source: Caselaw Access Project

author: Rivera., J. Chief Judge Lippman

license: Public Domain

text:
    [45 NE3d 954, 25 NYS3d 58]
    The People of the State of New York, Respondent, v Kaity Marshall, Appellant.
    Argued November 17, 2015;
    decided December 17, 2015

      POINTS OF COUNSEL

      Seymour W. James, Jr., The Legal Aid Society, New York City (Richard Joselson of counsel), for appellant.
    The court violated appellant’s right to due process when it declined to conduct a Wade hearing to assess the suggestiveness of the assistant district attorney’s display, some 16 months after the incident, of appellant’s lone NYPD prisoner movement slip photograph to the complainant on the erroneous ground that the display constituted permissible “trial preparation” that could not taint the identification. At the very least, the defense should have been permitted to call the prosecutor who conducted the procedure as a witness at the pre-Wade Herner hearing (US Const Amend XIV; NY Const, art I, § 6). (People v Adams, 53 NY2d 241; Manson v Brathwaite, 432 US 98; People v Chipp, 75 NY2d 327; People v Boyer, 6 NY3d 427; People v Dixon, 85 NY2d 218; People v Rodriguez, 79 NY2d 445; People v Bulgin, 29 Misc 3d 286; People v Jerold, 278 AD2d 804; People v Williams, 8 AD3d 74; People v Randolph, 232 AD2d 327.)

      Kenneth P. Thompson, District Attorney, Brooklyn (Camille O’Hara Gillespie, Diane R. Eisner and Leonard Joblove of counsel), for respondent.
    I. The prosecutor’s brief display of a photograph of defendant to the complainant during trial preparation was not an identification procedure. In any event, the display of defendant’s photograph did not taint the complainant’s in-court identification of defendant. Furthermore, any error in admitting that in-court identification was harmless. (People v Herner, 85 NY2d 877; People v Trammel, 84 NY2d 584; People v Thomas, 60 AD3d 1341; People v Pagan, 248 AD2d 325, 93 NY2d 891; People v Holton, 225 AD2d 1021; People v Muhammad, 217 AD2d 773; People v Trottie, 167 AD2d 438; People v Monroig, 111 AD2d 935; People v Gee, 99 NY2d 158; Matter of Dashawn R., 120 AD3d 1250.) II. The hearing court did not err in denying defendant’s request to call the prosecutor as a witness at the pretrial hearing. In any event, any error in that ruling was harmless. (People v Chipp, 75 NY2d 327; People v Witherspoon, 66 NY2d 973; People v Petralia, 62 NY2d 47; People v Herner, 85 NY2d 877; People v Abrew, 95 NY2d 806; People v Peterkin, 75 NY2d 985; People v Whaul, 63 AD3d 1182; People v Morrison, 244 AD2d 168; People v Sanchez, 230 AD2d 634; People v Ocasio, 134 AD2d 293.)

      Kramer Levin Naftalis & Frankel LLP, New York City (David S. Frankel and Sarah C. White of counsel), and The Innocence Project, Inc., New York City (Barry C. Scheck and Karen A. Newirth of counsel), for Innocence Project, Inc., amicus curiae.
    I. A robust body of scientific research concerning eyewitness memory and perception makes clear that both of the identifications in this case were the product of unduly suggestive procedures. (Manson v Brathwaite, 432 US 98; People v Adams, 53 NY2d 241; People v Santiago, 17 NY3d 661; People v Abney, 13 NY3d 251; People v LeGrand, 8 NY3d 449.) II. The Herner trial preparation exception should be eliminated. (United States v Wade, 388 US 218; People v Adams, 53 NY2d 241; Young v Conway, 698 F3d 69; People v Johnson, 81 NY2d 828; Matter of James H., 34 NY2d 814; Manson v Brathwaite, 432 US 98; Dunnigan v Keane, 137 F3d 117; People v Hughes, 59 NY2d 523.) III. First time in-court identifications should be excluded absent a showing of “good reason.” (People v Santiago, 17 NY3d 661; People v Adams, 53 NY3d 241; People v Rodriguez, 79 NY2d 445; People v Duuvon, 77 NY2d 541; People v Gissendanner, 48 NY2d 543; United States v Rogers, 126 F3d 655; United States v Archibald, 734 F2d 938; Kampshoff v Smith, 698 F2d 581; United States v Williams, 436 F2d 1166; People v Johnson, 81 NY2d 828.)
   OPINION OF THE COURT

Rivera., J.

Defendant claims that the trial court, relying on People v Herner (85 NY2d 877 [1995]), and affirmed by the Appellate Term, improperly denied her request for a Wade hearing to determine the suggestiveness of a prosecutor’s pretrial display to complainant of defendant’s arrest photograph, on the ground that the display was trial preparation, and not an identification procedure. Defendant further argues that we should repudiate a practice that has developed post -Herner into an exception to Criminal Procedure Law § 710.30.

Upon consideration of the applicable statutory mandates and case law, as well as the concerns over mistaken identification and the potential risk of wrongful convictions based on eyewitness error, we conclude that the trial-preparation exception and the procedural mechanism designed to determine its application to any particular case, the so-called Herner hearing, serve as an obstacle to judicial scrutiny of potentially unconstitutionally suggestive identification procedures. The Herner procedure is, furthermore, unnecessary, because a Wade hearing adequately ensures against the admission of an unreliable identification.

We further conclude that the trial court here improperly denied defendant’s requests for a Wade hearing, but such error was harmless as there is record support for the trial court’s alternative finding of an independent source for complainant’s in-court identification of defendant. Therefore, Appellate Term should be affirmed.

L

The People charged defendant Kaity Marshall with several offenses arising from an assault of a passenger on a New York City bus. Initially, the police were unable to locate a suspect, despite descriptions of the assailant from the complainant and the bus driver. Then, two months after the incident, complainant was at a hospital pharmacy when, by mere happenstance, she saw defendant and recognized her. Complainant immediately called the police, and identified defendant as the assailant. Defendant was arrested at the hospital and later charged with assault in the third degree (Penal Law § 120.00 [1]), criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]), menacing in the second degree and third degree (Penal Law §§ 120.14, 120.15), and harassment in the second degree (Penal Law § 240.26 [1]).

Eighteen months after the bus incident, and the day before a scheduled court appearance on defendant’s criminal case, the prosecutor met with complainant and showed her a photograph of defendant taken on the day of her arrest. In court the following day, the prosecutor informed the judge and defense counsel that as part of trial preparation he had shown complainant the photograph in order to aid him in understanding her description of defendant’s hairstyles on the day of the attack and when she was arrested.

As part of defendant’s omnibus motion, and in response to the prosecutor’s disclosure, defense counsel requested a hearing pursuant to Herner (85 NY2d at 879) to establish that the photograph display constituted an identification procedure under CPL 710.30, necessitating a Wade hearing to determine whether the display was unduly suggestive. In support of the motion, counsel argued that the photograph display likely tainted complainant’s anticipated in-court identification, “thus transforming [complainant’s] initial identification into one that is now certain based on a suggestive identification procedure,” which therefore required preclusion of the identification made at the hospital. Counsel also requested to call as a witness the Assistant District Attorney (ADA) who displayed the photograph to complainant.

The court granted the hearing but denied the request to call the ADA. Instead, the sole witness at the hearing was complainant, who testified not only about the meeting with the ADA, but also about the attack, the assailant’s appearance and her identification of defendant at the hospital. In recounting the incident, complainant asserted that she took a good look at the assailant so that she would recognize her if she ever saw her again. She described the assailant as a black woman, between 20 and 40 years of age, who, as compared to herself, had a straighter face, a slightly larger nose and a much darker complexion. Complainant further testified that the next time she saw the assailant was by chance, at a hospital, two months after the incident. She stated that she had no doubt that this woman was the same person who had attacked her on the bus.

