The People, Respondent,v.Todd Holley, Appellant.BriefN.Y.November 17, 2015 To be argued by STEPHEN KYRIACOU, JR. (15 MINUTES) COURT OF APPEALS STATE OF NEW YORK ____________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TODD HOLLEY, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT SEYMOUR W. JAMES, JR. ANDREW C. FINE Attorneys for Defendant-Appellant The Legal Aid Society 199 Water Street New York, New York 10038 Tel: (212) 577-7989 Fax: (646) 616-4989 STEPHEN KYRIACOU, JR. Of Counsel to Defendant-Appellant Boies, Schiller & Flexner LLP 575 Lexington Avenue New York, New York 10022 Tel: (212) 909-7603 Fax: (212) 446-2350 APRIL 30, 2015 i TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................... ii ARGUMENT POINT I APPELLANT WAS SUBJECTED TO UNDULY SUGGESTIVE PRE-TRIAL IDENTIFICATION PROCEDURES BECAUSE, FIRST, THE PEOPLE FAILED TO PRESERVE THE PHOTO ARRAY USED TO IDENTIFY HIM PRIOR TO HIS ARREST, GIVING RISE TO A PRESUMPTION OF UNDUE SUGGESTIVENESS THAT THEY THEN FAILED TO REBUT, AND, SECOND, APPELLANT WAS THE ONLY PARTICIPANT IN A LINE- UP CONDUCTED AFTER HIS ARREST WHO MATCHED THE DESCRIPTION OF THE SUSPECT. APPELLANT WAS THEREFORE DEPRIVED OF DUE PROCESS BY THE HEARING COURT’S FAILURE TO ORDER THE SUPPRESSION AT TRIAL OF THE LINE-UP IDENTIFICATIONS AND BY THE ABSENCE OF AN INDEPENDENT SOURCE HEARING FOR THE LINE-UP WITNESSES’ SUBSEQUENT IN-COURT IDENTIFICATIONS. (Responding to Point I of Respondent’s Brief.) .................................................................................................... 1 POINT II APPELLANT WAS DEPRIVED OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL WHERE, OVER DEFENSE COUNSEL’S OBJECTIONS, THE PEOPLE’S PROOF WAS IMPROPERLY BOLSTERED AND THE JURY WAS ENCOURAGED TO SPECULATE ON THE NATURE OF THE EVIDENCE AGAINST APPELLANT BY THE ELICITATION OF TESTIMONY PERTAINING TO THE UNSPECIFIED “INVESTIGATION” THAT LED TO APPELLANT’S IDENTIFICATION AND SUBSEQUENT ARREST. (Responding to Point II of Respondent’s Brief.) .............. 30 CONCLUSION ............................................................................................. 42 i TABLE OF AUTHORITIES Page(s) Cases Crawford v. Washington, 541 U.S. 36 (2004) .............................................................................................................38, 39 Mason v. Scully, 16 F.3d 38 (2d Cir. 1994).........................................................................................................38 Neil v. Biggers, 409 U.S. 188 (1972) ...................................................................................................................9 People v. Adams, 53 N.Y.2d 241 (1981) ..............................................................................................................30 People v. Ashby, 289 A.D.2d 588 (2d Dep’t 2001) ...............................................................................................9 People v. Bady, 202 A.D.2d 440 (2d Dep’t 1994) .............................................................................................20 People v. Brown, 62 N.Y.2d 743 (1984) ..............................................................................................................15 People v. Bulgin, 29 Misc. 3d 286 (Bronx Cnty. Sup. Ct. 2010) .........................................................................11 People v. Burts, 78 N.Y.2d 20 (1991) ..........................................................................................................20, 30 People v. Campos, 197 A.D.2d 366 (1st Dep’t 1993) ..........................................................................................4, 9 People v. Dobbins, 112 A.D.3d 735 (2d Dept. 2013) .............................................................................................13 People v. Edmonson, 75 N.Y.2d 672 (1990) ..............................................................................................................19 People v. Fediuk, 66 N.Y.2d 881 (1985) ..............................................................................................................41 People v. Gattison, 43 Misc. 3d 1209(A), 990 N.Y.S.2d 439 (Kings Cty. Sup. Ct. 2014) ...................................6, 7 ii People v. Gee, 99 N.Y.2d 158 (2002) ................................................................................................................5 People v. Holt, 67 N.Y.2d 819 (1986) ..............................................................................................................38 People v. Jackson, 98 N.Y.2d 555 (2002) ..........................................................................................................3, 17 People v. James, 67 N.Y.2d 662 (1986) ..............................................................................................................20 People v. Jerome, 111 A.D.2d 874 (2d Dep’t 1985) .......................................................................................10, 12 People v. Johnson, 80 N.Y.2d 798 (1992) ..............................................................................................................41 People v. Jones, 43 A.D.3d 1296 (4th Dep’t 2007) ..............................................................................................9 People v. Lee, 207 A.D.2d 953 (4th Dep’t 1994) ............................................................................................18 People v. Maddox, 238 A.D.2d 280 (1st Dep’t 1997) ............................................................................................23 People v. Malphurs, 111 A.D.2d 266 (2d Dep’t 1985) .............................................................................................20 People v. Marinez, 121 A.D.3d 423 (1st Dep’t 2014) ............................................................................................41 People v. Mason, 138 A.D.2d 411 (2d Dep’t 1988) .............................................................................................11 People v. McBride, 14 N.Y.3d 440 (2010) ..........................................................................................................3, 18 People v. Mezon, 80 N.Y.2d 155 (1992) ..............................................................................................................34 People v. Patterson, 306 A.D.2d 14 (1st Dep’t 2003) ..............................................................................................10 People v. Pollard, 42 Misc. 3d 1231(A), 986 N.Y.S.2d 867 (Kings Cnty. Sup. Ct. 2014) ...................................11 iii People v. Rios, 160 A.D.2d 372 (1990 ) ...........................................................................................................33 People v. Robinson, 123 A.D.3d 1062 (2d Dep’t 2014) .....................................................................................12, 13 People v. Romero, 7 N.Y.3d 911 (2006) ..........................................................................................................31, 33 People v. Stokes, 39 A.D.2d 785 (2d Dept. 1988) ...............................................................................................12 People v. Truesdale, 299 A.D.2d 289 (1st Dep’t 2002) ..............................................................................................9 People v. Tufano, 69 A.D.2d 826 (2d Dep’t 1979) ...............................................................................................38 People v. Wimbush, 210 A.D.2d 517 (2d Dep’t 1994) .............................................................................................11 People v. Woolcock, 7 Misc. 3d 203 (Kings Cnty. Sup. Ct. 2005)..............................................................................8 People v. Yavru-Sakuk, 98 N.Y.2d 56 (2002) ..........................................................................................................15, 16 United States v. Hall, No. 14 CR 105, 2014 WL 2464943 (S.D.N.Y. May 13, 2014) .............................................7, 8 United States v. Reyes, 18 F.3d 65 (2d Cir. 1994).........................................................................................................38 Other Authorities Brigham, Bennett, Meissner & Mitchell, The Influence of Race on Eyewitness Memory. In The Handbook of Eyewitness Psychology: Memory for People 257 (Lindsay et al. eds., 2007) .................................................................................................13 Chan, Thomas, and Bulevich, Recalling a Witnessed Event Increases Eyewitness Suggestibility ............................................................................................................................14 Goodsell, Neuschatz, and Gronlund, Effects of Mugshot Commitment on Lineup Performance in Young and Older Adults ...................................................................................5 Wells, Gary L., What Do We Know About Eyewitness Identification? ...........................................8 1 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------- x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TODD HOLLEY, Defendant-Appellant. : : : : : : : : : ---------------------------------------------------------- X ARGUMENT POINT I APPELLANT WAS SUBJECTED TO UNDULY SUGGESTIVE PRE-TRIAL IDENTIFICATION PROCEDURES BECAUSE, FIRST, THE PEOPLE FAILED TO PRESERVE THE PHOTO ARRAY USED TO IDENTIFY HIM PRIOR TO HIS