In re Tyquan W. , 920 N.Y.2d 180 ( 2011 )

The Family Court improperly granted that branch of the petitioner’s motion which was to suppress the identification testimony of Cheynnia W The viewing of a photo array by two witnesses in the same room, by itself, does not taint either witness’s identification testimony (see People v Seymour, 77 AD3d 976 [2010]). However, evidence of communication between the two witnesses may support the presence of such taint (id.). Here, the two witnesses, who are sisters, were interviewed simultaneously and then shown photo books while still in the same room. Cheynnia W. first and independently identified the respondent in the photo books. After Danetta E saw and heard her sister identify that photo, she too identified the respondent’s photo. The Family Court held that the photo array procedure employed in this case was unduly suggestive and ordered an independent source hearing.

Since the sisters communicated before the second sister identified the respondent, the Family Court properly determined that the second sister’s identification was tainted. However, there is no evidence in the record that the sisters communicated regarding the contents of the photo books prior to the first sister’s identification of the respondent. Nor was anything said during the initial interview of the two sisters together which could have influenced or tainted the first sister’s identification. Accordingly, that identification was proper, and it was error for the Family Court to have granted suppression (id.; see People v Rodriguez, 17 AD3d 1127, 1129 [2005]).

At the independent source hearing, the presentment agency failed to establish by clear and convincing evidence that the in-court identification of the respondent by Danetta P. was based upon the witness’s independent observation of the respondent (People v Chipp, 75 NY2d 327, 335 [1990], cert denied 498 US 833 [1990]; cf. People v Reynoso, 231 AD2d 592, 593 [1996]). In light of our determination, we need not address the presentment agency’s contention that the Family Court should not have precluded Cheynnia W from making an in-court identification of the respondent at the independent source hearing.

The parties’ remaining contentions are without merit. Angiolillo, J.E, Roman and Cohen, JJ., concur.