The People of the State of New York, Plaintiff, v. Aaron Torres, Defendant. (2026)

The defendant, Aaron Torres, is charged with forcible touching, a class A misdemeanor (Penal Law § 130.52), and sexual abuse in the third degree, a class B misdemeanor (Penal Law § 130.55). On August 4 and 5, 2026, this court conducted a combined Dunaway and Wade hearing (Dunaway v New York, 442 US 200 [1979]; United States v Wade, 388 US 218 [1967]). The Dunaway hearing pertained to the defendant's February 23, 2025 arrest for the above-referenced alleged crimes. The Wade hearing pertained to two photo array procedures conducted on February 20, 2025. For the reasons stated herein, the defendant's motion to suppress the photo array identifications pursuant to Wade is DENIED, as there was no undue suggestion either in composition or administration. An independent source hearing is not required. The defendant's motion to suppress pursuant to Dunaway is GRANTED as the People failed to establish that the arresting officer acted on information communicated to him.

The People called two witnesses at the hearing: Detective Lauren Liebhauser (hereinafter "Detective Liebhauser") and Detective Matthew Palmieri (hereinafter "Detective Palmieri"), both of the New York City Police Department (hereinafter "NYPD"), Manhattan Special Victims Squad. The People introduced into evidence a still image created from video surveillance of the incident (People's Exhibit 1), the photo array administered to the complaining witness and accompanying instructions (People's Exhibit 2), the photo array administered to the eyewitness and accompanying instructions (People's Exhibit 3), and the audio recordings of the two photo array administrations (People's Exhibits 4 and 5).

The defendant did not call any witnesses. Following the hearing testimony, the parties made oral arguments. Based on the witnesses' testimony and the evidence presented, the court makes the following findings of fact and conclusions of law.

I. Findings of Fact

A. Testimony of Detective Liebhauser

Detective Lauren Liebhauser, shield number 5926, is assigned to the Manhattan Special Victims Squad, where her duties include investigating complaints of sexual assault (tr at 3-5). She has participated in thousands of investigations and has personally effectuated approximately 200 arrests (tr at 5).

On February 18, 2025, Detective Liebhauser was assigned as the investigator on a forcible touching incident that had occurred that morning on Ludlow Street on the Lower East Side of Manhattan (tr at 5). She interviewed the complaining witness, KD  ¹ , and KD's co-worker and friend, AC, an eyewitness to the incident (tr at 5-7).

KD reported that as she and AC walked toward 156 Ludlow Street, she noticed a man on the street who turned toward her, made eye contact, and smiled at her (tr at 6). A few minutes later, as she stood in front of this location, she saw the same man in the reflection of the store window, standing behind her and AC (tr at 6-7). He grabbed her buttocks with his hands, said nothing, and walked away (tr at 7). AC relayed a similar account (see id.). KD described the individual as a Black male in his twenties or thirties with dark brown dreadlocks, thin build, wearing a dark green hooded jacket and dark pants and possibly carrying something red (tr at 7-8, 22-23). She did not think he had facial hair (tr at 22-23).

Detective Liebhauser canvassed the area and obtained video surveillance of the actual incident from which she created still images (tr at 7-8, 23-24). One such image, People's Exhibit 1, depicts a Black man with dreadlocks wearing a dark hooded jacket and a navy-blue hat with yellow smiley faces (tr at 9-10). Detective Liebhauser testified that this individual can be seen interacting with the complainant on the surveillance video (tr at 10).

Detective Liebhauser submitted the still images to the NYPD's Facial Identification Section (hereinafter "FIS"), which she described as maintaining a large database of photographs of individuals who have had contact with the New York City criminal justice system (see id.). She explained that FIS uses facial recognition software that compares facial characteristics from the probe photo against photos in the database and generates a match (tr at 10, 25). On February 19, 2025, FIS provided her with the defendant's photograph as a match along with his pedigree information (tr at 10, 26-27). Detective Liebhauser testified that a FIS match does not provide probable cause to arrest and can only be used as an investigative lead (tr at 27). She further explained that FIS has only ever provided her with a single match and does not know whether it generates multiple candidate matches (tr at 25-26).

Using the FIS photograph, Detective Liebhauser created a wanted flyer (tr at 11). She further used the pedigree information to conduct a background check and learned that the defendant had been arrested on February 18, 2025, the day of the incident, within the New York City transit system (tr at 11). Detective Liebhauser contacted the arresting officer, Police Officer Frank Levco, and showed him People's Exhibit 1 (see id.). Officer Levco told her that the individual depicted was the person he had arrested that day, whom he knew to be Aaron Torres, and that at the time of that arrest the defendant was wearing the same clothing depicted in People's Exhibit 1 (tr at 11-12).