ARREST, GIVING RISE TO A PRESUMPTION OF UNDUE SUGGESTIVENESS THAT THEY THEN FAILED TO REBUT, AND, SECOND, APPELLANT WAS THE ONLY PARTICIPANT IN A LINE-UP CONDUCTED AFTER HIS ARREST WHO MATCHED THE DESCRIPTION OF THE SUSPECT. APPELLANT WAS THEREFORE DEPRIVED OF DUE PROCESS BY THE HEARING COURT’S FAILURE TO ORDER THE SUPPRESSION AT TRIAL OF THE LINE-UP IDENTIFICATIONS AND BY THE ABSENCE OF AN INDEPENDENT SOURCE HEARING FOR THE LINE-UP WITNESSES’ SUBSEQUENT IN-COURT IDENTIFICATIONS. (Responding to Point I of Respondent’s Brief.) Identification evidence obtained through unduly suggestive pre-trial identification procedures is inadmissible at trial. Here, Appellant was entitled to a 2 presumption that Sylvie Lee’s 1 photo array identification – the only piece of evidence indicating that Appellant was the assailant responsible for the incident in the Prince Street subway station (the “Assailant”) prior to his arrest – was unduly suggestive because the People failed to preserve the array and produce it at the suppression hearing. The People then failed to rebut that presumption because there existed neither sufficient safeguards against suggestiveness nor any other factors that would excuse their failure to preserve and produce the array. Accordingly, the hearing court should have suppressed Sylvie’s subsequent line-up identification on the ground that it was tainted by the unduly suggestive photo array, and there should have been an independent source hearing to determine the admissibility of Sylvie’s in-court identification. Additionally, the line-up used to identify Appellant after the photo array led to his arrest was also unduly suggestive because, out of the six line-up participants, Appellant alone matched the description of the Assailant provided to police by witnesses. Accordingly, the hearing court should have suppressed the two line-up witnesses’ line-up identifications of Appellant and there should have been an independent source hearing to determine the admissibility of those witnesses’ in-court identifications of Appellant. The hearing court’s failure to suppress the 1 To avoid confusion between Sylvie Lee and Ju Eun Lee, they will be referred to herein as “Sylvie” and “Ju Eun,” respectively. Yoori Han will also be referred to by her first name, “Yoori,” for the sake of consistency. 3 line-up identifications and the absence of an independent source hearing violated Appellant’s right to due process. A. The People’s Failure To Preserve The Photo Array Used To First Identify Appellant Entitled Him To An Inference Or Presumption That The Photo Array Was Unduly Suggestive, Which The People Failed To Rebut Or Overcome Because They Failed To Show That Sufficient Safeguards Against Suggestiveness Existed. As an initial matter, the photo array issue presented by this appeal is not, as the People claim, a mixed question of law and fact. See Resp. Br. at 20. Appellant’s challenge to the photo array used to first identify him as the Assailant presents a threshold legal question as to whether he was entitled to an inference or presumption of suggestiveness due to the People’s failure to preserve the photo array and produce it at his suppression hearing, and whether the People could have avoided or rebutted that inference or presumption by establishing the existence of sufficient safeguards against suggestiveness. As such, the cases cited by the People on their “mixed question” point – all of which, unlike this case, actually involved a preserved photographic record of the relevant identification procedure – are completely inapposite to the question that is now before this Court. 2 Thus, while it is appropriate for this Court to credit the pure factual 2 See, e.g., People v. McBride, 14 N.Y.3d 440, 448 (2010) (deferring because the trial court actually “viewed a photograph of the lineup”); People v. Jackson, 98 N.Y.2d 555, 560 (2002) (“Our independent review of the photocopy [of the original lineup photo], along with the other evidence, indicates that the loss of the original photograph did not prevent proper appellate review in this case.”). 4 conclusions of the hearing court (e.g., that Mauroski did not include certain details, such as Appellant’s weight, in the photo array search and that Sylvie identified Appellant as the Assailant after viewing only twelve photographs), it is for this Court to draw its own legal conclusions de novo as to (i) whether Appellant was entitled to a presumption of undue suggestiveness due to the People’s failure to preserve the photo array used to identify him and produce it before the hearing court; and (ii) whether the circumstances surrounding the photo array permit the People to rebut that presumption. In making that de novo determination, one foundational question for this Court to decide is whether photographs shown to a photo array witness after his or her initial identification of a suspect can be considered for purposes of determining whether the witness viewed enough photographs that the “sheer volume” of them constituted a “safeguard against suggestiveness” capable of rebutting the presumption of suggestiveness that follows from the People’s failure to preserve and produce the array itself. People v. Campos, 197 A.D.2d 366, 367 (1st Dep’t 1993). Sylvie looked at fourteen pages of an over 500-page photo array on the day that she identified Appellant as the Assailant, but she made her identification on 5 only the second page of that array, meaning that Appellant’s photograph was somewhere between the seventh and the twelfth photos that she saw. 3 The photos that Sylvie viewed after making her initial identification of Appellant must be disregarded for purposes of the “sheer volume” inquiry because, quite simply, the identification was made on page two. Moreover, as this Court has noted, “after a misidentification occurs, the witness’s sense of recall can become impaired—perhaps irreparably—as the defendant’s image tends to supplant the image of the actual criminal.” People v. Gee, 99 N.Y.2d 158, 163 (2002). Social scientists have studied this phenomenon, known as the “commitment effect,” for more than 30 years. 4 The fact that the photos of Appellant on pages thirteen and fourteen were different from the photograph 3 The People’s brief repeatedly states that “Sylvie looked at about 20 pages of photos” when she viewed the over 500-page photo array. See, e.g., Resp. Br. at 9, 26. While Mazuroski did initially state on direct examination at the suppression hearing that Sylvie viewed “[a]pproximately 20” pages of photographs (A-19), he later testified with specificity that he “stop[ped] at page 14 when the third identification was made.” (A-32.) Twisting his words, the People now take Mazuroski’s testimony as being “meant to convey only that he paused the procedure after page 14 to record Sylvie’s third identification.” Resp. Br. at 9-10 n.3. Clearly, however, Mazuroski was simply approximating the specifically-testified-to fourteen pages to be “[a]pproximately 20” pages in his initial remarks, as nothing in Mazuroski’s testimony indicated that his reference to “stop[ping]” the array after the page fourteen identification indicates that this “stop” was only a brief pause to record the identification. Although Appellant argues that the number of photos viewed by Sylvie after she first identified him as the Assailant is irrelevant, as is the fact that she identified Appellant again in subsequent pages of the array, it is frustrating that the People would attempt to obscure basic facts about how the photo array was conducted in this case. 4 Goodsell, Neuschatz, and Gronlund, Effects of Mugshot Commitment on Lineup Performance in Young and Older Adults, Appl. Cognit. Psychol. (2008) at 2 (describing studies going back to 1980 on the “commitment effect” showing that “once an eyewitness has chosen someone from an initial group of photographs, they are likely to choose that same person again in a later identification task, regardless of whether they chose the culprit originally”). 