Earlier this month, a state appellate court issued a written opinion in a New York robbery case requiring the court to determine if the defendant’s motion to suppress the eyewitness’s identification should be suppressed. Ultimately, the court concluded that the witness’s identification was not suppressible, and affirmed the defendant’s conviction for robbery.
Identifications, like other forms of evidence, must be suppressed if they are unduly suggestive. When making this determination, New York courts employ a burden-shifting analysis. First, the prosecution has the burden to show that the police officers’ identification procedure was reasonable and was not unduly suggestive. If the prosecution meets that burden, then it is up to the defense to show that the identification procedure was improper.
According to the court’s opinion, a pizza delivery person was robbed in September, 2011. The following day, the delivery person identified the defendant as the person who robbed him. Police officers did not preserve the photo array. Thirteen months later, the defendant was arrested and identified by the delivery person in an in-person lineup. The defendant was charged with robbery.
The defendant filed a pretrial motion to suppress the identification made by the delivery person. The defendant claimed that both the initial identification, as well as the lineup procedure were unduly suggestive. In support of his argument, the defendant pointed to the fact that the photo array was not preserved.
The court rejected the defendant’s argument and affirmed his conviction. The court explained that the failure to preserve the photo array gave rise to a presumption of suggestiveness. However, the court went on to hold that this presumption was rebutted by the testimony of the detective who administered the lineup. Evidently, the detective testified that the delivery person reviewed over 570 photos split into three groups. The detective also explained that the delivery person was very certain that the photo of the defendant was of the person who robbed him. In light of these facts, the court held that the defendant did not sustain his ultimate burden to prove that the photo array was suggestive.
The court also held that the in-person line-up procedure was not suggestive. The only fact the defendant could point to in support of his argument was that the detective told the delivery person, “when we bring the person in, we have to conduct a lineup” after he identified the defendant. The court explained that this comment, by itself, was not sufficient to show that the lineup was suggestive.
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