimony confirmed that he conducted a database search for prior arrest photos of people matching the exact description that Sylvie had provided. Thus, this case is not at all like Robinson, 123 A.D.3d at 1062-63 and Dobbins, 112 A.D.3d at 736, where the police failed to specify what search criteria they used, the number of photos viewed, and how long the witnesses viewed them. The only argument defendant offers for why the People failed to overcome a presumption of suggestiveness mirrors his argument for why the procedure was suggestive: he again claims that Mazuroski should have included a weight range in the photo manager search criteria (see DB: 51). But for all the reasons discussed above, this argument is meritless in light of Mazuroski’s detailed testimony about how he administered the canvassing array, as well as the limited importance of both whether the suspect was skinny and defendant’s body type. Thus, a simple application of the rule that defendant advocates confirms the Appellate Division’s finding that the “computer generated a fair selection of photos” and the “procedure was not unduly suggestive.” Holley, 116 A.D.3d at 442. -43- D. Defendant’s claims about how the photo manager system stores and prints photos are unpreserved and have no support at all in the record. For the very first time, defendant argues that this Court should adopt a new rule, requiring police departments throughout New York “to preserve and produce at suppression hearings all photographs viewed by an identifying witness in any” photo procedure involving what he calls the “PIMS system” (DB: 58 [emphasis in original]). He premises this argument on his claim that it is now easier for the police to save and print voluminous amounts of photos using computers than it was when the police primarily used “large physical books of arrest photos,” so that the “sheer volume” of photographs viewed should not be enough to overcome a presumption of suggestiveness (DB: 57-58). In any event, he argues, the police should have been required to produce the photos in this particular case, because Sylvie first identified him from among the initial 12 photos she saw, and it would have been easy to print out those initial 12 photos (DB: 58-59). To begin, because defendant never raised these arguments before the suppression court, they are unpreserved for this Court’s review. CPL 470.05(2); see generally People v. Johnson, 92 N.Y.2d 976, 978 (1998); People v. Whitaker, 64 N.Y.2d 347, 351 (1985). Below, relying merely on existing law, defendant argued only that the People should have been required to produce the particular pages from which Sylvie identified his photos or otherwise suffer a negative inference (A41-42). He never advocated for a new rule requiring that all photos be saved. Nor did he make -44- any claims that saving and printing photos would have been simple in this case, or in general is now easy in all cases in which photo manager is used. Compounding the lack of preservation, there is no record support for defendant’s assertions about the ease with which the photo manager program allows the police to save and print photos (see DB: 59-60). Of course, even in cases where the defendant has no obligation to preserve his claim, he still must ensure that there is a factual record that is adequate to permit review of that claim See People v. McLean, 15 N.Y.3d 117, 121-22 (2010); People v. Kinchen, 60 N.Y.2d 772, 774 (1983). However, Mazuroski’s only testimony about the photo manager program related to its search functions (see Mazuroski: A16-17). At the hearing, even though defendant had the ultimate burden of proof, he asked no questions about the computer program’s storage and printing mechanisms. To get around his lack of preservation and record support, defendant relies on trial court decisions from Brooklyn and the Bronx that discuss how the photo manager system works (see DB: 44-45). First of all, defendant never presented these cases to the suppression court for its consideration. More fundamentally, even those cases do not establish that the system would have the same functionality when used not to create a particular array, but rather in the broader way Mazuroski used it-to generate numerous photographs for viewing when the police had not zeroed in on a particular suspect. Indeed, to support his claim that the police can save photos and print them later (see DB: 45-46), defendant cites only to a case where, unlike here, the -45- police used a photo manager system to create a traditional six-photo array that included the photo of a known suspect. See Bulgin, 29 Misc.3d 286, 290-91. There is an additional flaw in defendant’s argument. In insisting that his newfound requirement would not have been onerous in this case, defendant asserts that the police would have had to maintain only the first 12 photos from which Sylvie identified his photo (DB: 58-59). The fact remains, however, that Sylvie examined many more photos than that. It makes no sense that the police would be required to save and reproduce only some but not all the photos viewed.14 After all, a defendant could surely argue that something about the later-viewed photos tainted any later identification, and that a failure to produce those photos should thus also lead to a presumption. And, under defendant’s broad rule, even if a witness viewed hundreds of photos before making an identification, all of the photos would surely have to be saved and printed. No matter what system would be involved, imposing such a requirement would surely be burdensome. Finally, defendant seeks to use the photo procedure to obtain suppression of Sylvie’s lineup identification as well. He claims that Sylvie’s lineup was “tainted by the 14 Defendant claims that, absent a requirement to produce computer-generated displays, the police could “game” the system by always showing a witness a large volume of photos to avoid having to produce them (DB: 59-60). If a case were to present the kind of gamesmanship that defendant envisions, a court could elect to apply a presumption if the police did not produce the photos. Here, though, as defendant did not dispute at the hearing, Mazuroski had Sylvie continue to look at more photos to ensure the accuracy of Sylvie’s initial identification. -46- unduly suggestive array” (DB: 61-62). Because defendant did not raise this argument before the hearing court, it is unpreserved for this Court’s review. See generally Johnson, 92 N.Y.2d at 978. In any event, leaving aside that the canvassing array was not unduly suggestive, because the lineup occurred six days after Sylvie identified defendant in the canvassing array, it was sufficiently attenuated to remove any alleged taint. See, e.g., People v. Thomas, 161 A.D.2d 543, 556 (1st Dept. 1990) (no taint where “lineup was not held immediately after the photo array”). E. Likewise, the lineup was not unduly suggestive, because defendant resembled the fillers and was not made to stand out. Defendant also challenges the