Opinion
No. 1320/2011.
07-07-2014
The PEOPLE of the State of New York v. Yenfri RAMIREZ, Defendant.
Robert T. Johnson, Bronx County District Attorney, Bronx, Law Office of Maria S. Tobia, Maria S. Tobia, Esq., Bronx, attorney for Defendant.
Robert T. Johnson, Bronx County District Attorney, Bronx, Law Office of Maria S. Tobia, Maria S. Tobia, Esq., Bronx, attorney for Defendant.
Opinion
BARBARA F. NEWMAN, J.
On March 19, 2014, March 20, 2014, March 21, 2014, March 24, 2014, March 25, 2014, and March 26, 2014, this Court conducted a combined Dunaway/Mapp/Huntley/Wade (Dunaway v. New York, 442 U.S. 200 [1979];Mapp v. Ohio, 367 U.S. 643 [1961];People v. Huntley, 15 N.Y.2d 72 [1965];United States v. Wade, 388 U.S. 218 [1967] ) hearing. At the conclusion of the hearing and after oral argument, the Court rendered an oral decision denying defendant's motion in its entirety. The Court stated that a full written decision with findings of fact and conclusions of law would follow. This is that full decision.
FINDINGS OF FACT
At the hearing the People called seven witnesses: Detective Davie Rodriguez, Detective Rene Canela, Detective Joseph O'Neil, Detective Thomas Degrazia, Police Officer Kevin Weber, Police Officer Jonathan Irwin and Police Communication Technician Richard Schoen. There were no defense witnesses. The Court credits the testimony of the People's witnesses, finding them persuasive, frank, open and truthful.
The People's first witness was Detective Davie Rodriguez. He testified that he has been a member of the New York Police Department (hereinafter NYPD) for 14 years and a detective since 2006. He has been assigned to Bronx Homicide for three years. On April 7, 2011, he was assigned to assist Detective Rene Canela in an investigation of a shooting which had just occurred in which two people had died and a third had been shot but survived.
On April 8, 2011, at approximately 12:38 a.m. he interviewed the defendant Yenfri Ramirez in the 52 Precinct squad interview room. Present in the room, which was described as small, “maybe six by six, one door, a table, and three chairs,” were the defendant, Detective Rodriguez and Detective Canela. The detectives wore civilian clothes. Defendant sat at the table opposite Detective Canela, Detective Rodriguez sat at the head of the table and the fourth side of the table was against the wall. The defendant was under arrest but not handcuffed at the time he was questioned by Detective Rodriguez.
Prior to the interview, Detective Rodriguez administered the Miranda warning to defendant. Detective Rodriguez did not himself threaten or strike defendant and he is not aware that anyone did so in his presence or to the best of his knowledge. Neither he nor anyone to his knowledge made any promises to the defendant. No service weapons were displayed to defendant during the interview. During the interview defendant's demeanor was calm, indifferent.
Detective Rodriguez read the Miranda warnings in Spanish, a language in which the detective is fluent at reading, writing and speaking. He spoke Spanish to the defendant because everyone that was being interviewed in this case was being interviewed in Spanish and he did not know at that time whether the defendant spoke English. He read the rights verbatim from a juvenile Miranda warning sheet, rather than an adult sheet because that was the only Spanish language sheet that was available to him. The defendant appeared to understand what was being read to him. After each right was read to him, defendant replied with the Spanish word for yes, and initialed the word yes each time and signed the form. The Spanish Miranda warning sheet was admitted in evidence, read by the witness in Spanish and translated by the Court interpreter into English for the record.
After being read his Miranda rights, defendant made a statement. First the detectives asked him if he was the brother of Indio. Defendant gave them Indio's pedigree information, including the name Francalis Ramirez. When asked, he said that he did not know Indio's phone number but that if the police gave him his phone, he could give them the number. He was given the phone and gave them the number. He said that initially when stopped he was about to go pick up his girlfriend Anna, refusing to provide her pedigree or contact information, and that he did not run anywhere. He said that he walked and was not at Devoe Park [the location of the incident]. He was shown a photo of Esmarlyn Dilone and said that he had seen that person before but does not know him. The police asked him whether Dilone or defendant's brother Indio called him to come over with a gun and defendant said, “No”; he never had a gun. Defendant said that he left his home at 8 p.m. and was stopped. He said that the second time he was stopped he was with his girlfriend and placed under arrest.
