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"Woefully Inadequate" Police work results in Line-Up Suppression

The defendants are charged with, amongst other things, Attempted Murder in the Second Degree. Upon investigation a shooting, the detectives lined up Treyvon Newman and Dante Newman. The "photo array was shown to [victim] Kenley Jovin on April 12, 2013. Mr. Jovin selected Treyvon Newman's photograph, which was located in position number three Detective Barrett then showed Mr. Jovin another photo array, which featured the defendant, Dante Newman, in position five. Mr. Jovin also made a positive identification of Dante Newman." Pp. 3. This resulted in the indictment of both defendants

Issue: Line-up identification. " It is axiomatic that the purpose of a Wade hearing is to determine whether police conducted pre-trial identification procedures were unduly and impermissibly suggestive so as to deny a defendant due process (Stovall v Denno, 388 US 293 [1967]; People v Adams, 53 NY2d 241 [1981]). In this case, both defendants challenge the photographic arrays displayed to Kenley Jovin…Both defendants also challenge their lineups." Pp.4.

Rule: " 'A photo array is unduly suggestive where some characteristic of one picture draws the viewer's attention to it, indicating that the police have made a particular selection' (People v Smiley, 49 AD3d 1299, 1300 [4th Dept 2008], lv denied 10 NY3d 870, quoting People v Diggs, 199 AD3d 1098, 1098 [4th Dept 2005], lv denied 5 NY3d 787; People v Robert, 184 AD2d 597, 598 [2nd Dept 1992], lv denied 80 NY2d 929, 933)(see also, People v Boria, 279 AD2d 585, 586 [2nd Dept 2001], lv denied 96 NY2d 781; People v Cherry, 150 AD2d 475 [2nd Dept 19 89]; People v Dubois, 140 AD2d 619,622 [2nd Dept 1988], lv denied 72 NY2d 911)." Pp. 4.

While noting that the men depicted in each of the photo arrays were "sufficiently similar in appearance so that the identification procedure was not rendered unduly suggestive..." the lineup of Treyvon Newman was suppressed for the violation of the Defendant's right to counsel. Defendant Dante Newman argued that the evidence of his lineup, however, should be suppressed because the line-up was unduly suggestive. Dante Newman argues this on the grounds he was the youngest member of the line-up, did not have facial hair and seemed to be picked out on the basis of a process of elimination type analysis rather than an identification. The Court noted that the line-up varied in age groups from twenty to forty years old. While an "age discrepancy between a defendant and the fillers in a lineup" (People v. Jackson, 98 NY2d 555, 559 (2002) (quotations omitted) is enough to suppress the identification, the Court went further here to note that the fillers here had facial hair and while the Defendant did not. Additionally, the court noted (albeit in dicta) that the line-up process involved strange bandanas and plastic bags to cover up used, no doubt, to cover up certain identifying characteristics of the alleged perpetrator. Lastly, the Court noted that the witness, Kenley Jovin, seemed to pick out the defendant "as a result of a process of elimination, rather than by instantly recognizing him upon seeing all six participants." Pp. 7. Thus, the suppression was granted.

"Accordingly, I find that the lineup does not constitute a fair and representative panel upon which a witness could make a trustworthy and reliable identification. The defendant's physical characteristics were insufficiently similar to the other participants so as to negate any likelihood that the defendant could avoid being singled out for identification (Jackson, 98 NY2d at 559; Chipp, 75 NY2d at 336; People v Bacchus, 50 AD3d 818, 819 [2nd Dept 2008], lv denied 11 NY3d 785; People v Washington, 40 AD3d 1136, 1137 [2nd Dept 2007], lv denied 9 NY3d 883; People v Davis, 27 AD3d 761, 761 [2nd Dept 2006], lv denied 7 NY3d 847; People v Peterkin, 27 AD3d 666, 667 [2nd Dept 2006], lv denied 7 NY3d 793)." Pp. 7-8.

Conclusion: " A bifurcated Wade/Rodriguez hearing was conducted before this court on June 8th and 11th, 2015…The People called four witnesses at the hearing: Detectives Gregory Barrett, Dennis Steele and Cedric Brooks, and the complainant, Kenley Jovin…. While [the Court] found the police work in this case to be woefully inadequate, [it still found] the testimony of all the witnesses to be credible, reliable and worthy of belief." Pp. 1-2.

The case is People v Newman, 2015 NY Slip Op 51103(U) (Kings Sup. Ct. July 21, 2015) (

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