fairness of the lineup that Sylvie Lee and Yoori Han viewed June 8, 2010. Defendant does not suggest that the police administered the lineup in a suggestive manner. Instead, he repeats the same argument he raised at the suppression hearing and in the Appellate Division, claiming that the fillers did not adequately resemble the witnesses’ descriptions of the assailant (see DB: 62-67). The hearing court viewed the photo of the lineup that was produced at the Wade hearing and found the lineup was not suggestive (A46-47), and upon its own examination of the photo, the Appellate Division agreed. Holley, 116 A.D.3d at 442-43. Since that determination is supported by the evidence in the record, it, too, is beyond this Court’s review. McBride, 14 N.Y.3d at 448. It bears repeating that there is no requirement that all the lineup participants be identical in appearance; rather, all that is required is that the participants sufficiently -47- resemble one another so that the suspect is not made to stand out. Chipp, 75 N.Y.2d at 336. Here, the lineup photograph shows that the composition of the lineup was fair and did not single out defendant for identification. Detective Mazuroski testified that he looked for fillers who resembled defendant, and he plainly succeeded. In particular, four of the fillers, like defendant, had facial hair (A7-8 [lineup photograph]). The fillers were also similar to defendant in height and weight. Defendant was about 6’1” tall and weighed 160 pounds (Mazuroski: A26-27, A38, A40; A7-8), while the fillers’ heights were 6’1”, 6’2”, 5’11”, 6’1”, and 5’9”, and their weights ranged from 180 to 250 pounds (Mazuroski: A14, A26, A29-30, A36-38, A4032; A7-8). In any event, the lineup participants were all seated during the procedure, thus minimizing any differences between them. See McBride, 14 N.Y.3d at 448 (“The men in the lineup were seated, mitigating any differences in height.”); Logan, 58 A.D.3d at 440 (height differences among seated lineup participants was “barely noticeable”); People v. Maddox, 238 A.D.2d 280 (1st Dept. 1997) (height and weight differences were concealed by seated positions). The fact that defendant was wearing baggy clothing further rendered any differences in weight negligible (A7-8). Given these steps by the police, they did not need also to place the participants behind cardboard screens, as defendant now suggests (see DB: 67 citing People v. Murphy, 1 A.D.3d 184-85 [1st Dept. 2003]). Moreover, the police took additional steps to ensure that defendant did not stand out. Since everyone’s hair was different, the officers made them all wear hats -48- (Mazuroski: A37-38; A7-8). The presence of the hats also helped minimized the age difference between defendant, who was 32 years old, and the fillers, whose ages ranged from 22 to 57 (A7-8). The hats obscured hairlines and wrinkles-features often associated with age-and instead focused the witnesses’ gaze on the participants’ facial features. Defendant nonetheless attacks the lineup by focusing on the differences between his weight and age and the weight and age of the fillers (DB: 62-67). And he complains that the hearing court’s ruling failed to account for these differences (DB: 62). However, as defendant acknowledges, “the relevant inquiry is whether there appeared to be a marked age and weight difference between [defendant] and the other line-up participants” (DB: 63 [emphasis in original]), not whether there was an actual age and weight difference among them. See Jackson, 98 N.Y.2d at 558-59 (“a numerical age difference,” without more, “is not sufficient to create a substantial likelihood that the defendant would be singled out for identification” [quotation marks omitted]); People v. Grant, 43 A.D.3d 800 (1st Dept. 2007) (noting that actual ages of fillers is “insignificant” to fairness of lineup); People v. Amuso, 39 A.D.3d 425 (1st Dept. 2007) (“a disparity between the recorded ages of a defendant” and fillers is only relevant if the “disparity is reflected in their physical appearances”). Here, the hearing court squarely addressed that dispositive issue, concluding that “there [was] nothing that highlight[ed] the defendant which would suggest to a witness to pick him out” (H40). The Appellate Division echoed that determination, -49- finding that “[a]ny differences between defendant and the other participants, including an age disparity not fully reflected in the participants’ actual appearances, and a weight disparity that was minimized by having the participants seated, was not so noticeable as to single defendant out.” Holley, 116 A.D.3d at 443. These conclusions sufficed to dispose of defendant’s complaints based on raw statistical measurements. See People v. Brown, 47 A.D.3d 826, 827 (2d Dept. 2008) (all fillers wore same hats and weight and height differences “eliminated by having the participants in the lineup seated”); People v. Figueroa, 204 A.D.2d 103, 104 (1st Dept. 1994) (“while all of the fillers were older than defendant, and their weights and heights varied, defendant and the fillers, all seated during the lineup procedure, were of such reasonably similar appearance that there was no substantial likelihood that defendant would be singled out for identification”); People v. Adams, 167 A.D.2d 160, 161 (1st Dept. 1990) (differences in “height and girth” did not single the defendant out). Defendant unfairly characterizes the People’s brief in the Appellate Division when he asserts that the People “admitted … that the physical appearance of three of the five fillers visibly diverged significantly from that of defendant” (DB: 65). In reality, the People argued below that any minor differences between what defendant and the fillers looked like did not remotely render the lineup suggestive (People’s Appellate Division Brief: 30). In that regard, the filler sitting in chair number three has no facial hair and could be considered visibly older and heavier than defendant (see A7-8). However, that was not enough to render the lineup unduly suggestive. -50- After all, courts have repeatedly held that the fact that one filler looks different from the suspect does not render the lineup unfair, so long as the other participants appear similar to him. See, e.g., People v. Cook, 254 A.D.2d 92 (1st Dept. 1998) (the lineup was fair where, “except for one individual,” differences in height and weight were sufficiently minimized so that the fillers appeared sufficiently similar to the defendant); People v. Saez, 233 A.D.2d 121, 122 (1st Dept. 1996) (lineup not suggestive where “four of the five [fillers] appeared to be in defendant’s age range”); see also People v. Gelzer, 224 A.D.2d 443, 443 (2d Dept. 1996) (same where “at least four of the five fillers had ‘goatee’ beards similar to the defendant’s beard”). And, although the fillers in chairs one and six appear somewhat more heavyset than defendant, in all other ways, including their complexions and facial hair, they look similar to defendant. As noted above, defendant was not