Detective Liebhauser then created a photo array using the FIS photograph through Photo Manager (tr at 12). Photo Manager is database of photographs of individuals who have had contact with the New York City criminal justice system (tr at 12-13). The detective entered the following descriptors into Photo Manager to generate fillers for the photo array: male, Black, Black Hispanic, 28 to 36 years old, height 5'8" to 6'2", dreadlocks, and brown eyes (tr at 13-14). She then selected five photographs of individuals to serve as fillers (tr at 14). The defendant's photograph was placed in position number five (tr at 14, 49). Because the defendant's photograph depicted him with green-colored tips on his dreadlocks, Detective Liebhauser redacted the tips on his photograph and on each filler, photograph using a black marker (tr at 14-15).

Detective Liebhauser did not administer the photo arrays. Rather, it is the practice of her command to conduct double-blind photo arrays, meaning that the investigating officer may not administer the array (tr at 18-19). She explained that it had to be administered by an investigator with no prior knowledge of the case or of the subject's appearance, to ensure that the identification procedure was suggestion-free (tr at 18-19). As such, Detective Liebhauser provided her colleague, Detective Palmieri, with two separate folders, each containing the viewing instructions, the photo array, and the viewing report (People's Exhibits 2 and 3) (tr at 17, 19-20). Detective Liebhauser did not tell Detective Palmieri which photograph depicted the suspect, and no one else in her department knew the suspect photograph (tr at 19-20). She could not recall her specific conversation with the complainant about coming to her office to view the array but testified that she always tells a witness the same thing: to come to her office and that she will be meeting with a colleague to view photographs (tr at 27-28). Detective Liebhauser did not recall whether she had a separate conversation with the eyewitness regarding viewing the photo array (tr at 28).

On February 20, 2025, Detective Liebhauser created a probable cause identification card (I-card) for the defendant (tr at 28-29). She believed she had probable cause to arrest the defendant based on her prior conversation with Officer Levco and the subsequent positive photo array identifications (tr at 21, 29). Detective Liebhauser did not arrest the defendant (tr at 21). She did not know where the defendant was arrested or who effectuated the actual arrest (tr at 29). She only knew that her colleague, Detective Salem, processed the defendant's arrest on February 23, 2025 (tr at 21, 29). She did not know who took his arrest photograph or whether any property was recovered or vouchered in connection with his arrest (tr at 29-30). She only knew that the probable cause I-card was cancelled on February 23, 2025, after his arrest and stated "[p]robable cause I-cards always cancel after [ ] individuals are arrested." (tr at 29).

B. Testimony of Detective Palmieri

Detective Matthew Palmieri, shield number 867, has been a member of the New York City Police Department for just over sixteen years, has been assigned to the Special Victims Squad since November of 2015 (tr at 31-32). He has been a detective since June of 2017 (tr at 31).

Detective Palmieri's role in this case was limited to administering two photo array identification procedures on February 20, 2025 (tr at 32-33, 47). Both were administered at the Manhattan Special Victims Squad, located at 137 Centre Street in Manhattan (tr at 34-35, 41). He was not involved in the investigation, knew nothing about the case, did not know who the suspect was or in what position the suspect's photograph appeared, and did not select the photographs for the arrays (tr at 32-33). People's Exhibits 2 and 3 are the arrays he administered and accompanying instructions (tr at 33-36, 40-41).

Detective Palmieri administered the first array to KD (the complainant) and was the only person in the room with her during the identification procedure (tr at 35). He introduced himself, explained that he was there to administer the photo array, read her the pre-viewing instructions (People's Exhibit 2), which she signed, indicating that she understood them before viewing the array (tr at 35-36). As part of those instructions, she was directed not to discuss with other witnesses anything that happened during the identification procedure (People's Exhibit 4). KD selected photograph number five (the defendant) (tr at 36-37, 51). Detective Palmieri then read her the post-viewing instructions (tr at 37; People's Exhibit 2). KD responded that she recognized the defendant from 156 Ludlow Street and was one hundred percent sure in her identification (see id.). She signed the photo array (tr at 37). This administration was audio recorded and received in evidence as People's Exhibit 4 (tr at 37, 39).

