The defendants are charged with Attempted Murder in the Second Degree, et al. A [*2]bifurcated Wade/Rodriguez hearing was conducted before this court on June 8th and 11th, 2015.^[FN1] The People called four witnesses at the hearing: Detectives Gregory Barrett, Dennis Steele and Cedric Brooks, and the complainant, Kenley Jovin. While I found the police work in this case to be woefully inadequate, I find the testimony of all the witnesses to be credible, reliable and worthy of belief.

Detective Gregory Barrett is a twenty-two year veteran of the NYPD. He is currently assigned to the 67th Precinct. On March 16, 2013, Detective Barrett was assigned to investigate a shooting that had occurred around 3:00 PM that day, inside 250 Clarkson Avenue, in Brooklyn. Detective Barrett spoke with the complainant, Kenley Jovin, at Kings County Hospital on March 18, 2013. Mr. Kenley, who was being treated for a gunshot wound that had left him severely injured, informed the detective that he had met a young woman in a store and agreed to meet her at 250 Clarkson Avenue on the 16th of March. When they exited the elevator on the fifth floor, Mr. Jovin observed two male blacks behind the staircase door. Suddenly, both males entered the hallway. One of them was brandishing a shotgun. Mr. Jovin immediately turned his back on the males and ran down the hallway, towards the staircase at the far end of the hallway. Upon entering the stairway, and attempting to descend the stairs, Mr. Jovin heard a loud gun shot and he was struck on his left shoulder, causing tremendous pain and substantial injury.

The female involved in setting up the complainant, Dejemani Love, was apprehended on March 22, 2013. Ms. Love, who was pregnant, immediately co-operated with the police and supplied the names of her two accomplices. She stated that Treyvon Newman was the father of her unborn child and that Dante Newman, Treyvon's brother, was holding the shotgun on the day of the shooting and that they had all agreed to have Ms. Love lure the complainant into the building so the two defendants could rob him.

After this conversation, Detective Barrett composed a photo array with the subject of such array being Treyvon Newman.^[FN2] The photo array was shown to Kenley Jovin on April 12, 2013. Mr. Jovin selected Treyvon Newman's photograph, which was located in position number three.^[FN3] Detective Barrett then showed Mr. Jovin another photo array, which featured the defendant, Dante Newman, in position five.^[FN4] Mr. Jovin also made a [*3]positive identification of Dante Newman.

Both defendants were indicted and arrest warrants were issued. Both defendants were eventually arrested in North Carolina and extradited back to New York.

On May 1, 2014, Detective Barrett drove Dante Newman to the 71st Precinct for a court ordered double blind lineup.^[FN5] Detective Barrett released Dante Newman to Detective Cedric Brooks, who was assigned to run the lineup.^[FN6] About ninety minutes later, Dante Newman was returned to Detective Barrett, who drove the defendant back to the 67th Precinct.

Detective Cedric Brooks, a nine year veteran of NYPD, is currently assigned to the 71st Precinct. On May 1, 2014, he was tasked with conducting a court ordered double blind lineup involving a prisoner from the 67th Precinct. Detective Barrett had turned over the inmate, Dante Newman, to Detective Brooks for the lineup. Detective Brooks then placed the defendant in the lineup room, which is located on the second floor of the precinct. Detective Brooks then left the precinct to obtain five fillers for the lineup from a nearby shelter. The only physical characteristics Detective Brooks was looking for, with respect to potential lineup fillers, was that the fillers be male blacks, slimly built, with no facial hair. Detective Brooks did not carry a photograph of the defendant Dante Newman with him and did not possess defendant's pedigree information prior to selecting the fillers.

