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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Appellant, v. David GALLETTI, Respondent.

Decided: May 27, 1997

Before O'BRIEN, J.P., and GOLDSTEIN, McGINITY and LUCIANO, JJ. Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie, Leonard Joblove, and Barbara Thomashower, of counsel), for appellant. Freeman, Nooter and Ginsberg, New York City (Lee Ginsberg and David G. Secular, of counsel), for respondent.

Appeal by the People from an order of the Supreme Court, Kings County (Juviler, J.), dated March 8, 1996, which, after a Wade hearing, granted that branch of the defendant's omnibus motion which was to suppress identification evidence.

ORDERED that the order is reversed, on the law, that branch of the defendant's omnibus motion which was to suppress identification evidence is denied, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.

Although ordinarily a hearing court's determination should be accorded great deference on appeal, it will be reversed where, as here, it is clearly unsupported by the record (cf., People v. Crandall, 172 A.D.2d 618, 570 N.Y.S.2d 952;  People v. Diaz, 170 A.D.2d 618, 566 N.Y.S.2d 391;  People v. Cartier, 149 A.D.2d 524, 539 N.Y.S.2d 804, cert. denied 495 U.S. 906, 110 S.Ct. 1927, 109 L.Ed.2d 290;  see also, People v. Hernandez, 164 A.D.2d 920, 559 N.Y.S.2d 754).

 The Supreme Court erred in finding that the 1995 photographic array in this case was unduly suggestive because of trivial differences in the quantity of facial hair worn by the defendant as opposed to the fillers.   All six of the men depicted in the photographs were young Hispanic males with abundant dark curly hair and bushy mustaches.   Shadows below the defendant's nether lip and chin suggest that he, too, sported the kind of light beard worn by four of the other five subjects in the photographic array (see, e.g., People v. Jackson, 211 A.D.2d 644, 620 N.Y.S.2d 486;  People v. Lee, 207 A.D.2d 953, 617 N.Y.S.2d 81;  People v. Hernandez, supra;  People v. Callace, 143 A.D.2d 1027, 533 N.Y.S.2d 745).

Considering the totality of the circumstances, we conclude that the 1995 photographic array was not “unduly suggestive” (see, People v. Valdez, 204 A.D.2d 369, 611 N.Y.S.2d 566;  People v. Chalmers, 163 A.D.2d 528, 559 N.Y.S.2d 27;  People v. Rodriguez, 124 A.D.2d 611, 612, 507 N.Y.S.2d 756), as there was no substantial likelihood that the defendant would be singled out for identification (see, People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70).   This determination is supported by the fact that one of the two eyewitnesses to the crime complained that the six men in the 1995 photographic array were too much alike in appearance to permit an identification-although that witness told police that three of the men (the defendant being one of this group) closely resembled the man that he had seen shoot and kill a woman on a Brooklyn street in 1976 (see, People v. Gonzalez, 177 A.D.2d 961, 962, 577 N.Y.S.2d 1005).   In addition, all of the evidence establishes that the 1995 identification procedures were conducted fairly with respect to each eyewitness.

 Because the People failed to preserve an earlier photographic array, composed right after the murder took place in May 1976, it must be presumed that the 1976 array was unduly suggestive, and the People failed to rebut that presumption by competent evidence at the Wade hearing (see, e.g., People v. Wedgeworth, 156 A.D.2d 529, 548 N.Y.S.2d 790;  People v. Bratton, 133 A.D.2d 408, 410-411, 519 N.Y.S.2d 401;  People v. Scatliffe, 117 A.D.2d 827, 499 N.Y.S.2d 148).   It does not follow, however, that the mere presence of the defendant's photograph in both the 1976 and 1995 arrays rendered the latter array per se impermissibly suggestive.   Indeed, it has frequently been held that “[s]uccessive photo arrays are not per se impermissibly suggestive” (People v. Lee, 207 A.D.2d 953, 617 N.Y.S.2d 81;  People v. Cordilione, 159 A.D.2d 864, 866, 553 N.Y.S.2d 514;  People v. Sutherland, 157 A.D.2d 681, 549 N.Y.S.2d 781;  People v. Sheirod, 124 A.D.2d 14, 18-19, 510 N.Y.S.2d 945).   Here, the second photographic identification procedure took place 19 years after the first.   Thus, the second procedure was sufficiently attenuated in time to nullify any possible taint (see, e.g., People v. Mullen, 143 A.D.2d 849, 533 N.Y.S.2d 320;  People v. Smith, 140 A.D.2d 647, 528 N.Y.S.2d 872;  People v. Dubois, 140 A.D.2d 619, 622, 528 N.Y.S.2d 660).


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