In response to questions about her meeting with the ADA, complainant testified that he showed her a photograph and asked her if she knew the picture, that the photograph was blurry and that she had only glanced at it. She also stated that the photograph did not change her mind about her memory of the attacker. The People did not submit the photograph into evidence. On cross-examination, complainant stated that she had not seen a photograph of the woman who was arrested, had not previously seen the photograph shown to her at the meeting with the ADA, and that she did not remember the ADA asking about defendant’s hairstyle, or for a description of the assailant.

In her post-hearing submission, defense counsel again argued that the photograph display was a suggestive identification procedure that should be tested further in a Wade hearing, and that defendant should be permitted to call as a witness the ADA who interviewed complainant. The People responded that the display was trial preparation, and, regardless, they did not intend to offer the photograph into evidence because complainant’s pre-arrest hospital identification of defendant served as an untainted basis for an in-court identification.

The court rejected defendant’s arguments and determined that the photograph display was part of trial preparation. The court also concluded that, given complainant’s prior identification of defendant at the hospital, her “brief viewing of the blurry photo [would] not taint an in-court identification of Defendant.”

IL

At defendant’s nonjury trial, the People relied heavily on eyewitness testimony from complainant and the bus driver. Complainant repeated much of the testimony from the pretrial hearing. She again recounted that one afternoon she was seated riding a city bus in Brooklyn with her daughter when another female passenger, whom complainant had never seen before, stood in front of her to look out the window and stepped on her foot. After the woman sat down, complainant remarked to her that she had failed to apologize. The woman then stood up and punched complainant repeatedly in the face, nose and head, giving complainant a bloody nose and injuring her left eye. During the physical altercation, complainant attempted to defend herself, but the woman pulled out a knife and threatened to kill her. Several passengers were screaming, causing the bus driver to look in the rearview mirror where he saw the woman, who was unknown to him, and complainant, whom he recognized as a previous passenger. He again briefly saw the assailant, now wearing sunglasses, as she exited the bus when it reached the next stop.

Complainant made an in-court identification of defendant as her assailant. Complainant also testified as to her out-of-court, spontaneous identification of defendant at the hospital. Complainant made no reference to any other pretrial identification and did not testify about the photograph display. The People did not submit the photograph into evidence.

The People’s other eyewitness was the bus driver, who made an in-court identification of defendant as the woman he observed punch complainant in the face. He testified that during the altercation he took a good look at defendant’s face, and described for the court the attacker’s race, approximate age, weight and clothing.

Defendant testified that she was with her mother at a laundromat at the time of the attack. She submitted into evidence her cellular telephone records, which showed that calls were made and text messages were sent from her phone at the approximate time of the incident. The records indicated that two of these text messages were sent to her mother’s phone number, which defendant claimed were unintentional. Defendant further testified that on the day of her arrest she heard complainant tell the officers that she was not sure defendant was the attacker, and asked to call her daughter to verify, and that later, at the precinct, defendant saw complainant with a younger woman, who she overheard say “[M]om, that’s not her.”

Defendant’s mother also testified, and corroborated that her daughter was with her at a laundromat and that defendant was texting on her phone at the time of the incident. On cross-examination, defendant’s mother admitted that she had not previously informed defense counsel, the prosecutor or the police that defendant was with her on the day of the attack.

On rebuttal, the People presented testimony from the two arresting officers who stated that complainant told them she was 100% sure defendant was the attacker and that she never wavered.

The court found defendant guilty of attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]), attempted criminal possession of a weapon in the fourth degree (Penal Law §§ 110.00, 265.01 [2]), menacing in the third degree (Penal Law § 120.15), and harassment in the second degree (Penal Law § 240.26 [1]). The Appellate Term affirmed, concluding as relevant here, that the pretrial photograph display was permissible trial preparation and, since complainant identified defendant upon her arrest, the display did not taint complainant’s in-court identification. The court also rejected defendant’s claim that the ADA should have been called at the hearing (42 Misc 3d 141 [A], 2014 NY Slip Op 50215[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). A Judge of this Court granted defendant leave to appeal (23 NY3d 1039 [2014]). We now affirm.

III.

Wrongful convictions based on mistaken eyewitness identifications pose a serious danger to defendants and the integrity of our justice system (United States v Wade, 388 US 218, 228 [1967] [“The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification”]; People v Santiago, 17 NY3d 661, 669 [2011] [“mistaken eyewitness identifications play a significant role in many wrongful convictions”]; People v Riley, 70 NY2d 523, 531 [1987] [“The complex psychological interplay and dependency of erroneously induced identification . . . must be vigilantly guarded against because (it) drives right into the heart of the adjudicative guilt or innocence process affecting the person accused and identified”]; People v Caserta, 19 NY2d 18, 21 [1966] [“One of the most stubborn problems in the administration of the criminal law is to establish identity by the testimony of witnesses to whom an accused was previously unknown, from quick observation under stress or when . . . there was no particular reason to note the person’s identity”]).

Apart from the uncertainty of human memory, suggestive identification procedures “increase the dangers inhering in eyewitness identification” (Wade, 388 US at 229). A pretrial identification procedure that unduly suggests a defendant’s guilt of the charged offense increases the risk of misidentification by improperly influencing the witness. As the Supreme Court has recognized,

“[p]ersons who conduct the identification procedure may suggest, intentionally or unintentionally, that they expect the witness to identify the accused. Such a suggestion, coming from a police officer or prosecutor, can lead a witness to make a mistaken identification. The witness then will be predisposed to adhere to this identification in subsequent testimony at trial” (Moore v Illinois, 434 US 220, 224-225 [1977]).

Furthermore, even employing “the most correct photographic identification procedures,” displays conducted by the police contain “some danger that the witness may make an incorrect identification” (Simmons v United States, 390 US 377, 383 [1968]). “Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in . . . memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification” (id. at 383-384). It is inescapable that “[a] major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification” (Wade, 388 US at 228).

The unfairness to the defendant and the unreliability of such procedures adversely impact the truth-finding process. Therefore, a pretrial identification procedure that is unduly suggestive violates a defendant’s due process rights and is “not admissible to determine the guilt or innocense of an accused” (People v Chipp, 75 NY2d 327, 335 [1990], citing Wade, 388 US 218, People v Blake, 35 NY2d 331 [1974], Riley, 70 NY2d 523, People v Adams, 53 NY2d 241 [1981]).

A defendant may generally challenge suggestive procedures pursuant to CPL 710.30, which New York’s legislature enacted in “response to the problem of suggestive and misleading pretrial identification procedures” (People v Gissendanner, 48 NY2d 543, 552 [1979]), and in “recognition of the importance of testing the reliability of identification testimony before trial” (People v Rodriguez, 79 NY2d 445, 449 [1992]). This Court has explained that “[t]he statutory scheme ensures that the identifications are not the product of undue suggestiveness, and lessens the possibility of misidentification” (People v Boyer, 6 NY3d 427, 431 [2006], citing Rodriguez, 79 NY2d at 449, People v Newball, 76 NY2d 587, 590-591 [1990]). As the Court stated in Boyer, “ [t]he statutory mandate is plain and the procedure simple: the People serve notice, the defendant moves to suppress and the court holds a Wade hearing to consider the suppression motion” (6 NY3d at 431). Although a court may summarily deny a request to suppress evidence where the defendant fails to allege a legal basis for the motion (CPL 710.60 [3]), “so long as the motion alleges undue suggestiveness, the defendant is generally entitled to a Wade hearing” (Boyer, 6 NY3d at 431).

