The defendants are charged with Attempted Murder in the Second Degree, et al. A Wade hearing was conducted before this court on July 27, 2009. The People called one witness at the hearing: Detective Joseph Perry. I found his testimony to be credible, reliable and worthy of belief.

On July 13, 2008, while working out of the 70th Precinct, Detective Joseph Perry responded to the scene of a recent shooting. There, Detective Perry was informed that at approximately 1:40 [*2]A.M., three people were shot by two males who had fired into a crowd and had escaped on bicycles. All three victims were taken to Kings County Hospital.

Upon arriving at Kings County Hospital, Detective Perry learned the names of the three victims: Sandra Beaulieu ^[FN1], Edmond Foster and Eric Delfyette. At approximately 12:00 P.M., Detective Perry spoke with Sandra Beaulieu, who informed him that, at the time of the shooting, she was speaking with Edmond Foster and observed two males, one wearing a white t-shirt, the other wearing a blue t-shirt, riding bicycles and firing weapons.

On July 14th, at approximately 8:30 A.M., Detective Perry spoke with the mother of Edmond Foster, who informed him that while she wasn't an eyewitness, she knew a woman who was a reluctant eyewitness who could identity the shooters.^[FN2] Edmond Foster's mother brought the woman to the 70th Precinct later that day. This witness stated that she went to junior high school with one of the shooters, William Henry, whose nickname was "Cyper" and who was a member of the Crips. She then stated that the second shooter's first name was Dante. This information was then placed into the police department's photo manager and the eyewitness positively identified the photographs of the two defendants.

On July 17, 2008, Detective Perry compiled two photo arrays and brought them to Sandra Beaulieu. Ms. Beaulieu identified photo number two, the defendant Dante Jones, in one photo array (People's exhibit 1) as the shooter who was wearing a light blue t-shirt and photo number four, defendant William Henry, in the other array (People's exhibit 2). After making her selection, she initialed both photographs and signed each array. Ms. Beaulieu stated that she knew defendant Henry and had seen him numerous times over the past year, since his cousin had killed her brother within the past few months. After the identification process was completed, Detective Perry filed an I-card for each defendant.^[FN3]

As a result of the outstanding I-card, the defendant Jones was apprehended and brought to the 70th Precinct on July 18, 2008. Detective Perry contacted Ms. Beaulieu and informed her that he would like her to look at a lineup. The lineup fillers were police officers from within the 70th Precinct. Upon her arrival, Ms. Beaulieu was kept separated from the defendant and all of the fillers.^[FN4] The defendant chose to seat in position number three and the fillers sat in the remaining chairs (People's exhibit 3).^[FN5] When the lineup was ready, Ms. Beaulieu was brought into the viewing [*3]room and was asked if she recognized anyone and, if so, where she recognized that person from. Ms. Beaulieu stated she recognized the individual seated in position number three as one of the male shooters who was riding a bike on the night of the shooting. The defendant Dante Jones was then placed under arrest.

The defendant Henry was arrested on July 28, 2008, by the Brooklyn South Apprehension Team and brought to the 70th Precinct.

The defendants raised two issues at the conclusion of the hearing: whether the photographic arrays and station house lineup were unnecessarily suggestive.

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, both defendants challenge the photographic arrays. Defendant Jones also challenges the lineup that he participated in.

Photo Arrays

"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).

This court has examined the computer generated photo arrays introduced into evidence as People's exhibits one and two. In each array, 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 men depicted in each of the photo arrays 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 lineup, defendant Jones contends that evidence of the lineup identification [*4]should be suppressed because the lineup was unduly suggestive. To meet their burden, Detective Perry testified and the People introduced into evidence four photographs that were taken of the lineup (People's exhibit 3).

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). In addition, "identical clothing is not required to be worn by the lineup standins where, as here, common and similar apparel is used" (People v Buxton, 189 AD2d 996, 997, lv denied 81 NY2d 10011)(internal citations omitted).

The defendant contends that the lineup report (which was not introduced into evidence but which counsel used as the basis for several questions) clearly establishes that the defendant was, by far, the youngest member of the lineup. The People contend that despite the chronological difference in age, the only issue to be addressed is the physical appearance of the lineup participants.