Dante Newman was permitted to choose whatever position he wished to sit in at the lineup. He chose position number two. The fillers then sat in the remaining seats at random. All of the lineup participants were given identical light colored bandannas to wear on their heads, in order to conceal various hair styles. Each participant also wore identical dark long sleeve sweatshirts and covered up their legs with black plastic bags. Detective Brooks then snapped photographs of the lineup.^[FN7]

Once the lineup was prepared and photographs taken, Detective Brooks stayed in the lineup room, away from the viewing window. When the identification portion of the lineup was completed, the fillers left the precinct and Detective Brooks returned the defendant to Detective Barrett. Detective Brooks then spoke to Detective Steele and assisted him with the preparation of the lineup paperwork.

Detective Dennis Steele has been employed by the NYPD for over seven years. In May of 2014, he was assigned to the 71st Precinct Detective Squad.^[FN8] On May 1, 2014, Detective Steel was also assigned to assist in a court ordered double blind lineup at the 71st Precinct. The lineup was being conducted as the result of a shooting arising out of the 67th [*4]Precinct. Detective Barrett was the lead detective. Detective Steele's sole role was to assist the witness, Kenley Jovin, in viewing of the lineup. Detective Steele had no knowledge as to who was the subject of the lineup.

Detective Steele met Mr. Jovin in the reception area of the 71st Precinct. He then walked Mr. Jovin to the Community Affairs room on the second floor, across, and twenty feet down, the hall from the lineup viewing room. Detective Steele informed the witness that he was about to view a lineup and he read some instructions to the witness from a pre-printed form.^[FN9] After reading the instructions, Mr. Jovin initialed the document, exited the Community Affairs room and walked with Detective Steele to the viewing area of the lineup room.

Also present in the viewing room was Sergeant Decker, an attorney for the defendant and an investigator hired by the defense.^[FN10] Detective Steel then re-read the pre-printed instructions in the presence of the witness and defendant's counsel. After entering the viewing room, Mr. Jovin silently viewed the lineup for about ten seconds. Detective Steele then asked Mr. Jovin if he recognized anybody. Mr. Jovin responded "not one, three, four or five or six. I'm going with number two." He then added "his nose, his lips and his eyes. It was a long time ago. Nope, that's him. Number two."^[FN11]

After Mr. Jovin made his identification, Detective Steel returned Mr. Jovin to the Community Affairs room. Detective Steele then prepared his police paperwork.^[FN12] Mr. Jovin signed the report prior to exiting the precinct.

Detective Steele subsequently filled out a Lineup Participation Report, which listed the suspect's name, age, height and weight and that of all of the fillers.^[FN13] Detective Steele also prepared a Lineup Defense Counsel Report ^[FN14] level="1"> and a DD-5 memorializing his involvement in this lineup.

Conclusions of Law

It is axiomatic that the purpose of a Wade hearing is to determine whether police conducted pre-trial identification procedures were unduly and impermissibly suggestive so as to deny a defendant due process (Stovall v Denno, 388 US 293 [1967]; People v Adams, 53 NY2d 241 [1981]). In this case, both defendants challenge the photographic arrays displayed to Kenley Jovin.^[FN15] Both defendants also challenge their lineups.

"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, 1300 [4th Dept 2008], lv denied 10 NY3d 870, quoting People v Diggs, 199 AD3d 1098, 1098 [4th Dept 2005], lv denied 5 NY3d 787; People v Robert, 184 AD2d 597, 598 [2nd Dept 1992], lv denied 80 NY2d 929, 933)(see also, People v Boria, 279 AD2d 585, 586 [2nd Dept 2001], lv denied 96 NY2d 781; People v Cherry, 150 AD2d 475 [2nd Dept 19 89]; People v Dubois, 140 AD2d 619,622 [2nd Dept 1988], lv denied 72 NY2d 911).

This court has examined the computer generated photo arrays introduced into evidence as People's exhibits seven and nine. Since Treyvon Newman's original photograph displayed a neck tattoo and an earring in his right ear, Detective Barrett used a dark marker to blacken those areas on each of the photographs. 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 appear to be close in age and have similar hairstyles, skin tones and facial characteristics (People v Howard, 50 AD3d 823 [2nd Dept 2008], 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 identification procedure was not rendered unduly suggestive (Howard, 50 AD3d at 823; People v Ragunauth, 24 AD3d 472, 472 [2nd Dept 2005], lv denied 6 NY3d 779; People v Malphurs, 111 AD2d 266, 267-268 [2nd Dept 1985], lv denied 66 NY2d 616). "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 [4th Dept 2006], lv denied 7 NY3d 929; People v Dean, 28 AD3d 1118 [4th Dept 2006], lv denied 7 NY3d 787; see generally People v Chipp, 75 NY2d 327, 335-336 [1990], cert denied 498 US 833).

