This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 196
The People &c.,
             Respondent,
        v.
Todd Holley,
             Appellant.




          Andrew C. Fine, for appellant.
          Joshua L. Haber, for respondent.




FAHEY, J.:
          When using a photo array as an identification
procedure, the People should preserve a record of what was
viewed.   Failure to do so gives rise to a rebuttable presumption
that the array was unduly suggestive.   The obligation to preserve
is not diminished by the type of system used.   Computer screen or


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                                - 2 -                        No. 196

mugshots book, the People's obligation is the same.    Here, the
People failed to preserve a computer-generated array of
photographs shown to an identifying witness, giving rise to a
rebuttable presumption that the array was unduly suggestive.
Nevertheless, in the present case, the People overcame that
presumption through testimony at the suppression hearing.
                                 I.
           On May 30, 2010, two young women, Ju Eun Lee and Yoori
Han, were on a subway platform in Manhattan when a man attempted
to lift the strap of Lee's purse from her shoulder.    Lee clung to
the bag, while Han seized the strap, engaging in a brief tug of
war with the would-be robber.   Both women saw the man's face at
close range on a well-lit platform.     The man let go of the purse
and left the scene.   A bystander, Sylvie Lee, was one of several
people who came to the assistance of the two women and escorted
them as they went to report the incident to an MTA employee.
Meanwhile, the same man reentered the subway station, and, after
making eye contact with Han, charged at the women.    He repeatedly
punched and kicked Han and punched Sylvie Lee, before fleeing.
           Detective Greg Mazuroski of the New York City Police
Department's Manhattan Transit Robbery Squad was assigned to the
case.   The detective interviewed the women.   Han and Ju Eun Lee
described the perpetrator as a "skinny" black man, around 30 to
40 years old, about six feet to six feet, two inches tall, and
weighing between 160 and 180 pounds.    Sylvie Lee described the


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                                - 3 -                         No. 196

man similarly.1
            On June 2, 2010, Detective Mazuroski invited Sylvie Lee
to view a series of photograph arrays generated by the Police
Department's photo manager system, a computer database that
contains the photographs of individuals who have previously been
arrested.    The system generates arrays of six photographs at a
time, based on criteria entered into the computer by the
detective or officer, including the physical appearance of the
suspect.    The photographs are displayed on a computer screen.
            In accordance with the witnesses' descriptions,
Detective Mazuroski ran a search for black men, 30 to 40 years
old, six feet to six feet, four inches, who had been arrested in
Manhattan from 2007 to 2010.    The search generated a large number
of photographs, but Lee identified defendant Todd Holley as the
attacker on the second "page" or photo array.    She was then shown
more pages -- at least 12 and perhaps as many as 20 more -- over
the course of an hour or so.    Lee also identified defendant as
the perpetrator in two additional, different photographs,
included on pages 13 and 14.    She did not identify anyone else.
            The police located defendant and arrested him on June
8.   He was an African-American man, 32 years old, about six feet,
one inch to six feet, two inches tall, and approximately 160
pounds in weight.    That day, Han and Sylvie Lee separately viewed


     1
          It is not clear from the record at the suppression
hearing whether Sylvie Lee described him as thin.

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                                - 4 -                           No. 196

a lineup, comprising defendant and five other black men.     The
fillers, according to their self-descriptions, ranged from 22 to
57 years of age, from five feet, nine inches to six feet, two
inches, and from 180 to 250 pounds.     They wore identical baseball
caps, turned backwards.    The men were seated.   Following a
request by Han, the men stood up momentarily to show their
profiles.    Both women identified defendant as the assailant.
                                 II.
            Defendant was charged with one count of attempted
robbery in the third degree and two counts of assault in the
third degree.    At a suppression hearing, Detective Mazuroski
described the procedures he had followed with the photo manager
system as well as the lineup.    Detective Mazuroski testified that
at the time he showed Sylvie Lee the photo arrays, he did not
have a suspect in mind.    Cross-examination disclosed that the
detective had not included a weight range when he entered
criteria in the photo manager system, even though it would have
been possible to enter a weight.    Significantly, the police had
not preserved the photo arrays that were shown to Sylvie Lee for
the hearing court to review.    Photographs of the lineup were
entered into evidence.
            Defendant moved to suppress all identification
testimony.    He contended that the People's failure to preserve
the photo arrays entitled him to a presumption of suggestiveness,
and that, in any case, the procedure using the photo manager


