The opinion of the court was delivered by: DUFFY
KEVIN THOMAS DUFFY, D.J.:
Defendants Ferguson and Joseph move to suppress all pretrial and in-court identification testimony concerning the defendants. Alternatively, they move for a hearing to determine the suggestiveness of all identification procedures. These identification procedures included both photographic show-ups and a court-ordered lineup. Only four witnesses are involved in this identification question.
Of these four, two that identified defendant Ferguson in the lineup also identified him previously in a photographic "lineup." Neither of the witnesses that identified Joseph at the lineup had ever been shown a photographic show-up. Therefore, the discussion below concerning photographic "show-ups" applies only to Ferguson; the lineup discussion applies to both defendants.
(1) Photographic Show-ups
In determining the admissability of pretrial photographic show-up identification testimony, I must examine whether "the photographic procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968). The government has provided affidavits describing the events surrounding each of the witnesses' identification. The first witness, labelled W-2, identified Ferguson from a photospread, a copy of which is attached as Exhibit C to Federal Bureau of Investigation ("FBI") Agent Cordier's affidavit. According to Assistant United States Attorney ("AUSA") Moritz, the photospread was shown by Lieutenant Human of the Nyack Police Department to W-2 on March 2, 1982. See AUSA Moritz Affidavit at 1-2. The arrangement and composition of this photospread appears to fall far short of being "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification."
However, part of the show-up is the method by which Lieutenant Human showed the photospread to W-2. AUSA Moritz's affidavit, based on information related to her by Human, sets forth the circumstances surrounding the show-up:
Lieutenant Human further informed me that he displayed the photographs to W-2 after saying, in substance, that evidence had been developed with respect to additional suspects and that therefore W-2 (who had previously been shown photospreads of other suspects) was being asked to view additional photographic arrays. Lieutenant Human then said to W-2 that if W-2 recognized any individual as having been involved in the October 20 incident, to point him out. Finally, Lieutenant Human told me that he did not tell W-2 whether or not W-2 had identified a defendant and, further, he did not suggest to W-2 in any way that W-2 should pick out a particular person.
AUSA Moritz Affidavit at 1-2.
Under any interpretation of these circumstances, Ferguson has failed to demonstrate a violation of the Simmons standard enunciated above. To ensure the veracity of the described circumstances, however, a voir dire will be permitted outside the hearing of the jury prior to W-2's formal identification of the defendant.
See Watkins v. Sowders, 449 U.S. 341, 66 L. Ed. 2d 549, 101 S. Ct. 654 (1981).
The second photospread was shown to witness W-1 by FBI Agent Michael Falcone on July 8, 1982. Falcone described the circumstances as follows:
Before showing any photographic array to W-1, I told W-1 not to assume that any photograph of any individuals whom W-1 saw on October 20, 1981 was included in the photographic array. I further told W-1 that W-1 should simply look at the photographic array and state whether or not W-1 recognized any individual in it. W-1 looked at a six-photograph array containing the defendant CECIL FERGUSON'S picture and identified the picture of FERGUSON as a person W-1 saw involved in the events of October 20, 1981.
Falcone Affidavit at 2. Again, this photospread appears nonsuggestive. The circumstances, as described, do not warrant a hearing. Again, however, I will permit a voir dire outside the hearing of the jury prior to W-1's formal identification of the defendant.
A lineup was conducted pursuant to court order by the United States Attorney's Office. It took place at 5:00 p.m. in the New York City Police Department, One Police Plaza, Special Investigative Division Room, 12th Floor, New York, New York. A court reporter recorded much of the procedure. I will discuss only some of the particularly pertinent aspects of the lineup. A more complete description can be found in the complete transcript.
Before viewing any lineup, the witnesses were grouped together in one room. A transcript of United States Attorney John Martin's statement to the group was provided to defense counsel and to the court. The witnesses then were taken one at a time to view the six person lineup through a one-way mirror. The witnesses generally said nothing at the viewing. Next they were taken to a room separate from the witnesses who had yet to view the lineup and out of sight and hearing of defense counsel. The witnesses, I assume, were ...