The lineup of Treyvon Newman is suppressed as a matter of law for the violation of the defendant's right to counsel, as conceded by the People (Kirby v Illinois, 406 US 682 [1972]; People v Blake, 35 NY2d 331 [1974]).

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 [2nd Dept 2006], lv denied 8 NY3d 881; People v Burns, 138 AD2d 614, 615 [2nd Dept 1988], 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 [1st Dept 1991])(see also People v Hoehne, 203 AD2d 480, 481 [2nd Dept 1994], lv denied 83 NY2d 967; People v Henderson, 170 AD2d 532, 533 [2nd Dept 1991], lv denied 77 NY2d 995; People v Jackson, 151 AD2d 694, 694 [2nd Dept 1989]). "Police stations are not theatrical casting offices" (United States v Lewis, 547 F2d 1030, 1035 [1976], 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 [3rd Dept 1993], lv denied 81 NY2d 1011)(internal citations omitted).

Dante Newman contends that the Lineup Information Report (which was introduced into evidence as People's exhibit three) clearly establishes that he was, by far, the youngest member of the lineup. At the time of the lineup, the defendant Dante Newman was only seventeen years old. Lineup filler number one was 33 years old. Lineup filler number three was 35 years old. Lineup filler number four was 28 years old. Lineup filler number five was 25 years old. Finally, lineup filler number six was 47 years old, old enough to be the defendant's father.

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 [2002], 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, 539 [2nd Dept 1995], 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], lv denied 2 NY3d 920; 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]; [*5]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 five. The exhibit contains four color photographs.^[FN16] The first photograph shows four men, numbered one to four. The second page shows all six men, focusing primarily of the left side of the lineup. The final page shows only fillers four, five and six. All six men at the lineup were wearing identical dark sweatshirts and light colored bandannas, with black garbage bags covering their clothing from the waist down. Each of the participants was holding a rectangular sheet of paper containing a number from one to six.

While there are some good things to say about how this lineup was conducted (the use of bandannas and common outer garments along with the covering of the legs), 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 [1996] [court properly suppressed lineup when five fillers significantly older than 15 year old suspect]; People v Jones, 24 Misc 3d 1229 (A) [Sup Ct, Kings County 2009]). The defendant is the only teenager in the lineup. Even though the photographs attempt to document the lineup from every angle, the photographs are somewhat blurry. Despite the lack of clarity, I can clearly see that the fillers appear significantly older than the defendant. Fillers one, three, four and five even appear to have facial hair.

My finding of the lineup's suggestiveness is supported by the comments made by Kenley Jovin during his identification of the defendant Dante Newman. Mr. Jovin seemed to select Dante Newman as a result of a process of elimination, rather than by instantly recognizing him upon seeing all six participants. In my opinion, Mr. Jovin merely cast aside each of the older fillers, one by one, until all that remained as a possible suspect was the clean shaven, teenage defendant. There is no reasonable explanation other than the fact that Mr. Jovin selected the defendant not because he recognized him from the night of the shooting but merely because the defendant was the only individual in the lineup who fit the bare bones description provided to the police by Mr. Jovin.

I am particularly disturbed that this is not the first time I have had to suppress a lineup for a teenage defendant because the police did not make the effort to find fillers roughly the same age and appearance as the defendant.^[FN17] If sufficiently similar looking fillers could not be found in the homeless shelter, why didn't the police go to the local high school and see if any young men there would volunteer to stand in a lineup? One could also visit the the police academy and select young cadets to stand in the lineup. Here, however, Detective Brooks made no attempt to obtain fillers who looked similar to the defendant. Detective Brooks did not even have a picture of Dante Newman when he went looking for fillers and only based his selection on a description of the defendant as being a male black with skim build and no facial hair. No amount of clothing, head gear or garbage bags can hide the fact that a teenage suspect was in a lineup with men old enough to be his father.

