Supreme Justice Wayne Ozzi

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The court conducted a Wade hearing regarding the voluntary nature of his videotaped statement and the validity of the police’s identification procedures with the victim. Defendant was arrested for the robbery of Jonathan Bonilla. Upon encountering Jonathan, police viewed a cellphone video of the robbery taken by an unidentified bystander. Officers later conducted a photo array with Jonathan, who identified defendant as the person who robbed him. Defendant was arrested and was placed into a lineup in which Jonathan again identified defendant. Defendant challenged his videotaped statement after his arrest in which he alleged that he kicked the victim after the victim allegedly threw a brick at him but the court ruled that defendant validly waived his Miranda rights. Defendant further challenged the photo array and also challenged the lineup because his counsel was not present. The court ruled that defendant failed to meet his burden to establish that the photo array was unduly suggestive but agreed that police erred in conducting the lineup without his counsel present; ruling that the state failed to establish exigent circumstances to warrant proceeding with the lineup in the absence of defense counsel.