6 through which Sylvie made her page two identification is completely irrelevant because Sylvie’s commitment was not to the specific page two photograph, but rather to the person pictured in that page two photograph, whom she had already identified as the Assailant. And of course, the People do not point to a single case in which photographs shown to an eyewitness after his or her identification was made were considered by a court as part of the “sheer volume” inquiry. One recent Wade hearing decision in a case with similar facts shows the futility of viewing subsequent photographs after an initial identification is made. See People v. Gattison, 43 Misc. 3d 1209(A), 990 N.Y.S.2d 439 (Kings Cty. Sup. Ct. 2014). The identifying witness in Gattison, also the victim of a recent assault, was shown photographs (one per page) in a book of 40 photos. She identified the person shown in the very first photograph, a Mr. Samuels, as her assailant. Id. at *2. But “[s]ince Mr. Samuels’ photograph was the first one in the set book, Detective Quiñones advised L.G. [the victim] to keep looking at the remaining photographs. L.G. did not pick out any other photographs from this set book.” Id. Mr. Samuels might have ended up in the same situation as Appellant, except for the fact that, “[u]pon investigation, Detective Quiñones determined that Terry Samuels had been involved in a near-drowning incident approximately two years earlier. He lives in a rehabilitation facility, where he is unable to speak or walk. Based upon his condition, Detective Quiñones concluded that Mr. Samuels could 7 not have committed the offense against L.G.” Id. The reassuring idea that a witness can “look through many additional pages ‘to be sure’ that she had identified the correct person,” Resp. Br. at 26, simply does not accord with the reality of identifications, and can lead to potentially disastrous consequences for people like Mr. Samuels and Appellant who, because of a prior arrest, can have a photograph of themselves find its way into a photo array. Of course, the foregoing assumes good faith on the part of the police. If this Court continues to sanction the “sheer volume” loophole for rebutting the presumption of suggestiveness in cases where the People fail to produce a photo array used to identify a suspect, it will invite investigating police officers to ask witnesses to page through a few dozen photographs after making an identification not only “to be sure” of the earlier identification but also, at the same time, “to be sure” that the People are not obligated to produce the photo array at a subsequent suppression hearing. This kind of manipulative gamesmanship should not be endorsed by this Court. The cases cited by the People in support of their photo array argument are all inapposite to the case at bar. For example, the People cite United States v. Hall, a federal case in which a witness identified the person in the first photograph he saw as the suspect. See No. 14 CR 105, 2014 WL 2464943, at *1 (S.D.N.Y. May 13, 2014). The People’s brief fails to mention, however, that the search used in that 8 case returned arrest photographs only “of individuals arrested in the precinct that match[ed] the description,” thereby significantly reducing the risk of a mistaken identification as opposed to a situation, like this one, where the search captured all individuals arrested anywhere in Manhattan who met a certain very general description. Id. at *1 (emphasis added). Also, because the photo array in Hall ended with the witness viewing just one photograph, the case has nothing to say about a photograph of Appellant unfairly standing out alongside photographs of other individuals in an unduly suggestive photo array. It has been well-recognized by scientists studying identification procedures that the “relative judgment” effect produces a higher likelihood of misidentification when a witness views multiple individuals as opposed to when a witness views only a single individual. See, e.g., People v. Woolcock, 7 Misc. 3d 203, 207 (Kings Cnty. Sup. Ct. 2005) (citing Wells, Gary L., What Do We Know About Eyewitness Identification?, 48 Am. Psych. 553, 561 (1993)) (“There is some data to support the view that when six suspects are shown together there is a tendency by a witness to pick the one who appears most similar to his visual impression of the perpetrator, whereas this tension is minimized when the lineup participants are exhibited one at a time.”). 5 5 The People also betray their fundamental misunderstanding of the dynamics at play in this appeal by arguing that it was “just as statistically likely” for Appellant’s picture to appear on the first page as the fourteenth or, for that matter, the 140th page of the photo array. See Resp. Br. at 9 Relatedly, the People’s citation to Neil v. Biggers, 409 U.S. 188 (1972), for the point that the “‘speed and ease’ of Sylvie’s identification” somehow supports its reliability is perplexing. Resp. Br. at 36. Although the so-called “speed and ease” of an eyewitness’s identification might be relevant in a line-up, where the witness can view all participants at one time, it simply makes no sense to say that an identification in the early pages of an over 500-page photo array is somehow more reliable than an identification made on subsequent pages. Others cases cited by the People involve many more photos than the twelve at issue in this case. For example, in Truesdale, the police showed the witness “hundreds of photographs,” which must have been physically developed or printed, as they were set out in trays on a table. People v. Truesdale, 299 A.D.2d 289, 289 (1st Dep’t 2002). Several of the People’s other cases also involve several times more photographs than are at issue in the present matter. See People v. Ashby, 289 A.D.2d 588, 588 (2d Dep’t 2001) (“complainant viewed hundreds of photographs”); People v. Jones, 43 A.D.3d 1296, 1298 (4th Dep’t 2007) (“the police showed the witness over 50 photographs before he identified defendant”). 6 35. What the People fail to realize is that a randomly-included suspect who appears in the first two pages of a photo array stands a dramatically greater chance of being incorrectly picked out of that array than does one who only appears much later in the array because, while a witness may not view all the pages of a photo array, they will almost always view at least the first few pages of it. For example, while the photo array at issue in this case contained over 500 pages, Sylvie viewed only the first fourteen of them. 6 The opinion in Campos does not state how many photos were viewed by the eyewitness in that case. 197 A.D.2d at 366-67. But the Campos court relied on the Second Department’s ruling in 10 The People devote a significant portion of their brief to discussing People v. Patterson, 306 A.D.2d 14 (1st Dep’t 2003), a case in which the First Department held that a computer-generated photo array was not unduly suggestive, despite the fact that it was not produced at a suppression hearing. But Patterson is not “highly analogous” to the instant case. Resp. Br. at 34. The briefs submitted in Patterson reveal that the eyewitness in that case viewed 114 to 120 images and that the detective did print out and retain at least the defendant’s photograph (which would reveal the prominence of a particular physical trait in the array photograph identified by the witness). Br. for Respondent, People v. Patterson, 2003 WL 25586217 (N.Y.A.D. 1 Dept.), at 18. In contrast, in the present matter, Sylvie viewed just seven to twelve photographs before first identifying Appellant, and Mazuroski did not save or print any of those photographs, including the page two photograph of Appellant that is now at issue in this appeal, despite the fact that he could have easily done so. Even if Mazuroski had only preserved the page two photograph of Appellant and produced it at the suppression hearing, the hearing court could have at least reviewed that one photograph to determine whether Appellant appeared visibly skinny in it. Many of the other cases cited by the People were decided decades ago, long before the advent of computer-generated photo arrays, which are easily stored and People v. Jerome, 111 A.D.2d 874 (2d Dep’t 1985), a case in which the eyewitness “was shown approximately 1,000 photographs over a period of two days.” Id. at 874. 11 readily printed. The technological advances that have taken place since these cases were decided greatly diminishes their value to the Court in deciding the present appeal, which specifically concerns only computer-generated photo arrays. See, e.g., People v. Mason, 138 A.D.2d 411, 411-12 (2d Dep’t 1988) (discussing “a preexisting file consisting of a large number of photographs”) (emphasis added); People v. Wimbush, 210 A.D.2d 517, 518 (2d Dep’t 1994) (identification procedure involved “a book containing mug shots of 200 black males”). Today, “[p]hoto arrays in the NYPD’s computerized photo manager system are saved in the form in which they are generated, and, once saved, the photos cannot be moved around.” People v. Bulgin, 29 Misc. 3d 286, 291 n.8 (Bronx Cnty. Sup. Ct. 2010). Even in a case in which an eyewitness used the system to view 256 photos, “a list of the arrest numbers associated with the photographs on the 46 pages viewed was generated.” People v. Pollard, 42 Misc. 3d 1231(A), 986 N.Y.S.2d 867, at *2-3 (Kings Cnty. Sup. Ct. 2014). Although Appellant does not argue that producing such a list would be enough for the People to avoid or rebut the presumption of undue suggestiveness that follows from their failure to produce an actual photo array, the production of such a list could have at least enabled defense counsel in this case to seek out additional information about the eleven other prior arrestees who appeared alongside Appellant in the first two pages of the photo array. With such additional information in his possession, defense counsel 12 could have endeavored to determine whether these other arrest photographs were such that Appellant would have been singled out for identification when his own arrest photograph was grouped with them. Moreover, the original purpose of the “sheer volume” exception simply does not apply to the realities of modern photo array identification practices. Courts that have allowed the People to avoid their obligation to produce the photo array in the past did so in part because of the “undue burden” on the People of producing a large number of photographs. See Jerome, 111 A.D.2d at 874 (“[T]he undue burden of preserving and producing an array of this size justified the People’s failure to produce it at the Wade hearing.”); People v. Stokes, 139 A.D.2d 785, 785 (2d Dept. 1988) (“However, this is not the case when the array is so voluminous that the