PEOPLE v. BERRIOS (2023)

A Wade/Dunaway hearing was conducted on November 2, 2022, in Part K-6 of Supreme Court, Queens County, before the Honorable Francis Wang. The People called two witnesses at that hearing. On December 14, 2022, Justice Wang issued a written decision, suppressing the photo-array identification procedure by Mr. Rodriguez on the basis that the People failed to meet their burden of establishing that the photo array was not unconstitutional.

On February 1, 2023, this Court ordered an Independent Source hearing to determine whether an independent basis existed for the complainant, Alison Rodriguez, to make an in-court identification of the defendant at trial.

An Independent Source hearing was held before this Court on February 2, 2023. The People called one witnesses at the hearing, Alison Rodriguez. The Court credits his testimony. This decision summarizes the testimony below, as the Court's findings of fact, and constitutes the Court's conclusions of law.

Findings of Fact

At the hearing before this Court on February 2, 2023, the complainant, Alison Rodriguez, testified that on February 24, 2022, at approximately 5 am, he was present at 465 Seneca Avenue, Queens County, State of NY. While present at the location, he began speaking to a girl that he knew when the defendant allegedly came over and they began an argument. The complainant stated he was able to discern the defendant's appearance, specifically light skin with green eyes, his clothing, his apparent ethnicity, and his approximate age, between thirty to thirty-one years old. Words were exchanged for about seven to ten minutes. The complainant stated he did not have any difficulty seeing or hearing and that his view was not obstructed. He stated that the location was approximately eighty percent lit.

The complainant stated he went into another room at the location, and the defendant subsequently approached, said words, and jumped him and lunged at him with a knife at least two times. While the complainant initially observed the defendant from the side, as he was looking at the bartender, after he allegedly jumped him the first time, he turned and saw him and that is when the defendant “got him” a second time. Hearing Minutes, at 10.

Mr. Rodriguez further testified that prior to the date in question, he had seen the defendant approximately three to four times before at various bars, including the same location as the date in question.

Conclusions of Law

When a defendant seeks to suppress identification evidence, the People bear the initial burden of “establishing the reasonableness of the police conduct and the lack of any undue suggestiveness” (People v. Sosa-Marquez, 177 AD3d 1003, 1004 [2d Dept 2019], appeal denied 35 NY3d 944 [2020]). Once the People meet this burden, the defendant “bears the ultimate burden of proving that a pretrial identification procedure was unduly suggestive” (People v. McDonald, 138 AD3d 1027, 1028 [2d Dept 2016]). In the case at bar, Justice Wang found that the People did not meet their burden of establishing that the photo-array identification was not unconstitutional. However, where a pre-trial identification is found unduly suggestive under due process standards, violative of the accused's right to counsel, or the result of an unlawful search and seizure, a subsequent identification by the witness must undergo independent source scrutiny. The burden remains on the People to prove that the subsequent identification is not tainted by the suppressed identification, satisfying a “clear and convincing evidence” standard. See, People v. Ballott, 20 NY2d 600 (1967).

In defining its independent source doctrine in Mason v. Brathwaite and Neil v. Biggers, the United States Supreme Court set out a non-exhaustive list of factors to be considered: (1) the witness's opportunity to view the perpetrator during the course of the crime; (2) the witness's degree of attention to the perpetrator; (3) the degree to which the witness's description of the perpetrator matches the accused; (4) the witness's level of certainty demonstrated at the identification; and (5) the length of time between the time of the crime and the identification. Braithwaite, 432 U.S. 98 (1977); Biggers, 409 U.S. 188 (1972).

The Court finds that in the totality of the circumstances, the witness, Mr. Rodriguez, has an independent basis on which to make an in-court identification despite the suppression of the photo-array. Specifically, based on the sworn testimony at the February 2 hearing, the complainant stated that he was within five to six feet from the defendant, that the room was sufficiently lit, and that he had ample time in which to view the defendant. This face-to-face interaction occurred for between seven to ten minutes and there was nothing obstructing the complainant's view.

The complainant further swore under oath that during the alleged physical altercation, while at one point his attention was turned towards the bartender, it was also then subsequently turned toward the defendant's face. The defendant and the complainant were then removed from the room to the outside, at which time the complainant again viewed the defendant. The complainant was able to describe with a certain degree of specificity the defendant's appearance and clothing.

Additionally, the complainant testified that he has seen the defendant on at least three to four other occasions, both at the location of the incident as well as other locations, such that he is aware of his appearance. When determining the degree of certainty of the complaint's identification, in viewing the testimony from both the February 2 hearing and the Wade hearing, the Court finds the record indicates the complainant responded with sufficient certainty in identifying the defendant. While this factor, alone, is not dispositive, when taken as a whole, it further belies the complaint's familiarity with the defendant.

Accordingly, the defendant's motion finding a lack of an independent source for an in-court identification is denied.

The defendant's motion to preclude the complainant from describing the defendant at trial is also denied.

This constitutes the decision and order of the Court.

The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.

Cassandra M. Mullen, J.