The opinion of the court was delivered by: DUFFY
KEVIN THOMAS DUFFY, D.J.:
Beginning June 8, 1983, I held a Wade hearing outside the presence of the jury to determine the admissability of witness Kamau Bayete's in-court identification of defendants Odinga, Ferguson, Joseph, Sunni-Ali, Baraldini, and Robinson. I found that the pretrial identification procedures followed by the Federal Bureau of Investigation ("FBI") and the United States Attorney's Office were not suggestive and thus I permitted Mr. Bayete to identify the above defendants before the jury. The following shall constitute my findings.
Dr. Bayete was an acupuncturist at the Black Acupuncture Advisory Association of North America ("BAAANA") at 245 West 139th Street in Manhattan. Bayete testified that each of the defendants except perhaps Odinga had frequented BAAANA, as patients, students of acupuncture, and at times to plan the commission of robberies.
Bayete is an admitted drug abuser whose primary motive in testifying appeared to be to avoid imprisonment for drug offenses. He also admitted to lying both to the grand jury and to the FBI on numerous occasions. Nonetheless, the defendants did not seriously dispute Bayete's identification of the defendants. His contacts with the defendants both inside and outside BAAANA were extensive. Much of these contacts are independently corroborated. See, e.g., affidavits in support of wiretap applications. Thus, the key credibility determination is not whether Bayete knew the defendants, but rather whether the defendants committed the acts Bayete alleged. The latter, however, is a determination for the jury. Nevertheless, I will discuss Bayete's identifications to remove any question of the constitutionality of the admission into evidence of the identifications.
The first issue is whether the "pretrial identification procedures employed were in fact suggestive." Solomon v. Smith, 487 F. Supp. 1134, 1141 (S.D.N.Y. 1980), aff'd, 645 F.2d 1179 (2d Cir. 1981). If the procedures utilized were suggestive, I must then decide by considering the "totality of circumstances" whether Bayete's in-court identifications are so tainted by the suggestive procedures to be rendered inadmissable. See Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1973). These safeguards are to insure that the defendants' rights are not violated by allowing identification procedures that present "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).
I am satisfied that the government techniques utilized herein were not suggestive. At various times Bayete was shown groups of photographs by the FBI. Included in the groups were pictures at least of defendants Ferguson, Joseph, and Baraldini. Bayete identified these photographs at that time, and later before the grand jury. Before Bayete was shown any groups of photos, he was asked by the FBI to identify persons he knew; he was not told to look for particular persons. Bayete also identified others in the groups of photos, but these persons are not on trial. Some of the persons were not identified at all. Bayete denied all defense counsels' attempts to imply that he was encouraged to identify certain persons, specifically the defendants, or that he was shown individual photos and not groups of photographs. The one exception to the manner in which he was shown photographs involves defendant Robinson, which I will discuss below.
In addition, any potential suggestiveness in the identification procedures was nullified by the extent of Bayete's contacts with the defendants. In Neil v. Biggers and Manson v. Brathwaite, 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977), the Supreme Court delineated the five factors to be considered in evaluating the potential for mistaken identification.
These factors are (1) the witness's opportunity to observe the criminal at the time of the crime, (2) the degree of the witness's attention at that time, (3) the accuracy of the witness's initial description of the criminal, (4) the certainty with which the witness first identified the suspect, and (5) the time lapse between the crime and the identification.
Solomon v. Smith, 645 F.2d at 1186; see Manson v. Brathwaite, 432 U.S. at 114. Bayete's testimony satisfied all these criteria.
Bayete had extensive contacts with defendant Joseph who he also knew as "Tony," "Jamal," and "J." He first met Joseph in June or July of 1980, and then saw him at least twice a month over the next year and a half. These contacts involved various activities. For example, Joseph came to the BAAANA clinic several times for treatment of a gunshot wound. Bayete assisted with this treatment on one occasion. Joseph also came to BAAANA on a number of occasions with friends that he brought for treatment. Bayete saw Joseph at a martial arts exhibition, and at several robbery training sessions. Bayete also attended a meeting in Manhattan at which Joseph was present to plan the robbery in Nanuet, New York. On the evening of October 20, 1981 Bayete drove up to the Mt. Vernon safehouse with Joseph, the defendant Robinson and a woman Bayete identified as Ginger. Bayete spent much of this evening with Joseph and drove back with him that night to Manhattan in the same maroon Cadillac that had taken them to Mt. Vernon. A few days later, Bayete also drove up to and back from Nyack, New York either with Joseph or in a companion car that went up with Joseph's.
Sometime in December, 1981 or January, 1982, Bayete bought some cocaine through Joseph. Soon thereafter, Bayete met with Joseph for the last time at Joseph's 14th Street apartment. Bayete was shown two photographs of Joseph on two separate occasions. These photographs were among a group of photographs shown to him by the FBI. On both occasions Bayete identified a picture of the defendant Joseph. ...