Furthermore, if “the pretrial identification procedure is shown to be impermissible and improper, any in-court identifications, though not per se excludable, are not to be received in evidence ‘without first determining that they were not tainted by the illegal [procedure] but were of independent origin’ ” (People v Ballott, 20 NY2d 600, 606 [1967], quoting Gilbert v California, 388 US 263, 272 [1967]; see also People v Logan, 25 NY2d 184 [1969]; People v Rahming, 26 NY2d 411, 416 [1970]). In other words, an in-court identification is admissible only if the People establish by clear and convincing evidence that it “was neither the product of, nor affected by, the improper pretrial” procedure (Rahming, 26 NY2d at 416, citing Logan, 25 NY2d at 191, Ballott, 20 NY2d at 606-607).

Here, rather than focus the hearing directly on whether the photograph display was unduly suggestive, the court proceeded to consider whether, as the People argued, the display was trial preparation and thus fell outside the ambit of CPL 710.30, or, as the defendant maintained, the display constituted an identification procedure and thus a proper subject of a Wade hearing. The court, defendant and the People interpreted this Court’s memorandum decision in Herner as approving what is essentially a pre-Wade hearing designed to assess the need for a judicial determination on suggestiveness.

In Herner (85 NY2d at 878), during the course of preparing the identifying witness to testify at trial, the prosecutor showed her a picture of the lineup at which she had identified the defendant. The prosecutor asked if she remembered the lineup, and the witness answered affirmatively (id.). The witness was also shown the picture a second time the morning before she testified (id.). This Court agreed with the courts below that the pretrial display of the photograph was trial preparation and not an identification procedure subject to the notification requirement of CPL 710.30. Lower courts have construed Herner as establishing a so-called trial-preparation exception to a Wade hearing (see e.g. People v Bulgin, 29 Misc 3d 286, 304 [Sup Ct, Bronx County 2010] [identification of defendant in photograph arrays approximately 16 months after the showup and original photograph identification was trial preparation]; People v Jackson, 43 AD3d 488, 489 [3d Dept 2007] [review of tape recordings of meetings between a confidential informant and the defendant just before the confidential informant’s testimony at trial were trial preparation and not identification procedures and therefore did not require notice under CPL 710.30]; People v Hopkins, 284 AD2d 223, 223 [1st Dept 2001] [witness’s viewing of arrest photographs of defendant and codefendant prior to the witness’s testimony to review the roles of each in the robbery was trial preparation and not an identification procedure and therefore the Wade hearing was unnecessary]; People v Jerold, 278 AD2d 804, 804 [4th Dept 2000] [as the witness had already identified the defendant, her viewing, before testifying, of a photograph array and another photograph of the defendant was trial preparation and did not taint her subsequent in-court identification of the defendant]; People v Randolph, 232 AD2d 327, 327 [1st Dept 1996] [witness’s viewing of photographs of the defendant and two other people arrested in connection with the case, in order to help the witness, who was not fluent in English, to explain the roles of each person in the robbery was not an identification procedure, and therefore was not subject to the requirements of CPL 710.30]).

Defendant claims that the trial-preparation exception recognized in Herner is inconsistent with New York’s approach to suggestive pretrial identifications. We agree. By employing this truncated hearing protocol, the court failed to reach the essential question whether the photograph display was unduly suggestive, and, if so, whether it tainted complainant’s identification of defendant. When a defendant challenges the suggestiveness of an out-of-court viewing of defendant’s likeness, the central issue presented for judicial consideration is whether the pretrial display is conducted under circumstances bearing the earmarks of improper influence and unreliability, which create the risk of mistaken identification and thus infect the truth-seeking process.

The concern that a pretrial identification will result in witness error is the same regardless of the People’s motive. Whether the procedure is intended to refresh or anchor the identification of defendant in the witness’s memory before trial, or intended to assist the ADA in preparing the case, the relevant inquiry remains the same: was the observation of defendant unduly suggestive, rendering the subsequent identification unreliable.

Indeed, this Court has previously recognized that showing one photograph of a defendant — the procedure at issue in defendant’s case — carries the risk of undue suggestiveness and entitles defendant to a Wade hearing (Rodriguez, 79 NY2d at 453 [“Defendant was presumptively entitled to the Wade hearing on alleging that the police display of a single photo to (the identifying witness) was suggestive”]; Matter of James H., 34 NY2d 814, 816 [1974] [“The danger is increased when a single photograph is exhibited which tends to emphasize the person portrayed as the person sought”]). We can find no basis to maintain a distinction between viewings of a defendant’s image in preparation for trial and any other out-of-court identifications. Both expose a witness to defendant’s likeness, with the potential risk for undue suggestiveness.

We therefore see no reason to encumber our courts with an additional pre-Wade hearing. Instead, upon defendant’s motion, a court must hold a formal pretrial hearing to determine whether the police or prosecutor conducted an out-of-court identification procedure that exposed the witness to defendant’s identity in an unduly suggestive manner (Boyer, 6 NY3d at 431). The People bear the initial burden to establish a lack of any undue suggestiveness, but the defendant “bears the ultimate burden of proving that the procedure was unduly suggestive” (Chipp, 75 NY2d at 335). If the court finds no undue suggestiveness, the motion is denied and the People may admit the identification at trial. If the court finds the procedure to have been unduly suggestive, and the People have failed to establish by clear and convincing evidence the existence of an independent source for the identification, the motion is granted (Rahming, 26 NY2d at 417). In that case, the pretrial identification is suppressed and an in-court identification tainted by the prior identification procedure precluded (Chipp, 75 NY2d at 335). We recognize that absent a showing of suggestiveness the People bear no burden to come forward with evidence of an independent source (id.). However, we repeat our previous observation that to avoid unnecessary additional proceedings, the hearing should fully address whether there is some basis for inclusion at trial of the challenged identification (see People v Wilson, 5 NY3d 778, 780 [2005] [“in light of the ‘risk for completely renewed proceedings’ whenever a pretrial identification is challenged, the People are generally well-advised to come forward with any independent source evidence at a Wade hearing so that the suppression court may, where appropriate, rule in the alternative”], quoting People v Burts, 78 NY2d 20, 25 [1991]).

Here, the People maintain defendant is not entitled to a Wade hearing because the ADA showed defendant’s arrest photograph to complainant in order for complainant to explain defendant’s appearance on the separate occasions of the attack and her arrest, and not for purposes of an identification. However, complainant had to determine whether the person in the picture was the person she remembered as the assailant. Defendant correctly argues she was entitled to a Wade hearing to determine if the display was unduly suggestive, and, therefore, tainted an in-court identification.

However, on the facts of this case, this error was harmless. As is clear under the law, the People are entitled to establish that there is an independent source for an in-court identification (Wade, 388 US at 241; Chipp, 75 NY2d at 335; Adams, 53 NY2d at 248). Here, the trial court relied on complainant’s identification of defendant at the hospital for its finding that there was no substantial likelihood that complainant misidentified defendant and thus concluded that the photo did not taint the in-court identification of defendant. In essence, the court found an independent source and the Appellate Term affirmed. Such determination resolved an issue of fact and therefore is beyond our review if supported by the record, unless the determination is erroneous as a matter of law (People v Young, 7 NY3d 40, 44 [2006], citing People v Malloy, 55 NY2d 296, 300 [1982]; People v Dickerson, 50 NY2d 937, 938 [1980]).