Minutes later, Detective Palmieri administered the second photo array procedure with AC (eyewitness) in the same room (tr at 41, 49). Again, they were the only two individuals in the room (tr at 41-42). The detective read her the same instructions and proceeded in the same manner as the first administration (tr at 42-43). The detective did not say anything to the eyewitness that could have indicated which photograph to select (tr at 43). The detective read her the same viewing instructions and showed her a separate printed copy of the exact same photo array, with the defendant's photograph again in position number five (tr at 49). AC viewed it once and selected photograph number five, stating that she recognized the person from the street (tr at 43). With respect to her confidence statement, People's Exhibit 3 reflects that she stated "I am sure, a little confused, but I am sure.". Detective Palmieri testified that AC said she was confused, but recognized him because he had the same expression (tr at 49).

This administration was likewise audio recorded and received in evidence as People's Exhibit 5 (tr at 45). On the audio recording, AC identifies the defendant. Following the identification, Detective Palmieri asks her the post-viewing questions (People's Exhibit 3). He asks "[d]o you recognize anyone in the photo array?" (People's Exhibit 5). AC responds "I think so" (id.). Detective Palmieri responds "uh?" and then she responds "[y]es, sorry, I'm just really nervous" (id.). Detective Palmieri asks what number she recognizes, and she again says she recognizes the person in number 5 (the defendant) (see id.). In responding to Detective Palmieri's question as to where she recognized the individual in position number 5 from, AC states "that's the guy that I saw when we were walking on the street" (id.). In response to the confidence question she specifically states "I am sure, but I'm also a little confused, because there was a lot of them, but I am sure cause he has the same expression that he had when we saw him." (id.).

Detective Palmieri testified that he did not arrange for the witnesses to come to the Manhattan Special Victims squad and did not know whether KD and AC traveled together (tr at 47). Both women were in the waiting room when he came to bring KD into the interview room for the identification procedure (see id.). He administered KD's array at approximately 2:15 p.m., and that procedure took approximately four minutes (see id.). Both arrays were administered in the squad's interview room, which he described as a regular-sized office with a door, located on the same floor as the waiting room (tr at 47-48). After completing KD's viewing, he returned to the waiting room, where AC was waiting, and brought her into the room for the identification procedure (tr at 48-49). The witnesses did not speak with each other between the administration of the photo arrays (tr at 46). On cross-examination, Detective Palmieri acknowledged that he knew from the first photo array procedure that that number five had been selected by the complainant prior to administering the second procedure (tr at 51).

II. Conclusions of Law

The court finds that the detectives who testified were credible witnesses.

A. Identifications of Defendant (Wade Hearing)

The court conducted a Wade hearing to determine whether the two photo array procedures conducted on February 20, 2025 were unduly suggestive. An identification obtained through an unduly suggestive pretrial procedure violates due process and is therefore not admissible to determine the guilt or innocence of an accused (People v Chipp, 75 NY2d 327, 335 [1990]; see United States v Wade, 388 US 218, 235 [1967]).² In determining whether a pretrial identification procedure was unduly suggestive, the court engages in a burden-shifting analysis: while the People bear the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in the pretrial identification procedure, the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive (Chipp, 75 NY2d at 335; see People v Holley, 26 NY3d 514, 521 [2015]; People v Jones, 2 NY3d 235, 244 [2004]; People v. Ortiz, 90 NY2d 533, 537 [1997]).

Whether an identification procedure is unduly suggestive is a mixed question of law and fact (People v Perkins, 28 NY3d 432, 436 [2016]). The determination of a photo identification is accordingly a fact-intensive one, resolved on the particular photo array and record before the court.

The defendant advances several contentions directed at the composition of the array. Specifically, he argues that he is one of only two individuals depicted with lighter skin. He argues that his chin is raised higher than that of any other fillers, a feature he submits is significant because AC attributed her selection in part to the individual's facial expression. Further, he argues more broadly that the simultaneous display of six photographs invites a witness to compare the subjects against one another and to select by relative judgment rather than by reference to an actual memory of the perpetrator, increasing the likelihood that an innocent person will be chosen by association. Finally, he argues that the inclusion of his photograph in the array at all, it having been placed there as the result of a facial recognition lead, inherently increased the likelihood that he would be selected. The court does not find these contentions persuasive.

Here, the People have satisfied their burden of demonstrating that the composition of the photo arrays were reasonable and not unduly suggestive. They have likewise satisfied that burden as to the manner in which the arrays were administered, through a double-blind procedure (CPL 60.25 [1] [c]; 60.30) and through other methods used to mitigate any suggestiveness. The People's burden at this threshold is one of production and is minimal (Ortiz, 90 NY2d at 538; see Holley, 26 NY3d at 521).

