DOJ-OGR-00005851.pdf

--- Page 1 --- The extracted text is: **Case 1:20-cr-00330-PAE** **Document 397** **Filed 10/29/21** **Page 68 of 84** **C. Discussion** There was nothing unduly suggestive about the identification procedure used here. Accordingly, there is no basis to suppress Minor Victim-4's identification of the defendant, and Minor Victim-4 should be permitted to identify the defendant at trial.17 First, the identification procedure was not suggestive because it was merely a "confirmatory identification" of a person Minor Victim-4 had known and identified by name over the years. There is no "improper police conduct" creating a "substantial likelihood of identification" by showing a person in that position even a single photograph, much less a photo array or photo book. See, e.g., United States v. Hardy, No. 10 Cr. 1123 (JSR), 2011 WL 7782582 (S.D.N.Y. Jan. 25, 2011) ("Displaying a confirmatory photograph of a person the witness has indicated that he already knows is perfectly acceptable."); Gilbert v. Sup't of Collins Corr. Fac., No. 03 Civ. 3866 (LBS), 2004 WL 287683, at *8 (S.D.N.Y. Feb. 11, 2004) (upholding confirmatory identification following street canvass on the grounds that "police suggestiveness does not require suppression of an identification if the witness was not thereby influenced, as, for example, when the witness's identification was already positive.") (quoting Jarrett v. Heaafey, 802 F.2d 34, 41-42 (2d Cir. 1986)); see also, e.g., Franco v. Lee, No. 12 Civ. 1210 (SJF), 2013 WL 704655, at *10 (E.D.N.Y. Feb. 26, 2013) ("In cases in which the defendant's identity is not in issue, or those in which the protagonists are known to one another, suggestiveness is not a concern 17 Even if the Minor Victim-4's identification of the defendant were suppressed, that would not preclude Minor Victim-4 from testifying about her abuse and the name and physical description of the person involved. **DOJ-OGR-00005851**