“Indio” was involved in an early part of the incident. He was in fact defendant's brother.
Defendant was asked if he wanted to make a written statement and he replied that he did. No one forced or threatened defendant to give the written statement and no one struck him or said anything to him to induce him to write the statement. The detective gave defendant a legal pad and a pen, left him alone inside the room and asked defendant to knock on the door when he was done. Defendant wrote out the statement in Spanish. Upon his return to the interview room, the detective wrote “end of statement” at the end of it and had defendant sign it. The statement was admitted into evidence. The statement was translated into the record and said substantially what was said in the oral statement but also contained defendant writing that he did not do anything. The interview with defendant took approximately an hour and defendant did not request food during that time, seemed alert throughout and seemed to understand everything the detective said. The detective understood what defendant said. The defendant did not request an attorney at any time.
The People's second witness, Detective Rene Canela, has been a member of NYPD for 20 years and is currently a Detective Investigator assigned to the Bronx Night Watch, a squad which responds to homicides, shootings, missings, “big jobs” which come to the police between midnight and eight a.m. He has been a detective approximately 10 years and at the time of this incident was assigned to the 52 Precinct Detective Squad. On April 7, 2011, he was the detective assigned to the shooting at West Fordham Road and University Avenue, in which two individuals were killed and a third individual was shot and survived.
As part of his assignment he received a photo array which included a photo of defendant from a prior arrest. He believed that Detective O'Neill had prepared the photo array and that it came from the Photo Manager. He showed the array to witness Juan Polanco at about 2:50 p.m. on April 8, 2011, at the 52 Precinct. Before showing Polanco the photo array he asked Polanco to look at the photos and see if he recognized the shooter. Polanco identified photo No.5, which was a photo of defendant, and signed his name under the photo. After that selection Detective Canela did not comment on whether Polanco had selected the correct or incorrect photo, and before the selection the detective did not tell Polanco which photo to pick or not pick.
At the hearing Mr. Polanco was the only identifying witness referred to by name. The other identifying witnesses, none of whom, testified at the hearing were referred to by number: Witness Number One, Witness Number Two and Witness Number Three, to temporarily protect their identity.
The detective was shown an exhibit and identified it as the photo array shown to the witness Polanco. It was admitted into evidence and viewed by the Court. The photo array contained six photos including defendant's. All persons pictured appeared to be light-skinned male Hispanic of approximately the same age and skin tone each having approximately no or minimal facial hair. All wore dark colored casual clothing: two wore round-neck shirts; one wore a v-neck shirt and three wore hoodies. In the photo one hoodie appears black, the second hoodie appears dark blue or purple and the third hoodie appears olive green or possibly gray. The v-neck and one round-neck shirt appear to be black, while the other round-neck shirt appears to be dark brown. The detective testified that in the photo the defendant was wearing a green hoodie. The detective was not certain whether he was the person who showed the first photo array at the 52 Precinct to a witness.
Detective Canela conducted a lineup later on April 8, 2011, at 1086 Simpson Street on the third floor. When the defendant was at 1086 Simpson Street before the lineup he was kept at a location there where he could not be seen by the identifying witnesses.
There were two witnesses who would view the lineup and when they arrived at the precinct they were situated in separate rooms therein, from which they could see neither the defendant nor any of the fillers used in the lineup. The two witnesses were not permitted to speak with each other before the lineup and nothing was said to them regarding the lineup, although Detective Canela did not recall whether he himself had placed them in separate rooms and did not recall into which rooms they were placed, relying not on a specific memory of this date in this case but on what is normally done.
In the lineup were six people, including defendant. Each filler wore a black hat and was seated. Defendant was in seat # 2 at the lineup; the detective did not remember whether defendant or someone else chose his seat. A photo of each lineup was admitted into evidence and viewed by the Court. The lineup showed six male Hispanics of approximately same or similar age, skin tone and appearance, each having little to no facial hair.