First, the composition of the photo arrays was not unduly suggestive, notwithstanding defendant's contentions that his complexion is lighter than the fillers and that his chin is raised. A defendant is not entitled to an array in which he is surrounded by individuals nearly identical to him in appearance or that each look in the exact same direction (Chipp, 75 NY2d at 336). Rather, a photo array is unduly suggestive if some feature or characteristic of one of the depicted individuals or photographs is so unique or distinctive that it draws the viewer's attention to that photograph, thereby indicating that the police have selected that particular individual (People v Robert, 184 AD2d 597, 598 [2d Dept 1992]).

The court has closely examined the photo arrays admitted into evidence as People's Exhibits 2 and 3 and is satisfied that the variations defendant identifies were not so distinctive as to draw the viewer's attention to his photograph in a manner indicating that the police had made a particular selection. Here, the fillers were reasonably similar in appearance; men of the same race and of similar age, with brown eyes, dreadlocks of similar length and similar facial hair, and any difference between them was not sufficient to create a substantial likelihood that defendant would be singled out for identification (People v Drayton, 70 AD3d 595, 596 [1st Dept 2010]; see People v McBride, 14 NY3d 440, 448 [2010]). Specifically, the individual pictured beside defendant in photograph number 4 is of comparable complexion, with the other fillers having only slightly darker skin tones. Moreover, the fillers in positions one and four are likewise depicted with their heads turned or tilted. The defendant's picture has his chin turned slightly upward but just like all the fillers, his mouth is closed and his eyes are focused forward. His expression is exactly the same as all the fillers. Moreover, where a distinctive feature might otherwise have set the defendant apart — the green coloring at the ends of his dreadlocks, which no other subject in the array shared — the police took reasonable steps to conceal it. Detective Liebhauser recognized that the feature stood out and was suggestive and applied an identical black marking to the corresponding area of the hair of every individual in the array, on both sides, so that the alteration was uniform across all six photographs and drew no attention to any one of them. A distinctive feature does not render an array suggestive where the police take reasonable steps to obscure it (see People v Murphy, 1 AD3d 184 [1st Dept 2003]). Contrary to the defendant's contentions, the men depicted in the arrays were sufficiently similar in appearance to the defendant.

The defendant's remaining contentions are directed at the nature of photo array identification generally rather than at anything distinctive about this array. First, that a witness viewing six photographs simultaneously may compare them against one another is a feature of every photo array, and the corrective action the law prescribes is not the abandonment of the procedure but the instruction (read to each witness in this case) that the perpetrator may or may not be among the photographs and that the investigation will continue regardless of whether or not the witness makes an identification. This instruction is designed to ensure that no witness feels pressure to identify anyone. The contention that the mere inclusion of the defendant's photograph increased the likelihood of his selection would condemn every array containing a photograph of a suspect. The due process inquiry is directed not at how the police came to possess a particular photograph but whether anything in the procedure suggested to the witness that she should choose it. The defendant's related contentions concerning the facial recognition lead are addressed below.

Moreover, the procedure by which the array was conducted further supports the reasonableness of the administration. Detective Liebhauser, the investigating officer, created the arrays but did not administer them. Both administrations were conducted by Detective Palmieri, who knew nothing about the case, was given no information to convey to either witness, did not select the photographs, did not know which photograph depicted the suspect, and did not know the position in which the suspect's photograph appeared. And Detective Liebhauser confirmed this. Each witness was given standardized instructions, which were read aloud and signed; each was asked the standard follow-up questions and gave a confidence statement in her own words; each viewing was separately documented; and each was audio recorded in its entirety. These were blind procedures in which the administrator does not know the identity of the suspect (see CPL 60.25 [1] [c]).

The defendant argues that the second administration was not blind. He contends that by the time Detective Palmieri administered the array to AC, KD had already selected photograph number five and stated that she was one hundred percent certain in her identification, and that the array shown to AC was a separate printed copy of the same array, in the same order, with defendant again in position five. On cross-examination Detective Palmieri acknowledged that he knew, from the first viewing, that number five had been selected. From this the defendant argues that Detective Palmieri had that photograph "surely on his mind" and would have been able to cue or reinforce the same selection (tr at 8).

The court has considered this argument, but it fails for several reasons. First, what Detective Palmieri acquired between the two viewings was knowledge of a witness's selection, not knowledge of the identity of the suspect. He testified that he never learned which photograph depicted the suspect, and nothing in the record contradicts that testimony. For all he knew, KD had selected a filler. Her choice could not confirm for him something he had no independent means of knowing, and the procedure therefore remained blind.