sheer volume and scope of the procedure would create an undue burden upon the People.”). Courts in the past were clearly concerned about the practical difficulties of retaining (in precise order), storing and producing large collections of physical photographs. But whatever a “sheer volume” of photographs meant when those cases were decided, this Court should take account of the shift to computer-based photo arrays and advances in digital storage that have taken place in recent years. Indeed, for this reason, more recent cases have been less likely to allow the People to avoid or rebut the presumption. See, e.g., People v. Robinson, 13 123 A.D.3d 1062 (2d Dep’t 2014); People v. Dobbins, 112 A.D.3d 735, 736 (2d Dept. 2013). The People seem to be aware of these changes when they somewhat surprisingly state that “[i]t makes no sense that the police would be required to save and reproduce only some but not all the photos viewed.” Resp. Br. at 46. The People certainly have a point that printing or saving twelve photos presents no more burden than does printing or saving a few hundred photos in this day and age. But what “makes no sense” is that the People could ever avoid the presumption of suggestiveness today when it is so easy to save and reproduce an entire photo array, no matter how many photographs it contains. Id. The People’s discussion of “books or drawers” of photographs, including an 1881 case describing “rogue’s galleries,” further demonstrates that the “sheer volume” escape hatch from the presumption of suggestiveness is a vestige of a time when photo array identifications were made using physical photographs (or perhaps even daguerreotypes). More careful study of the neuroscience behind eyewitness identifications has also cast serious doubts on several aspects of the identification process, including the ability of eyewitnesses to make cross-racial identifications. 7 Due process in 2015 demands that, whenever the police fail to 7 See, e.g., Brigham, Bennett, Meissner & Mitchell, The Influence of Race on Eyewitness Memory. In The Handbook of Eyewitness Psychology: Memory for People 257, 257 (Lindsay et al. eds., 2007) (“The cross-race effect (CRE), also known as the own-race bias or other-race 14 digitally save every photograph in a computer-generated photo array used to identify a suspect, or whenever the People fail to produce a complete photo array at a suppression hearing, the presumption of suggestiveness cannot be rebutted merely by adverting to the “sheer volume” of photographs contained in such an array. At an absolute minimum, however, the presumption of suggestiveness for “lost” photo arrays is a dead letter if it can be rebutted in this specific case, given that Appellant was identified after a witness viewed only twelve photographs in a computer-based photo array, which photographs the police could have easily printed out on a mere two sheets of paper. Simply put, this state’s criminal courts are placed in an extremely awkward position when they must determine whether a photo array is unduly suggestive without the benefit of actually looking at the photographs that make up that array. This Court has held, in the context of a motion to suppress a line-up photograph for undue suggestiveness, that “[a] blind Judge should not preside at a hearing where, as in this case, because of an inability to see, the Judge is unable to evaluate a critical exhibit—a photograph of the contested lineup—without calling upon effect, refers to the consistent finding that adults are able to recognize individuals of their own race better than faces of another, less familiar race.”); Chan, Thomas, and Bulevich, Recalling a Witnessed Event Increases Eyewitness Suggestibility, Psychological Science 7 (2009) (“Contrary to the expectation that immediate recall would enhance retention of details of a witnessed event and thus reduce an eyewitness’s susceptibility to misinformation, we found that immediate recall actually intensifies the misinformation effect.”) (available at https://public.psych.iastate.edu/ckchan/ISU_Site_for_Chan/Publications_files/Chan%20et%20al %202009%20Psych%20Sci.pdf). 15 another person to describe it to him.” People v. Brown, 62 N.Y.2d 743, 744 (1984). This Court should now take the same principles that it applied in Brown and apply them to cases involving photo arrays. When the police fail to preserve a photo array after an identification or the People fail to produce a photo array at a suppression hearing, they force a hearing judge to make a suppression decision about the suggestiveness of that photo array blindly. Given that the People can now easily preserve and produce photo arrays of all sizes because of advances in technology, criminal defendants should be entitled to have their suppression motions decided by judges who are not kept conveniently in the dark by the police and/or the People. Notably, the People’s failure to preserve the photo array used to identify Appellant as the Assailant and produce it as part of its case against him also precludes meaningful appellate review of his appellate challenge to the array. In People v. Yavru-Sakuk, 98 N.Y.2d 56, 60 (2002), this Court set forth what it described as “a sound analytic framework for determining whether the loss of a trial exhibit precludes meaningful appellate review”: An appellate court must first determine whether the exhibit has ‘substantial importance’ to the issues in the case or is essentially collateral. If the information contained within the exhibit is needed to resolve the issues raised on appeal, the appellate court must then determine whether the record otherwise reflects that information. If the information in the missing exhibit can be gleaned from the record and there is no dispute as to its accuracy, the loss of the exhibit itself would not prevent proper appellate review. On the other hand, if 16 the information in the exhibit is important, but otherwise not contained in the record, the appellate court should order a reconstruction hearing unless the defendant establishes that such a hearing would be futile. Id. Here, the People have lost the photo array used to identify Appellant as the Assailant, the question of whether the array was unduly suggestive is the very subject of Appellant’s appeal and unquestionably of the utmost importance, the record does not establish that the photo array was not unduly suggestive and no attempt has been made by the People to reconstruct the array so that the first two pages are identical to the two pages viewed by Sylvie prior to identifying Appellant. In terms of the actual conduct of the photo array at issue in this appeal, the People point out that “there was no hearing evidence that Sylvie had ever provided a description of the [A]ssailant’s body type,” while acknowledging that Mazuroski’s hearing testimony established that both Ju Eun and Yoori had “described the [A]ssailant as ‘skinny.’” Resp. Br. at 25 (citing A-39). Importantly, however, there was no hearing testimony indicating that any aspect of Sylvie’s description of the Assailant contrasted with the descriptions given by Ju Eun and Yoori. As such, while Appellant agrees that an eyewitness should not be shown photos that are at odds with the description given by that specific eyewitness, where, as here, the other eyewitnesses’ descriptions are consistent with the identifying witness’s description but add additional characteristics, those 17 additional characteristics should be included in photo array searches. And if such characteristics are held out of a search, then the People should simply produce the resulting photo array so that a hearing court can decide for itself whether the array created by that incomplete search was unduly suggestive. While the People cite People v. Jackson, for the proposition that there can be no suggestiveness for the omission of a feature that is “never mentioned” by the identifying witness, Resp. Br. at 22, the only description of the suspect that the police had in that case was the description given by the lone identifying witness. See Jackson, 98 N.Y.2d at 558. It would, of course, be inappropriate for an investigating police officer to invent characteristics to include in a photo array search (or worse, to supply characteristics of a suspect already in custody) in a one-witness case. However, where multiple eyewitnesses have provided a composite description of a suspect based on observing the suspect at the same time and place, and that composite description does not contradict a more limited description given by a photo array witness, particularly unique or salient features of that composite description like weight and/or body type should be included in the search used to generate the array. This is particularly true where the omission of such features from a photo array search could cause someone included in the search results who happened to match those features to be singled out for identification in the manner described at Point I of Appellant’s Opening Brief. 