On the record before us we cannot say there is no support for the court’s finding. The complainant testified at the hearing that she saw defendant at the hospital by chance and recognized her as the assailant. She then called the police, and, when they arrived, she pointed out defendant as the woman who previously attacked her on the bus. She further testified that viewing the photograph did not affect her memory of the assailant. This was sufficient to establish an independent source for the complainant’s in-court identification.

Nevertheless, defendant claims that she did not have an opportunity to address the independent source issue because the court, the People and defense counsel understood the hearing to be limited to the trial preparation/identification procedure question. While there is some support in the hearing transcripts for defendant’s argument that the hearing was circumscribed, the record also establishes that defense counsel did, in fact, cross-examine complainant about the hospital identification. She asked complainant why she was at the hospital pharmacy, how much time passed before she recognized defendant, how she came to notice the defendant, what the defendant was wearing and doing when complainant saw her, and the circumstances leading to complainant calling the police. Such questions were wholly unnecessary if, as defendant contends, she understood the hearing to focus solely on the suggestiveness of the photograph display.

Furthermore, defendant cannot argue that she was unaware of the proposed alternative ground for the in-court identification, or, as the dissent suggests, that the People limited their argument to whether the display was trial preparation or an identification procedure. The People consistently took the position in their opposition papers to defendant’s request for a hearing and in their post-hearing memorandum that the prior hospital identification was an independent source. Indeed, in anticipation of the People’s argument on this ground, defendant asserted in her post-hearing submission that whether prior viewings of defendant provided the basis for an independent in-court identification should be resolved in a Wade hearing or in an independent source hearing. Moreover, defendant’s request for another hearing, even though record evidence of an independent source exists, encourages the unnecessary expenditure of judicial resources and is at odds with the procedure sanctioned in People v Burts (78 NY2d at 24-25) and People v Wilson (5 NY3d at 780). In those cases, this Court recommended that the People present evidence of the independent source at the pretrial hearing, so as to avoid the need for renewed hearings should the trial court’s non-suggestiveness determination be reversed on appeal.

Given our decision we have no occasion to address defendant’s claim that the court erred in denying her request to call the ADA as a witness at the hearing.

Accordingly, the order of the Appellate Term should be affirmed.

Chief Judge Lippman

(dissenting). Although I agree with the majority that the Herner dichotomy, between trial preparation on the one hand and identification procedures on the other (see People v Herner, 85 NY2d 877, 879 [1995]), is not conceptually valid and should not be used to shield from Wade scrutiny pretrial prosecutorial photo displays to an identifying witness, I cannot agree that defendant was afforded the Wade hearing to which she was decidedly entitled, much less that the People at the hearing held met their initial Wade burden to demonstrate the nonsuggestiveness of the subject photo display. Nor do I find it possible to conclude that the presumption of suggestiveness arising from the prosecutor’s display of a single arrest photograph of defendant to the complainant was otherwise overcome by what the majority retrospectively dubs “independent source” evidence.

It is, first of all, plain that defendant was never afforded a full Wade hearing and that this was by design, since the announced purpose of the so-called “Herner” hearing was to determine whether a Wade hearing would be needed; indeed, the premise upon which the Herner proceeding was conducted was that if the photo display lent itself to description as “trial preparation,” no Wade hearing would be necessary. And, while there was some inquiry at the hearing as to the circumstances attending the complainant’s observation of her assailant and her two-month removed identification of defendant in a hospital waiting area, the scope of that inquiry was curtailed in accordance with what the court and the parties understood to be the narrow focus of the hearing. This shared understanding was expressly confirmed at the hearing’s conclusion:

“THE COURT: What is the issue?
“[PROSECUTOR]: The issue is if it [was] permissible trial prep or an identification procedure. If it was an identification procedure under the Penal Law th[en] it was —
“THE COURT: Then it is a Wade hearing.
“[PROSECUTOR]: Right. We are not at the point
“THE COURT: But as the first step both agree if it is ID procedure.
“[DEFENSE COUNSEL]: That is our position as well, if this hearing is for the sole purpose of determining whether or not if the identification procedure, our [sic] trial preparation, if it is deemed to be ID procedure then this gets sent to the Wade hearing.
“[PROSECUTOR]: Yes.
“THE COURT: All right and I will need you both parties to clarify what your positions are on what fact[s] the Court should determine or consider in determining whether it is an ID procedure” (emphasis added).

Consistent with this understanding, defendant’s attorney in her posthearing submission reiterated “[t]he Herner hearing is for the sole purpose of determining whether the state action constituted an ID process,” and the prosecutor argued not that there was an independent source for an in-court identification, but rather that because the photo display did not result in an identification — the image having according to the complainant been too “blurry” for that purpose — there had been no identification procedure that could have affected the basis for plaintiff’s prospective, i.e. in-court, identification. This argument did not invite a finding that there was an independent source for complainant’s in-court identification, i.e., one sufficient to overcome an intervening suggestive identification procedure, only that there had not been anything that could qualify as an intervening identification procedure.

The issue of independent source, then, never having been actually litigated in the context of what was by record agreement a hearing limited to the question of whether or not there had been an identification procedure, there is no preserved argument as to independent source before us, much less anything that could qualify as a competent finding of independent source to support the majority’s harmless error gloss. Indeed, even if this Court were empowered to make a de novo independent source finding, which it is not, there is no record to support one.

Had there been a Wade hearing as there should have, since, as the majority correctly notes, there is “no basis to maintain a distinction between viewings of a defendant’s image in preparation for trial and any other out-of-court identifications [since] [b]oth expose a witness to defendant’s likeness, with the potential risk for undue suggestiveness” (majority op at 506), the prosecution would have had the burden of going forward to demonstrate that the photo display was not unduly suggestive (see People v Chipp, 75 NY2d 327, 335 [1990], cert denied 498 US 833 [1990]). And, where a display of photographs is concerned, that burden cannot be met without either the production of the photograph(s) or testimony detailing the procedures employed to guard against undue suggestiveness (see People v Holley, 26 NY3d 514, 521-524 [2015] [decided herewith]). Here, the arrest photograph shown complainant was never produced and the only proof that its display was nonsuggestive was the complainant’s testimony that the image was too blurred to recognize. Of course, in the absence of the photo or testimony by the prosecutor who displayed it to complainant, there was no way to judge, or for defendant to challenge the truth of, complainant’s facially improbable claim that the arrest photograph, evidently created for the purpose of identifying defendant while she was in custody and purportedly shown to her to enable her verification of defendant’s hairstyle at the time of her arrest, was in fact of such poor quality as to be useless for those purposes. This proof, such as it was, was altogether inadequate to meet the burden that would have been the People’s had this been a Wade proceeding, to show that the pretrial display by the prosecutor of a single arrest photograph of the defendant to the complaining witness some 16 months subsequent to that arrest and 18 months after the incident upon which the arrest identification was premised was not unduly suggestive. Since the People manifestly did not meet their initial Wade burden, they would as a condition of having complainant identify defendant in court have been required to demonstrate, by clear and convincing evidence, that there was an independent basis for complainant’s in-court identification (see Chipp, 75 NY2d at 335). But, plainly, without any means of judging the potency of the intervening presumably suggestive photo display, any conclusion that complainant’s temporally distant observations of her assailant would independently inform her in-court identification could have been based on no more than supposition.