As noted by our Court of Appeals, "an age discrepancy between a defendant and the fillers in a lineup, without more, is not sufficient to create a substantial likelihood that the defendant would be singled out for identification'"(People v Jackson, 98 NY2d 555, 559, quoting Chipp, 75 NY2d at 336). In determining whether a lineup is fair, it is not the actual age of the participants in the lineup that matter but how old each of the participants appears (People v Pinckney, 220 AD2d 539, lv denied 87 NY2d 906; People v Glaspie, 170 Misc 2d 828, 832 [Sup Ct, Queens County 1996]). Numerous cases have held that despite the differences in the ages between a suspect and the fillers in a lineup, that fact, standing alone, does not render a lineup unduly suggestive, provided the age differences are not apparent to the viewer and provided the fillers bear a resemblance to the defendant (People v Reyes, 60 AD3d 873 [2nd Dept 2009]; People v Smith, 299 AD2d 566 [2nd Dept 2002], lv denied 99 NY2d 632; People v Bryan, 228 AD2d 244 [1st Dept 1996], lv denied 88 NY2d 1019; People v Cruz, 220 AD2d 253 [1st Dept 1995], lv denied 87 NY2d 920; People v Veeney, 215 AD2d 605 [2nd Dept 1995], lv denied 86 NY2d 875; People v Foster, 200 AD2d 196 [1st Dept 1994]; People v Rudolph, 161 AD2d 115 [1st Dept 1990], lv denied 76 NY2d 795; People v Malone, 157 Misc 2d 86 [Sup Ct, Queens County 1993]).

This Court has closely examined People's exhibit three. All of the fillers were police officers.^[FN6] All of the lineup participants were wearing dark short sleeve shirts. The legs of each of the [*5]participants was covered by a white sheet that stretched across the room. Each of the participants was holding a rectangular sheet of paper containing a number from one to six.

While there are many good things to say about how this lineup was conducted, the defendant is so dissimilar in appearance to the fillers that he stands out, rendering the lineup unnecessarily suggestive (see People v Montgomery, 88 NY2d 1041 [court properly suppressed lineup when five fillers significantly older than 15 year old suspect]).^[FN7]

The court will note that based solely upon its review of the four Polaroid photographs that were introduced into evidence (People's exhibit 3), defendant appears much younger that the men used as fillers in the lineup. Even though the photographs are not very clear, this court can clearly see facial hair on several of the fillers but not on the baby-faced seventeen year old defendant Jones. One of the fillers has a shaved head and a second has a receding hairline. This court questions why baseball caps were not employed to cover the differences in hairstyle (see 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]).

I find that the lineup does not constitute a fair representative panel upon which a witness could make a reliable identification. The defendant's physical characteristics were insufficiently similar to the other participants so as to negate any likelihood that the defendant could avoid being singled out for identification (Jackson, 98 NY2d at 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).

At the conclusion of the hearing, counsel for the defendant Jones requested this court suppress evidence of the lineup identification at trial. That request is granted. What is left undetermined is whether Sandra Beaulieu has an independent recollection of either the identity of the defendant or of specific details of the perpetrators of the crime itself that would permit her to make an in-court identification of the defendant that is not tainted by the impermissibly suggestive lineup identification.

A "defendant [is] entitled in advance of trial to a determination by a Trial Judge on the question of independent source" (People v Dodt, 61 NY2d 408, 418). Without proof of an independent source, the court cannot ascertain whether a complainant's in-court identification would be based upon her personal recollection of the perpetrator of the crime or upon the tainted lineup that she viewed afterwards. Without such an inquiry, the possibility exists that the complainant's in-court identification might be impermissibly bolstered by her subsequent identification of the defendant at a suggestive lineup (People v Adams, 173 Misc 2d 60 [Sup Ct, Kings County 1997]).

In this case the complaint, Sandra Beaulieu, made a positive identification of the defendant Jones from a properly compiled photographic array. However, no evidence was produced at the hearing that establishes this witness' prior knowledge of the defendant Jones. Accordingly, if the People intend to have Ms. Beaulieu attempt to make an in-court identification of the defendant Jones at trial, they must first seek leave for an independent source hearing to be conducted prior to trial (People v Burts, 78 NY2d 20). The defendant Jones may waive his appearance at said [*6]hearing (People v Epps, 37 NY2d 343, cert denied 423 US 999; People v Anderson, 16 NY2d 282).^[FN8]

Conclusion

Based on all of the facts and circumstances, I find that the photo arrays were not unduly suggestive but I find that the lineup containing defendant Jones was unduly suggestive and must be suppressed. The People may seek leave to conduct an independent source hearing prior to trial.

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 31, 2009

Brooklyn, New York