unusually thin, and his body type alone did not unfairly highlight him. See McBride, 14 N.Y.3d at 448; Jackson, 98 N.Y.2d at 559. Accordingly, defendant did not stand out, even with those fillers in the lineup. Chipp, 75 N.Y.2d at 333 (rejecting defendant’s suggestiveness claim based on disparities between defendant’s appearance and the appearance of three lineup fillers). Overall, then, in terms of race, build, facial hair, and age, defendant’s physical resemblance was reasonably similar to at least four of the five lineup participants. Thus, any discrepancies between the fillers and the witnesses’ description of the assailant, or between the fillers’ raw measurements and defendant’s, did not create a -51- substantial risk of misidentification. See People v. Epps, 48 A.D.3d 307, 307 (1st Dept. 2008) (characteristics of lineup participants were “reasonably similar” and any differences were “not sufficient to create a substantial likelihood that [the] defendant would be singled out for identification”); People v. Gairy, 116 A.D.2d 733, 733 (1st Dept. 1986) (“while two of the subjects appeared to be in their mid-twenties and three of the subjects appeared to be in their late teens or early twenties, defendant appeared older than his stated age of 17 and [ ] the lineup therefore constituted a ‘fairly representative panel’”); People v. Perkins, 307 A.D.2d 1001, 1002 (2d Dept. 2003) (“Despite certain age and weight disparities, the fillers were sufficiently similar to the defendant in appearance so that he was not singled out for identification”). The cases on which defendant relies serve only to highlight the failings of his argument, as the facts of those cases are starkly different from the facts at issue here. For instance, in Solomon v. Smith, 645 F.2d 1179, 1185 (2d Cir. 1981) (cited at DB: 42), the Second Circuit found a lineup suggestive primarily because the witness who viewed it had already seen the defendant’s picture “many times” and “had been standing one person away from him for 20-30 minutes at arraignment.” Similarly inapposite are cases defendant cites that combined police misconduct with unfairly suggestive lineups. See People v. Montgomery, 205 A.D.2d 259, 260-61 (1st Dept. 1994) (15-year-old defendant was in a lineup with fillers in their 30s or 40s, and police told fillers to put “false ages” on police forms), aff’d, 88 N.Y.2d 1041 (1996); People v. Harris, 172 A.D.2d 560, 560 (2d Dept. 1991) (police told a witness that a previously -52- identified suspect would be in the lineup, and lineup fillers were clearly taller and “much older” than defendant), aff’d, 80 N.Y.2d 796 (1992); People v. Davis, 169 A.D.2d 508, 508 (1st Dept. 1991) (witness was told that the person she picked in photo array would be in lineup, and suspect was the only lineup participant wearing clothing similar to assailant’s clothes). Here, defendant can point to no misconduct and only unremarkable differences between him and some of the fillers.15 In short, there was nothing about defendant’s appearance that distinguished him from the similar-looking fillers in the lineup. Thus, the lower courts properly determined that the lineup was not suggestive. Since those findings are supported by the record evidence, they are beyond this Court’s review. McBride, 14 N.Y.3d at 448. * * * In sum, the record amply supported the lower courts’ findings that there was nothing improper about the photo manager identification procedure or the 15 The remaining cases defendant cites involved lineups where, unlike here, the suspects truly stood out like sore thumbs. See Dobbins, 112 A.D.3d at 737 (fillers were “much older . . . much taller and much heavier” than the defendant and one filler was “significantly older and had” lighter skin); People v. Breitenbach, 260 A.D.2d 389, 90 (2d Dept. 1999) (defendant was thin and blond, and the fillers were all “hefty” with dark hair); People v. Carolina, 184 A.D.2d 520, 520-21 (2d Dept. 1992) (defendant was the only lineup participant with a “distinctive flattop haircut,” which was a prominent feature in the description of the defendant); People v. Maldonado, 143 A.D.2d 106, 106 (2d Dept. 1988) (“defendant is a light complexioned Hispanic and all of the stand-ins were black”); People v. Gaddy, 115 A.D.2d 658 (2d Dept. 1985) (witness’s testimony indicated that she identified the defendant only because he was clearly the shortest and youngest person in the lineup). -53- subsequent lineup identifications. Accordingly, all of defendant’s claims to the contrary are beyond this Court’s review. POINT II THE BRIEF AND GENERALIZED REFERENCES TO THE POLICE “INVESTIGATION” IN DETECTIVE MAZUROSKI’S TESTIMONY AND THE PEOPLE’S SUMMATION WERE ENTIRELY PROPER (Answering DB, Point II). Before jury selection, the People requested that Detective Greg Mazuroski be allowed to testify at trial that defendant became a suspect after one of the victims observed a photo array. This testimony, the People argued, was necessary to help explain to the jury why defendant was ultimately placed in a lineup. Alternatively, the People proposed having the detective testify only that he took “investigative steps” that led him to defendant. Defense counsel initially consented to the People’s alternative solution, and the court ordered that the witnesses’ testimony be tailored accordingly. The next day, however, defense counsel backtracked and argued that any testimony referencing the police investigation would unfairly prejudice defendant because it would bolster the People’s evidence and the detective’s credibility. Counsel also claimed that mentioning a police investigation could create an “implicit” Confrontation Clause issue, by suggesting that “someone with knowledge of the incident” led the police to defendant. The court rejected defendant’s newfound -54- arguments and affirmed its earlier ruling allowing narrowly tailored testimony about the police “investigation.” Thus, Mazuroski testified that defendant became a suspect after the police “conduct[ed] further investigation with information beyond the descriptions” provided by the victims. In summation, the People referenced the police investigation three times, and defendant did not object. In the Appellate Division, defendant renewed his challenge to Mazuroski’s testimony, arguing that it constituted reversible error by improperly bolstering the in- and out-of-court identification evidence. Moreover, defendant raised an unpreserved claim that the People’s comments during summation regarding the police investigation also constituted improper bolstering. The Appellate Division summarily rejected these arguments, finding that the “detective’s brief background testimony about his ‘investigation,’” provided “no basis for reversal.” Holley, 116 A.D.3d at 443. Without discussing preservation, the court also found that nothing the prosecutor said on summation constituted reversible error. Id.16 Before this Court, defendant repeats his bolstering argument pertaining to “Mazuroski’s ‘investigatory