Opinion
2013-01-30
The PEOPLE, etc., respondent, v. Eugene POLHILL, appellant.
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Donna Aldea of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Donna Aldea of counsel), for respondent.
Taylor Prendergrass, Susannah Karlsson, and Christopher Dunn, New York, N.Y., for New York Civil Liberties Union Foundation, American Civil Liberties Union, Brennan Center for Justice, New York State Defenders Association, Pre Trial Justice Institute, New York Association of Criminal Defense Lawyers, Five Borough Defense, and Bronx Defenders, amici curiae (one brief filed).
PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and JEFFREY A. COHEN, JJ.
Appeal by the defendant from a judgment of Supreme Court, Queens County (Buchter, J.), rendered January 27, 2010, convicting him of attempted robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress a videotaped statement made by him to law enforcement authorities, and identification evidence.
ORDERED that the judgment is reversed, on the law, that branch of the defendant's omnibus motion which was to suppress a videotaped statement made by him to law enforcement authorities is granted, and a new trial is ordered.
The defendant moved to suppress a videotaped statement made by him to an assistant district attorney during the course of an interview conducted prior to the defendant's arraignment, pursuant to a program instituted by the Queens County District Attorney's office. In accordance with that program, a script formulated by the Queens County District Attorney's office was read to the defendant prior to administering Miranda warnings ( see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), and obtaining a waiver of the defendant's rights. Because this procedure was not effective to secure the defendant's fundamental constitutional privilege against self-incrimination and right to counsel, the defendant's videotaped statement should have been suppressed ( see People v. Dunbar, ––– A.D.3d ––––, 958 N.Y.S.2d 764 [decided herewith] ).
The Supreme Court also should have suppressed the identification evidence because the police lacked reasonable suspicion to stop and detain the defendant on the street. The radio broadcast of a robbery in progress described the perpetrators as two black males wearing black jackets, one of whom was wearing blue jeans and one of whom was wearing black jeans. When responding police officers spoke with the complainant, however, the complainant merely described the perpetrators as “wearing dark clothing,” one taller than the other, and one with a hood. These descriptions of the perpetrators did not provide the police with reasonable suspicion to stop and detain the defendant, who was dressed in a dark gray and dark green camouflage jacket and was standing alone, outside a liquor store, 20 blocks away from the crime scene. In this respect, the defendant's appearance did not match the description broadcast on the radio, and the complainant's description was too vague and general to supply reasonable suspicion to stop and detain the defendant ( see People v. Stewart, 41 N.Y.2d 65, 69, 390 N.Y.S.2d 870, 359 N.E.2d 379;People v. Dubinsky, 289 A.D.2d 415, 416, 734 N.Y.S.2d 245;People v. Riddick, 269 A.D.2d 471, 704 N.Y.S.2d 270;People v. Yiu C. Choy, 173 A.D.2d 883, 571 N.Y.S.2d 83;People v. Dawkins, 163 A.D.2d 322, 324, 557 N.Y.S.2d 447). Nor did the other facts identified by the People supply reasonable suspicion to stop him. Accordingly, that branch of the defendant's omnibus motion which was to suppress the identification evidence should have been granted ( see People v. Ridley, 307 A.D.2d 269, 761 N.Y.S.2d 871;People v. Thomas, 300 A.D.2d 416, 752 N.Y.S.2d 70;People v. Dubinsky, 289 A.D.2d at 416, 734 N.Y.S.2d 245;People v. Riddick, 269 A.D.2d 471, 704 N.Y.S.2d 270;People v. Yiu C. Choy, 173 A.D.2d 883, 571 N.Y.S.2d 83).
These errors were not harmless beyond a reasonable doubt, since the evidence of the defendant's guilt, without reference to the errors, was not overwhelming, and there was a reasonable possibility that the errors might have contributed to the defendant's conviction ( see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787;see People v. Schaeffer, 56 N.Y.2d 448, 454, 452 N.Y.S.2d 561, 438 N.E.2d 94;People v. Dunbar, ––– A.D.3d ––––, 958 N.Y.S.2d 764 [decided herewith]; People v. Harris, 93 A.D.3d 58, 71, 936 N.Y.S.2d 233,affd.20 N.Y.3d 912, 956 N.Y.S.2d 478, 980 N.E.2d 527).
The defendant's remaining contention is without merit.