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                               - 5 -                          No. 196

system was unduly suggestive, insofar as the detective did not
enter the perpetrator's estimated weight.   He also challenged the
lineup as unduly suggestive.   Supreme Court, crediting the
detective's testimony and finding neither pretrial identification
procedure unduly suggestive, denied the motion.
          Prior to defendant's trial, the parties discussed with
the court whether testimony should be elicited from Detective
Mazuroski concerning how the police came to arrest defendant.
Supreme Court ruled that the People could elicit from the
detective only that an investigation based on information beyond
the witnesses' descriptions had led him to suspect defendant.
The defense objected, primarily on the ground that such testimony
would constitute improper bolstering of the eyewitness
identifications.
          At trial, Ju Eun Lee, Han, and Sylvie Lee identified
defendant in court as the assailant, and the lineup
identifications were described in detail.   There was no testimony
regarding the display of the photo arrays, but the detective
testified that, after getting descriptions of the perpetrator
from the witnesses, he had carried out "further investigation
with information beyond the descriptions," which "generated one
suspect," namely Holley.   Defendant did not testify.
          In summation, the prosecutor alluded to Detective
Mazuroski's "further investigation," and told the jury that the
detective "didn't go out and just grab the man off the street


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that he thought looked like what [the witnesses'] description
was.   He went after his investigation and went and found Mr.
Holley."   No objection was made to these remarks.
           The jury found defendant guilty on all counts.
Defendant appealed from the judgment of conviction and sentence,
challenging Supreme Court's ruling on the suppression motion, as
well as the admission of the testimony regarding the detective's
investigation and the prosecutor's remarks concerning the
investigation in summation.
           The Appellate Division affirmed, holding that the use
of the photo manager system procedure was not unduly suggestive.
           "The detective's testimony about how the
           computerized procedure operates sufficiently
           established its fairness. The fact that the
           police failed to preserve the arrays viewed
           by the witness does not warrant a different
           conclusion. We also conclude that the
           detective entered sufficient information
           about the description of the perpetrator to
           ensure that the computer generated a fair
           selection of photos." (116 AD3d 442 [1st
           Dept 2014] [citations omitted].)
           The Appellate Division also upheld the lineup, noting
that "[a]ny differences between defendant and the other
participants, including an age disparity not fully reflected in
the participants' actual appearances, and a weight disparity that
was minimized by having the participants seated, was not so
noticeable as to single defendant out" (id. at 442-443 [citations
omitted]).   The court rejected defendant's remaining arguments.
           A Judge of this Court granted defendant leave to appeal


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(23 NY3d 1037 [2014]).    We now affirm.
                                III.
            The New York City Police Department's photo manager
system, described above, is today's computer-generated equivalent
of a long-established police procedure: showing a compilation of
photographs of previous arrestees, in the form of a "mug book"
(People v Burts, 78 NY2d 20, 22 [1991]) or a "drawer[] of
photographs" (People v Hernandez, 70 NY2d 833, 834 [1987]), to
people who witnessed a crime, in order to establish a suspect.
The primary question on this appeal is what the consequence
should be when the police use such a computer-generated photo
array, and fail to preserve a record of the particular
photographs shown to the witness.
            Review of whether a pretrial identification procedure
is unduly suggestive is subject to a well-established
burden-shifting mechanism.    Initially, the People have the burden
of producing evidence in support of the fairness of the
identification procedure.    If this burden is not sustained, a
peremptory ruling against the People is justified.    If the People
meet their burden of production, the burden shifts to the
defendant to persuade the hearing court that the procedure was
improper.    In other words, "[w]hile the People have the initial
burden of going forward to establish . . . the lack of any undue
suggestiveness in a pretrial identification procedure, it is the
defendant who bears the ultimate burden of proving that the


