The defendants are charged with Assault in the First Degree, et al. A Dunaway/Wade/Huntley ^[FN1] hearing was conducted before this court on July 13, 2009. The People [*2]called only one witness at the hearing: Detective James Truano. I found his testimony to be credible, reliable and worthy of belief.

On August 16, 2007, while working out of the 88th Precinct, Detective James Truano responded to an assault in progress at 22 Quincy Street, in Brooklyn. Upon his arrival, Detective Truano learned that the victim, Darrell Lee, had already been transported by ambulance to Kings County Hospital. While at the scene of the crime, Detective Truano spoke with an eyewitness, Daniel Sherman, who provided a general description of the alleged perpetrators. More importantly, Mr. Sherman gave a detailed description of the car that the assailants drove off in, including the vehicle's license plate number. Detective Truano ran the plate number through his police issued computer and obtained the name and address of the vehicle's registered owner.

As a result of this computer search, Detective Truano issued an I-card,^[FN2] naming William Stokley as a person of interest. The card noted that although there was no probable cause to arrest Mr. Stokley, he was wanted for questioning. This information was then transmitted to all local police precincts.^[FN3]

On August 18, 2007, Detective Truano spoke to the victim, Darrell Lee, at Kings County Hospital. Mr. Lee gave Detective Truano a physical description of the man who stabbed him: male black, twenty-five to thirty years old, thin face and build, light to medium complexion, about five-foot nine inches tall. Mr. Lee described his attacker's accomplice as a male black, thin to medium build, approximately five-foot ten inches tall, with a dark complexion.

Detective Truano then showed Mr. Lee a photo array which contained the defendant Stokley in position number six.^[FN4] Mr. Lee identified the defendant's photograph as the person who stabbed him two days earlier. Detective Truano then issued a second I-card, indicating the police now had probable cause to arrest Mr. Stokley for the assault upon Mr. Lee.^[FN5]

On August 21, 2007, at 6 A.M., the Queens auto larceny squad stopped the defendant Stokley's car, based upon the I-card issued by Detective Truano.^[FN6] The defendant Stokley was [*3]brought to the 88th Precinct and was placed in an investigatory lineup. Four fillers were obtained from the Bedford Avenue Mens Shelter. The defendant, and each of the fillers, was given a baseball cap to wear during the lineup. The defendant was given the option and chose to sit in position number three. Darrell Lee was brought to the precinct by Detective Truano to view the lineup.^[FN7] The defendant and the fillers were kept separate and apart from Mr. Lee prior to the lineup. Mr. Lee was brought into the viewing room and immediately identified the defendant as the person who stabbed him in front of 22 Quincy Street. Mr. Stokley was formally placed under arrest.

On August 26, 2007, Aubrey Nicholson went to the 88th Police Precinct and filed an assault complaint against Darrell Lee, as the result of the incident which occurred on August 16, 2007. Shortly thereafter, Detective Truano became aware of the complaint filed by Mr. Nicholson and linked Nicholson as the unapprehended individual involved in the assault upon Mr. Lee.

On September 11, 2007, at approximately 9:00 A.M., Detective Truano arrived at the residence of defendant Nicholson. The defendant was cooperative but was immediately placed under arrest and brought to the 88th Precinct. At the precinct, Detective Truano read the defendant Nicholson his Miranda ^[FN8] warnings from a pre-printed form.^[FN9] The defendant orally waived his rights and signed the bottom of the form. He then gave a statement explaining his version of what happened outside of 22 Quincy Street on August 16, 2007.^[FN10]

Mr. Lee was, once again, brought to the precinct to view a lineup. Four fillers were obtained from the mens shelter on Bedford Avenue. The fillers arrived while the defendant waited in the holding cell. Each lineup participant was given a white t-shirt and a baseball cap to wear. The defendant Nicholson chose to sit in position number one. Mr. Lee was brought into the viewing room to examine the lineup. He selected the defendant Nicholson as one of the men involved in the stabbing incident on August 16, 2007.^[FN11]

The defendants raised three issues at the conclusion of the hearing: whether the police had probable cause to arrest the defendants; whether the photographic array and station house lineups were unnecessarily suggestive; and whether defendant Nicholson's statement to Detective Truano was taken in violation of his Miranda rights.^[FN12]

When a defendant seeking suppression of physical evidence has put forward sufficient factual allegations to warrant a pre-trial hearing, such defendant "bears the ultimate burden of proving that evidence should not be used against him" (People v Berrios, 28 NY2d 361, 367). Although a defendant carries the burden of proof at a suppression hearing, "the People are nevertheless put to the burden of going forward to show the legality of the police conduct in the first instance " (Berrios, 28 NY2d at 367, citing People v Malinsky, 15 NY2d 86, 91, n 2; People v Whitehurst, 25 NY2d 389, 391)(emphasis in original).