The court observes that having the defendant's photograph placed in a different position for the second identification, assigning a different administrator to the second viewing, or withholding the first witness's selection from the administrator, would have removed the question altogether, and recommends those procedures as a matter of best practice. But regardless, given that Detective Palmieri did not know who the suspect was in administering this photo array, it was a blind administration.

Second, the defendant's argument rests on speculation about Detective Palmieri's unexpressed mental state rather than on anything he said or did. Suggestiveness requires conduct, something said or done that steers a witness toward a selection. Here the court is not limited to the detective's testimony alone because both photo array procedures were audio recorded in their entirety and are in evidence. Having reviewed those recordings together with the photo array packets and the testimony, the court finds that Detective Palmieri did nothing beyond introduce himself, read the standardized instructions, and asked the prescribed follow-up questions, and that he said and did nothing that indicated to either witness which photograph to select.

The defendant separately points to an "uh" sound made by Detective Palmieri during the second administration, after AC responded "I think so" when asked whether she recognized anyone, which he characterizes as a disapproving or surprised utterance that prompted her to firm up her answer. The court has listened to People's Exhibit 5 and finds that the utterance occurred after AC had identified the defendant. The recording establishes that AC made her selection first, and that the exchange upon which defendant relies took place during the post-identification questions that followed, when Detective Palmieri asked whether she recognized anyone in the array and she answered "I think so." The defendant's characterization of those words as her initial response to the array is not borne out by the recording. Remarks made after a witness has already made her selection may bear upon the weight of her expressed confidence and are a proper subject of cross-examination at trial, but they do not render the procedure suggestive. The same is true of AC's statement that she was sure but also a little confused. That statement goes to the weight of her identification, which is for the trier of fact at trial, and not to the suggestiveness of the procedure.

Finally, the defendant argues that the two witnesses arrived together, waited together, and viewed the array minutes apart, and that they may have signaled to one another between the procedures. Detective Palmieri testified that he did not arrange the witnesses' arrival, did not know whether they traveled together, and found both of them in the waiting room when he came to meet with KD. Each viewing was conducted separately in a closed interview room with no one present but the administrator and the witness, and KD's viewing took approximately four minutes. The record contains no evidence that either witness said anything to the other about the array (in fact, the witnesses were directed against doing so) and the defendant's suggestion that they may have communicated is conjecture. Two witnesses to the same incident, viewing the same array separately, selecting the same photograph is not itself evidence of police suggestion.

Accordingly, the court finds that the People met their initial burden of going forward with credible evidence establishing the reasonableness of the police conduct and the absence of undue suggestiveness, and that the defendant has failed to carry his ultimate burden of establishing that either photo array procedure was unduly suggestive. As such, the motion to suppress the out-of-court identifications made by KD and AC is denied. Because the court finds that the procedures were not unduly suggestive, no independent source hearing is required (see Chipp, 75 NY2d at 335).

B. Facial Recognition Software

Defendant separately contends that the process by which his photograph came to be included in the array, specifically the submission of a surveillance still to FIS and the return of a single possible match lead, was itself an unnoticed, police-arranged identification procedure, that the People failed to produce a witness with personal knowledge of it, and that the photo array is therefore the fruit of a tainted procedure. The court addresses this contention separately because it raises a question on which there is little guidance.

What this record establishes about the role of facial recognition in the investigation is limited. Detective Liebhauser submitted still images created from surveillance video and received from FIS a single photograph of the defendant with pedigree information. She testified that she has only ever received one match and did not know whether the software generates more matches. The FIS detective who ran the search and selected the photograph provided to her (and ultimately used in the photo array) was not called as a witness. No evidence was offered as to the software employed, the composition of the repository searched, the number of candidate images returned, any confidence or similarity score assigned to the defendant's photograph or to any other candidate, the criteria by which the single forwarded image was selected, or the quality of the probe image submitted. No evidence concerning facial recognition technology was offered at this hearing, and the court has not relied on any in deciding this motion.

However, the court recognizes that there are documented concerns with the use of this software. Specifically facial recognition software does not in fact "match" two photographs; it compares a probe image against a repository and returns candidates, which an officer then treats as an investigative lead (see Clare Garvie, Alvaro Bedoya & Jonathan Frankle, The Perpetual Line-Up: Unregulated Police Face Recognition in America, Ctr on Privacy & Tech at Georgetown Law [2016]).