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                               - 8 -                       No. 196

procedure was unduly suggestive" (People v Chipp, 75 NY2d 327,
335 [1990], cert denied 498 US 833 [1990]; see also People v
Jones, 2 NY3d 235, 244 [2004]; People v Ortiz, 90 NY2d 533, 537
[1997]).
           Under Appellate Division case law, "the failure of the
police to preserve a photographic array [shown to an identifying
witness] gives rise to a rebuttable presumption that the array
was suggestive" (People v Quinones, 228 AD2d 796, 796-797 [3d
Dept 1996]; see also e.g. People v Reaves, 112 AD3d 746, 747 [2d
Dept 2013], lv denied 22 NY3d 1202 [2014]; People v Green, 188
AD2d 385, 386 [1st Dept 1992], lv denied 81 NY2d 840 [1993];
People v Simmons, 158 AD2d 950, 950 [4th Dept 1990], lv denied 76
NY2d 743 [1990]).   The rebuttable presumption fits within the
burden-shifting mechanism in the following manner.   Failure to
preserve a photo array creates a rebuttable presumption that the
People have failed "to meet their burden of going forward to
establish the lack of suggestiveness" (People v Patterson, 306
AD2d 14, 14-15 [1st Dept 2003], lv denied 1 NY3d 541 [2003]; see
Chipp, 75 NY2d at 335).   To the extent the People are silent
about the nature of the photo array, they have not met their
burden of production.   On the other hand, the People may rebut
the presumption by means of testimony "detailing the procedures
used to safeguard against suggestiveness" (People v Campos, 197
AD2d 366, 367 [1st Dept 1993], lv denied 82 NY2d 892 [1993]), in
which case they have met their burden, and the burden shifts to


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                                - 9 -                       No. 196

the defendant.    Although we have not expressly adopted this
presumption of suggestiveness before, we endorse it now.
          Recently, the presumption of suggestiveness has been
applied to photo arrays displayed to witnesses via the New York
City Police Department's photo manager system.    In People v
Dobbins (112 AD3d 735 [2d Dept 2013]), the Appellate Division
applied the presumption to the prosecution's failure to preserve
a printout or other record of an array generated by the photo
manager system.    The Appellate Division held that the evidence
presented by the People did not overcome the presumption that the
array was suggestive, where
          "[a]t the suppression hearing, a detective
          testified that he did not memorialize and
          could not recall the specific information
          that he entered into the photo manager system
          which generated the photographic array, did
          not memorialize and could not recall how many
          photographs the complainant viewed, and did
          not memorialize and could not recall for how
          long the complainant was viewing photographs"
          (id. at 736).
          Similarly, in People v Robinson (123 AD3d 1062 [2d Dept
2014]), the Appellate Division applied the presumption of
suggestiveness, in light of the People's failure to preserve
photographs, shown to two robbery victims on "the police
department's photo manager system, which generated screens of six
photographs at a time based on criteria entered into the computer
by the detective" (id. at 1062).    The Robinson court held that
the People failed to rebut the presumption in that "[t]he
detective gave inconsistent testimony regarding what age criteria

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                               - 10 -                        No. 196

he entered in the computer system to generate each photo array,"
and "did not recall how many screens either complainant viewed
before each of them recognized the defendant, or how long it took
each to make an identification" (id. at 1063).
          Citing such cases, defendant argues that the denial of
his suppression motion was reversible error and seeks a new
trial, to be preceded by an independent source hearing.   He
contends that it is proper to extend the presumption of
suggestiveness to the People's failure to preserve a record of
photo arrays displayed to a witness by means of the photo manager
system or a similar system, and that the People failed to rebut
the presumption in his case.   We agree with defendant on the
first point but not the second.
                                  IV.
          The law requiring that the prosecution preserve a photo
array shown to an identifying witness was first applied to
physical books and drawers of photographs, but there is nothing
about the requirement that would limit it to that context.     A
detective who shows an identifying witness a book of photographs
must preserve the photographs that were shown, together with
their arrangement in the book, and must keep some record of the
order in which the pages were displayed.   Similarly, a detective
who shows a witness photographs on the photo manager system or
via a similar computer-assisted process must carry out whatever
steps are necessary to ensure that he or she can recreate in some


