A Dunaway/Wade hearing was held before this Court on August 17, 2022. The People called two witnesses at the hearing, Detective Vu Nguyen and Detective Matthew Kilfoyle, whose testimony the Court finds to be credible. This decision summarizes the testimony below, as the Court’s findings of fact, and constitutes the Court’s conclusions of law. Findings of Fact On December 12, 2021, Police Officer Vu Nguyen, an officer with the NYPD’s Queens Transit Robbery Squad, began investigating an assault that occurred on the F Train that afternoon. The complainant, Morgan Lee, informed Officer Nguyen that an individual approached him on the subway car and struck him on the face with a water bottle. Officer Nguyen also spoke with James Richburg, a subway conductor, who stated that he saw a male approach Mr. Lee and hit him in the face with a bottle. Mr. Richburg described the assailant as a white or Hispanic male who was approximately five and a half feet tall. According to Mr. Richburg, the assailant was wearing jeans and a bright blue jacket. He boarded the train at the 21st Street station and exited at the Jackson Heights Station. Officer Nguyen, as part of the investigation, obtained approximately one minute of video surveillance footage of the subway platform at the Jackson Heights station on the afternoon of December 12. The video depicted numerous people waiting on the subway platform. Officer Nguyen showed it to Mr. Richburg to see if he recognized anyone. Mr. Richburg identified an individual wearing jeans and a blue jacket as the person who struck the complainant. Officer Nguyen sent a still image of the individual to the NYPD Facial Identification Section (“FIS”) to check whether that individual matched anyone in the FIS database. FIS reported that the individual matched someone in their system, defendant Nelson Jorge, and provided his name, date of birth, and arrest history. Between December 24 and December 26, Officer Nguyen emailed a copy of the still image to two police officers who had each previously arrested defendant in order to confirm his identity. Each officer stated that the individual was Nelson Jorge and that they had each arrested him before. As a result, Officer Nguyen issued an investigation card (“I-Card”) for Nelson Jorge which indicated that there was probable cause to arrest him in relation to the assault case. On January 10, 2022, Officer Nguyen created a photo array featuring defendant’s photograph, which had been obtained from the NYPD system, in position two. He asked another police officer with the Queens Transit Robbery Squad, Matthew Kilfoyle, to administer the photo array to James Richburg. Officer Nguyen told Mr. Richburg that Officer Kilfoyle would meet him at the Parsons-Archer Avenue subway station and show him some photographs. He did not provide Mr. Richburg or Officer Kilfoyle with any details about the suspect or the photo array. On January 11, 2022, Officer Nguyen arrested defendant. Two days later, Officer Kilfoyle met with Mr. Richburg in an employee corridor at the Parsons-Archer Avenue subway station to administer the photo array. Officer Kilfoyle read the instructions to Mr. Richburg and then showed him the photo array. Mr. Richburg identified defendant as the person who struck the complainant on the train. He stated that he was “very certain” that defendant was the assailant. Conclusions of Law A. Legality of Defendant’s Arrest As an initial matter, the Court finds that the People have established that probable cause existed for defendant’s arrest on January 11, 2022. It is well settled that the police have probable cause to arrest an individual when they have “information sufficient to support a reasonable belief that an offense has been [committed] or is being committed or that evidence of a crime may be found in a certain place.” People v. Jones, 202 AD3d 821, 825 [2d Dept 2022]. While mere suspicion or conduct equally susceptible to innocent or culpable interpretation is not sufficient, probable cause does not require proof beyond a reasonable doubt. People v. Alexander, 200 AD3d 790 [2d Dept 2021], lv denied 37 NY3d 1159 [2022]; People v. Kamenev, 179 AD3d 837 [2d Dept 2020], lv denied 35 NY3d 1027 [2020]. Considering the totality of the circumstances (People v. Geddes, 171 AD3d 1210 [2d Dept 2019], lv denied 33 NY3d 1069 [2019]), the surveillance video identification of defendant by Mr. Richburg and the defendant’s appearance in the subway surveillance video, along with the complainant’s statements and other “circumstantial evidence linking defendant to the scene of the crime,” established probable cause for Officer Nguyen to arrest defendant. People v. Johnson, 195 AD3d 526, 526 [1st Dept 2021], lv denied 37 NY3d 1097 [2021]; see also People v. Tyler, 201 AD3d 1371, 1372 [4th Dept 2022], lv denied 38 NY3d 1010 [2022]; People v. Jackson, 168 AD3d 473, 473-74 [1st Dept 2019]; People v. Young, 152 AD3d 981 [3d Dept 2017]; People v. Bethune, 65 AD3d 749 [3d Dept 2009]. B. Suppression of Identification Evidence 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]. 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]. 