We have recognized the principle, generally accepted among social scientists and cognitive psychologists, that postevent information affects identification accuracy (see People v Santiago, 17 NY3d 661, 670 [2011]; People v LeGrand, 8 NY3d 449, 458 [2007]). It is not consistent with that recognition to simply assume that a display as potentially suggestive as the prosecutor’s was to complainant could have had no distorting effect on her remotely formed memory of her assailant and her trial account of the bus altercation. Certainly, there is not clear and convincing evidence to support that conclusion. In this connection, it should be noted that complainant never identified her assailant out of a pretrial lineup or photo array, much less out of one nonsuggestively composed. Her memory of her assailant, then, was never objectively tested or fixed during the long interval between the incident and defendant’s trial, and, as related in her trial testimony, was thus to an unascertainable degree an amalgam of layers of recollection increasingly malleable and susceptible to suggestion with the passage of time. Whether, under these circumstances, the display of the photograph raised a substantial likelihood of irreparable misidentification was, in accordance with the requisites of constitutionally mandated due process, a matter to be fully explored at a pretrial Wade hearing. Inasmuch as such a hearing never took place, and the record created at the Herner proceeding designedly was not a functional Wade equivalent, the order of the Appellate Term should be reversed and the matter remitted for a new trial, to be preceded by an actual, properly noticed Wade hearing (see People v Burts, 78 NY2d 20, 25 [1991]).

Judges Pigott, Abdus-Salaam and Fahey concur; Chief Judge Lippman dissents in an opinion in which Judge Stein concurs.

Order affirmed.

      . The People alternatively argue that no Wade hearing is required because complainant failed to identify defendant during the display of the photograph, as in the case of People v Trammel (84 NY2d 584 [1994]). However, because complainant’s lack of identification is disputed, and the record is subject to conflicting interpretations on this question, we find Trammel inapplicable under the unique circumstances of this case. Here, because the People failed to introduce the photograph at the hearing, and the complainant’s testimony was unclear and appeared to contradict the ADA’s description of the meeting, defendant was entitled to explore the circumstances of complainant’s viewing of the photograph. Thus, while a hearing is generally unnecessary where the record reveals no substantial basis to dispute the lack of a pretrial identification, here such a substantial basis exists, removing this case from Trammel’s ambit. Moreover, if, as the People contend, complainant failed to recognize the person in the picture as the assailant, defendant may have been entitled to this material under Brady v Maryland (373 US 83, 87 [1963] [“suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment”]).
      The People also claim that the court was not required to determine the suggestiveness of the photograph display because the People did not intend to, and, in fact, did not, introduce the photograph as part of the prosecution’s case-in-chief. While true, this does not alter our analysis because the complainant made an in-court identification during the prosecutor’s direct examination, and our case law is clear that before an in-court identification may be admitted the People must establish that it was not tainted by a suggestive and improper prior identification procedure (see Rahming, 26 NY2d at 416). Thus, at a minimum, defendant was entitled to a Wade hearing on the suggestiveness of the photograph display as it pertains to complainant’s in-court identification of defendant as the assailant.

      . Defendant did not challenge the bus driver’s in-court identification; therefore we have no occasion on this appeal to consider any potential suggestiveness and admissibility of first-time, in-court identifications, as urged by amicus.

      . The dissent argues that there was no independent source finding because the trial court’s reference to the blurry photo was merely “an effort to lend additional support to its conclusion that the display did not qualify as an identification procedure at all” (dissenting op at 511 n 1). This selective reading of the opinion is contradicted by the trial court’s conclusion that the hospital viewing and the photo display would not taint an in-court identification.

      . Our opinion in no way retreats from our recognition in People v Santiago (17 NY3d 661, 670 [2011]) and People v LeGrand (8 NY3d 449, 458 [2007]) that post-event information affects the accuracy of subsequent identifications. However, we disagree with the dissent’s apparent assertion that on the strength of the statements in those prior cases defendant is entitled to another hearing (dissenting op at 513). Nor did defendant fully develop below, and thus preserve for our consideration, her argument that an independent source identification may be subject to the same dangers of eye-witness misidentification as those associated with law-enforcement orchestrated pretrial identifications procedures. Therefore, we provide no opinion on whether the developing data and case law on memory and eyewitness identification puts in question the continuing viability of independent source identifications.

      . Contrary to the majority’s characterization, the motion court did not purport to base its decision of the motion on a finding of independent source. The motion court quite plainly found that the display of the photo was shielded from Wade scrutiny under what it understood to be the Herner trial preparation doctrine. Its observation that the display of the assertedly unrecognizably “blurry” photo would not taint complainant’s in-court identification, viewed in context, was simply an effort to lend additional support to its conclusion that the display did not qualify as an identification procedure at all, a conclusion that this Court is now unanimous in rejecting.

      . The majority chides defendant for not “fully developing]” this line of argument below, but apart from the circumstance that the argument rests on principles we have already recognized, the criticism is particularly inapt in the context of an opinion resting upon a post hoc appellate construction of a Wade hearing.


author: Fahey, J. Abdus-Salaam, J.

text:
    [45 NE3d 936, 25 NYS3d 40]
    The People of the State of New York, Respondent, v Todd Holley, Appellant.
    Argued November 17, 2015;
    decided December 17, 2015

      POINTS OF COUNSEL

      Seymour W. James, Jr., The Legal Aid Society, New York City (Andrew C. Fine and Lawrence T. Hausman of counsel), and Boies, Schiller & Flexner LLP, New York City (Stephen Kyriacou, Jr., of counsel), for appellant.
    I. Appellant was subjected to unduly suggestive pretrial identification procedures because, first, the People failed to preserve the computer-generated photo array used to identify him as the assailant prior to his arrest, thereby giving rise to a presumption of undue suggestiveness, and then failed to meet their burden to rebut or overcome that presumption, and, second, in the lineup used to identify him after his arrest, appellant was the only one out of the six lineup participants who matched the description of the assailant provided to police by witnesses. Appellant was therefore deprived of due process by the hearing court’s failure to order the suppression at trial of the lineup identifications and by the absence of an independent source hearing for the lineup witnesses’ subsequent in-court identifications. (United States v Wade, 388 US 218; People v Rodriguez, 79 NY2d 445; People v Adams, 53 NY2d 241; People v Riley, 70 NY2d 523; People v Ballott, 20 NY2d 600; People v Chipp, 75 NY2d 327; People v McRae, 195 AD2d 180; Raheem v Kelly, 257 F3d 122; People v Velez, 169 AD2d 661; People v Rudan, 112 AD2d 255.) II. Appellant was deprived of his due process right to a fair trial where, over defense counsel’s repeated objections, the People communicated to the jury that the police possessed independent, unconfrontable evidence indicating that appellant had committed the charged crimes and encouraged the jury to speculate on the nature of that phantom evidence by the elicitation of testimony pertaining to an unspecified “investigation” that gave police “information beyond” that to which witnesses specifically testified at trial and which led to appellant’s identification and arrest. (United States v Reyes, 18 F3d 65; Ryan v Miller, 303 F3d 231; People v Rivera, 96 NY2d 749; United States v Forrester, 60 F3d 52; Mason v Scully, 16 F3d 38; United States v Silva, 380 F3d 1018; People v Milligan, 309 AD2d 950; People v Tufano, 69 AD2d 826; People v Clark, 28 AD3d 785; People v LaPorte, 306 AD2d 93.)

