DOJ-OGR-00005852.jpg

Case 1:20-cr-00330-PAE Document397 Filed 10/29/21 Page 69 of 84 and the identification is merely confirmatory.” (citation and internal quotation marks omitted)); Stallings v. Wood, No. 04 Civ. 4714 (RLM), 2006 WL 842380, at *11 (E.D.N.Y. Mar. 27, 2006) (collecting cases). Minor Victim-4’s personal knowledge of the defendant is well established. The defendant and Minor Victim-4 met in person and interacted multiple times between 2001 and 2004. Minor Victim-4 then mentioned the defendant by description or by name in 2007, 2009, 2020, and 2021, all prior to being shown the photo book. And the circumstances of the identification were not suggestive. Minor Victim-4 was shown 20 photos, LT rrrr——eee—ee ee. She was not asked to locate the defendant, or asked whether a particular photo depicted the defendant, but just whether she recognized anyone, although she was told that she was not expected to recognize someone just because their photo was in the book. And, indeed, Minor Victim-4 said she did not recognize some photos in the book. Regarding the defendant specifically, Minor Victim-4 carefully considered whether a different photo depicted the person she believed to be the defendant before seeing and selecting a photo of the defendant. This procedure was cautious and not suggestive—much less unduly suggestive. The reality is straightforward: Minor Victim-4 knows exactly who the defendant is and confirmed that the person in the photograph was the defendant. In response, the defense argues that the photo “looks like a mug shot” and “is different than the others.” (Def. Mot. 9 at 3). Of course, as is often the case with photo arrays or photo books, a// of the photos generally resemble mug shots, so there is nothing suggestive about the fact that the defendant’s photo does. And it is not in fact different from the others: While the defendant’s photo is lower resolution than some, 68 DOJ-OGR-00005852