step’ testimony,” and he restates his unpreserved claim regarding the People’s comments on summation about the “investigation” (see DB 78-80). In addition, defendant reprises his pre-trial argument-which he essentially 16 In the Appellate Division, defendant also raised unrelated complaints about the People’s summation that he does not renew in this Court. -55- bypassed in the Appellate Division-that Mazuroski’s reference to the police investigation violated his rights under the Confrontation Clause. These claims are meritless, as is his unpreserved complaint concerning the People’s summation references to this testimony. A. The Relevant Record Before jury selection, the People asked that Detective Mazuroski be allowed to testify that he arrested defendant “based on photo arrays observed by one of the witnesses.” The People were concerned that without this testimony, the jury would speculate that the police identified suspects by randomly picking people up on the street who matched the witnesses’ description of the assailant. Alternatively, the People offered to ask the detective leading questions, such as, did your “investigation lead you to a particular person and did you have information beyond [the assailant’s] descriptions that led you to that individual?” (A71-A73). Defense counsel conceded that he “underst[ood] the People’s concern,” and he stated that the People’s alternative solution was “reasonable” so long as the detective’s testimony did not mention the photo procedure. Defendant argued that any testimony about the photo array would be impermissible propensity evidence, since the jury was likely to believe that the police only had defendant’s photo because of a prior arrest (A73-75). The court agreed that it would be unduly prejudicial for the People to present evidence of the photo array at trial. The court also observed that “it would be unfair -56- to the prosecution’s case to give the impression” to the jury “that there was basically no investigation conducted and that the police simply targeted” defendant. Thus, the court ruled that the People could ask the detective “whether there was an additional investigation conducted” and whether “as a result of that investigation . . . a particular individual [was] identified.” The court instructed the prosecutor to prepare the witnesses “very carefully” so that “they don’t go into anything about the photo arrays.” Justice Merchan emphasized that the ruling was “made to protect” defendant (A75-77). The next day, before jury selection commenced, defense counsel again acknowledged that he “underst[ood] the People’s concern” that without an explanation for why defendant got arrested, the jury might “infer that the police acted inappropriate[ly]” by “grabb[ing defendant] off the street for no reason.” But, after having “an evening to do some research,” counsel asserted that defendant would be unduly prejudiced if the police testified that an “investigatory step” led to his arrest. Defendant reasoned that any reference to a police investigation could “bolster the police officer’s credibility” by leading the jury to infer that the police had performed “good, solid police work,” that defendant had been arrested on another charge, or that “someone with knowledge of the incident” gave the police information that pointed to defendant. This latter possibility, defendant claimed, could lead to “an implicit[,] previously nonexistent confrontation clause issue.” Consequently, defendant asked the court to amend its earlier ruling and preclude any reference to the -57- police investigation. Citing People v. Resek, 3 N.Y.3d 385 (2004), defendant proposed having the court simply instruct the jury “not to speculate as to how or why [defendant] was placed in the lineup” (A82-83). Defendant, however, “conceded[ ]” that Resek was “not directly on point,” because it involved “prior uncharged crime” evidence of a car theft (A83). In response, the People asserted that the court’s initial ruling should stand because it would avoid leaving “the jury with a misimpression that [the detective] walked out on the street” and “picked up” every six-foot “black man with baggy clothing, and put them in a lineup” (A84-86, A217). The People also argued that Resek was distinguishable, because, as defendant had noted, Resek pertained to the admissibility of uncharged crimes evidence, an issue that was not present here (A85- 86, A211-12, A216-17). Justice Merchan agreed that Resek was inapposite, and affirmed his earlier ruling allowing the People to ask the detective at trial if he “conduct[ed] any additional investigation.” The court reiterated that its decision was meant to ensure that defendant was “not prejudiced in any way.” But the court also found it important “to ensure that [the People’s] pursuit of justice [was] not hampered by giving the jury the impression that the detective didn’t do a good job or that, in fact, the detective jumped to conclusions.” “[A]fter considering all of the case law and the specific issues of this case,” Justice Merchan concluded that the resolution originally reached was “a fair one” (A218-19). -58- During the People’s case, pursuant to the court’s ruling, Sylvie Lee did not testify regarding the June 2, 2010 photo identification procedure. Similarly, Detective Mazuroski did not testify about the photo procedure or any of the out-of-court identification evidence. Instead, Mazuroski first recounted the description of the assailant that Ju Eun, Han, and Sylvie had provided (Mazuroski: A398-401). Mazuroski then testified that he searched the subway station for “video cameras” and found none; he also “verified” with the Transit Authority’s “special investigations unit” that there were no video cameras in the relevant parts of the subway station (Mazuroski: A401-02). The prosecutor then asked, “Without telling us what it was, did you conduct further investigation with information beyond the descriptions you have just told us about?” Mazuroski answered, “Yes.” Next, the People asked, “And did that investigation lead you to a particular suspect?” The detective answered, “Yes,” and he identified defendant as that suspect (Mazuroski: A402). The remainder of Mazuroski’s direct examination testimony pertained to how the lineup was composed and administered (Mazuroski: A402-14). On cross-examination, defense counsel asked Mazuroski multiple questions about the pre-lineup investigation. First, counsel inquired whether Mazuroski “based part of [his] investigation on what” the transit agent from the subway station and Yolanda Lin (the fourth eyewitness) “had told [him].” Mazuroski responded, “Yes,” but stated that Lin told him that she would be unable to identify anyone as the assailant (A419-20). Next, counsel asked Mazuroski whether he had Sylvie and Han -59- view a lineup “partly” based on “some of the things” that Sylvie and Han had “told” him. Mazuroski replied, “If you’re asking me did I develop a suspect, yes” (Mazuroski: A419). Counsel also elicited that