18 The People also argue that “thinness” is “no[t] so distinctive [a trait] that it made [Appellant] stand out.” Resp. Br. at 22. But the People’s reliance on People v. Lee, 207 A.D.2d 953 (4th Dep’t 1994), for this point, which defies common sense, is entirely misplaced. The Fourth Department in that case had the benefit of viewing a photograph of the challenged line-up. See 207 A.D.2d at 954 (“The photograph of the lineup reveals five males similar in age, height and body type.”); see also McBride, 14 N.Y.3d at 448. Lee therefore stands for the unremarkable proposition that a court can easily decide for itself how distinctive a trait is in the context of a photo array so long as the People actually allow the court to view the photographs in the array, which is precisely what Appellant argues he was entitled to here. 8 Similarly, the several pages of the People’s brief dedicated to the absurd enterprise of speculating as to what the array “would have included photos of” and to arguing that there is “no reason to suspect that the photos Sylvie viewed primarily portrayed men who were obviously heavier” than Appellant only underscore the futility of attempting to determine the contents of a photo array that the suppression court cannot view for itself. Resp. Br. at 29-31. 9 8 The People’s argument that differences between persons in a lineup or photo array might be “sufficiently mitigated” by certain “measures” suffer the same defect. Resp. Br. at 22. Without the ability to view the photographs, there is no way for a court to judge the efficacy of such measures. 9 The People respond to Appellant’s argument that an individual’s body type can be gleaned from viewing an arrest photograph by arguing that arrest photographs are “not full body pictures.” Resp. Br. at 31 n.10. But no amount of semantic jousting can obscure the issue in this appeal, which is whether Appellant’s skinniness was visible in the photograph of him that 19 The People also analogize the photo array in this case to the process of a “street canvass,” where a witness is shown “pedestrians in a particular neighborhood” to see if the witness recognizes any of them. Resp. Br. at 33 (citing People v. Edmonson, 75 N.Y.2d 672, 677-78 (1990)). But the People omit from their description of Edmonson that “the victim gave the police a description of [the] defendant and told them where she thought he could be found,” specifically, “in the vicinity of 55 West 129th Street and Fifth Avenue between 131st and 132nd Streets.” Edmonson, 75 N.Y.2d at 675 (emphasis added). Thus, in Edmonson, it was no surprise that the suspect might be among the people found at those locations. By contrast, it was a stroke of truly terrible luck for Appellant to have been, in all likelihood, the first thin man to appear in an array of over 3,000 photographs of men arrested anywhere on the entire island of Manhattan over a four-year period. Indeed, under the People’s view of the law, once a suspect is arrested in Manhattan for any reason, he becomes susceptible to misidentification, including problematic cross-racial identifications like the one at issue in this case, for any future crimes committed anywhere in Manhattan without the benefit of appeared on page two of the array, and whether the other eleven photographs that appeared on the first two pages of the array depicted any other individuals who were visibly skinny in their respective arrest photographs. The unsatisfying quality of speculation as to what might have been depicted in these twelve photographs is a predicament entirely of the Peoples’ own making, which is precisely why a presumption of suggestiveness should follow from their failure to preserve and produce the array. 20 having the process by which he was identified meaningfully tested by any court, either at the suppression hearing or appellate level. For the reasons set forth above and in Appellant’s Opening Brief, the hearing court should have found that Sylvie’s photo array identification of Appellant as the Assailant was the product of undue suggestion. Moreover, Sylvie’s line-up identification of Appellant was also tainted by the unduly suggestive photo array, as she viewed the line-up only a few days after she viewed the array. (See A-16.) The lack of sufficient attenuation between the photo array and the line-up made it substantially likely that Sylvie’s line-up identification was the product of the unduly suggestive photo array identification rather than of her independent recollection of the incident. See People v. Malphurs, 111 A.D.2d 266, 268 (2d Dep’t 1985). It was therefore error to deny the suppression of Sylvie’s line-up identification of Appellant and to permit her in-court identification without first holding an independent source hearing. See People v. Burts, 78 N.Y.2d 20, 22-23 (1991). As Sylvie did not testify at the suppression hearing, this Court “may not make its own finding of an independent source” for her in-court identification “based upon trial testimony,” See People v. James, 67 N.Y.2d 662, 664 (1986), and must instead order a new trial, to be preceded by an independent source hearing, People v. Bady, 202 A.D.2d 440, 440 (2d Dep’t 1994). 21 B. The Line-Up Was Also Unduly Suggestive Because, Out Of The Six Line-Up Participants, Only Appellant Matched The Description Of The Assailant Provided By Witnesses. Appellant acknowledges that “there is no requirement that all the lineup participants be identical in appearance; rather, all that is required is that the participants sufficiently resemble one another so that [a] suspect is not made to stand out.” Resp. Br. at 47-48. In the line-up at issue here, however, only one of the six line-up participants – Appellant himself – resembled the description of the Assailant provided to police by witnesses of a black man, “approximately six foot to 6’2”, 30 to 40 years old” (A-14), and “skinny” (A-29-30). As such, contrary to the People’s protestations of propriety, the line-up at issue in this case is one in which Appellant, Detective Mazuroski’s sole suspect at the time of the line-up, “truly stood out like [a] sore thumb[.]” Resp. Br. at 53 n.15. As is evidenced by the chart below, and as is amply reflected in the photograph of the line-up, (i) Appellant was the only one of the six line-up participants who matched all four of the aforementioned aspects of the witnesses’ physical description of the Assailant; (ii) unlike Appellant, none of the five fillers even fell within the ten-year age range that the witnesses provided for the Assailant; and (iii) unlike Appellant, none of the five fillers could be characterized as “skinny”: 22 The Suspect Position #1 (Filler) Position #2 (Filler) Position #3 (Filler) Position #4 (Filler) Position #5 (Appellant) Position #6 (Filler) 30-40 y.o. 47 y.o. 45 y.o. 57 y.o. 22 y.o. 32 y.o. 44 y.o “skinny” 250 lbs. 195 lbs. 200 lbs. 180 lbs. 160 lbs. 210 lbs. 6’1 - 6’2” 6’1” 6’2” 5’11” 6’1” 6’1” - 6’2” 5’9” (See A-7-8, A-14, A-26, A-29-30, A-36-40.) The People’s attempts to minimize the important differences between Appellant and the other line-up participants fail. First, the People point to the fact that “four of the fillers, like [Appellant], had facial hair.” Resp. Br. at 48. But Appellant does not take issue with the facial hair (or lack thereof) of the other line-up participants. Rather, Appellant takes issue with the serious age and weight discrepancies between himself and the five fillers, which discrepancies resulted in Appellant being the only one of the six line-up participants who matched the age and weight description that witnesses had provided for the Assailant. Next, the People claim that “the fillers were also similar to [Appellant] in height and weight” because Appellant “was about 6’1” tall and weighed 160 pounds . . . 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.” Resp. Br. at 48. Again, however, Appellant takes no issue with the heights of the fillers – he takes issue with their ages and their weights, which diverge so much from the witnesses’ description of the Assailant (which description Appellant alone uniquely matched) that they rendered the line-up unduly suggestive. Notably, while the People list the heights 23 of each of the five fillers, they only describe their weights as a “range” from 180 pounds to 250 pounds. See id. Clearly, the fillers who weighed 195 pounds, 200 pounds, 210 pounds and 250 pounds could not be characterized as “skinny.” As to the one filler who was arguably “skinny” at 180 pounds, he happened to be only 22 years old – far outside the age range of 30 to 40 years old that witnesses provided for the Assailant. The People also claim that these height and weight differences were “minimiz[ed]” by the fact that “the lineup participants were all seated during the procedure.” Id. at 48 (citing, inter alia, People v. Maddox, 238 A.D.2d 280 (1st Dep’t 1997)). Putting aside the height differences, with which Appellant does not take issue, the line-up photograph itself makes clear that the significant weight differences between Appellant and the other fillers were readily apparent even as they remained seated. (See A-7-8.) Indeed, the People admitted as much with regard to two of the five fillers in their briefing before the Appellate Division, where they stated that, based on the line-up photograph, “the fillers in chairs one and six appear somewhat more heavyset than [Appellant].” App. Br. at 65 (quoting People’s Appellate Division brief). They repeat the same admission in their briefing before this Court. See Resp Br. at 51. Even beyond that, however, nothing in Mazuroski’s hearing testimony demonstrated that the line-up participants were not instructed to stand up and face 24 a certain direction for the benefit of the viewing witnesses at some point during the