The first lineup was conducted on April 8, 2011, at 5:50 p.m. and the first witness that viewed identified the defendant and circled the photo of the person he picked on the lineup photo. He said that person was the shooter. After the first witness viewed the lineup the detective brought that witness to a room, assuring that the witness had no contact with the second witness who was going to view the lineup.
Then the detective brought the second witness to view the lineup, telling the witness that he was going to be shown six people in the lineup and to see if he recognized the shooter. The second witness was not shown the lineup photo which had already been marked by the first identifying witness. He identified the defendant, who was in seat # 2. The lineup photo was admitted into evidence and viewed by the Court. It was the photo of the same lineup viewed by the first witness who had viewed the lineup. Each witness separately viewed identical lineups. Prior to each witness viewing the lineup the detective did not tell them who to pick and after each witness viewed the lineup and identified the defendant the detective did not comment on their selection.
After the defendant was apprehended, and in the holding cell, Detective Canela recovered from defendant's person a green coat. Other personal property: black baseball cap, black scarf, a cell phone and a wallet were taken from defendant after he was in custody but Detective Canela was not certain whether he personally or another detective with whom he was working on the case actually removed the cell phone, wallet, scarf and black baseball cap from defendant. The detective recalled becoming aware of a 911 caller that had placed a call at approximately 7:55 p.m. on April 7, 2011, describing the shooter as a male Hispanic wearing a green jacket and who was running.
One lineup viewing occurred at approximately 5:50 p.m. on April 8, 2011, and the second viewing was immediately after at 5:52 p.m. After looking at paperwork he recalled that Detective O'Neill showed one of the witnesses who viewed a lineup a photo array at 11:40 p.m. on April 7, 2011. He learned that defendant had been taken into custody about a half hour after the shooting and a gun was “right behind him when he got stopped.”
The People's third witness, Detective Joseph O'Neill, has been a member of NYPD for approximately 18 years and has been in the Bronx Homicide Task Force since 2005. He has been a detective for 14 years. On April 7, 2011, he was working from 4 p.m. to 1 a.m. and was assigned to assist Detective Canela on a shooting that had occurred earlier that evening near the intersection of West Fordham Road and University Avenue. He showed witness Number Two a photo array at approximately 11:40 p.m. He displayed the array to Witness Number Two on the street within one block of West Fordham Road and University Avenue, in the presence of Detective Canela. He did not recall if the witness's uncle was also present. Witness Number Two identified photo # 5, the defendant, as the individual he observed before and after the incident with a gun. Then the witness placed his initials on the array. The witness was never told whom to select and no comments were made about the photo he selected. This photo array was admitted in evidence and viewed by the Court.
The People's fourth witness, Detective Thomas Degrazia, has been a member of NYPD for 20½ years and has been a detective for approximately 14 years. He is currently assigned to the 52 Precinct Detective Squad. On April 7, 2011, he assisted in an investigation of a shooting that took place that evening at approximately 7:55 p.m. in the vicinity of West Fordham Road and University Avenue. In connection with the investigation 52 Precinct patrol officers brought a witness to the precinct. Detective Degrazia, who was present in the precinct, showed a photo array to that witness, referred to as Witness Number Three. The array was displayed at approximately 9:55 p.m. and the witnesses was asked if he recognized anyone in the array. Witness Number Three identified # 5 (the defendant) as the person with the gun and then the witness signed his name below his identification. The witnesses was never told whom to select and no comments were made about the photo he selected. The photo array was admitted in evidence and viewed by the Court.
The People's fifth witness, Police Officer Kevin Weber, has been a member of NYPD for four and one-half years and is currently assigned to PSA–8. On April 7, 2011, Officer Weber was assigned to the 52 Precinct, working on patrol. He was doing a 4:00 p.m. to 12:35 a.m. shift in uniform in a marked RMP. He heard over the radio while in the precinct of a shooting that occurred at approximately 7:55 p.m. in the vicinity of West Fordham Road and University Avenue. He testified that the call he heard contained a description of the shooter as a male Hispanic wearing a black and white White Sox baseball cap and a green jacket. As he drove to the vicinity of the shooting he picked up Officer Nieves, who was responding to the call on foot.