there was no fingerprint or DNA evidence in the case, and Mazuroski reconfirmed that no video evidence of the incidents existed (Mazuroski: A415-18). In addition, counsel referenced Mazuroski’s handwritten investigation notes and got Mazuroski to acknowledge that in one note, Mazuroski used the plural shorthand “perps,” meaning perpetrators, when describing one witness’s account of incident (Mazuroski: A431-32). After Mazuroski’s cross-examination, the People argued at sidebar that counsel’s questioning gave the “impression” that the police investigation “was shoddy” (Mazuroski: A434). The court agreed that, based on counsel’s questioning, the People were entitled to ask Mazuroski about the “investigation, what he asked the witnesses, [and] what they said to him” (A434). But the court denied the prosecutor’s renewed request to reference the photo procedure, stating, “It’s fair to rehabilitate the witness. Stay away from any photo arrays” (A434-35). On re-direct, Mazuroski confirmed that his notation about “perps” derived from his notes from his interview of the transit agent, and he clarified that the agent never told him that there were “multiple” perpetrators (Mazuroski: A436-38). Mazuroski then recounted that he had only spoken to the transit agent on the phone; the agent said that she had observed the assault, but not the attempted robbery, and she provided a description of the assailant that matched the description that the other -60- women had provided (Mazuroski: A437-38). At the end of re-direct, the prosecutor asked, “[B]eyond speaking to Miss Sylvie Lee, Miss Yoori Han, Miss Ju Eun Lee, Miss Yolanda Lin, and the [transit] agent and canvass[ing] for video, did you perform further investigation in this case over the nine days you had it?” Mazuroski answered, “Yes,” and confirmed that defendant was the one suspect “generated” (Mazuroski: A440-41). After the close of the evidence, the People requested that the court instruct the jury not to speculate about “Mazuroski’s lawful investigation.” The court denied that application, noting that there had “been no allegations that the investigation was unlawful.” Further, the court noted, providing such a charge might “bolster the thoroughness of [the] investigation” (A447-49). During summation, the People focused mainly on the strength of the eyewitness identification evidence. In passing, the People also made three unobjected-to references to the pre-lineup police investigation. First, the prosecutor stated that Mazuroski received information from the witnesses and “upon further investigation 9 days later, he had one suspect. One. Todd Holley” (Summation: A492). The People cautioned the jurors that they would “be charged by the judge” and were not “to speculate on” the nature of the police investigation, or how the police came to focus on defendant (Summation: A493). The prosecutor then said: There is absolutely no evidence here that there was any problem with [the investigation] and the only evidence that you have to consider is that [the detective’s] investigation -61- 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. [Mazuroski] didn’t go out and just grab the man off the street that he thought looked like what [the witnesses’] description was. He went after his investigation and went and found Mr. Holley. (Summation: A493). Finally, while describing defendant’s similarities to the witnesses’ description of the assailant, the prosecutor remarked, “we’re not here because” the police “had a description that [ ] aided the detective in his investigation . . . We’re here because of the recognition of the identification. The description is just part of it” (Summation: A502). B. Analysis Although defendant complains about Detective Mazuroski’s planned testimony regarding the “investigation” and the People’s summation comments concerning it, at trial he did not object to any of the summation remarks that he now challenges. Specifically, after the court’s ruling permitting this testimony, defendant did not argue that the People should be barred from mentioning the investigation on summation. Nor did he object when the prosecutor referenced the police investigation during summation. Accordingly, defendant failed to preserve his current challenges to the People’s summation. People v. Romero, 7 N.Y.3d 911, 912 (2006). In any event, defendant’s claims are without merit. -62- 1. Defendant was not deprived of his right to confront witnesses, because the testimony he challenges referred to statements of witnesses whom he cross- examined at trial or statements admitted because defendant opened the door to their admission. The confrontation clauses of the United States and New York constitutions require that a defendant be allowed to confront witnesses against him. U.S. Const. Amend. VI, XIV; N.Y. Const., Art. I, § 6; Crawford v. Washington, 541 U.S. 36 (2004); People v. Eastman, 85 N.Y.2d 265, 274 (1995). In Crawford, the United States Supreme Court explained that the Confrontation Clause bars the admission of “testimonial” out-of-court statements where the declarant does not testify at trial. Crawford v. Washington, 541 U.S. at 36. The Court generally defined a testimonial statement as a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.” 541 U.S. at 51. As this Court has recognized, the “basic objective of the Confrontation Clause . . . is to prevent the accused from being deprived of the opportunity to cross-examine the declarant about statements taken for use at trial.” People v. Pealer, 20 N.Y.3d 447, 453 (2013) (quoting Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 1155 [2011]) (ellipsis in original; quotation marks omitted). Here, defendant’s Confrontation Clause claim pertains to two snippets of testimony elicited during the direct and re-direct examination of Detective Mazuroski (DB: 76-77 [citing Mazuroski: A402, A440-41). First, on direct-examination, Mazuroski testified regarding the descriptions of the assailant that he received from Ju -63- Eun, Han, and Sylvie (Mazuroski: A398-401). Then, prompted by the prosecutor’s narrowly-tailored questioning, Mazuroski confirmed that he conducted “further investigation with information beyond th[ose] descriptions” (Mazuroski: A402). According to defendant, this “investigation” testimony constituted “phantom evidence” that he “could not possibly have confronted” at trial (DB: 78). But in reality, the further investigation that Mazuroski referenced was no mystery to defendant. Rather, it consisted of Sylvie’s identification of photographs of defendant as the perpetrator. Mazuroski was barred from saying so at defendant’s insistence, to avoid potential prejudice to defendant. Of course, Sylvie testified at trial, and defendant cross-examined her at length. Thus, defendant’s right to confrontation was clearly satisfied as to Mazuroski’s direct-examination testimony, because he had the opportunity to cross-examine the pertinent declarants. See Crawford, 541 U.S. at 59 n. 9 (“we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements”); see