line-up, as is a common practice in line-ups. Indeed, the People’s Brief cites trial testimony making clear that, immediately prior to identifying Appellant as the Assailant at the line-up, Yoori “asked the police to have each man stand up in profile, which they did.” Resp. Br. at 16-17 (citing A-315-16). Nothing in Mazuroski’s hearing testimony foreclosed the possibility that Sylvie was also given the benefit of viewing the line-up participants standing up. Naturally, a standing profile view of the line-up participants would have made the massive weight differences between Appellant and the fillers even more readily apparent than a frontal view of all of them while they were either sitting down or standing up. The People next argue that “[t]he fact that [Appellant] was wearing baggy clothing further rendered any differences in weight negligible.” Resp. Br. at 48. To the contrary, however, the bagginess of Appellant’s clothes actually accentuated his skinniness, making it look as if he was so skinny that his clothes were far too big for him, as can be readily seen in the line-up photograph. (See A-7-8.) The People are therefore incorrect in asserting that the police, having hastily selected off of the street a group of fillers none of whom matched the age or weight ranges for the suspect, “did not need also to place the participants behind 25 cardboard screens” or take other measures to ensure that the line-up was not unduly suggestive. Resp. Br. at 48. The People also point to the fact that, “[s]ince everyone’s hair was different, the officers made them all wear hats” to conceal those differences in hairstyles. See Resp. Br. at 48-49. Appellant, of course, does not argue that the varying hairstyles of the line-up participants rendered the line-up unduly suggestive. Rather, he argues that the differences between Appellant’s age and weight and the ages and weights of the fillers were such that, among all the line-up participants, only Appellant matched the witnesses’ description of the Assailant’s age and weight. The fact that hats were used to obscure visible differences in hairstyles in the same way that cardboard screens should have been used to obscure visible differences in weights is therefore of no moment in this appeal. The People also argue that the wearing of hats by the line-up participants “helped minimize[] the age difference between [Appellant], who was 32 years old, and the fillers, whose ages ranged from 22 to 57,” because the hats “obscured hairlines and wrinkles,” which are “features often associated with age.” Resp. Br. at 49. As the Court can plainly see from the line-up photograph, however, the hats worn by Appellant and the fillers were all of the adjustable variety and were turned backwards, such that hairlines and forehead wrinkles were still visible through the window above the adjustable strap at the back of the hat. (See A-7-8.) In any 26 event, even had the line-up participants’ foreheads and hairlines been completely obscured, other plainly visible details would still make clear that the fillers in chairs one, two, three and six were all significantly older than Appellant (and the age range for the Assailant), while the filler in chair number four – the only filler who weighed within 35 pounds of Appellant and could arguably be characterized as “skinny” – was much younger than the age range for the Assailant. See id. The People claim that Appellant “unfairly characterizes [their] 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 [Appellant.]’” Resp. Br. at 50. The People are of course correct that they argued in the Appellate Division, as they do now before this Court, that the visible differences that they have acknowledged and admitted did not render the lineup suggestive, and Appellant has never suggested that the People’s position was anything to the contrary. See Resp. Br. at 50. Clearly, it is the People’s position that the line-up was not suggestive; if that was not the People’s position, there would be no appeal before this Court. It is Appellant’s position, however, that the People’s admissions before the Appellate Division – which they reaffirm in their brief before this Court – lead inexorably to the conclusion that the line-up was unduly suggestive. 27 Appellant reaches this conclusion because (i) the People acknowledge that the relevant inquiry is whether there appeared to be a marked age and weight difference between Appellant and the fillers (see Resp. Br. at 49), and (ii) the People also acknowledge both that “the filler sitting in chair number three . . . could be considered visibly older and heavier than [Appellant]” (Resp. Br. at 50 (emphasis added)), and “the fillers in chairs one and six appear somewhat more heavyset than [Appellant]” (Resp. Br. at 51 (emphasis added)). While the People now try to back away from these admissions by stating that the fillers in chairs one and six “look similar to [Appellant] . . . in all other ways,” their admission as to the weight of these two fillers, taken in conjunction with their admission as to the age and weight of the filler sitting in chair three, constitutes an admission that three of the five fillers visibly diverged from Appellant on two key aspects of the witnesses’ description of the Assailant, both of which Appellant, to his great misfortune, matched. Id. Thus, the People’s citation to cases in which “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,” are all inapposite. Id. (emphasis added). And as to the fillers seated in chairs two and four, whose age and weight the People have not yet acknowledged as differing visibly from both the age and weight of Appellant and the description of the 28 Assailant’s age and weight, Appellant submits that the line-up photograph clearly shows that (i) the filler seated in chair number two was more than a decade older than him, fell well outside the ten-year age range that witnesses gave for the Assailant and was not “skinny”; and (ii) the filler seated in chair number four was a full decade younger than Appellant, fell well outside the ten-year age range that witnesses gave for the Assailant and was not “skinny.” (See A-7-8.) Importantly, the People’s claim that the fillers in chairs one and six “look similar to [Appellant] . . . in all other ways” overlooks the argument set forth at pages 54-55 of Appellant’s Opening Brief. To wit, it is precisely the fact that Appellant and the fillers looked similar in certain ways – for example, their gender, race and height, as well as, in certain instances pointed out by the People, their “complexions and facial hair” (Resp. Br. at 51) – but then visibly diverged as to age and weight, two key components of the witnesses’ description of the Assailant, that made Appellant stand out so significantly. Per the foregoing, it is clear that Appellant’s argument that the line-up was unduly suggestive is not based merely on “discrepancies . . . between the fillers’ raw measurements” as to age and weight and the “raw measurements” of his own age and weight, as the People would have this Court believe. Resp. Br. at 51. Rather, Appellant’s argument is based on the readily visible divergence between the appearance of his age and weight at the line-up (which matched the witnesses’ 29 description of the Assailant) and the appearance of the five fillers’ ages and weights at the same line-up (which did not match the witnesses’ description of the Assailant). Appellant’s position is that this divergence, which is readily visible in the line-up photograph, is fully reflective of the discrepancies between his own raw age and weight measurements and those of the fillers, which are all set forth in the chart above. Appellant further argues that the People have admitted as much with regard to three of the five line-up fillers and that these admissions, taken alone, constitute an admission of undue prejudice. Plainly, then, the People are incorrect in concluding, directly contrary to their own admissions, that “there was nothing about [Appellant’s] appearance that distinguished him from similar-looking fillers in the lineup.” Id. at 53. The differences between Appellant and all five of the fillers were not, as the People now claim, “unremarkable.” Id. Rather, they went straight to the heart of the witnesses’ description of the Assailant. As such, this is a case where Appellant “truly stood out like [a] sore thumb[,]” and for that reason, Appellant was deprived of due process by the hearing court’s failure to order the suppression at trial of the line-up identifications and by the absence of an independent source hearing for the line-up witnesses’ subsequent in-court identifications. Id. at 53 n.15. Accordingly, this Court should reverse Appellant’s conviction, suppress Sylvie’s line-up identification of Appellant and order a new trial, to be preceded by 30 an independent source hearing to determine whether there is an untainted independent basis for Sylvie and Yoori’s in-court identifications of Appellant. See Burts, 78 N.Y.2d at 23-25; People v. Adams, 53 N.Y.2d 241, 251 (1981). POINT II APPELLANT WAS DEPRIVED OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL WHERE, OVER DEFENSE COUNSEL’S OBJECTIONS, THE PEOPLE’S PROOF WAS IMPROPERLY BOLSTERED AND THE JURY WAS ENCOURAGED TO SPECULATE ON THE NATURE OF THE EVIDENCE AGAINST APPELLANT BY THE ELICITATION OF TESTIMONY PERTAINING TO THE UNSPECIFIED “INVESTIGATION” THAT