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Wade And The Photo Array Identification: Defining Suggestiveness And The Presence Of A Third Party During The Photo Array Process


criminal appeals lawyer, wade and photo array identification, defining sugesstiveness

People v. Delamota

New York Court of Appeals

18 N.Y.3d 107

Decided November 17, 2011

Summary: Juan Hernandez was robbed at knifepoint and told his son Juan Jr. to call 911. Juan Jr. told the detective that, based on neighborhood gossip, he was told that the perpetrator was a man named Sebastian. The Detective asked Juan Jr. if he knew the Defendant; Juan Jr. denied that he knew of him.

Detective Koch located Defendant’s photo, assembled an array and showed it to Hernandez while his son translated. Hernandez chose Defendant’s photograph and the detective placed the Defendant in a lineup where Hernandez depicted Defendant as the man who robbed him. The Defendant was subsequently indicted.

Defense counsel moved to suppress the identifications by Hernandez, arguing that Juan Jr.’s presence during the photo array caused the procedure to be unduly suggestive because Juan Jr. knew of the Defendant prior to the photo array procedure; that motion was denied.

The Appellate Division affirmed and the Court of Appeals granted Defendant leave to appeal. The Court of Appeals reversed and held that the detective’s decision to utilize Juan Jr. as an interpreter notwithstanding the possible risks satisfies the burden of proving that the photo array was unduly suggestive.

See Also: Juror Facebook Posts During Trial And Deliberations: Juror Bias And The McDonough Test

Issue: Whether the photo array process that depicted Defendant was unduly suggestive when the victim’s son, Juan Jr., acted as interpreter during the process and Juan Jr. had known the defendant previously for a “long time”.

Holding: The Court of Appeals held that a photo array during which a robbery victim’s son was an interpreter was unduly suggestive and thus violated Defendant’s Due Process rights where detective who assembled the photo array acted on unspecified neighborhood gossip regarding robbers name and history. The detective was apparently worried about the photo array and the due process rights of the individual. The detective was or should have been aware of the substantial risk that the son was familiar with defendant. Despite the sons assurance and the denial of knowing the Defendant at the time of the crime. The Defendant did not have preexisting condition or information about the possible perpetrator. The detective could not be reasonable assured that the the son would be able to convey the conversation as an interpreter.

Facts: Juan Hernandez was robbed at knifepoint and told his son Juan Jr. call 911. Juan Jr. told Detective Koch that the perpetrator held the knife in his right hand and took the stolen items with his left hand. A few days later, Juan Jr. told the detective that, based on neighborhood gossip, he was told that the perpetrator was a man named Sebastian. The Detective asked Juan Jr. if he knew the Defendant; Juan Jr. denied. Defendant Sebastion Delamata, who at the time of the robbery, had a functionally impaired left arm as a result of a previous gunshot injury.

Detective Koch located Defendant’s photo, assembled an array and showed it to Hernandez while his son was the interpretor. Hernandez chose Defendant’s photograph and the detective then placed Defendant in a lineup where Hernandez identified him for the second time. The Defendant was subsequently indicted.

Defense moved to suppress the identifications by Hernandez, arguing that Juan Jr.’s presence during the photo array caused the procedure to be unduly suggestive because Juan Jr. knew Defendant from the neighborhood before the array was conducted; that motion was denied.

The Appellate Division affirmed and held that the trial court did not err when it denied Defendant’s motion to reopen the suppression hearing because the evidence was legally sufficient to establish Defendant’s identity and the conviction was not against the weight of the evidence. The Court of Appeals granted Defendant leave to appeal and reversed. The Court of Appeals held that the detective’s decision to utilize Juan Jr. as an interpreter notwithstanding the possible risks satisfies the burden of proving that the photo array was unduly suggestive.

Legal Analysis: The Court of Appeals held that when a Defendant challenges an identification procedure as suggestive, the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness. Once the People satisfy this duty, the Defendant has the ultimate burden of proving that the identification procedure was unduly suggestive.

Defendant argues that the victim’s identification should have been suppressed because his son participated in the photo array despite having knowing the Defendant prior to the identification procedure. According to Defendant, Juan Jr.’s translation to his father tainted the identification and also infected the victim’s identification of Defendant during the trial. The People argue that, even if the photo array was unduly suggestive, suppression is not warranted since suggestiveness by a civilian is not illegal and the supposedly suggestive conduct in this case came from the victim’s son, not the Police.

The People believe that there was no basis to reopen the suppression hearing after the victim’s son revealed his preexisting relationship with Defendant because the defense could have disclosed this fact at the suppression hearing and the failure to do so precluded Defendant from satisfying the reasonable diligence standard of CPL 710.40(4).

The Court of Appeals held that the trial court erred when it denied Defendant’s motion to reopen the Wade hearing because Juan Jr.’s trial testimony fatally undermined the suppression court’s rationale for denying that motion. Suggestive pretrial identification procedures violate the Due Process Clause. The Court of Appealed held that when a Defendant challenges an identification procedure as suggestive, the People have the initial burden of going forward to establish the reasonableness of the Police conduct and the lack of any undue suggestiveness. Once the People satisfy this duty, the Defendant has the ultimate burden of proving that the identification procedure was unduly suggestive.

The Court of Appeals held that the suppression court had been troubled by Juan Jr.’s role at the identification procedure but ultimately concluded that the suppression was not warranted because Juan Jr. did not know Defendant. The Court of Appeals held that this significant revelation to the contrary at trial strengthened the Defendants suggestiveness claim when 1) the detective acted on unspecified neighborhood gossip regarding the robber’s name and history based on information provided by Juan Jr.; 2) the detective was apparently concerned about the son’s possible preexisting familiarity with Defendant and broached the topic before the photo array was conducted; 3) the detective either was or should have been aware of the substantial risk that the son was familiar with Defendant despite his assurance to the contrary; 4) there was no apparent impediment to the detective utilizing a Spanish interpreter who did not have a preexisting information about the possible perpetrator or a familial connection to the victim ; and 5) the detective could not be reasonably sure that the son would accurately translate the conversation to his father.

The Court of Appeals held that, although any one of these facts or even several of them combined may not have established the requisite level of suggestiveness, their confluence with Juan Jr.’s testimony concludes that the record does not support the finding of the courts below that Defendant failed to satisfy his burden of proving that the photo array was unduly suggestive.

The Court of Appeals held, the suggestiveness was not attributed to the victim’s son, but to the detective’s decision to utilize him as the interpreter notwithstanding the possible risks that were involved in this case. In addition, the Court of Appeals held that they do not believe that the Defendant could have discovered, before the suppression court ruled on the motion, the true extent of Juan Jr.’s misrepresented to the Police. The photo array identification, therefore, should have been suppressed and the Defendant is entitled to a new trial. Accordingly, the order of the Appellate Division should be reversed and a new trial ordered to be preceded by an independent source hearing.


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