1. The Surveillance Video Identification It is not unduly suggestive for the police to show a witness a surveillance video depicting the defendant as long as the defendant is “not singled out, portrayed unfavorably, or in any other manner prejudiced by police conduct or comment, or by the setting in which the defendant was taped.” People v. Hall, 168 AD3d 761, 762 [2d Dept 2019], lv denied 33 NY3d 976 [2019]; see also People v. Edmonson, 75 NY2d 672, 676-77 [1990]; People v. McGhee, 194 AD3d 498, 499 [1st Dept 2021], lv denied 37 NY3d 973 [2021]; People v. Davis, 115 AD3d 1167, 1169 [4th Dept 2014], lv denied 23 NY3d 1019 [2014]. In this case, there is nothing in the surveillance video that portrays defendant unfavorably or unfairly singles him out from any of the other persons featured in the surveillance video. There were numerous people standing on the subway platform near defendant. In addition, there is no evidence that the police made any comments to Mr. Richburg that “impermissibly singl[ed] out defendant” as the likely culprit. See McGhee, 194 AD3d at 499. Rather, the testimony at the hearing indicated that Mr. Richburg identified defendant in the surveillance video without any prompting from Officer Nguyen. Accordingly, the Court declines to suppress the identification of defendant in the surveillance video. 2. The Photo Array Identification A photo array is unduly suggestive if “some feature or characteristic of one of the depicted individuals 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. Bowman, 194 AD3d 1123, 1126 [3d Dept 2021], lv denied 37 NY3d 963 [2021]. While the various persons included in a photo array must be sufficiently similar in appearance to the defendant (People v. Lago, 60 AD3d 784 [2d Dept 2009]), there is no requirement that they be “nearly identical in appearance” to the defendant. People v. Chipp, 75 NY2d 327, 336 [1990]; see also People v. Staton, 28 NY3d 1160 [2017] [photo array was proper although defendant was older than other fillers]; People v. Linear, 200 AD3d 1498 [3d Dept 2021], lv denied 38 NY3d 951 [2022] [photo array was proper even though defendant was the only bald person featured]; People v. Marryshow, 162 AD3d 1313 [3d Dept 2018] [photo array was not suggestive despite differing skin tones of the persons featured]; People v. Quintana, 159 AD3d 1122 [3d Dept 2018] [photo array was not unduly suggestive even though defendant's neck tattoo was partially visible]. The Court concludes that the photo array procedure in this case was not unduly suggestive, as “nothing about defendant’s [appearance] was likely to unduly draw the viewer’s attention to his photo or indicate that he was the perpetrator of the charged crimes.” People v. Serrano, 173 AD3d 1484, 1487 [3d Dept 2019]. The photo array displayed to Mr. Richburg featured individuals similar in age and general physical characteristics to those of the defendant and were not exhibited to the witness in a suggestive manner. See People v. Richardson, 200 AD3d 984 [2d Dept 2021], lv denied 38 NY3d 930 [2022]; People v. Bell, 188 AD3d 904 [2d Dept 2020], lv denied 36 NY3d 1049 [2021]. In fact, Officer Nguyen “took reasonable steps to conceal the difference” between defendant and the fillers by covering the right eye of each individual in the photo array and adding a marking under each of their left eyes. See People v. Dunaway, 207 AD3d 742 [2d Dept 2022]; People v. Costan, 197 AD3d 716 [2d Dept 2021], lv denied 37 NY3d 1095 [2021]; People v. Perry, 133 AD3d 410 [1st Dept 2015] ["a simple eye patch provided to each of the lineup participants or a hand over an eye would have sufficed to remove any undue suggestiveness of the procedure"]; People v. Means, 35 AD3d 975, 976 [3d Dept 2006] [suppression properly denied when "the police placed a strip of white tape on the neck of each male depicted because of the presence of a distinctive tattoo on defendant's neck"]. In addition, any possibility of undue suggestiveness was mitigated by the fact that the detective who conducted the photo array procedure had no information concerning details or the suspects of the investigation. See People v. Pleasant, 149 AD3d 1257 [3d Dept 2017]. Finally, photo array procedure was not rendered unduly suggestive by the earlier surveillance video viewing. The photo array was shown to Mr. Richburg nearly one month after the initial surveillance video identification procedure and used a different image of defendant. See People v. Greene, 87 AD3d 551 [2d Dept 2011], lv denied 19 NY3d 864 [2012] ["Two separate showings of a suspect's picture in successive photographic arrays are not per se impermissibly suggestive, particularly where, as here, a different photograph of the defendant was used"]; People v. Dunlap, 9 AD3d 434, 435 [2d Dept 2004]. Thus, since the photo array procedure was not unduly suggestive or likely to taint the witness’s identification testimony, the Court finds no basis to suppress the photo array identification. Accordingly, defendant’s motion to suppress identification evidence is 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. Dated: September 21, 2022