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                               - 11 -                        No. 196

way during a suppression hearing the display of the photographs
in the precise arrangement and order in which they were shown to
the witness.
          The People argue that the requirement of preservation,
when applied to computer-generated photo arrays, amounts to the
creation of an obligation on the part of the police to produce
evidence in the first place.   While it is true that "[t]here is a
difference between preserving evidence already within the
possession of the prosecution and the entirely distinct
obligation of affirmatively obtaining evidence for the benefit of
a criminal defendant" (People v Hayes, 17 NY3d 46, 51 [2011],
cert denied 132 S Ct 844 [2011]), the preservation of a photo
array, whether physical or computer-generated, falls squarely
within the first category.   A detective who shows a book or
drawer of mugshots to an identifying witness must not only
preserve the photographs but also create some record that will
enable him or her to testify about the arrangement and order in
which the photographs were shown to the witness.    Similarly, a
detective who shows a witness photographs on a computer screen
must keep some record of the arrays and the order in which they
were displayed.   This is not creating evidence for the benefit of
the defendant, but preserving evidence as required by the law
protecting the defendant's right to a fair trial.
          The People suggest that "if a witness viewed hundreds
of photos before making an identification, all of the photos


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                              - 12 -                         No. 196

would surely have to be saved and printed.    No matter what system
would be involved, imposing such a requirement would surely be
burdensome."   Defendant, by contrast, contends that computer-
generated photo arrays are easily stored and printed.    We do not
decide, on this appeal, whether preserving photo arrays shown to
a witness on a computer screen by means of the photo manager
system or the like would require printing the arrays.    That would
depend on whether technology exists to allow, in some other way,
the accurate recreation, at a hearing, of the display of
photographs on a computer screen.    We are not persuaded that the
advent of the photo manager system makes it more difficult,
rather than less, to manage and reproduce photo arrays.
Consequently, we extend the presumption of suggestiveness to
computer-generated photo arrays.
                                V.
          In the present case, however, the People have rebutted
the presumption of suggestiveness.     At the outset, we note that
whether a photo array is unduly suggestive is a mixed question of
law and fact and our review is limited to whether there is
support in the record for the finding (see People v Sanchez, 21
NY3d 216, 225 [2013]).
          Appellate Division cases have found that the People
overcame the presumption when the detective's testimony detailed
"the sheer volume of the photographs viewed, as well as the fact
that the police had not yet focused upon defendant as a


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                              - 13 -                         No. 196

particular suspect" (Campos, 197 AD2d at 367 [internal quotation
marks omitted]; see also People v Mason, 138 AD2d 411, 412 [2d
Dept 1988], lv denied 72 NY2d 863 [1988]; People v Jerome, 111
AD2d 874 [2d Dept 1985], lv denied 66 NY2d 764 [1985]).    In
People v Jerome, for example, the witness "was shown
approximately 1,000 photographs over a period of two days,
resulting in his identification of defendant," and this occurred
"at a point in the investigation where the police had not yet
focused upon any particular suspect" (Jerome, 111 AD2d at 874).
Here, Detective Mazuroski testified that he did not consider
defendant a suspect before showing Sylvie Lee the photographs
from the photo manager system.   Moreover, Lee viewed about a
hundred photographs, and identified defendant, and only
defendant, consistently.   We conclude that there is support in
the record for the finding that the People met their initial
burden of producing evidence of the lack of any undue
suggestiveness.
          We also conclude that there is record support for the
finding that defendant did not meet his ultimate burden of
proving that the procedure was unduly suggestive.   In particular,
there is support for the Appellate Division's finding that
Detective Mazuroski entered enough information about the
perpetrator's physical features to ensure that the photo manager
system would generate "a fair selection of photos" (116 AD3d at
442), rather than an array in which defendant's image would stand