Approximately ten minutes after hearing the radio call, when he got near the intersection of Grand Avenue and East 192nd Street approximately five blocks from the shooting location, he observed an individual, later identified as the defendant, fitting the description of male Hispanic, black and white White Sox baseball cap and a green jacket walking on the street. He saw a male Hispanic wearing a black and white White Sox baseball cap and a green jacket. He observed the male walking on Grand Avenue approximately 20 to 30 feet from the intersection with East 192nd Street and then the male stopped walking, stepped behind a car and pulled out a cell phone, placing it to his ear as he began to walk again. The officers exited their car and then stopped the male on the sidewalk. A pat-down was conducted of the defendant and nothing of an evidentiary nature was recovered from the defendant's person.
Other officers responded to the location. After Officer Weber consulted with detectives on the scene the defendant, who had been stopped for approximately five to ten minutes, was released and allowed to proceed as there was no evidence recovered and no witnesses were available for an identification procedure. At no time during this inquiry was the defendant handcuffed.
The defendant walked northbound on Grand Avenue. Then a search was conducted by the police who remained of the area of the stop and there a silver firearm with a black grip was recovered by Officer Weber on the ground in a patch of dirt, in the vicinity where the defendant was initially stopped. After being informed of the recovery of the firearm, a supervisor on the scene sent officers to relocate the defendant. Approximately five minutes after the defendant was released Officer Weber observed defendant, whom he recognized as the individual he had stopped earlier back at the location of the stop, now in the presence of Officer Vega and Irwin.
The People's sixth witness, Police Officer Jonathan Irwin, has been a member of NYPD for three and one-half years and is assigned to patrol in the 52 Precinct. On April 7, 2011, he was working 4 p.m. to 12 a.m., assigned to Operation Impact, in uniform and on a foot post. He heard a radio transmission involving a shooting which contained a description of a light skin male Hispanic, green jacket, and a black and white White Sox cap. He proceeded to walk to the mobilization point which was located at the intersection of West Fordham Road and University Avenue where the shooting had occurred. As he was walking, he observed a male Hispanic wearing a green jacket and a black and white White Sox cap in the vicinity of West 192nd Street and Grand Avenue, walking northbound on Grand Avenue. At the same time he observed a marked patrol car in the vicinity of this male individual. He then observed officers exit the patrol car and stop the male, later identified as the defendant. He proceeded to the location to assist the officers.
Approximately ten to fifteen minutes after the defendant was initially stopped he was released by the officers because no evidence was recovered and no identification procedure had been conducted. Prior to the defendant's release Officer Irwin prepared a Stop and Frisk report. Shortly after the defendant was released a search of the area of the stop was conducted and a firearm was recovered by one of the officers. It was on a dirt square right off of the curb. He was then ordered by Sergeant Schmidt to relocate the defendant. He proceeded to the vicinity of East Kingsbridge Road and Grand Avenue, where he observed the defendant, whom he recognized as the individual who had been stopped and released by Officer Weber. The defendant was walking on Grand Avenue when he was stopped, taken into custody and placed under arrest at approximately 8:20 p.m.
The People's seventh witness, Richard Schoen, has been assigned to the Communications Division, Tapes and Records Unit of NYPD for 24 years. He is currently a Police Communications Technician. As a tape technician he is responsible for the business of transferring radio calls and 911 calls to the appropriate District Attorney's Office. The calls are digitally recorded in a computer base maintained by the communication division. His unit maintains audio communications of radio and 911 calls for 180 days and his unit maintains paper records in the form of a sprint report for 10 years. He explained that a sprint report contains “a synopsis of what's happening. It contains an address, a brief incident code, a brief description, the caller's name and phone number.”
During the hearing he identified the audio recording of the 911 calls and radio transmission that were digitally recorded in connection with this investigation. One call was admitted in evidence and played during the hearing. That 911 call was from an anonymous caller who described a male Hispanic wearing a green sweater running towards the Grand Concourse.