"It is axiomatic that an officer may only seize and take into custody an individual when the officer has probable cause to believe that a person has committed a crime" (People v Diaz, 131 AD2d 690, 694, lv denied 70 NY2d 710; citing People v DeBour, 40 NY2d 210; People v Cantor, 36 NY2d106).

While probable cause does not require the same quantum of proof necessary to warrant a conviction, it does require the existence of facts and circumstances which, viewed together, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense has been or is being committed ... It must appear to be more probable than not that an offense had occurred or was occurring and that the person arrested was the perpetrator thereof.

(People v White, 117 AD2d 127, 131, lv denied 68 NY2d 818)(internal citations omitted)(see also People v Rivera, 166 AD2d 678,678-679, lv denied 77 NY2d 843; People v Dawkins, 163 AD2d 322, 324).

"As the very name suggests, probable cause depends upon probabilities, not certainty" (People v Sanders, 79 AD2d 688, 690). Probable cause, also referred to as "reasonable cause", "is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances" (Maryland v Pringle, 540 US 366, 371).

While probable cause does not require the same quantum of proof that is necessary to warrant a conviction after trial (People v Bigelow, 66 NY2d 417, 423) "it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice" (People v Carrasquillo, 54 NY2d 248, 254). "Probable cause is a synthesis of all the information known to a police officer, including what he or she has seen, learned and heard as a trained officer" (People v Belo, 240 AD2d 964, 965, lv denied 91 NY2d 869).

The presence or absence of certain factors will affect a court's probable cause determination. Normally, any one factor, standing alone, will be insufficient to establish probable cause, but when [*4]combined with other facts may prove sufficient to supply the required amount of evidence.

In this case, it was undisputed that Detective Truano had probable cause to arrest the defendant Stokley only after Mr. Stokley was identified in a photo array. Therefore, at the time of the initial I-card, the police did not have probable cause. However, by the time the Queens auto larceny squad apprehended Mr. Stokley, probable cause was imputed to them, via the "fellow officer" rule, because Detective Truano obtained probable cause as a result of the photographic identification made by Darrell Lee (People v Lypka, 36 NY2d 210, 213-214).

"The fellow-officer' rule comes into play whenever a police officer takes official action, based not upon personal observations or information received directly from a civilian source, but upon information provided by another police officer or agency. The rule permits the officer to rely on the information and to act on it even though she may have no knowledge of its source or the circumstances under which it was first received by the police" (Fisher, Outside Counsel, Parris' Changes Fellow-Officer Rule, NYLJ, July 18, 1994, at 1, col 1; see also Whitely v Warden, 401 US 560, 568; People v Ketcham, 93 NY2d 416, 419; Lypka, 36 NY2d at 213).

"The rule is both reasonable and necessary. In an era when large urban police forces are called on to react quickly to fast-breaking events, the law could not possibly demand that police action be taken only by police officers who have personal knowledge of the relevant facts or who have personally interviewed those who do" (Fisher, Outside Counsel, Parris' Changes Fellow-Officer Rule, NYLJ, July 18, 1994, at 1, col 1, supra).

By the same token, however, the rule cannot be allowed to infringe upon the constitutionally guaranteed right of citizens to challenge the lawfulness of police conduct which affects their liberty or invades their reasonable expectation of privacy (id.).

When first addressing the "fellow-officer" rule, our Court of Appeals wrote:

A police officer is entitled to act on the strength of a radio bulletin or a telephone or teletype alert from a fellow officeror department and to assume its reliability....

It follows that where a bulletin or alert, prima facie, furnishes probable cause, a reasonable search is permissible. In such circumstances the sender's knowledge is imputed to the receiver and when the receiver acts, he presumptively possesses the requisite probable cause to search.

...................

But where on a motion to suppress, a challenge to the receiver's action is made, the presumption of probable cause that originally cloaked that action disappears from the case ... At that point, bare reliance on an unsubstantiated hearsay communication from the instigating officer or department will not suffice for probable cause. Ultimately, to sustain their burden at the suppression hearing ... , the People must demonstrate that the sender or sending agency itself possessed the requisite probable cause to act

(Lypka, 36 NY2d at 213-214 [citations and footnote omitted]).