LED TO APPELLANT’S IDENTIFICATION AND SUBSEQUENT ARREST. (Responding to Point II of Respondent’s Brief.) The People open the “Analysis” section of Point II of their brief by claiming that Appellant’s challenge to the People’s multiple pointed summation references to Detective Mazuroski’s so-called “investigative step” testimony – as distinct from Appellant’s challenge to the elicitation of that testimony in the first instance – is unpreserved because Appellant “did not object to any of the summation remarks that he now challenges.” Resp. Br. at 62. In support, the People point to that fact that, “after the court’s ruling permitting [Mazuroski’s ‘investigative step’] testimony” over defense counsel’s repeated objections, Appellant did not then persist in arguing that, while testimony about Mazuroski’s so-called “investigation” had been deemed permissible, the People should nevertheless have been “barred 31 from mentioning the investigation on summation.” Id. (citing People v. Romero, 7 N.Y.3d 911, 912 (2006)) (emphasis added). The People also point to the fact that Appellant did not repeat his earlier overruled objections when the prosecutor referenced Mazuroski’s testimony about his so-called “investigation” during summation. See id. (citing Romero, 7 N.Y.3d at 912). The People cannot argue, however, that Appellant’s challenge to the propriety of Mazuroski’s “investigative step” testimony itself, as opposed to the People’s summation references to that testimony, was not preserved, since defense counsel repeatedly and specifically objected to the elicitation of that testimony prior to Mazuroski taking the witness stand, which objections the trial court unequivocally overruled. Specifically, defense counsel argued that permitting the People to ask Mazuroski whether his “investigation [led him] to a particular person” would “mislead the jury and make them draw factually false inferences” or speculate as to whether Appellant was “arrested on another charge that then brought him [onto] the Detective’s radar” or whether “someone with knowledge of the incident [tipped] off the detective which led them to” Appellant. (A-82-83.) Defense counsel further argued that this testimony could “bolster the police officer’s credibility” and unduly prejudice Appellant, leading to a potential “confrontation clause issue.” (A-82-83.) The issue was raised again the next day the parties were 32 in court, with the People arguing that they should be entitled to elicit testimony from Mazuroski pertaining to the “investigation” that led him to Appellant and defense counsel again noting his objection and stating that he had already raised his concerns and made his position clear. (A-217.) In the end, the trial court overruled defense counsel’s specific and detailed objections to the introduction of the challenged testimony and explicitly permitted the People to elicit it. (A-217-A- 219.) On summation, the People made the following references to this testimony: The People stated that Mazuroski received some unspecified information from unspecified witnesses and, “upon further investigation 9 days later, he had one suspect. One. Todd Holley” (A-492 (emphasis added)); The People told the jury that “the only evidence that you have to consider is that his investigation led him to Mr. Holley. And after being led to Mr. Holley, based on everything, all of his information with his investigation, he then set up a lineup. He didn’t go out and just grab [a] man off the street that he thought looked like what their description was. He went after his investigation . . . and found Mr. Holley. And brought him back to the station.” (A-492- 93 (emphasis added)); The People stated that the witnesses’ description of the Assailant “aided the detective in his investigation which led to Mr. Holley” (A-502); and The People argued that “[t]here is absolutely no evidence here that there was any problem with” Mazuroski’s investigation (A-493). These calculated summation arguments made it seem as if Mazuroski had conducted upwards of one week of extensive investigation, rather than 33 merely call Sylvie into his office to spend a few minutes looking at twelve shoddily assembled photographs on his computer. These multiple, pointed summation references to Mazuroski’s so-called “investigation” do not exist in a vacuum. Rather, these summation statements make clear the extent of prejudice that arose from the trial court’s error in permitting Mauroski’s “investigative step” testimony in the first place, and Appellant’s challenge to that testimony is inarguably preserved. These summation arguments show that Mazuroski’s testimony about his so-called “investigation” was a key component of the People’s case, and that the prejudice that arose from that testimony extended through to the People’s summation, and was thus one of the last things that the jury heard about before they retired to deliberate. The content of the People’s summation therefore dramatically exacerbated the trial court’s error in permitting Mazuroski’s “investigative step” testimony, depriving Appellant of his due process right to a fair trial. Moreover, neither Romero, nor People v. Rios, 160 A.D.2d 372, 373 (1990 ), which the People cited before the Appellate Division for the same proposition for which they now cite Romero (see Resp. App. Div. Br. at 38-39), nor any other case cited by the People or known to Appellant supports the proposition that objections to testimony such as the ones made by defense counsel on multiple occasions before the trial court’s final ruling permitting the elicitation of Mazuroski’s 34 “investigative step” testimony do not also apply to summation discussions of that same testimony. Plainly, defense counsel’s multiple objections to this line of testimony and the trial court’s clear ruling permitting such testimony applied equally to the discussion of such testimony in the summation context. For defense counsel to have persisted in objecting to this line of testimony days after the testimony had already been elicited over his strenuous objections, as the People now claim was necessary for preservation purposes, would have made no sense whatsoever given that the testimony was already in evidence pursuant to the court’s prior ruling, and would have been tantamount to ignoring or defying that prior ruling. Indeed, as this Court has held, once a court makes an “unequivocal[]” ruling such that “further objection . . . would [be] futile[,] . . . [t]he law does not require litigants to make repeated pointless protests after the court has made its position clear.” People v. Mezon, 80 N.Y.2d 155, 160-61 (1992). As such, further objections during the People’s summation were not required to preserve the issue for appellate review. Moving beyond the People’s preservation argument, Appellant’s challenge to Mazuroski’s “investigative step” testimony and the People’s summation references to it concern the trial court’s failure to ensure that Appellant was protected from the jury making inferences regarding additional identification evidence. The People initially requested that Mazuroski be permitted to testify 35 about either the photo array, specifically, or his “investigation,” generally, in order to avoid “leav[ing] the jury with a misimpression that [Mazuroski] walked out on the street” picked up “every 6 to 6-foot-two black man with baggy clothing, and put them in a lineup.” (A-217.) Appellant, for his part, wanted the photo array evidence excluded because he quite rightly did not want the jury to know that he had “previously had contacts with the police department” and thus assume that he had a propensity for committing crimes, as this would constitute a violation of his due process right to a fair trial. (A-73-74.) Crucially, however, Appellant also did not want some vague reference to a police “investigation” to lead the jury to speculate as to what that investigation entailed and infer (i) that the police had performed “good, solid police work”; (ii) that he had been arrested on another charge that put him on “the Detective’s radar”; (iii) that “someone with knowledge of the incident” had told the police that he was the culprit; or (iv) that a photo array had been used to identify him, given that “[i]t’s not uncommon for the situation to occur in a criminal trial where photos lead to a lineup.” (A-82-83.) If the jury was led to speculate and make any of the aforementioned inferences, Appellant’s due process right to a fair trial would also be violated, just as it would by the introduction of photo array evidence. While the People now attempt to get mileage out of the fact that the trial court rejected their clearly improper request to elicit testimony that Mazuroski 36 “apprehended [Appellant] ‘based on photo arrays observed by one of the witnesses’” in arguing that “the court specifically tailored its evidentiary ruling to protect [Appellant] and avoid improper bolstering,” Resp. Br. at 70 (quoting A-71- 71), the fact that the court rejected one unduly prejudicial course of action (permitting photo array testimony) in favor of another unduly prejudicial course of action (permitting Mazuroski’s “investigative step” testimony”) does not somehow render the latter course of action non-prejudicial. The solution that would have avoided prejudice to Appellant and addressed the dubious concerns voiced by the People was the obvious one suggested by defense