also Bryant, 131 S.Ct. at 1155; Pealer, 20 N.Y.3d at 453. Thus, this case is easily distinguishable from all of the “right to confrontation” cases that defendant cites involving non-testifying declarants (see DB: 72-73), because in all of them the government brought out that the law enforcement agent had obtained information from specific, non-testifying declarants. For instance, in United States v. Reyes, 18 F.3d 65 (2d Cir. 1994), the Second Circuit found reversible error where a customs agent’s trial testimony referenced multiple out-of-court statements of -64- two co-defendants who “did not testify at the trial,” thus depriving the defendant of the “opportunity to discredit their declarations . . . by cross-examination.” Id. at 67, 69, 71. See also United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004) (multiple out-of-court conversations with non-testifying informant and drug supplier); Ryan v. Miller, 303 F.3d 231 (2d Cir. 2002) (conversation with non-testifying co-defendant); Mason v. Scully, 16 F.3d 38, 43 (2d Cir. 1994) (same); United States v. Forrester, 60 F.3d 52, 56-57 (2d Cir. 1995) (statements by non-testifying declarant implicating defendant in drug sale). Thus, in contrast to all of case law on which defendant relies, this case does not involve the Confrontation Clause, because the declarant implicated in Mazuroski’s direct examination testimony about the “investigation” was cross- examined at trial. See Crawford, 541 U.S. at 59 n. 9. The most defendant can say is that the jury might have mistakenly believed from the direct examination that the “further investigation” involved other, non- testifying witnesses. Defendant, however, could have avoided this if he had consented to some reference to the photo array, or had made a counter-proposal that involved specifying that the further investigation involved only witnesses from whom the jury would hear. In any event, no authority exits for the idea that there is a Confrontation Clause problem when all relevant statements-explicit or inferential- in fact came from a testifying witness. And he certainly cites no authority to support the proposition that a defendant can create a Confrontation Clause problem when it is -65- only at his own insistence that the jury does not learn that a testifying witness was the source of the information in question. Defendant’s confrontation right remained unabridged by the re-direct examination of Mazuroski when Mazuroski specified that he had spoken to Yolanda Lin and the transit agent from the subway station (Mazuroski: A440-41). That testimony diverged from Mazuroski’s direct testimony because it referenced his out- of-court conversations with Lin and the transit agent, neither of whom testified at trial. As the re-direct made clear, though, these conversations were not the “further investigation” that Mazuroski referred to on direct examination, because the People brought out that Mazuroski’s “further investigation” went “beyond” those conversations. Moreover, the trial court properly admitted that testimony on re- direct, because defendant had opened the door by cross-examining Mazuroski about his conversations with Lin and the transit agent (A434-35). In that regard, this Court has held that when a defendant presents evidence that is misleading or incomplete, he “open[s] the door” to the introduction of any evidence-even otherwise inadmissible evidence-that is “reasonably necessary to correct the misleading impression.” People v. Massie, 2 N.Y.3d 179, 184 (2004). Even testimony that violates the Confrontation Clause may be admitted “if the defendant opened the door to its admission.” People v. Reid, 19 N.Y.3d 382, 387-88 (2012) (holding that defendant opened the door to non-testifying co-defendant’s statement); see Tennessee v. Street, 471 U.S. 409, 415 (1985). -66- Defendant does not even challenge the propriety of the trial court’s ruling that he opened the door for the People to ask Detective Mazuroski about his conversations with Lin and the transit agent. Instead, he simply ignores his questions opening the door and the court’s ruling that he had done so. The judge surely acted well within his discretion in deciding that the door had been opened to a limited amount of additional evidence, but still not testimony about the photo array. After all, it was defendant who chose to bring out that Mazuroski had talked to Lin and the transit agent. And defendant referenced Mazuroski’s notes from his interview with the transit agent, using the notes’ reference to “perps” to suggest that Mazuroski had run a poor investigation. Thus, the cross-examination raised questions about the propriety of the police investigation that the People were entitled to rebut. See People v. Rivera, 96 N.Y.2d 749, 751 (2001); cf. Reyes, 18 F.3d at 71 (government did not contend that the defendant had opened the door to testimony referencing statements by non-testifying declarants). 2. The detective’s “investigative step” testimony was properly admitted to complete the narrative and avoid jury speculation regarding defendant’s presence in a lineup. Distinct from the Confrontation Clause, it has long been held improper in New York for a prosecutor to elicit third-party testimony from a police officer that confirms an identifying witness’s pre-trial identification. People v. Trowbridge, 305 N.Y. 471, 474-77 (1953). This “bolstering” testimony is precluded both because it constitutes hearsay, and because of the concern that weak identification testimony -67- could gain undue weight if the People were to call a succession of witnesses to testify about the out-of-court identification. People v. Caserta, 19 N.Y.2d 18, 21 (1966). The rule applies to third-party testimony describing a witness’s statements at a prior identification, see Trowbridge, 305 N.Y. at 474, and to “inferential” or “implicit” bolstering, that is, testimony that has no other purpose than to support an inference that an identification was made, see People v. Holt, 67 N.Y.2d 819, 821 (1986). Generally, however, as numerous courts have found, an officer’s testimony about an out-of-court identification does not bolster a witness’s identification testimony so long as the officer does not state that the witness actually made an out- of-court identification. See People v. Mendoza, 35 A.D.3d 507 (2d Dept. 2006); People v. Tucker, 25 A.D.3d 419, 420 (1st Dept. 2006); People v. Sanders, 271 A.D.2d 289, 290 (1st Dept. 2000); People v. James, 262 A.D.2d 139 (1st Dept. 1999); People v. Williams, 157 A.D.2d 759, 760 (2d Dept. 1990); People v. Blair, 148 A.D.2d 767, 769 (3d Dept. 1989). Courts have also found that if a police officer’s testimony inferentially references a witness’s out-of-court identification, the testimony does not constitute improper bolstering if it is “brief and generalized” and admitted not for the truth of the matter asserted, but “as background to explain to the jury the extent of the investigation and how the police