Accordingly, I find that the lineup does not constitute a fair and representative panel [*6]upon which a witness could make a trustworthy and 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, 819 [2nd Dept 2008], lv denied 11 NY3d 785; People v Washington, 40 AD3d 1136, 1137 [2nd Dept 2007], lv denied 9 NY3d 883; People v Davis, 27 AD3d 761, 761 [2nd Dept 2006], lv denied 7 NY3d 847; People v Peterkin, 27 AD3d 666, 667 [2nd Dept 2006], lv denied 7 NY3d 793).

At the conclusion of the police arranged identification portion of the hearing, this court advised the parties that the lineup identification of Dante Newman would be suppressed. The People then proceeded to the independent source portion of this bifurcated hearing.

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 [1984]). Without proof of an independent source, the court cannot ascertain whether a complainant's in-court identification would be based upon his or her personal recollection of the perpetrator at the time of the crime or upon the witness's recollection of the tainted lineup that was viewed afterwards. Without such an inquiry, the possibility exists that the complainant's in-court identification might be impermissibly bolstered by the subsequent identification of the defendant at the suggestive or invalid lineup (People v Adams, 173 Misc 2d 60, 62 [Sup Ct, Kings County 1997]).

Kenley Jovin testified that on March 16, 2013, he went to 250 Clarkson Avenue to see a young woman he had recently met at a local store. He met Dejamani Love outside the building and they both rode the elevator to the fifth floor. Upon exiting the elevator, Mr. Jovin saw two men in the stairwell out of the corner of his eye for a "split second."^[FN19] The lighting in the hallway was good. Mr. Jovin stepped past the stairwell, despite seeing the two men lurking behind the door. When he was about a foot away from the door, he could see their faces through the glass portion of the door, which contained wire mesh. He saw that one of the men was standing behind the other. He focused on their faces because he was nervous about being in a building he was unfamiliar with. He testified that both men had dark skin, wide noses and big lips. Both wore dark hoodies over their heads. Nothing was covering their faces. After initially passing the men in the stairwell, Mr. Jovin stepped back to observe the two men again. At this point, both men leaped from behind the door. [*7]The taller and bigger built of the two men brandished a shotgun. Both men appeared to have a tattoo on their necks. As the two men exited the stairwell, their hoodies fell from their heads, revealing slight afros.^[FN20]

Immediately upon seeing the shotgun, Mr. Jovin and ran towards a second set of stairs at the far end of the hallway. No words were exchanged. Mr. Jovin did not turn around. Upon his entry into the stairwell, he was struck with a shotgun blast. He continued to run down the staircase and onto the street, where he eventually collapsed.

Two days later, he gave a bare-bones description of his assailants to the police. He merely described his attackers as two male blacks, slim built.Kelsey Jovin made a positive identification of both defendants from a properly compiled photographic array. However, he made a tentative lineup identification of the defendant Dante Newman several weeks later. No testimony regarding the Treyvon Newman lineup was presented at the hearing. No evidence was produced that established this witness's prior knowledge of either defendant. Accordingly, if the People intend to have Mr. Jovin make an in-court identification of either or both defendants at trial, they must first succeed in an independent source hearing to be conducted prior to trial (People v Burts, 78 NY2d 20, 24 [1991]).