Moreover, researchers have found that facial recognition technology varied in its accuracy based on the identity of subjects, including being less accurate identifying Black people (see, e.g. Aziz Z. Huq, Racial Equity in Algorithmic Criminal Justice, 68 Duke LJ 1043, 1079 [2019]). Moreover, algorithmic bias may be compounded by circumstance: because Black people are disproportionately likely to come into contact with and to be arrested by law enforcement, and because these systems draw upon arrest photograph databases, the technology may be overused on the very segment of the population on which it underperforms (see Clare Garvie et al. The Perpetual Line-Up: Unregulated Police Face Recognition in America, Ctr on Privacy & Tech at Georgetown Law [2016]). The court notes these findings because the defendant in this case is a Black man whose photograph entered the array by way of such a search and that process remains a mystery.

In addition to the algorithm concerns, the human analysts who review the "matches" from the search frequently work without standardized training, proficiency testing, or certification, and are not shielded from information about the underlying investigation — conditions under which cognitive bias is known to operate (see Clare Garvie, A Forensic Without the Science: Face Recognition in U.S. Criminal Investigations, Ctr on Privacy & Tech at Georgetown Law [2022]). That is precisely the step about which this record is silent. Detective Liebhauser testified that she received a single photograph back and did not know how FIS had selected it, and the FIS detective who reviewed the candidates and selected the image did not testify.

A related concern involves the quality of the image submitted for comparison. The reliability of a facial recognition lead depends heavily on the probe photograph, and that in the absence of rules governing what may be submitted, agencies have run searches on forensic sketches, on photographs of celebrities thought to resemble a suspect, and on images altered to improve clarity, including by transposing facial features from another person's photograph (see Clare Garvie, Garbage In, Garbage Out: Face Recognition on Flawed Data, Ctr on Privacy & Tech at Georgetown Law [2019]). Here, Detective Liebhauser testified that she created still images from the surveillance footage she collected and that People's Exhibit 1 is one of them, but the record is silent as to the quality of the images submitted to FIS and as to whether any of these images were altered in any respect before or after submission. The court draws no inference from that silence. It notes only that these are the questions a hearing record should answer where a facial recognition lead is the reason a particular photograph appears in an array, and that they can be answered only by a witness with knowledge of the procedure.

Finally, commentors have described the cascading influence a machine-generated candidate may exert on a subsequent human identification: a witness may give added weight to a photograph known to have been produced by a computer, yielding an impression of double confirmation when the second identification was in fact shaped by the first (see Valena E. Beety, Considering "Machine Testimony": The Impact of Facial Recognition Software on Eyewitness Identifications, 60 Duq L Rev 271, 277-279 [2022]).

These concerns can be tempered by certain safeguards. Specifically, The National Academy of Sciences the National Research Council, in Identifying the Culprit: Assessing Eyewitness Identification [2014], recommended double-blind array procedures, standardized witness instructions, documentation of witness statements, and recording of the procedure, and commentators have urged that these protocols be applied with particular care where the suspect's photograph originates from a facial recognition lead, reasoning that a blind array neutralizes whatever influence might otherwise attach to the software's involvement, because the photograph is then presented to the witness in the same manner as every other photograph in the array (Beety at 279-280).

Those safeguards were observed here. The defendant's photograph was not displayed to either witness as a facial recognition candidate. It was not shown in show-up fashion. It was placed in an array of six photographs assembled by descriptor and uniformly altered, administered by a detective who did not know which photograph depicted the suspect, preceded by standardized instructions, and recorded. This is, in substance, the procedure the scientific literature recommends as the corrective to the very risk defendant identifies.

Nor does the FIS lead constitute an identification procedure requiring notice under CPL 710.30 or subject to scrutiny under Wade and its progeny. The due process inquiry into undue suggestiveness is directed at what was suggested to the identifying witness at the moment of identification. No witness to the incident viewed anything at the FIS stage; a lead, which was only pursued by the police, and Detective Liebhauser testified without contradiction that this lead did not provide probable cause to arrest and that she took further investigative steps before seeking defendant's arrest. Defendant has cited no authority, and the court has found none, holding that a facial recognition lead is a police-arranged identification procedure within the meaning of CPL 710.30. Whether the source of a photograph placed in an otherwise proper array bears upon suggestiveness (or reliability) is a question that may warrant fuller development in an appropriate case. Here, however, it does not alter the outcome on this record.

For all the reasons addressed above, the photo array procedures were not unduly suggestive and the defendant's request for suppression is DENIED.