came to focus on [the] defendant.” People v. Nieves, 294 A.D.2d 152, 152-53 (1st Dept. 2002); People v. Stansberry, 205 A.D.2d 317, 317-18 (1st Dept. 1994); People v. Jones, 160 A.D.2d 333, 333 (1st Dept. 1990); People v. Ragsdale, 68 A.D.3d 897 (2d Dept. 2009); Mendoza, 35 A.D.3d at 507. -68- This Court has applied similar rationales when upholding the introduction of out-of-court statements of non-testifying declarants for the non-hearsay purpose of “provid[ing] background information as to how and why the police pursued and confronted [a] defendant.” People v. Tosca, 98 N.Y.2d 660, 661 (2002). Similarly, this Court approved the admission of a statement made to a detective by a non- testifying co-defendant in order to show the detective’s state of mind, and not to establish the truth of the matter asserted. People v. Reynoso, 2 N.Y.3d 820, 821 (2004). Notably, this Court also found that the Confrontation Clause was not implicated in that situation, because the evidence was not offered for truth of the matter asserted. Id. see Crawford, 541 U.S. at 60 n. 9 (citing Street, 471 U.S. at 414); Reynoso, 2 N.Y.3d at 821; United States v. Matera, 489 F.3d 115, 122 (2d Cir. 2007); United States v. Stewart, 433 F.3d 273, 291 (2d Cir. 2006). Of course, the admissibility of evidence is committed to the sound discretion of the trial court, and thus does not warrant review by this Court unless there has been an abuse of discretion as a matter of law. Tosca, 98 N.Y.2d at 661; People v. Aska, 91 N.Y.2d 979 (1998). In particular, absent an abuse of discretion, a trial court’s “finding that the probative value of the evidence outweighed the potential for prejudice” will not be disturbed. People v. Jenkins, 88 N.Y.2d 948, 950 (1996). Under the circumstances in this case, the trial court did not abuse its discretion in any way. -69- Here, the trial court correctly permitted Detective Mazuroski to testify only that, “beyond” speaking to the victims and eyewitnesses, he “perform[ed] further investigation” that led to defendant becoming a suspect (Mazuroski: A401-02, A440- 41). The court recognized that this evidence was relevant for the legitimate, non- bolstering purpose of completing the narrative and explaining to the jury why defendant was ultimately included in a lineup. See Tosca, 98 N.Y.2d at 661; Ragsdale, 68 A.D.3d at 897-98. As the prosecutor argued below, without providing this reasonable explanation for why defendant was targeted, the jury would have been left to speculate that the police compiled the lineup by randomly choosing people from the street who matched the description of the assailant. Thus, Mazuroski’s “investigative step” testimony was necessary to prevent the jury from speculating that the police had arbitrarily chosen to place defendant in a lineup or otherwise engaged in a slipshod investigation. Importantly, the court specifically tailored its evidentiary ruling to protect defendant and avoid improper bolstering. In that regard, the People first asked the court to allow Mazuroski to testify that he apprehended defendant “based on photo arrays observed by one of the witnesses” (A71-72). Case law supported the admission of that proposed testimony to explain the events preceding the lineup. See, e.g., Ragsdale, 68 A.D.3d at 897-98 (not bolstering where a “detective’s testimony regarding two witnesses’ identification” of the defendant as the perpetrator was offered to establish the “reasons behind the detective’s actions, and to complete the -70- narrative”). Nonetheless, the court ruled that any mention of the photos procedure- no matter how general-would be unduly prejudicial to defendant (A75-76). Thus, in an abundance of caution, the court precluded the witnesses from discussing the photos and limited the detective’s testimony to a “brief and general” reference to the police investigation. The court also rejected the People’s request for a charge that instructed the jurors not to speculate about the “lawful” police investigation, out of concern that it might lend undue support to the quality of the detective’s investigation (A449). Accordingly, Justice Merchan fashioned a remedy that provided the jury with just enough context to understand the People’s narrative, but that also ensured that none of the identification evidence would be improperly bolstered. There is no merit to defendant’s suggestion that Mazuroski’s “investigative step” testimony could be admissible only if he had “open[ed]” the door by conveying to the jury that the police had pulled defendant off the street and placed him in a lineup (DB: 77 [citing Rivera, 96 N.Y.2d at 751). First, as discussed above, defendant’s cross-examination of Mazuroski opened the door for the detective’s “investigative step” testimony on re-direct. As to the direct examination, courts have frequently found testimony admissible for the non-bolstering purposes of explaining “how the police came to focus on defendant.” Nieves, 294 A.D.2d at 152-53. That is so even when the testimony clearly refers to a third-person’s out-of-court identification. See, e.g., Jones, 160 A.D.2d at 333; Ragsdale, 68 A.D.3d at 897-98; Mendoza, 35 A.D.3d at 507. Similarly, courts have found references to statements by -71- non-testifying declarants admissible under the Confrontation Clause when they are offered “for the legitimate nonhearsay purpose of completing the narrative and explaining the [relevant] events.” People v. Parson, 94 A.D.3d 577, 579 (1st Dept. 2012) (quotation marks omitted); People v. Wright, 54 A.D.3d 695 (2d Dept. 2008). In each of these cases, the court did not indicate that the defendant had opened the door to the testimony in question; rather, the rationale for admission advanced by the court clearly stood on its own. In Rivera, which defendant cites, this Court upheld testimony that was admitted to allow the People to fill “a material gap in the narrative” created by defendant. 96 N.Y.2d at 750-51. However, this Court did not hold that the defendant’s “door opening” was an invariable requirement for “admitting the testimony for the limited purpose of explaining the officer’s actions.” Id. at 751. Thus, Rivera does not contradict any of the numerous cases cited above that have upheld brief and limited background testimony when, independent of defendant’s trial strategy, a material narrative gap exists. The trial judge also properly rejected defendant’s proposed charge that would have instructed the jurors “not to speculate as to how or why [defendant] was placed in the lineup” (A83). That instruction was so uninformative and non-specific that the judge, in an exercise of discretion, was entitled to think it would have raised more questions in jurors’ minds than it would have answered. Indeed, even defendant “conceded[ ]” below that his suggested instruction came from a case “not directly on -72- point” that involved highly inflammatory “prior uncharged crime” evidence (A83). Detective Mazuroski’s generalized “investigation” testimony was not remotely comparable