The testimonial evidence at the hearing was that the description the officers heard over the radio transmission was of an individual wearing a green jacket. The anonymous 911 call that was admitted in evidence contained a description of an individual wearing a green sweater.
Conclusions of Law
The Dunaway/Mapp Hearing
At the Dunaway hearing the People bear the burden of establishing the legality of the police conduct by bringing forth credible evidence to establish that the arrest was based upon probable cause. The burden then shifts to defendant to prove by a preponderance of the evidence that the conduct of the police was illegal, thereby requiring suppression of the challenged evidence. see People v. Berrios, 28 N.Y.2d 361, 367 (1971).
In argument, defense contends that the defendant was arrested without probable cause. Defendant moves to suppress use of the defendant's statements and physical evidence and identification testimony as the tainted fruit of defendant's illegal arrest. Defendant also moves to suppress the identifications because the procedures utilized by the police to identify the defendant were unduly suggestive.
On the evening in question defendant was stopped briefly by police on the street, this stop hereinafter called Stop 1. He was released and then went on his way. After recovery of the firearm he was brought back to the location by police and arrested, hereinafter Stop 2.
For the reasons which follow this Court finds that the police acted properly in both interactions with defendant.
Police interactions with civilians vary and their legality is likewise therefore tested differently depending on the circumstances of each encounter. The determination of probable cause must be based upon an examination of all of the credible evidence and reasonable inferences therefrom. In People v. DeBour, 40 N.Y.2d 219 (1976), the Court of Appeals established the guidelines to be utilized in evaluating the propriety of police-citizen encounters. The rights of police in police-citizen encounter range from a basic right to enquire when there is an objective credible reason for the officer's action, not necessarily indicative of criminality, to a right to arrest where there is probable cause to do so. The permissibility of a police officer's conduct is determined by the information possessed by the officer at the time of the encounter. After an initial approach, as in this case, events may occur which escalate the rights of the police, thereby justifying a greater police intrusion upon the individual's liberty than was initially permissible.
“A police officer is entitled, and in fact is duty bound, to take action on a radio call.” People v. Benjamin, 51 N.Y.2d 267, 270 (1980). When the police are acting pursuant to a radio call generated by an anonymous 911 call, which provides a general description and a location of an incident, the police possess a common-law right to inquire upon their arrival. People v. Bora, 191 A.D.2d 384 (1st Dept.1993). At a minimum, for a police officer to approach a citizen, [s]he must have an objective credible reason for his/her actions, which is not necessarily indicative of criminality. The officer must be able to give a specific articulable reason for his/her approach. An analysis must then be made of the knowledge possessed by the officer at that moment of approach and any reasonable inferences that may be drawn therefrom based upon the knowledge. Id. at 215. “[A] radioed tip may have almost no legal significance when it stands alone, but that when considered in conjunction with other supportive facts, it may thus collectively, although not independently, support a reasonable suspicion justifying intrusive police action.” Benjamin at 271. (see People v. Rogers, 121 A.D.2d 481 (2nd Dept 1986) (detailed radio transmission combined with officer's observations at the scene support reasonable suspicion that defendant was armed and justify pat down). A greater intrusion is permissible when the officer has a “founded suspicion that criminal activity is afoot.” see People v. Cantor, 36 N.Y.2d 106, 111 (1975) ; People v. Rosemond, 26 N.Y.2d 101 (1970) ; DeBour at 223.
Viewed in the context of established legal principles, the conduct of the officers viz a viz defendant in this case was justified from its inception. To begin the discussion the Court notes that the defendant was stopped twice on April 7, 2011, first on Grand Avenue and then approximately one block away in the vicinity of Grand Avenue and Kingsbridge Road. The first stop was brief, defendant was patted down and let go. Within approximately five minutes of his release, the gun was recovered and within two to three minutes of recovery of the gun, he was brought back to the location of the initial stop and placed under arrest. Each of these encounters between defendant and the police was permissible and legal.