      Cyrus R. Vance, Jr., District Attorney, New York City (<Joshua L. Haber and Alan Gadlin of counsel), for respondent.
    I. The record amply supports the lower courts’ findings that the photo identification procedure and the lineup were fair and not unduly suggestive. (People v Galletti, 239 AD2d 598; People v McBride, 14 NY3d 440; People v Sanchez, 21 NY3d 216; People v Jackson, 98 NY2d 555; People v Chipp, 75 NY2d 327; People v Adams, 53 NY2d 241; United States v Wade, 388 US 218; People v Gee, 99 NY2d 158; People v Lee, 207 AD2d 953; People v Perkins, 124 AD3d 915.) II. The brief and generalized references to the police “investigation” in Detective Mazuroski’s testimony and the People’s summation were entirely proper. (People v Resek, 3 NY3d 385; People v Romero, 7 NY3d 911; Crawford v Washington, 541 US 36; People v Eastman, 85 NY2d 265; People v Pealer, 20 NY3d 447; Michigan v Bryant, 562 US 344; United States v Reyes, 18 F3d 65; United States v Silva, 380 F3d 1018; Ryan v Miller, 303 F3d 231; Mason v Scully, 16 F3d 38.)
   OPINION OF THE COURT

Fahey, J.

When using a photo array as an identification procedure, the People should preserve a record of what was viewed. Failure to do so gives rise to a rebuttable presumption that the array was unduly suggestive. The obligation to preserve is not diminished by the type of system used. Computer screen or mug shots book, the People’s obligation is the same. Here, the People failed to preserve a computer-generated array of photographs shown to an identifying witness, giving rise to a rebuttable presumption that the array was unduly suggestive. Nevertheless, in the present case, the People overcame that presumption through testimony at the suppression hearing.

L

On May 30, 2010, two young women, Ju Eun Lee and Yoori Han, were on a subway platform in Manhattan when a man attempted to lift the strap of Lee’s purse from her shoulder. Lee clung to the bag, while Han seized the strap, engaging in a brief tug-of-war with the would-be robber. Both women saw the man’s face at close range on a well-lit platform. The man let go of the purse and left the scene. A bystander, Sylvie Lee, was one of several people who came to the assistance of the two women and escorted them as they went to report the incident to a Metropolitan Transportation Authority employee. Meanwhile, the same man reentered the subway station, and, after making eye contact with Han, charged at the women. He repeatedly punched and kicked Han and punched Sylvie Lee, before fleeing.

Detective Greg Mazuroski of the New York City Police Department’s Manhattan Transit Robbery Squad was assigned to the case. The detective interviewed the women. Han and Ju Eun Lee described the perpetrator as a “skinny” black man, around 30 to 40 years old, about six feet to six feet, two inches tall, and weighing between 160 and 180 pounds. Sylvie Lee described the man similarly.

On June 2, 2010, Detective Mazuroski invited Sylvie Lee to view a series of photograph arrays generated by the Police Department’s photo manager system, a computer database that contains the photographs of individuals who have previously been arrested. The system generates arrays of six photographs at a time, based on criteria entered into the computer by the detective or officer, including the physical appearance of the suspect. The photographs are displayed on a computer screen.

In accordance with the witnesses’ descriptions, Detective Mazuroski ran a search for black men, 30 to 40 years old, six feet to six feet, four inches, who had been arrested in Manhattan from 2007 to 2010. The search generated a large number of photographs, but Lee identified defendant Todd Holley as the attacker on the second “page” or photo array. She was then shown more pages — at least 12 and perhaps as many as 20 more — over the course of an hour or so. Lee also identified defendant as the perpetrator in two additional, different photographs, included on pages 13 and 14. She did not identify anyone else.

The police located defendant and arrested him on June 8. He was an African-American man, 32 years old, about six feet, one inch to six feet, two inches tall, and approximately 160 pounds in weight. That day, Han and Sylvie Lee separately viewed a lineup, comprising defendant and five other black men. The fillers, according to their self-descriptions, ranged from 22 to 57 years of age, from five feet, nine inches to six feet, two inches, and from 180 to 250 pounds. They wore identical baseball caps, turned backwards. The men were seated. Following a request by Han, the men stood up momentarily to show their profiles. Both women identified defendant as the assailant.

IL

Defendant was charged with one count of attempted robbery in the third degree and two counts of assault in the third degree. At a suppression hearing, Detective Mazuroski described the procedures he had followed with the photo manager system as well as the lineup. Detective Mazuroski testified that at the time he showed Sylvie Lee the photo arrays, he did not have a suspect in mind. Cross-examination disclosed that the detective had not included a weight range when he entered criteria in the photo manager system, even though it would have been possible to enter a weight. Significantly, the police had not preserved the photo arrays that were shown to Sylvie Lee for the hearing court to review. Photographs of the lineup were entered into evidence.

Defendant moved to suppress all identification testimony. He contended that the People’s failure to preserve the photo arrays entitled him to a presumption of suggestiveness, and that, in any case, the procedure using the photo manager system was unduly suggestive, insofar as the detective did not enter the perpetrator’s estimated weight. He also challenged the lineup as unduly suggestive. Supreme Court, crediting the detective’s testimony and finding neither pretrial identification procedure unduly suggestive, denied the motion.

Prior to defendant’s trial, the parties discussed with the court whether testimony should be elicited from Detective Mazuroski concerning how the police came to arrest defendant. Supreme Court ruled that the People could elicit from the detective only that an investigation based on information beyond the witnesses’ descriptions had led him to suspect defendant. The defense objected, primarily on the ground that such testimony would constitute improper bolstering of the eyewitness identifications.

At trial, Ju Eun Lee, Han, and Sylvie Lee identified defendant in court as the assailant, and the lineup identifications were described in detail. There was no testimony regarding the display of the photo arrays, but the detective testified that, after getting descriptions of the perpetrator from the witnesses, he had carried out “further investigation with information beyond the descriptions,” which “generated one suspect,” namely Holley. Defendant did not testify.

In summation, the prosecutor alluded to Detective Mazuroski’s “further investigation,” and told the jury that the detective “didn’t go out and just grab the man off the street that he thought looked like what [the witnesses’] description was. He went after his investigation and went and found Mr. Holley.” No objection was made to these remarks.

The jury found defendant guilty on all counts. Defendant appealed from the judgment of conviction and sentence, challenging Supreme Court’s ruling on the suppression motion, as well as the admission of the testimony regarding the detective’s investigation and the prosecutor’s remarks concerning the investigation in summation.

The Appellate Division affirmed, holding that the use of the photo manager system procedure was not unduly suggestive.

“The detective’s testimony about how the computerized procedure operates sufficiently established its fairness. The fact that the police failed to preserve the arrays viewed by the witness does not warrant a different conclusion. We also conclude that the detective entered sufficient information about the description of the perpetrator to ensure that the computer generated a fair selection of photos.” (116 AD3d 442, 442 [1st Dept 2014] [citations omitted].)

The Appellate Division also upheld the lineup, noting that “[a]ny differences between defendant and the other participants, including an age disparity not fully reflected in the participants’ actual appearances, and a weight disparity that

was minimized by having the participants seated, was not so noticeable as to single defendant out” {id. at 442-443 [citations omitted]). The Court rejected defendant’s remaining arguments.

A Judge of this Court granted defendant leave to appeal (23 NY3d 1037 [2014]). We now affirm.

m.

The New York City Police Department’s photo manager system, described above, is today’s computer-generated equivalent of a long-established police procedure: showing a compilation of photographs of previous arrestees, in the form of a “mug book” (People v Burts, 78 NY2d 20, 22 [1991]) or a “drawer[ ] of photographs” (People v Hernandez, 70 NY2d 833, 834 [1987]), to people who witnessed a crime, in order to establish a suspect. The primary question on this appeal is what the consequence should be when the police use such a computer-generated photo array, and fail to preserve a record of the particular photographs shown to the witness.