to evidence of a prior uncharged crime. Thus, there is no authority to support defendant’s contention that the suggested charge was mandated as a matter of law (DB: 78). The propriety of the court’s decision to permit limited evidence rather than deliver such an instruction is illustrated by defendant’s reaction when the People first proposed the “investigative step” testimony; defendant agreed that such a proposal was “reasonable” (A73-75). Only the next day, after doing “some research,” did he suddenly change course and take issue with it (A82). If this evidence were truly prejudicial, that would have struck defendant right away. In any case, defendant’s initial reaction confirms that the judge’s decision that the “investigative step” testimony’s probative value outweighed its prejudice was not remotely an abuse of discretion. Like Mazuroski’s narrowly tailored testimony, the People’s brief references to it in summation adhered perfectly to the court’s ruling. The prosecutor only mentioned the police “investigation” three times, and each reference was introduced to ward off the notion that the police haphazardly picked defendant up off the street and placed him in a lineup (see Summation: A492-93, A502). Nonetheless, defendant complains that, in light of the judge’s refusal to instruct the jury that the police investigation was “lawful,” it was wrong for the People to argue on summation that there was “no -73- evidence” of “any problem with” the investigation (DB: 80 [citing A447-49, A493]). Obviously, there is a vast difference between a judge affirmatively telling the jury that the investigation was lawful and a party arguing on summation, accurately, that there was no evidence of impropriety in the investigation. Significantly, too, the prosecutor warned the jury not “to speculate on” the nature of the investigation or why the police focused on defendant (Summation: A493). Thus, read in context, none of the prosecutor’s comments remotely evinced bolstering. Simply put, the People’s unobjected-to statements in summation were proper. In any event, defendant’s theories of prejudice hold no water. He suggests that the jury may have inferred “that the police possessed evidence of [defendant’s] guilt not presented” at trial (DB: 78). To the contrary, as discussed, the “investigative step” testimony was narrowly tailored so as not to provide evidence of anything beyond helping the jurors understand why defendant was in a lineup. Even during the re-direct in which defendant opened the door, all that came out was that the transit agent gave a description of the assailant that was similar to those of the other witnesses. Moreover, as defendant points out, the jurors, during deliberation, principally focused on the accuracy and reliability of the lineup identifications: they asked to see the lineup photographs and the witness description sheets, and they requested readbacks of Han’s and Sylvie’s identification testimony (DB: 32 [citing A532-34, A547]). Thus, contrary to defendant’s claims, the jury properly -74- concentrated on the identification evidence without speculating about “phantom evidence” that was never presented (see DB: 71, 78). At any rate, this Court has held that bolstering is not a basis for reversal unless the properly admitted identification testimony, standing alone, is weak. Only then can the alleged bolstering be said to have created a significant likelihood of conviction that otherwise would have been absent. People v. Jackson, 70 N.Y.2d 884, 885 (1987) (finding that even if testimony was inferential bolstering, it was “harmless in view of the evidence that the victim unhesitatingly and unequivocally identified defendant at the lineup”). Here, the properly admitted identification testimony was strong, and the likelihood of conviction was great even without the complained-of testimony. Indeed, the three powerful identifications in this case comprised far superior evidence than the single eyewitness identification in Jackson, 70 N.Y.2d at 885, which this Court deemed sufficient to render a bolstering error harmless. The evidence in this case showed that the subway station where the crimes occurred was well-lit, and all three victims who testified at trial had good opportunities to observe defendant at close range during the crimes. Indeed, defendant provided all three women two opportunities to observe him when he first attempted to steal Ju Eun’s purse, and then, minutes later, returned to the station, paced back and forth, and charged at the women. Based on these encounters, all three women provided similar, detailed descriptions of defendant’s clothing and salient physical characteristics. Those -75- circumstances buttressed the accuracy of the victims’ unequivocal identifications of defendant, in and out of court. Additionally, all three witnesses were subjected to full cross-examination on all aspects of their identification testimony, which was not undermined by that questioning. In short, contrary to defendant’s contention (DB: 81-82), this was a solid identification case and any bolstering that may have occurred was harmless. See Jackson, 70 N.Y.2d at 885. By the same token, even if admission of the testimony in question could somehow be deemed to constitute a Confrontation Clause error, such error would also be harmless. People v. Porco, 17 N.Y.3d 877, 878 (2011); People v. Douglas, 4 N.Y.3d 777, 779 (2005). Finally, defendant’s attempt to analogize this case to People v. Clark, 28 A.D.3d 785 (2d Dept. 2006) is wholly unpersuasive. The only evidence in Clark was one victim’s in- and out-of-court identifications of the defendant. Id. at 786. In Clark, after the detective testified that he met with the victim and conducted “further investigation,” he began to say, “I let her look at a couple of-,” before the court interrupted and warned him to be “[c]areful.” Id. (internal quotation marks omitted). The detective then said that following his “investigation with the complainant,” he ascertained the address of “the person who robbed her.” Id. Finally, the detective testified that he arrested the defendant after the victim viewed him in a lineup. Id. Under these “unique circumstances,” the Second Department found that the officer’s testimony improperly bolstered the victim’s in-court identification of the defendant. Id. Here, by contrast, three victims independently identified defendant, and the -76- detective’s trial testimony was significantly more “brief and generalized” than the officer’s testimony in Clark. * * * In sum, the court rightly admitted the detective’s challenged testimony to help the jurors understand that defendant’s inclusion in the lineup was not arbitrary. Moreover, contrary to defendant’s unpreserved claim, the People’s references to that testimony in summation were equally proper. CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: JOSHUA L. HABER Assistant District Attorney ALAN GADLIN JOSHUA L. HABER Assistant District Attorneys Of Counsel March 12, 2015 -77-