The Court credits the testimony of Officers Weber and Irwin and finds that they had an objective credible reason to approach the defendant initially and inquire. In response to a radio transmission which contained a detailed description of a male individual involved in a recent shooting, Officers Weber and Irwin arrived independently of each other in the vicinity of East 192nd Street and Grand Avenue shortly after the shooting. Each observed the defendant walking on the street at a location within close proximity to the shooting. The defendant's physical appearance as well as the clothing he was wearing matched the details provided in the transmission. The officers' observations established a sufficient nexus between the anonymous information upon which they acted and the defendant whom they observed: close in time, close in place, ethnicity, sex, color of upper garment, in general direction and general area to which caller said perpetrator had gone. Based upon the radio transmission and their personal observations, the officers initially were permitted to inquire in that they possessed “some objective credible reason for that interference, not necessarily indicative of criminality.” DeBour at 223.
The defendant was detained for a few minutes and a pat-down of his person, which yielded negative results, was conducted. After the brief inquiry and the filling out of the Stop and Frisk Report, the police permitted defendant to leave and walk away. The first stop was short and defendant was not handcuffed. At that time, in the absence of an identification or the recovery of physical evidence to connect defendant to the shooting, the officers did not possess the requisite probable cause to arrest him for the shooting. At that time the officers acted reasonably in releasing the defendant and permitting him to go on his way.
The police searched the immediate area where the stop had occurred subsequent to defendant's release and a firearm was recovered at the location where defendant had been seen. All of the factors known to the police when considered together after recovery of the firearm formed probable cause for the arrest for criminal possession of a weapon in the third degree. The combined factors include: the stop of an individual whose clothing and physical appearance match the description of an individual involved in a shooting, the close spatial and temporal proximity of the stop of this individual to where the shooting had just occurred plus recovery of a firearm where the individual fitting the description had just been observed walking, momentarily pausing and then walking again. Therefore, Officer Irwin's relocation and subsequent arrest of the defendant was lawful.Inasmuch as the police possessed probable cause to arrest the defendant when they did so, the physical evidence recovered from the defendant's person, i.e., jacket, scarf, hat and phone, were properly recovered in a search incident to a lawful arrest. People v. Lane, 10 N.Y.2d 347, (1961) ; People v. Brown, 24 N.Y.2d 421 (1969).
Fruit of the Poisonous Tree
The People contend that the stops of the defendant were both lawful and, they argue in the alternative, even if the stops were illegal, due to attenuation there was probable cause for defendant's arrest upon his being identified in the photo array on April 7, 2011, at 11:40 p.m. by Witness Number Two as the shooter. The “body' or identity of a defendant ... in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search or interrogation occurred.” see People v. Tolentino, 14 NY3d 382, 385 (2010)citing I.N.S. v. Lopez–Mendoza, 468 U.S. 1032 (1984). When only a defendant's identity is obtained in an unlawful seizure, a motion to suppress a photographic identification as the fruit of an illegal arrest will be denied because the identifications “were not an exploitation of the antecedent illegality, as defendant's photograph was obtained from a source independent of the unlawful arrest, and such identification proceeded from the witnesses' independent recollections” Id. at 387, citing People v. Pleasant, 54 N.Y.2d 972, 974 (1981). As defendant's identity is not suppressible, it was available for use by the police in the photo array not withstanding any impropriety by the police. This photo array identification of the defendant as the shooter thereby established probable cause for defendant's arrest. The People must establish that defendant's arrest was based upon “intervening probable cause” which sufficiently attenuated the taint of the illegal arrest. Jones at 455 citing, People v. Jones, 85 AD3d 612, (1st Dept 2011). In the alternative argument the People contend that even if both stops were impermissible defendant's statement, photo arrays and lineup identifications occur after a permissible photo identification by Witness Number Two independently and properly established probable cause.
The People concede that if Stop 1 is impermissible the defendant's jacket, scarf, hat and phone would be suppressed.
The Court agrees.
Even assuming arguendo that Stop 1 was permissible and Stop 2 was impermissible, for reasons which follow the photo arrays, lineups and defendant's statement would not be suppressed as the product of an unlawful arrest.