Review of whether a pretrial identification procedure is unduly suggestive is subject to a well-established burden-shifting mechanism. Initially, the People have the burden of producing evidence in support of the fairness of the identification procedure. If this burden is not sustained, a peremptory ruling against the People is justified. If the People meet their burden of production, the burden shifts to the defendant to persuade the hearing court that the procedure was improper. In other words, “[w]hile the People have the initial burden of going forward to establish . . . the lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive” (People v Chipp, 75 NY2d 327, 335 [1990], cert denied 498 US 833 [1990]; see also People v Jones, 2 NY3d 235, 244 [2004]; People v Ortiz, 90 NY2d 533, 537 [1997]).

Under Appellate Division case law, “the failure of the police to preserve a photographic array [shown to an identifying witness] gives rise to a rebuttable presumption that the array was suggestive” (People v Quinones, 228 AD2d 796, 796-797 [3d Dept 1996]; see also e.g. People v Reaves, 112 AD3d 746, 747 [2d Dept 2013], lv denied 22 NY3d 1202 [2014]; People v Green, 188 AD2d 385, 386 [1st Dept 1992], lv denied 81 NY2d 840 [1993]; People v Simmons, 158 AD2d 950, 950 [4th Dept 1990], lv denied 76 NY2d 743 [1990]). The rebuttable presumption fits within the burden-shifting mechanism in the following manner. Failure to preserve a photo array creates a rebuttable presumption that the People have failed “to meet their burden of going forward to establish the lack of suggestiveness” (People v Patterson, 306 AD2d 14, 14-15 [1st Dept 2003], lv denied 1 NY3d 541 [2003]; see Chipp, 75 NY2d at 335). To the extent the People are silent about the nature of the photo array, they have not met their burden of production. On the other hand, the People may rebut the presumption by means of testimony “detailing the procedures used to safeguard against suggestiveness” (People v Campos, 197 AD2d 366, 367 [1st Dept 1993], lv denied 82 NY2d 892 [1993]), in which case they have met their burden, and the burden shifts to the defendant. Although we have not expressly adopted this presumption of suggestiveness before, we endorse it now.

Recently, the presumption of suggestiveness has been applied to photo arrays displayed to witnesses via the New York City Police Department’s photo manager system. In People v Dobbins (112 AD3d 735 [2d Dept 2013]), the Appellate Division applied the presumption to the prosecution’s failure to preserve a printout or other record of an array generated by the photo manager system. The Appellate Division held that the evidence presented by the People did not overcome the presumption that the array was suggestive where,

“[a]t the suppression hearing, a detective testified that he did not memorialize and could not recall the specific information that he entered into the photo manager system which generated the photographic array, did not memorialize and could not recall how many photographs the complainant viewed, and did not memorialize and could not recall for how long the complainant was viewing photographs” (id. at 736).

Similarly, in People v Robinson (123 AD3d 1062 [2d Dept 2014]), the Appellate Division applied the presumption of suggestiveness, in light of the People’s failure to preserve photographs, shown to two robbery victims on “the police department’s photo manager system, which generated screens of six photographs at a time based on criteria entered into the computer by the detective” (id. at 1062). The Robinson court held that the People failed to rebut the presumption in that “[t]he detective gave inconsistent testimony regarding what age criteria he entered in the computer system to generate each photo array,” and "did not recall how many screens either complainant viewed before each of them recognized the defendant, or how long it took each to make an identification” {id. at 1063).

Citing such cases, defendant argues that the denial of his suppression motion was reversible error and seeks a new trial, to be preceded by an independent source hearing. He contends that it is proper to extend the presumption of suggestiveness to the People’s failure to preserve a record of photo arrays displayed to a witness by means of the photo manager system or a similar system, and that the People failed to rebut the presumption in his case. We agree with defendant on the first point but not the second.

IV.

The law requiring that the prosecution preserve a photo array shown to an identifying witness was first applied to physical books and drawers of photographs, but there is nothing about the requirement that would limit it to that context. A detective who shows an identifying witness a book of photographs must preserve the photographs that were shown, together with their arrangement in the book, and must keep some record of the order in which the pages were displayed. Similarly, a detective who shows a witness photographs on the photo manager system or via a similar computer-assisted process must carry out whatever steps are necessary to ensure that he or she can recreate in some way during a suppression hearing the display of the photographs in the precise arrangement and order in which they were shown to the witness.

The People argue that the requirement of preservation, when applied to computer-generated photo arrays, amounts to the creation of an obligation on the part of the police to produce evidence in the first place. While it is true that “[t]here is a difference between preserving evidence already within the possession of the prosecution and the entirely distinct obligation of affirmatively obtaining evidence for the benefit of a criminal defendant” (People v Hayes, 17 NY3d 46, 51 [2011], cert denied 565 US —, 132 S Ct 844 [2011]), the preservation of a photo array, whether physical or computer-generated, falls squarely within the first category. A detective who shows a book or drawer of mug shots to an identifying witness must not only preserve the photographs but also create some record that will enable him or her to testify about the arrangement and order in which the photographs were shown to the witness. Similarly, a detective who shows a witness photographs on a computer screen must keep some record of the arrays and the order in which they were displayed. This is not creating evidence for the benefit of the defendant, but preserving evidence as required by the law protecting the defendant’s right to a fair trial.

The People suggest that “if a witness viewed hundreds of photos before making an identification, all of the photos would surely have to be saved and printed. No matter what system would be involved, imposing such a requirement would surely be burdensome.” Defendant, by contrast, contends that computer-generated photo arrays are easily stored and printed. We do not decide, on this appeal, whether preserving photo arrays shown to a witness on a computer screen by means of the photo manager system or the like would require printing the arrays. That would depend on whether technology exists to allow, in some other way, the accurate recreation, at a hearing, of the display of photographs on a computer screen. We are not persuaded that the advent of the photo manager system makes it more difficult, rather than less, to manage and reproduce photo arrays. Consequently, we extend the presumption of suggestiveness to computer-generated photo arrays.

V.

In the present case, however, the People have rebutted the presumption of suggestiveness. At the outset, we note that whether a photo array is unduly suggestive is a mixed question of law and fact and our review is limited to whether there is support in the record for the finding (see People v Sanchez, 21 NY3d 216, 225 [2013]).

Appellate Division cases have found that the People overcame the presumption when the detective’s testimony detailed “the sheer volume of the photographs viewed, as well as the fact that the police had not yet focused upon defendant as a particular suspect” (Campos, 197 AD2d at 367 [internal quotation marks omitted]; see also People v Mason, 138 AD2d 411, 412 [2d Dept 1988], lv denied 72 NY2d 863 [1988]; People v Jerome, 111 AD2d 874 [2d Dept 1985], lv denied 66 NY2d 764 [1985]). In People v Jerome, for example, the witness “was shown approximately 1,000 photographs over a period of two days, resulting in his identification of defendant,” and this occurred “at a point in the investigation where the police had not yet focused upon any particular suspect” (Jerome, 111 AD2d at 874). Here, Detective Mazuroski testified that he did not consider defendant a suspect before showing Sylvie Lee the photographs from the photo manager system. Moreover, Lee viewed about 100 photographs, and identified defendant, and only defendant, consistently. We conclude that there is support in the record for the finding that the People met their initial burden of producing evidence of the lack of any undue suggestiveness.