In this case, the People met their burden at the suppression hearing by producing the sending officer, Detective Truano, who personally possessed the requisite probable cause. Under these circumstances, whether the Queens auto squad officers who arrested the defendant Stokley did so in response to the initial I-card, that did not authorize an arrest based upon probable cause, or upon the second I-card is irrelevant, since prior to the apprehension of defendant Stokley, Detective Truano had probable cause to arrest Mr. Stokley and his fellow officers were entitled to rely on [*5]Detective Truano's personal knowledge.

The defendant Nicholson was properly arrested after the police linked his August 26, 2007, complaint with the assault upon Mr. Lee ten days earlier.

Even if either defendant's arrest was executed without sufficient constitutional authority, the taint, if any, from that arrest was sufficiently attenuated prior to that defendant's participation in a police arraigned lineup (Brown v Illinois, 422 US 590; Wong Sun v United States, 371 US 471; People v Harris, 77 NY2d 434; People v Martinez, 37 NY2d 662) since the linkage between the police misconduct and the challenged evidence was interrupted by intervening events and became overly extended and weakened by the passage of time (People v Stith, 69 NY2d 313, 317-318).

Even if the arrest of the defendant Stokley was not based upon probable cause because of a government failure to produce, at the hearing, the order of transmission for the second I-card, and even if the lineup wasn't sufficiently attenuated from the unlawful arrest, the defendant would not be entitled to the exclusion of otherwise reliable identification evidence (Herring v U.S., 555 US—, 129 S Ct 695 [when police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systematic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply]).^[FN13] "[T]he criminal should not go free because the constable has blundered'" (Herring, 129 S Ct at 704, quoting People v Defore, 242 NY 13, 21).

It is axiomatic that the purpose of a Wade hearing is to determine whether a police conducted pre-trial identification procedure was unduly and impermissibly suggestive so as to deny the defendant due process (Stovall v Denno, 388 US 293; People v Adams, 53 NY2d 241). In this case, the defendant Stokley challenges the photographic array ^[FN14] and lineup that was conducted.^[FN15] Defendant Nicholson challenges the lineup that he participated in.^[FN16]

"A photo array is unduly suggestive where some characteristic of one picture draws the viewer's attention to it, indicating that the police have made a particular selection (People v Smiley, 49 AD3d 1299, lv denied 10 NY3d 870; People v Boria, 279 AD2d 585, 586, lv denied 96 NY2d 781; People v Robert, 184 AD2d 597, 598, lv denied 80 NY2d 929, 933; People v Cherry, 150 AD2d 475; People v Dubois, 140 AD2d 619,622, lv denied 72 NY2d 911). [*6]

This court has examined the computer generated photo array introduced into evidence as People's exhibit one. The defendant's appearance and pose does not differ in any apparent manner from those of the other men in the photographs. All of the men, including the defendant, appear to be close in age and have similar hairstyles, skin tones and facial characteristics (People v Howard, 50AD3d 823, lv denied 10 NY3d 935; Robert, 184 AD2d at 598). The various men depicted in the photo array were sufficiently similar in appearance so that the procedure was not rendered unduly suggestive (Howard, 50 AD3d at 823; People v Ragunauth, 24 AD3d 472, 472, lv denied 6 NY3d 779; People v Malphurs, 111 AD2d 266, 267-268, lv denied 66 NY2d 920). "The composition and presentation of the photo array were such that there was no reasonable possibility that the attention of the witness would be drawn to defendant as the suspect chosen by the police" (People v Sylvester, 32 AD3d 1226, 1227, lv denied 7 NY3d 929; People v Dean, 28 AD3d 1118, lv denied 7 NY3d 787; see generally People v Chipp, 75 NY2d 327, 335-336, cert denied 498 US 833).

With respect to the lineups, each defendant contends that evidence of the lineup identifications conducted in this case should be suppressed because they were unduly suggestive. To meet their burden, Detective Truano testified and the People introduced into evidence various photographs that were taken of both of the lineups.

It is axiomatic that while participants in a lineup should share the same general physical characteristics as the suspect (People v Kirby, 34 AD3d 695, 695, lv denied 8 NY3d 598; People v Burns, 138 AD2d 614, 615, lv denied 71 NY2d 1024) "there is no requirement ... that a defendant in a line-up be surrounded by people nearly identical in appearance" (Chipp, 75 NY2d at 336; Matter of Raymond A., 178 AD2d 288, 289)(see also People v Hoehne, 203 AD2d 480, 481, lv denied 83 NY2d 967; People v Henderson, 170 AD2d 532, 533, lv denied 77 NY2d 995; People v Jackson, 151 AD2d 694, 694). "Police stations are not theatrical casting offices" (United States v Lewis, 547 F2d 1030, 1035, cert denied 423 US 1111).