counsel: Simply instructing the jury “not to speculate as to how or why [Appellant] was placed in the lineup.” (A-83.) This suggestion would have avoided giving the People the inappropriate and undeserved boon of the inference that Appellant had been initially identified as the Assailant by some means that the jury was not being told about and that would tend to indicate his guilt, which inference trampled on Appellant’s due process rights. The People acknowledge the inherent Confrontation Clause issue presented by the course of action chosen by the trial court when they concede that the jury might have “believed from the direct examination [of Mazuroski] that the ‘further investigation’ involved . . . non-testifying witnesses” other than Sylvie. Resp. Br. at 65. The People state that Appellant “could have avoided this [problem] if he 37 had consented to some reference to the photo array” – i.e., if he had consented to the introduction of inadmissible propensity evidence – “or had made a counter- proposal that involved specifying that the further investigation involved only witnesses from whom the jury would hear” – i.e., if he had consented to the introduction of inadmissible hearsay evidence. Id. The People thus suggest that it was Appellant who “create[d]” this problem by refusing to consent to the prosecutorial use of inadmissible evidence. Id. at 65-66. Clearly, however, defense counsel should not have been forced in the first place to choose between two alternatives that would have each entailed consenting to the introduction of inadmissible evidence and that would have each violated his constitutional rights. The People are also incorrect in arguing that “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 identification” and that testimony, like Mazuroski’s, which “inferentially references a witness’s out-of-court identification, . . . 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.’” Resp. Br. at 68. As courts have often found, inferential hearsay like Mazuroski’s testimony about his so-called “investigation” is clearly inadmissible at trial when it implies that the 38 “investigation” involved an out-of-court identification, even where the “investigation” is described in vague terms. 10 Mazuroski’s testimony regarding some unspecified additional “investigation” to which the jury was not privy and which caused him to zero-in on Appellant certainly implied that an out-of-court identification by some person or persons unknown to the jury caused him to focus on Appellant. Additionally, even if Mazuroski’s own direct examination testimony about his so-called “investigation” could be considered “brief and generalized,” it is clear that, for all those reasons discussed above, the People’s summation references to this testimony were not made merely “[i]n passing,” as the People now claim. Resp. Br. at 61. The People also ignore crucial differences between the cases they cite and the facts of this case. For example, the People cite Crawford v. Washington, 541 U.S. 36 (2004) for the proposition that “when [a] declarant appears for cross- 10 See, e.g., People v. Holt, 67 N.Y.2d 819, 821 (1986) (“It was also error to permit a police officer to testify, over objection, that he had arrested the defendant after conferring with the eyewitness.”); People v. Tufano, 69 A.D.2d 826 (2d Dep’t 1979) (“Walsh was permitted to testify that he had had a ‘conversation’ with Terenzi and that defendant was arrested shortly thereafter. Terenzi was not called as a witness. It was error for the trial court to permit Walsh to testify concerning his conversation with Terenzi. Any statements made by Terenzi in the course of the conversation were, of course, hearsay, and therefore inadmissible. While the precise contents of the conversation were not revealed on direct examination, it was clearly the Assistant District Attorney’s intention to create, in the jurors’ minds, the impression that Terenzi had implicated Tufano. This was obviously improper.”); Mason v. Scully, 16 F.3d 38, 43 (2d Cir. 1994) (“The testimony of Fuhr . . . violated the rules against hearsay and violated Mason’s right of confrontation. The fact that the content of Rivera’s statement to Fuhr was not revealed in detail was immaterial, for the plain implication that the prosecutor sought to elicit, and emphasized in his summation, was that the conversation with Rivera led the police to focus on Mason.”); United States v. Reyes, 18 F.3d 65, 67-69 (2d Cir. 1994). 39 examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” Resp. Br. at 64 (quoting Crawford, 541 U.S. at 59). But the issue here is not that Appellant was unable to cross-examine Mazuroski about his testimony about his so-called “investigation,” or that he was unable to cross-examine Sylvie about her role in it. Rather, the issue is that the vague manner in which the People elicited such testimony essentially conjured up in the minds of the jury non-existent witnesses whom Appellant was necessarily unable to confront. The carefully cultivated misimpression that some unspecified witnesses provided Mazuroski with some unspecified information as part of his “investigation,” which information led him to focus his investigation on Appellant, clearly implicates the same concerns present in Crawford. Moreover, Appellant takes issue with the fact that he was unable to confront Mazuroski’s testimony about his pre-lineup “investigation” because doing so would have required him to reveal to the jury that the “investigation” consisted entirely of the photo array discussed above at Point I. It is clear beyond cavil that, under New York state law, testimony regarding photo arrays is inherently prejudicial, as the trial court acknowledged by stating that “to go into photo arrays, photographs of the defendant in police custody would be unduly prejudicial.” (A-75; see also A-218 (“Certainly we don’t want any testimony whatsoever about a photo array in this case, it would be far too prejudicial.”). As such, the trial 40 court’s ruling regarding Mazuroski’s “investigative step” testimony presented Appellant with a classic Hobson’s choice regarding his cross-examinations of Mazuroski and Sylvie: He could (i) opt not to address the unduly prejudicial “investigate step” testimony or somehow attempt to challenge it without addressing exactly what that “investigative step” actually was, which would necessarily be highly ineffective; or he could (ii) counter the “investigative step” testimony by cross-examining Mazuroski and/or Sylvie about the photo array, which would itself be unduly prejudicial and which would also open the door to the People eliciting further unduly prejudicial testimony regarding the photo array. (A-75 (“if you open the door . . . [t]he door is open”).) Clearly, the latter of these two choices was no choice at all. Thus, by unnecessarily presenting Appellant with a choice between only these two options, each of which would result in undue prejudice, the trial court essentially handcuffed Appellant into selecting the better of the two options, i.e., the one that would not result in the jury becoming aware of the fact that he was identified via a photo array and had therefore had previous contacts with the police. Unfortunately for Appellant, however, even the better of these two options resulted in undue prejudice to his defense by causing the jury to speculate as to what the “investigation” was that first ensnared him and infer facts tending to indicate his guilt of the charged crimes. 41 Lastly, even if the Court finds that the line-up testimony and subsequent in-court identifications challenged at Point I of Appellant’s Opening Brief were properly admitted, the identification evidence offered at trial was still very weak given the many problems with the line-up discussed at Point I and the fact that the identification evidence is wholly uncorroborated by any other testimonial or physical evidence, as discussed at pages 69-70 and 82 of Appellant’s Opening Brief. Clearly then, the instant case is precisely the kind of case where any improper bolstering of identification evidence would have “created a significant likelihood of conviction that otherwise would have been absent.” Resp. Br. at 75. The trial court’s error therefore could not have been harmless, particularly given the People’s calculated summation exploitation of Mazuroski’s testimony about his so-called “investigation.” 11 Additionally, the People’s arguments regarding the fact that “the jurors, during deliberation, principally focused on the accuracy and reliability of the lineup identifications,” ignores the fact that the jury was weighing identification- related issues in light of the fact that an unspecified “investigation” had landed 11 See, e.g., People v. Johnson, 80 N.Y.2d 798, 799-800 (1992) (error not harmless where “trial prosecutor pointedly relied on the erroneously admitted lineup evidence in the People’s opening statement and summation, thus exacerbating the prejudicial impact”); People v. Fediuk, 66 N.Y.2d 881, 884 (1985) (error in admitting privileged communication not harmless in part because communication “was relied upon . . . by the prosecutor on summation”); People v. Marinez, 121 A.D.3d 423, 424 (1st Dep’t 2014) (error in failing to suppress photographs taken from defendant’s cell phone not harmless in part because the prosecutor “emphatically relied on the photos in summation”).