However, the physical evidence, i.e., defendant's jacket, hat, scarf and phone would be suppressed. The legality and admissibility of the photo arrays, lineups and statements are separately discussed infra.
The Stop and Frisk information was lawfully obtained from defendant during the initial stop of the defendant. Stop 1was based upon an objective credible reason and the police properly gathered information in order to complete a Stop and Frisk report well before defendant was later arrested. Defendant's identity was the product of Stop 1.The defendant's identity was not the product of his subsequent arrest Stop 2. “[E]vidence discovered subsequent to an illegal arrest is not indiscriminately subject to the exclusionary rule.” see People v. Jones, 21 NY3d 449 (2013), citing, People v. Jones, 2 NY3d 335 (2004).
Even assuming arguendo, that Stop 1 and Stop 2 were impermissible, for reasons which follow the photo arrays, lineups and defendant's statement would still not be suppressed because defendant's identity, as discussed infra, cannot be suppressed. However, as noted supra, the physical evidence would be suppressed.
The photo array identification of defendant as the shooter by Witness Number Two was made on April 7, 2011, at approximately 11:40 p.m., several hours after defendant was stopped on the street. This investigative procedure was permissible as defendant's identity from the Stop and Frisk was ascertained prior to the impropriety of an “illegal” arrest on the street.
Regardless of whether Stop 1 and Stop 2 were permissible, the subsequent written statement, photo array identifications and lineup identifications are not suppressible as the product of an unlawful arrest on the street. They were lawfully obtained after an intervening event—the photo array identification by Witness Number Two—established probable cause for defendant's arrest.
The Huntley Hearing
Defendant contends that his written statement must be suppressed as fruit of the poisonous tree, an unlawful arrest. Defendant challenges his written statement on no other grounds.
Defendant's written statement was made after he was lawfully arrested and, as such, is admissible. The motion to suppress it is denied.
The Wade Hearing
Additionally, defendant has moved to suppress the pre-trial photo array and lineup identifications on the grounds that they were unduly suggestive. To defeat suppression, the People must produce evidence to demonstrate that the identification procedures utilized were reasonable under the circumstances and not unduly suggestive. see People v. Chipp, 75 N.Y.2d 327, 335 (1990) ; People v. Ortiz, 90 N.Y.2d 533, 537 (1997). Once the People show the legality of the police conduct, the burden then shifts to the defendant to prove that the identification procedure was, in fact, unduly suggestive. see People v. Chipp, supra at 335; People v. Oritz, supra at 537;People v. Faust, 178 A.D.2d 352 (1st Dept 1991).
In the instant case, the Court is called upon to determine the legality of both the photo arrays and lineup identification procedures. There were three photo array identifications and two lineup identifications.
There were three photo arrays, shown to three separate witnesses which were identical in composition. Therefore, the review of the composition of one array constituted a review of each array.
The photo array, which contained six photographs, was admitted in evidence at the hearing and reviewed by the Court. Defense argues that the array is suggestive and must be suppressed because the defendant is the only individual wearing a green hoodie and the perpetrator was described on the 911 call as wearing something green.
“Courts have repeatedly held that there is no requirement that all participants in a lineup or photo array appear to be identical in appearance; rather, all that is required is that they resemble each other sufficiently so as not to create a substantial likelihood that the defendant would be singled out for identification.” see People v. Simmons, 170 A.D.2d 15 (1st Dept 1991)citing People v. Chipp, 75 N.Y.2d 327, 336;People v. Mason, 138 A.D.2d 411,lv denied 72 N.Y.2d 863;People v. Rodriguez, 124 A.D.2d 611;People v. Scott, 114 A.D.2d 915.