We also conclude that there is record support for the finding that defendant did not meet his ultimate burden of proving that the procedure was unduly suggestive. In particular, there is support for the Appellate Division’s finding that Detective Mazuroski entered enough information about the perpetrator’s physical features to ensure that the photo manager system would generate “a fair selection of photos” (116 AD3d at 442), rather than an array in which defendant’s image would stand out as markedly different.

VL

With respect to the lineup, defendant argues that he was the only person in the lineup who met the age and weight description given by the witnesses. Whether or not a lineup is unduly suggestive is a mixed question of law and fact (see People v McBride, 14 NY3d 440, 448 [2010], cert denied 562 US 931 [2010]; People v Jackson, 98 NY2d 555, 559 [2002]). Here, there is support in the record for the Appellate Division’s determination that the disparity in age was not so apparent as to draw attention to defendant. “[A] numerical age difference” existing “between a defendant and the fillers in a lineup, without more, is not sufficient to create a substantial likelihood that the defendant would be singled out for identification” (Jackson, 98 NY2d at 558-559 [internal quotation marks omitted]; see generally Chipp, 75 NY2d at 336). There is also record support for the Appellate Division’s determination that the disparity in weight was minimized (see generally McBride, 14 NY3d at 448; People v Cook, 254 AD2d 92, 92 [1st Dept 1998], lv denied 93 NY2d 851 [1999]).

Defendant’s remaining contentions lack merit or are unpreserved. In particular, the detective’s testimony regarding the conduct of his investigation after he obtained descriptions from the witnesses “did not state or imply that anyone made an identification” (People v Tucker, 25 AD3d 419, 420 [1st Dept 2006], lv denied 6 NY3d 839 [2006]; cf. People v Holt, 67 NY2d 819, 821 [1986]). The testimony therefore did not violate the evidentiary rule that “in the context of eyewitness identification, the testimony of a third party (typically, a police officer) to the effect that the witness identified a defendant as the perpetrator on some prior occasion is generally inadmissible” (People v Buie, 86 NY2d 501, 510 [1995], citing People v Trow-bridge, 305 NY 471 [1953]). Defendant’s similar challenge to the prosecutor’s summation is unpreserved (see generally People v Romero, 7 NY3d 911, 912 [2006]).

Accordingly, the order of the Appellate Division should be affirmed.

Abdus-Salaam, J.

(concurring). I agree with the majority that the People carried their burden of production at the Wade hearing in this case and that defendant failed to meet his burden to demonstrate that the police-arranged photo identification procedure was unduly suggestive (see majority op at 525; see also People v Chipp, 75 NY2d 327, 335 [1990]). Furthermore, I concur in the majority’s rejection of defendant’s challenges to the nisi prius court’s admission into evidence of the lineup identification, the in-court identification testimony and Detective Mazuroski’s brief testimony about his investigation in this case (see majority op at 525-526). Nonetheless, I write separately to explain my disagreement with the majority’s adoption of a “presumption of suggestiveness” that allegedly arises whenever the People fail to present at a Wade hearing a physical copy of a photo array that has previously been shown to an identifying witness (see majority op at 517-518, 521-524). In my view, the presumption lacks a solid legal foundation and risks creating unnecessary confusion about the proper application of existing legal standards governing a suppression hearing.

As the majority recognizes, we have never previously held that, where the People fail to produce a copy of a photo array at a Wade hearing, they must overcome a rebuttable presumption that the disputed photo array identification procedure was unduly suggestive (see majority op at 522). Rather, under our existing precedent, the People must meet only their “initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness” (Chipp, 75 NY2d at 335), which is a “minimal” burden of “production” (People v Ortiz, 90 NY2d 533, 538 [1997]), and once that requirement is satisfied, the burden shifts to the defendant to “prov[e] that the procedure was unduly suggestive” (Chipp, 75 NY2d at 335). Because this framework sets forth a commonsense decisional process without any presumptions, it promotes clarity and fairness by employing two distinct and balanced burdens with a single shifting point between them.

By contrast, the presumption of suggestiveness, which the majority derives from certain Appellate Division decisions, undermines the clarity of our existing suppression framework. As envisioned by the majority, the presumption does not alter the burden of production per se, but instead adds a turning point within the People’s efforts to meet that burden by requiring them to overcome the presumption with testimony about the composition of the photo array and the circumstances surrounding the identification procedure (see majority op at 522). Thus, the presumption seems to require a court to take an additional analytical step, evaluating first whether the People’s proof overcomes the presumption, then whether the evidence satisfies the burden of production and finally whether the defendant has demonstrated the unlawfulness of the contested photo array identification procedure.

In the vast majority of cases, a balanced application of this three-step process presumably would yield the same result as the more straightforward two-step process which exists now. Indeed, under the existing suppression framework, the People can meet their burden of production using sufficiently detailed testimony about the photo array identification procedure without producing a physical copy of the array at the hearing (see People v Hernandez, 70 NY2d 833, 835 [1987]), and the majority’s decision indicates that they can similarly overcome the presumption of suggestiveness and simultaneously meet their burden of production by presenting that same type of testimony (see majority op at 524-525). But by adding an extra layer to the analysis, the presumption may cause some courts in practice to lose sight of the basic point that the People’s burden remains a minimal one geared toward production rather than ultimate persuasion and conclusive proof.

Even if the presumption did not engender confusion or result in any significant practical alteration of our traditional suppression analysis, I would not endorse it because of its dubious legal roots. Significantly, the Appellate Division case law adopting the presumption relies on earlier decisions that do not mention a presumption of suggestiveness at all, instead merely encouraging the production of photo arrays at Wade hearings and explaining that the lack of such production, coupled with the absence of additional evidence, prevents the People from meeting their burden (see People v Barber, 96 AD2d 1112, 1112-1113 [3d Dept 1983]; People v Nelson, 79 AD2d 171, 173-174 [4th Dept 1981]; People v Foil, 83 AD2d 641, 641-642 [2d Dept 1981]; People v Putman, 55 AD2d 608, 608-609 [2d Dept 1976]). Unfortunately, in later cases, the Appellate Division cited those decisions for a novel proposition that they did not support, namely that a rebuttable “inference of suggestiveness” arises from the People’s failure to produce the photo array at the suppression hearing (see People v Johnson, 106 AD2d 469, 469 [2d Dept 1984]). Indeed, the initial Appellate Division case law adopting the presumption of suggestiveness did so with little, if any, explanation of the rationale for such a presumption (see id.; see also People v Simmons, 158 AD2d 950, 950 [4th Dept 1990]).

Furthermore, until recently, the Appellate Division had concluded that the presumption of suggestiveness simply does not apply to a voluminous canvassing array of the kind at issue here, and that hence the People need not rebut any such presumption in canvassing array cases (see People v Stokes, 139 AD2d 785, 785 [2d Dept 1988]; cf. People v Ludwigsen, 128 AD2d 810, 810 [2d Dept 1987]). Thus, the Appellate Division’s relatively recent acceptance of the presumption in the canvassing array context, based on a line of prior cases that does not support such an approach (see e.g. People v Robinson, 123 AD3d 1062, 1062-1063 [2d Dept 2014]; People v Dobbins, 112 AD3d 735, 736 [2d Dept 2013]), was without a sound legal foundation and should not be approved by this Court. Accordingly, I cannot join the part of the majority’s opinion adopting the presumption in this case.

Chief Judge Lippman and Judges Rivera and Stein concur; Judge Abdus-Salaam concurs in result in a separate opinion in which Judge Pigott concurs.

Order affirmed.

       It is not clear from the record at the suppression hearing whether Sylvie Lee described him as thin.