AD2 order dated April 3, 2014, affirming judgment of conviction. Decision below: 116 AD3d 442, 982 NYS2d 761. Lippman, Ch. J., granted leave July 31, 2014. Argued November 17, 2015.

ISSUES PRESENTED: (1) The impact the police failure to preserve the photo array should have on the Wade determination. (2) Whether the lineup was unduly suggestive. (Assigned counsel: Seymour James, Legal Aid Society, Criminal Appeals Bureau, 199 Water Street, NYC 10038.)

Background: Holley was accused of a robbery in a New York City subway station.  Following the incident, the detective used New York City’s computerized photo manager system to display numerous pictures of potential suspects by plugging in a generalized description of the robber provided by the complainants.  The complainant identified Holley after viewing numerous photographs but the detective did not preserve a record of the photographs displayed or the order in which they were shown.

 

Issue: Does the police’s failure to preserve a record of which photographs were viewed during a photo manager identification procedure create a presumption that the procedure was unduly suggestive.  And if so, did the prosecution overcome that presumption in this case.

 

Held: A detective who shows an identifying witness a book of photographs must preserve the photographs that were shown, together with their arrangement and must keep some record of the order in which the pages were displayed.  The failure to do so will result in a presumption that the photo identification procedure was unduly suggestion.  The obligation to preserve is not diminished by the type of system used.  But here the prosecution overcame that presumption of suggestiveness through the detective’s testimony at the Wade hearing that the complainant viewed hundreds of photographs and that the police had not focused on Holley as a suspect prior to the photo identification procedure.

 

CAL observes: While the rule announced by the majority appears beneficial to defendants, its practical application will do little to change current practice.  As even Judge Abdus-Salaam recognized in expressing her concerns for the muddling of the legal standards governing suppression hearings, in “the vast majority of cases” the presumption of suggestiveness adopted by the majority “would yield the same result.”  Particularly in cases involving the use of the photo array manager system, the prosecution’s burden to rebut the presumption of suggestiveness will be easily met.  Usually the police have not focused their suspicion on a defendant if the complainant is simply viewing random photographs.  Where the police have focused on a particular suspect, the standard practice is to use a defined photo array and the common  practice is to preserve such arrays.