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                               - 14 -                        No. 196

out as markedly different.
                                VI.
          With respect to the lineup, defendant argues that he
was the only person in the lineup who met the age and weight
description given by the witnesses.     Whether or not a lineup is
unduly suggestive is a mixed question of law and fact (see People
v McBride, 14 NY3d 440, 448 [2010], cert denied 562 US 931
[2010]; People v Jackson, 98 NY2d 555, 559 [2002]).    Here, there
is support in the record for the Appellate Division's
determination that the disparity in age was not so apparent as to
draw attention to defendant.   "[A] numerical age difference"
existing "between a defendant and the fillers in a lineup,
without more, is not sufficient to create a substantial
likelihood that the defendant would be singled out for
identification" (Jackson, 98 NY2d at 558, 564 [internal quotation
marks omitted]; see generally Chipp, 75 NY2d at 336).    There is
also record support for the Appellate Division's determination
that the disparity in weight was minimized (see generally
McBride, 14 NY3d at 448; People v Cook, 254 AD2d 92, 92 [1st Dept
1998], lv denied 93 NY2d 851 [1999]).
          Defendant's remaining contentions lack merit or are
unpreserved.   In particular, the detective's testimony regarding
the conduct of his investigation after he obtained descriptions
from the witnesses "did not state or imply that anyone made an
identification" (People v Tucker, 25 AD3d 419, 420 [1st Dept


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                              - 15 -                       No. 196

2006], lv denied 6 NY3d 839 [2006]; cf. People v Holt, 67 NY2d
819, 821 [1986]).   The testimony therefore did not violate the
evidentiary rule that "[i]n the context of eyewitness
identification, the testimony of a third party (typically, a
police officer) to the effect that the witness identified a
defendant as the perpetrator on some prior occasion is generally
inadmissible" (People v Buie, 86 NY2d 501, 510 [1995], citing
People v Trowbridge, 305 NY 471 [1953]).   Defendant's similar
challenge to the prosecutor's summation is unpreserved (see
generally People v Romero, 7 NY3d 911, 912 [2006]).
          Accordingly, the order of the Appellate Division should
be affirmed.




                              - 15 -
People of the State of New York v Todd Holley
No. 196




ABDUS-SALAAM, J. (concurring):
          I agree with the majority that the People carried their
burden of production at the Wade hearing in this case and that
defendant failed to meet his burden to demonstrate that the
police-arranged photo identification procedure was unduly
suggestive (see majority op. at 13-14; see also People v Chipp,


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                               - 2 -                         No. 196

75 NY2d 327, 335 [1990]).   Furthermore, I concur in the
majority's rejection of defendant's challenges to the nisi prius
court's admission into evidence of the lineup identification, the
in-court identification testimony and Detective Mazuroski's brief
testimony about his investigation in this case (see majority op.
at 14-15).   Nonetheless, I write separately to explain my
disagreement with the majority's adoption of a "presumption of
suggestiveness" that allegedly arises whenever the People fail to
present at a Wade hearing a physical copy of a photo array that
has previously been shown to an identifying witness (see majority
op. at 1-2, 7-12).   In my view, the presumption lacks a solid
legal foundation and risks creating unnecessary confusion about
the proper application of existing legal standards governing a
suppression hearing.
          As the majority recognizes, we have never previously
held that, where the People fail to produce a copy of a photo
array at a Wade hearing, they must overcome a rebuttable
presumption that the disputed photo array identification
procedure was unduly suggestive (see majority op. at 9).     Rather,
under our existing precedent, the People must meet only their
"initial burden of going forward to establish the reasonableness
of the police conduct and the lack of any undue suggestiveness"
(Chipp, 75 NY2d at 335), which is a "minimal" burden of
"production" (People v Ortiz, 90 NY2d 533, 538 [1997]), and once
that requirement is satisfied, the burden shifts to the defendant


