[967 N.Y.S.2d 912] Terry Gensler, Assistant District Attorney, Office of the Bronx County District Attorney.
Mark DeMarco for the defendant, Stephen Stanislous.
STEVEN L. BARRETT, J.
After conducting a Wade hearing, and prior to the commencement of trial, the People sought a ruling on the admissibility of evidence of photographic identifications made by two witnesses. In an oral decision dated May 23, 2013, the Court granted the People's application and permitted the People to introduce as direct evidence both the testimony of the identifying witnesses and the photos themselves. This opinion formalizes the Court's oral decision and further elucidates the basis for that determination.
At the Wade hearing, the People presented the testimony of Detective Davie Rodriguez, who was assigned to investigate the July 26, 2008 fatal shooting of Richard Tongue. On August 20, 2008, Rodriguez interviewed Cornelius Barnes. Barnes had previously met with Rodriguez and had told Rodriguez that he had observed an individual he knew as " XL" shoot Tongue. During the August 20th meeting, Barnes accessed his MySpace account, downloaded and printed out a photograph of defendant, and identified defendant as the person he saw shoot Tongue. The photograph downloaded from MySpace depicts defendant wearing a t-shirt and jeans, with a backpack strapped over both of his shoulders, and on the bottom of the photograph are the letters " XL" in purple and in much smaller type across the bottom there appears the words, " www. myspace. com stephen_the_ african_king" .
On August 22, 2008, Rodriguez interviewed Glorious Landrum at Rikers Island. Landrum stated that on the night of the shooting, he had heard shots fired and had seen the person he believed was the shooter run past him with a gun in his hand. Landrum told Rodriguez that he recognized the person who had run past him from Truman High School, where he and that person were both students. Rodriguez then showed Landrum a 2007 Truman High School yearbook which consisted of 28 pages of 335 headshot photographs of the members of the senior class. Of the 335 photographs, 153 were of males, and 92 of the 153 males were dark-skinned African Americans. All of the young men depicted in the yearbook were of the same age, and were wearing black tuxedos, whites shirts with black studs, and red
bow ties. On the page with defendant's [967 N.Y.S.2d 913] photograph, there were 11 other photographs, 4 of which were black males. Rodriguez began to slowly turn the pages, and when he got to page 49, Landrum identified defendant as the person he saw run past him with a gun on the fateful evening of July 26th.
On August 25, 2008, Rodriguez again interviewed Cornelius Barnes, and showed him a photo array consisting of defendant's headshot from the Truman High School yearbook and five other Truman yearbook headshots of young, dark-skinned, black men identically dressed in black tuxedos, white shirts and red bow ties. Barnes identified the photograph of defendant as the person who shot Tongue.
On September 5, 2008, defendant was arrested and taken to the 47th Precinct for arrest processing. During the course of processing, prior to having been administered the Miranda warnings, Detective Chaffee asked defendant if he goes by any nicknames, to which defendant answered, " XL" . Subsequently, after Rodriguez administered the Miranda warnings, defendant asked for a lawyer, and the detectives ceased questioning defendant.
On September 6, 2008, sometime prior to defendant's arraignment, defendant was placed in a lineup which was viewed by Barnes. Barnes again identified defendant as the person who shot Tongue. Defendant did not have counsel at the lineup.
After Rodriguez's testimony, the Court heard argument and ruled that the statement regarding defendant's nickname was admissible under the pedigree exception to Miranda. With respect to the identification evidence, the Court found that evidence regarding the identification of defendant's MySpace photograph by Barnes was admissible as it was Barnes, and not Rodriguez, who had initiated this identification procedure. The Court also found that none of the other identification procedures— the showing of the yearbook to Landrum, the photo array to Barnes and the lineup— were conducted in any way that could be considered suggestive. The Court further found that defendant's right to counsel at the lineup had not been violated because defendant had not yet been arraigned nor had counsel yet entered the case on defendant's behalf.
With respect to the admissibility of evidence regarding the photographic identifications by ...