As for clothing, the persons in the array are wearing a variety of colors and each individual in the array had a unique feature or article of clothing which one might likewise argue could possibly draw attention to his photograph. The mere fact that a defendant may possess a physical characteristic or item of clothing which no other filler has does not automatically create an unduly suggestive procedure. see People v. Gourdine, 223 A.D.2d 428 (1st Dept 1996) (defendant only individual in array to appear with bruised face and black eye did not create substantial likelihood that he would be singled out for identification because those features were not part of description); People v. Vargas, 194 A.D.2d 428 (1st Dept 1996) (defendant only person in array wearing gold chain was insufficient to taint identification as it was not part of description). Likewise, the fact that defendant is wearing a common article of clothing which may have been part of a description does not in and of itself single the defendant out for identification. see People v. Cruz, 55 AD3d 365 (1st Dept 2008) (suppression of identification not warranted even when assailant is described as wearing blue t-shirt and defendant is only individual wearing blue t-shirt in array because it is common article of clothing); People v. Drayton, 70 AD3d 595 (1st Dept 2010) (defendant is only individual in white t-shirt and although this was part of description it was unlikely to attract attention of witness as it is a common article of clothing).
A review of the six photos in the array establishes that there was nothing so significant in any one photo that a viewing witness's attention would be drawn to that photo nor would anything cause a viewer's attention to focus on that particular photo more than any other photo. In the photo array the color of the hoodie that defendant is wearing appears to be olive green or possibly green gray. However, it is evident from a review of all of the photographs that the color worn by defendant does not significantly differ from the dark clothing worn by the individuals in the other five photos. Defendant's hoodie is not so “apparently green” as to immediately draw the viewers attention to that photo. Additionally, there is no evidence that the witnesses who viewed the array described the perpetrator as wearing a green hoodie.
The defense further argues that the composition of the lineup which was viewed by two witnesses was impermissibly suggestive because the fillers are extremely light skinned in comparison to the defendant, who is the only person with brown skin. Further, defense contends that several of the fillers are heavier than the defendant, some look female and defendant has facial hair while the fillers do not have much facial hair.In evaluating a lineup procedure, the Court must review the events that occur at the time the procedure is conducted as well as the physical composition of the procedure. Here, the composition of the lineup, the way the defendant was displayed, and the instructions given to the witness before the shade was raised, were all proper and not suggestive. Additionally, the defense argues that the lineup was suggestive as it occurred too soon after the display of the photo array in which the defendant had been the only individual wearing a green hoodie. The timing of the events belies defendant's contention. There were two lineups conducted on April 8, 2011, at 5:50 p.m. and 5:52 p.m. Only one witness who viewed the lineup had viewed a photo array and that photo array viewing took place the day before the lineup on April 7, 2011, at 11:40 p.m.
Prior to the lineup viewing, the witnesses did not observe the defendant and were not shown a photograph of the defendant. The witnesses viewed the lineup singly. Once inside the viewing room, each witness was instructed by the detective by that they were about to view a lineup and they were to inform him if they recognized anyone as the shooter. The witnesses were not directed or instructed to look at one person more closely than another or to select any particular person, nor were any comments made about the individual they identified. The record is clear that each witness made their selection after the shade was raised and the witness had an opportunity to view the defendant and fillers. Before the lineup the two viewing witnesses were separated from each other and secluded from the defendant and the fillers. Additionally, between lineups the witnesses were not allowed to speak with each other and were unaware of any identification made.
The lineup photo, which was admitted at the hearing, was reviewed by the Court. All of the individuals that participated in the lineup with the defendant were wearing similar casual clothing, each was wearing a cap to conceal the difference in hair styles and length. Additionally each of the fillers appear to be similar to defendant in terms of age, facial hair and skin coloring and each shared the same general facial features. As all persons in the lineup were seated, any height or weight disparities were neutralized. The defendant's physical characteristics were sufficiently similar to the other participants in the lineup to negate any likelihood that defendant would be singled out for identification.
The two lineup photos admitted in evidence were identical in composition.?
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In sum, the photo arrays were legally admissible in that the police had a right to defendant's photo, the arrays were arranged and displayed fairly, and they were free of any impermissible suggestivity. In regard to the lineups, the police possessed probable cause to put the defendant in the lineup, the manner in which it was conducted was fair and free of impermissible suggestivity. There existing no evidence of suggestivity with regard to the photo array or lineups, defendant's motion to suppress identification testimony is denied.
Accordingly, defendant's motions to suppress are denied.
The foregoing constitutes the decision and order of the Court.