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                               - 3 -                         No. 196

to "prov[e] that the procedure was unduly suggestive" (Chipp, 75
NY2d at 335).   Because this framework sets forth a commonsense
decisional process without any presumptions, it promotes clarity
and fairness by employing two distinct and balanced burdens with
a single shifting point between them.
          By contrast, the presumption of suggestiveness, which
the majority derives from certain Appellate Division decisions,
undermines the clarity of our existing suppression framework.     As
envisioned by the majority, the presumption does not alter the
burden of production per se, but instead adds a turning point
within the People's efforts to meet that burden by requiring them
to overcome the presumption with testimony about the composition
of the photo array and the circumstances surrounding the
identification procedure (see majority op. at 8).   Thus, the
presumption seems to require a court to take an additional
analytical step, evaluating first whether the People's proof
overcomes the presumption, then whether the evidence satisfies
the burden of production and finally whether the defendant has
demonstrated the unlawfulness of the contested photo array
identification procedure.
          In the vast majority of cases, a balanced application
of this three-step process presumably would yield the same result
as the more straightforward two-step process which exists now.
Indeed, under the existing suppression framework, the People can
meet their burden of production using sufficiently detailed


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                               - 4 -                        No. 196

testimony about the photo array identification procedure without
producing a physical copy of the array at the hearing (see People
v Hernandez, 70 NY2d 833, 835 [1987]), and the majority's
decision indicates that they can similarly overcome the
presumption of suggestiveness and simultaneously meet their
burden of production by presenting that same type of testimony
(see majority op. at 12-13).   But by adding an extra layer to the
analysis, the presumption may cause some courts in practice to
lose sight of the basic point that the People's burden remains a
minimal one geared toward production rather than ultimate
persuasion and conclusive proof.
          Even if the presumption did not engender confusion or
result in any significant practical alteration of our traditional
suppression analysis, I would not endorse it because of its
dubious legal roots.   Significantly, the Appellate Division case
law adopting the presumption relies on earlier decisions that do
not mention a presumption of suggestiveness at all, instead
merely encouraging the production of photo arrays at Wade
hearings and explaining that the lack of such production, coupled
with the absence of additional evidence, prevents the People from
meeting their burden (see People v Barber, 96 AD2d 1112, 1112-
1113 [3d Dept 1983]; People v Nelson, 79 AD2d 171, 173-174 [4th
Dept 1981]; People v Foti, 83 AD2d 641, 641-642 [2d Dept 1981];
People v Putman, 55 AD2d 608, 608-609 [2d Dept 1976]).
Unfortunately, in later cases, the Appellate Division cited those


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                               - 5 -                       No. 196

decisions for a novel proposition that they did not support,
namely that a rebuttable "inference of suggestiveness" arises
from the People's failure to produce the photo array at the
suppression hearing (see People v Johnson, 106 AD2d 469, 469 [2d
Dept 1984]).   Indeed, the initial Appellate Division case law
adopting the presumption of suggestiveness did so with little, if
any, explanation of the rationale for such a presumption (see
id.; see also People v Simmons, 158 AD2d 950, 950 [4th Dept
1990]).
          Furthermore, until recently, the Appellate Division had
concluded that the presumption of suggestiveness simply does not
apply to a voluminous canvassing array of the kind at issue here,
and that hence the People need not rebut any such presumption in
canvassing array cases (see People v Stokes, 139 AD2d 785, 785
[2d Dept 1988]; cf. People v Ludwigsen, 128 AD2d 810, 810 [2d
Dept 1987]).   Thus, the Appellate Division's relatively recent
acceptance of the presumption in the canvassing array context,
based on a line of prior cases that does not support such an
approach (see e.g. People v Robinson, 123 AD3d 1062, 1062-1063
[2d Dept 2014]; People v Dobbins, 112 AD3d 735, 736 [2d Dept
2013]), was without a sound legal foundation and should not be
approved by this Court.   Accordingly, I cannot join the part of
the majority's opinion adopting the presumption in this case.




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*   *   *   *   *   *   *   *    *      *   *   *   *   *   *     *   *
Order affirmed. Opinion by Judge Fahey. Chief Judge Lippman and
Judges Rivera and Stein concur. Judge Abdus-Salaam concurs in
result in a separate opinion in which Judge Pigott concurs.

Decided December 17, 2015




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