TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R.
DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, TROUTMAN, AND
from a judgment of the Monroe County Court (Douglas A.
Randall, A.J.), rendered September 6, 2013. The judgment
convicted defendant, upon a jury verdict, of robbery in the
hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Monroe County Court
for further proceedings in accordance with the following
memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of robbery in the first degree (Penal Law
§ 160.15 ). Defendant contends that County Court
should have suppressed a parole officer's identification
of him as the person committing the robbery depicted in a
surveillance video on the basis that the police-staged
procedure was unduly suggestive. The evidence at the
suppression hearing established that, as part of his
investigation into an armed robbery of a hotel that was
captured on surveillance video, a police investigator called
a parole officer and inquired about her role as a parole
officer for defendant and her familiarity with him. Upon
confirming that the parole officer was familiar with
defendant, the investigator proceeded to ask her to report to
the police department in order to view the video and to
determine if she recognized anyone depicted therein. The
parole officer identified defendant as the person committing
the robbery. The court denied defendant's motion to
suppress, ruling that the procedure was not unduly
suggestive. That ruling was error.
neither defendant's general objection to undue
suggestiveness in that part of his omnibus motion seeking
suppression of the identification nor his arguments to the
hearing court were sufficient to preserve for our review his
contention that the identification procedure was unduly
suggestive as a result of the investigator's conversation
with the parole officer. Defendant "failed to raise that
specific contention either as part of his omnibus motion...
or at the Wade hearing" (People v
Morman, 145 A.D.3d 1435, 1435-1436). We note, however,
that the court made factual findings regarding the
investigator's pre-identification conversation with the
parole officer, and drew a legal conclusion that, based upon
the totality of the circumstances, the procedure was not
inherently suggestive because there was no influence or
suggestion by the investigator and the procedure was not
otherwise tainted. We therefore conclude that the court
"expressly decided the question raised on appeal, "
thereby preserving defendant's specific contention for
our review (CPL 470.05 ; see People v Prado, 4
N.Y.3d 725, 726, rearg denied 4 N.Y.3d 795;
People v Davis, 69 A.D.3d 647, 648-649; cf.
People v Graham, 25 N.Y.3d 994, 997; Morman,
145 A.D.3d at 1435-1436).
respect to the merits, it is well settled that "a
pretrial identification procedure that is unduly suggestive
violates a defendant's due process rights and is not
admissible" (People v Marshall, 26 N.Y.3d 495,
503 [internal quotation marks omitted]; see People v
Chipp, 75 N.Y.2d 327, 335, cert denied 498 U.S.
833). " [T]here is nothing inherently suggestive' in
showing a witness a surveillance video depicting the
defendant and other individuals, provided that the defendant
was not singled-out, portrayed unfavorably, or in any other
manner prejudiced by police conduct or comment or by the
setting in which [the defendant] was taped' "
(People v Davis, 115 A.D.3d 1167, 1169, lv
denied 23 N.Y.3d 1019, quoting People v
Edmonson, 75 N.Y.2d 672, 676-677, rearg denied
76 N.Y.2d 846, cert denied 498 U.S. 1001). As the
Court of Appeals has explained, however, when the police
employ an identification procedure whereby a noneyewitness is
confronted with a recording for the purpose of determining
whether the noneyewitness is able to identify the perpetrator
as a person with whom he or she is familiar, "[t]he only
apparent risk with such a witness [is] that the police might
suggest that the voice [or person depicted] on the recording
[is] that of a particular acquaintance" (People v
Collins, 60 N.Y.2d 214, 220).
we agree with defendant that, contrary to the court's
determination that "[t]here was no influence or
suggestion" by the investigator, the evidence
establishes that the investigator suggested to the parole
officer prior to her identification that the person depicted
committing the robbery on the surveillance video was
defendant (cf. Collins, 60 N.Y.2d at 220,
affg 84 A.D.2d 35, 39-40). Instead of requesting the
parole officer's assistance in identifying someone from
the video without preemptively disclosing the subject of his
investigation, the investigator engaged in a conversation
"about her being a parole officer for [defendant]."
During the conversation, the investigator "asked [the
parole officer] if she was familiar with [defendant]."
The parole officer responded that she had "lots of
contact" with defendant, so the investigator proceeded
to ask her to "come down and view a video." The
investigator subsequently met with the parole officer at the
police department and asked her to view the video to
determine if she recognized anyone, and the parole officer
identified defendant as the person committing the robbery. We
conclude that the investigator, by contacting the parole
officer and inquiring about her familiarity with defendant
prior to the parole officer's viewing of the video,
engaged in the type of undue suggestiveness identified in
Collins inasmuch as his comments improperly
suggested to the parole officer that the person she was about
to view was a particular acquaintance of hers, i.e.,
defendant (see id. at 220).
to the People's contention, we conclude that the
investigator "singled out" defendant inasmuch as he
asked the parole officer about her familiarity with defendant
only and, upon receiving an affirmative response, then asked
her to view the video. The People's contention that the
investigator's comments were not unduly suggestive
because there were other people depicted in the video whom
the parole officer could have identified, e.g., guests
leaving and entering the hotel, and hotel clerks and
managers, is without merit inasmuch as there is only one
perpetrator depicted committing an armed robbery (cf.
Davis, 115 A.D.3d at 1167, 1169). We reject the
People's further contention that the error may be deemed
harmless. Even assuming, arguendo, that the evidence was
overwhelming, it cannot be said that there is no reasonable
possibility that the parole officer's identification of
defendant as the perpetrator of the robbery in the video-the
only such identification of defendant at trial given the
inability of the hotel staff to identify him-might have
contributed to the jury's verdict convicting defendant
(see generally People v Crimmins, 36 N.Y.2d 230,
People nonetheless contend, consistent with the alternative
ground that they asserted in opposition to the motion, that
the court properly refused to suppress the parole
officer's identification inasmuch as it was merely
confirmatory. In its suppression ruling, however, the court
focused exclusively on whether the procedure was unduly
suggestive, and failed to rule on the "separate and
analytically distinct" issue whether the identification
was confirmatory (People v Garrett, 23 N.Y.3d 878,
885 n 2, rearg denied25 N.Y.3d 1215; see
generally People v Bolden, 197 A.D.2d 528, 529, lv
denied82 N.Y.2d 922), i.e., whether, "as a matter
of law, the [parole officer was] so familiar with...
defendant that there [was] little or no risk' that police
suggestion could lead to a misidentification"
(People v Rodriguez, 79 N.Y.2d 445, 450). "CPL
470.15 (1) precludes [this Court] from reviewing an issue
that was either decided in an appellant's favor or was
not decided by the trial court" (People v
Ingram, 18 N.Y.3d 948, 949; see People v
LaFontaine, 92 N.Y.2d ...