"It is well settled that a witness may still identify the perpetrator of a crime as part of his or her in-court testimony notwithstanding the existence of an unduly suggestive pretrial identification, provided that the People demonstrate by clear and convincing evidence that the in-court identification is based upon the witness's independent observation of the defendant" (People v Hyatt, 162 AD2d 713, 713-714 [2nd Dept 1990], lv denied 76 NY2d 987, citing Manson v Brathwaite, 432 US 98, 114-115 [1977]; Neil v Biggers, 409 US 188, 199-200 [1972]; United States v Wade, 388 US 218, 241 [1967]; People v Adams, 53 NY2d 241, 251 [1981]; People v Thomas, 51 NY2d 466, 474-475 [1980]). The independent source hearing is intended to mitigate the effect of a suggestive police-arranged identification procedure by requiring the People to prove that sufficient evidence exists of a source for the witness' identification, other than the suggestive police procedure, before the witness may be permitted to identify the defendant as the perpetrator of the crime at trial. "The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation" (Neil v Biggers, 409 US at 199-200).

In this case, Kenley Jovin testified that he observed the perpetrators for only three to four seconds, in a well-lit hallway, and that his senses were alert because he was leery of being in the building. His initial description of the perpetrators, however, was very basic: two male blacks, slim built, no facial hair. While his identification of both defendants from the photo arrays was definitive, his identification of Dante Newman in the lineup was merely a process of elimination. As stated previously, no evidence of the Treyvon Newman's lineup identification was presented, thus the level of certainty demonstrated by the complainant at this confrontation is unknown.

In People v Williams (85 NY2d 868 [1995]), independent source was found when a trained undercover testified that he had only a brief viewing of the perpetrator. The Court of Appeals held that the duration of the viewing was only one of several factors to be considered.

In People v Brown (293 AD2d 686 [2nd Dept 2002], lv denied 98 NY2d 695), independent source was found after the complainant testified to having a clear and unobstructed view of the perpetrator, under well-lit conditions, for about fifteen seconds.

In Matter of Jason V. (171 AD2d 447 [1st Dept 1991]), independent source was found when the complainant testified to observing the perpetrator for only a few seconds under good lighting conditions.

In People v Hyatt (162 AD2d 713 [2nd Dept 1990], lv denied 76 NY2d 987), independent source was found because the complainant testified he had an unobstructed view, under good lighting, and gave a description that was sufficiently specific.

In People v Neese (138 AD2d 531 [2nd Dept 1988]), independent source was found when the complainant testified that he observed the perpetrator for ten to twenty seconds, under satisfactory lighting, and gave a detailed and fairly accurate description of the suspect despite a tentative photo identification.

In People v Androvett (135 AD2d 640 [2nd Dept 1987], lv denied 71 NY2d 892), independent source was found despite the complainant testifying that he only observed the perpetrator for a matter of seconds, but testified to making eye contact with the perpetrator, having a clear and unobstructed view, under well-lit conditions, and was able to give a detailed description to the police.

In People v Kenley (37 Misc 3d 1209[A], 2012 NY Slip Op 51950[U] [2012]), the trial court found independent source when the complainant testified to seeing the perpetrator for ten to fifteen seconds, from a distance of eight to ten steps, in a well-lit street, without any obstruction.

By way of contrast, in People v Randall M. (47 Misc 3d 1206[A], 2015 NY Slip Op 50455[U] [2015]), independent source was not found in a case when the complainant testified that the face-to-face encounter lasted only one and a half to three seconds in a darkened section of a park, with the complainant proving only a bare-bones description of the perpetrators.

I find, based on all the facts and circumstances, that the People have failed to demonstrate, by clear and convincing evidence, that any proposed in-court identification of either defendant would be based upon the complainant's independent observation of the perpetrators at the time of the crime and that such identification was not tainted by the constitutionally impermissibly suggestive lineup identifications.

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 Dante Newman was unduly suggestive and must be suppressed. The lineup containing Treyvon Newman will likewise be suppressed for the violation of his right to counsel. I further find that the People [*9]have failed to prove that the complainant's in-court identification of either defendant would be based upon his independent recollection of the two defendants from the time of the crime. Accordingly, the complainant will be precluded from making an in-court identification of either defendant as part of the People's direct case.

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

_________________________

Vincent M Del Giudice

Acting Supreme Court Justice