This Court has closely examined People's exhibits two and four. All of the fillers were obtained from the Bedford Avenue mens shelter. All were wearing similar casual clothing.^[FN17] Each was wearing a baseball cap, to conceal the differences in hair styles and lengths (Kirby, 34 AD3d at 695; People v Barnett, 277 AD2d 323, 324, lv denied 96 NY2d 756; People v Bradley, 268 AD2d 591, 592, lv denied 95 NY2d 832; People v Walker, 215 AD2d 606, 606, lv denied 86 NY2d 804; People v Meatley, 162 AD2d 721, 722, lv denied 76 NY2d 942 [requiring all lineup participants to wear baseball caps is a reasonable step to conceal a suspect's unique hairstyle]). Each of the participants appear to be similar to the defendant in terms of age, facial hair and skin coloring and each shared the same general facial features. Any height or weight disparities were eliminated by having each of the lineup participants seated and holding a large number over their chests during the lineups.

I find that the lineups constituted a fairly representative panel upon which a witness could make a reliable identification. Each of the defendants' physical characteristics were sufficiently [*7]similar to the other participants so as to negate any likelihood that either defendant would be singled out by the police for identification (People v Jackson, 98 NY2d 555, 559; Chipp, 75 NY2d at 336; People v Bacchus, 50 AD3d 818, lv denied 11 NY3d 785; People v Washington, 40 AD3d 1136, 1137, lv denied 9 NY3d 883; People v Davis, 27 AD3d 761, 761, lv denied 7 NY3d 847; People v Peterkin, 27 AD3d 666, 667, lv denied 7 NY3d 793).

Additionally, the procedures utilized in conducting the lineup were not unduly suggestive (People v Caban, 181 AD2d 787, 787, lv denied 80 NY2d 894). Despite the argument of counsel that only four fillers were employed in each of the lineups, there is no requisite number of subjects that need to be included in a corporeal lineup (Hibel, New York Identification Law §4.06(2), at 240 [2006 ed]).^[FN18]

With respect to the defendant Nicholson's oral statement to Detective Truano, his counsel contends the statement was not voluntarily and freely made. As in any case where the defense challenges the admission of a defendant's statement, the People must prove any statement's voluntariness beyond a reasonable doubt (People v Huntley, 15 NY2d 72, 78; People v Anderson, 42 NY2d 35, 38-39; People v Holland, 48 NY2d 861, 862). Since the police may not interrogate a person who is in custody without first giving that suspect his or her Miranda warnings (Miranda v Arizona, 384 US 436, 479), if the defendant was subjected to custodial interrogation, the prosecutor's burden also includes the duty to prove, beyond a reasonable doubt, that the defendant was advised of his Miranda rights and that he knowingly and voluntarily waived those rights (Miranda, 384 US at 471-472).

As stated in People v Williams (62 NY2d 285, 288-289):

To be valid, an accused's waiver of his or her rights must be knowingly and intelligently made...[and] [a] court must always ascertain whether the defendant understood how the Miranda rights affected the custodial interrogation.... An individual may validly waive Miranda rights so long as the immediate import of those warnings is comprehended, regardless of his or her ignorance of the mechanics by which the fruits of that waiver may be used later in the criminal process.

As the Court of Appeals stated in People v Sirno (76 NY2d 967, 968),

where a defendant indicates he understands his Miranda rights and "promptly after having been administered those rights willingly proceeds to make a statement or answer questions during interrogation, no other indication prior to the commencement of interrogation is necessary to support a conclusion that the defendant ... waived those rights." (see also North Carolina v Butler, 441 US 369; People v Davis, 55 NY2d 731).

The defendant was clearly not in custody when he made the initial complaint accredited to him on August 26, 2007. The defendant conceded the voluntariness of this statement prior to the commencement of the hearing, permitting this court to focus its inquiry upon the September 11th [*8]statement made to Detective Truano, after the issuing of Miranda warnings.^[FN19] This later statement was clearly made while the defendant was in custody and subject to interrogation.

After hearing all the evidence, and assessing the uncontroverted testimony of Detective Truano, this court finds that the defendant Nicholson knowingly, willingly and voluntarily waived his rights, under Miranda, after said rights were read to him and voluntarily made the statement that is the subject of this hearing.

Based on all of the facts and circumstances presented in this case, all of the motions to suppress evidence are hereby denied.

This constitutes the decision, opinion and order of the court.

_________________________

Vincent M. Del Giudice

Judge of the Court of Claims

Acting Supreme Court Justice

Dated: July 22, 2009

Brooklyn, New York