C.Probable Cause for the Arrest (Dunaway Hearing)

While a defendant bears the ultimate burden of proving the illegality of police conduct, the People bear the initial burden of coming forward with evidence establishing a lawful rationale for the conduct of the police, and of establishing that the police had probable cause to arrest the defendant (People v Berrios, 28 NY2d 361, 367 [1971]; People v Ramirez-Portoreal, 88 NY2d 99, 113-114 [1996]; see People v Balkman, 35 NY3d 556, 559 [2020]).

Probable cause to arrest requires the existence of facts and circumstances which, when viewed as a whole, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense has been or is being committed, and that the defendant committed or is committing that offense (People v Wright, 8 AD3d 304, 307 [2d Dept 2004], citing People v Bigelow, 66 NY2d 417, 423 [1985]; see People v Oden, 36 NY2d 382, 384 [1975]). Pursuant to CPL 140.10 [1] [b], a police officer may arrest a person for a crime when they have reasonable cause to believe that such person has committed such crime, whether in their presence or otherwise. The arresting officer need not possess proof sufficient to warrant a conviction beyond a reasonable doubt, but merely information sufficient to support a reasonable belief that an offense has been or is being committed (Bigelow, 66 NY2d at 423). The inquiry is an objective one, measured by the facts and information known to law enforcement at the time of the arrest.

It is well settled that information provided by an identified person, accusing another individual of a crime, is sufficient to provide the police with probable cause to arrest (People v. Peterkin, 151 AD2d 407 [1st Dept 1989]; see People v Sanders, 239 AD2d 528, 528 [2d Dept 1997]). Unlike information supplied by anonymous or paid informants, which typically requires additional indicia of reliability or corroboration, a report from an identified complainant is legally sufficient to establish probable cause even in the absence of prior proof of the complainant's reliability or independent corroboration of the statement (People v. Nichols, 156 AD2d 129, 130 [1st Dept 1989]; see People v Crespo, 70 AD2d 661, 661 [2d Dept 1979]).

KD and AC were identified citizen witnesses who reported a crime they had respectively suffered and observed, and whose accounts were consistent with one another. Their reports did not, however, name the defendant. What those accounts supplied was a reliable report that a crime had occurred and a description of the man who committed it. The defendant's identity emerged from the investigative steps that followed.

The court does not rest its probable cause determination on the FIS result, and the People do not ask that it do so. Detective Liebhauser testified that a facial recognition comparison does not supply probable cause and may be used only as an investigative lead. The FIS result furnished a name and a direction for further investigation - not justification for the arrest.

Reviewing the defendant's background, Detective Liebhauser learned that he had been arrested on February 18, 2025, the day of the incident, within the New York City transit system. She contacted the arresting officer, Police Officer Frank Levco, who told her that the individual depicted in People's Exhibit 1 was the person he had arrested that day, whom he knew to be Aaron Torres, and that the defendant had been wearing the same clothing at the time of that arrest. This information came from a police officer speaking from personal knowledge, and it corroborated the surveillance image in two respects: it attached a name to the individual depicted, and it placed the defendant in the same clothing on the same day as the incident.

Thereafter, on February 20, 2025, the complaining witness and eyewitness each independently viewed a photo array administered by a detective with no knowledge of the case, and each selected the defendant's photograph. For the reasons set forth above, those procedures were not unduly suggestive. An identification of a suspect by the victim of a crime, and by an eyewitness who observed it, is direct and reliable evidence.

It was on that combination of information that Detective Liebhauser issued a probable cause I-card for the defendant on February 20, 2025. The court finds that Detective Liebhauser possessed probable cause to arrest the defendant at that time, and that her issuance of the I-card was proper.

That finding, however, does not end the inquiry. Detective Liebhauser did not arrest the defendant. He was arrested three days later, on February 23, 2025, by an officer who was not identified and who did not testify. Where the People rely on probable cause possessed by an officer other than the one who made the arrest, they must establish more than that probable cause existed somewhere within the police department. Under the fellow officer rule, a police officer may make a lawful arrest without personal knowledge sufficient to establish probable cause, so long as the officer acts on the direction of, or as a result of communication with, a fellow officer or another police agency in possession of information sufficient to constitute probable cause (People v Ketcham, 93 NY2d 416, 419-420 [1999]). The People must also establish that the officers who detained the defendant actually received that information (People v Washington, 82 AD3d 570, 570 [1st Dept 2011]; see People v Powell, 101 AD3d 756, 758 [2d Dept 2012]).

