A judge in Nassau County has upheld a police photo array where the defendant in a burglary case is an Orthodox Jew and was the only individual in the photographic lineup with side curls. Although defense attorney Michael Sean Weinstock of Great Neck argued that the array was unduly suggestive, Acting Supreme Court Justice David Ayres (See Profile) said it was not obvious from the photo that the defendant wore payis. Ayres declined to suppress the photographic identification of Robert Decker, who is charged with a burglary in Oceanside.

A non-victim witness picked Decker out of an array that included six images of white males with similar features, according to a transcript of an April 15 hearing in Mineola. Records also indicate that Decker was linked by DNA to blood recovered from the crime scene.

At the hearing, Weinstock and Assistant Nassau County District Attorney Lauren Doddato argued over the admissibility of the identification. Weinstock contended the identification procedure was flawed since his client was the only one with side curls. Doddato countered that the array included subjects with similar features and did not unfairly single out Decker.

Ayres said that in examining the six photos shown to the witness "it is not apparent…that the defendant has anything more than what appears to be long hair or possibly a ponytail. There is nothing in this photograph that I can see that screams out payis or identifies him in some way that is not similar to the others."