The Court of Appeals has recently addressed this question in the specific context of an NYPD probable cause I-card. In People v. Palacios, a detective created a probable cause I-card after a witness identified the defendant, and the defendant was arrested the following day by patrol officers who did not testify (People v Palacios — NY3d —, 2026 NY Slip Op 02360 [Apr 16, 2026]). The Court held that an I-card, like a radio transmission or a telephone call, may serve as a mode of communicating probable cause from one officer to another, but that as with any communication the People must adduce evidence that the arresting officer received the information the I-card conveyed and relied on it in making the arrest (see also People v. Gonzalez, 80 NY2d 883, 885 [1992]). Finding that the People had offered no such evidence, and that the circumstantial proof they did offer was too limited to supply it, the Court reversed the order of the Appellate Division and granted suppression. In doing so it disapproved the reasoning that the testimony of the officer who issued an I-card, standing alone, mandates an inference that the defendant was arrested with probable cause by another officer.

Measured against that standard, the record before this court is thinner than the record in Palacios. There, the testifying detective was at least able to say that the defendant had been apprehended by patrol and brought back to his own precinct squad, and the arrest followed the I-card by a single day. Here, Detective Liebhauser testified that she did not know who actually went to pick the defendant up in connection with the arrest and did not remember in which borough he was arrested. Three days elapsed between the issuance of the I-card and the arrest. The only officer she could name in connection with the arrest was Detective Salem, who processed it. Processing an arrest is an administrative function performed after the fact, and it is not evidence that Detective Salem or anyone else took the defendant into custody based on the I-card. Detective Salem did not testify. No arresting officer testified. The I-card was not offered in evidence, and no proof was adduced as to what it contained, how NYPD officers were able to access it, or whether any officer in fact did so.

The court has considered whether the cancellation of the I-card on February 23, 2025 supplies the necessary link. It does not. Detective Liebhauser testified that probable cause I-cards always cancel after the individual named in them is arrested. Cancellation is therefore an automatic consequence of an arrest, whatever the reason for that arrest, and it establishes only that NYPD's records were updated once the defendant was in custody. It is not evidence that the officer who arrested him had received the information conveyed in the I-card, still less that he acted upon it.

A communication between officers may of course be established circumstantially (see e.g. Ramirez-Portoreal, 88 NY2d at 114) but the circumstances here are not comparable. The court is left with an I-card issued by one detective, an arrest three days later in an unknown location by an unknown officer, and nothing connecting the two but the sequence in which they occurred.

The fact that the defendant adduced no evidence concerning the circumstances of his arrest does not alter the result. The burden of coming forward rests with the People, and where that burden is not carried the ultimate burden never shifts to the defendant (see Ortiz, 90 NY2d at 538).

Accordingly, the court finds that the People failed to meet their burden of establishing that the officer who arrested the defendant on February 23, 2025 acted upon information communicated to him, and therefore failed to establish that the arrest was supported by probable cause.

The branch of the defendant's motion seeking suppression of the fruits of that arrest is accordingly granted. In argument the defendant identified such fruits as the observations of the officers who seized him and his arrest photographs. No evidence of either was adduced at this hearing. Both photo array procedures were conducted on February 20, 2025, three days before the defendant was taken into custody; the identifications made by KD and AC accordingly preceded the arrest and are in no sense its fruits. No statement of the defendant was offered or referred to at the hearing, no physical evidence was shown to have been recovered, and no identification procedure was conducted after his arrest. The court is therefore not aware of any item of evidence to which this ruling attaches. To the extent that any such evidence exists, however (including the observations of the officers who effected the arrest and any photograph taken of the defendant post arrest) it is suppressed, and the People may not offer it at trial.

Accordingly, for the reasons stated herein, it is hereby ORDERED that the branch of the defendant's motion seeking suppression, pursuant to United States v Wade, of the out-of-court identifications made by KD and AC in the photo array procedures of February 20, 2025 is DENIED; and it is further

ORDERED that the branch of the defendant's motion seeking suppression, pursuant to Dunaway v New York, of the fruits of the defendant's arrest of February 23, 2025 is GRANTED to the extent that any evidence was obtained as a result of that arrest. Such evidence is SUPPRESSED.

This constitutes the decision and order of the court.

Dated: August 19, 2026

New York, NY

Ilona B. Coleman, J.C.C.

FOOTNOTES

1.   Identifying information has been redacted for publication purposes.

2.   The inquiry at a Wade hearing is directed to the suggestiveness of the identification procedure, not to the reliability of that identification. Under due process considerations, an identification produced by an unnecessarily suggestive procedure is excluded without regard to its reliability (see People v Adams, 53 NY2d 241, 250-252 [1981]).

Ilona B. Coleman, J.