Opinion
Index No. 769/2020
04-10-2023
The People of the State of New York, v. Richard Smalls, Defendant.
For the People: Melinda Katz, District Attorney, Queens County (Nicole Rella, Esq., Of Counsel) For the Defendant: Claudia Romano, Esq.
Unpublished Opinion
For the People: Melinda Katz, District Attorney, Queens County (Nicole Rella, Esq., Of Counsel)
For the Defendant: Claudia Romano, Esq.
Cassandra M. Mullen, J.
The defendant is charged with Burglary in the First Degree [P.L. § 140.30(2)], Burglary in the Second Degree [P.L. § 140.25(2)], Robbery in the Second Degree [P.L. § 160.10(2)(A)], and Strangulation in the Second Degree [P.L. § 121.12], stemming from two dates of incident, July 3, 2020, and July 28, 2020. The defendant has moved for an order suppressing identification testimony, contending that the pretrial identification procedure was unduly suggestive. A Rodriguez hearing was held before this Court on January 11, 2023, and February 28, 2023. At the start of the hearing, the People indicated there is no physical or statement evidence that they intend to present at trial, obviating the need for a Mapp or Huntley hearing. The People called two witnesses at the Rodriguez hearing, Detective Jonathan Torres and Detective Ronald York. The Court credits their testimony in all relevant aspects.
Findings of Fact
Detective Jonathan Torres, of the NYPD 112th Detective Squad, testified that on August 16, 2020, he placed the defendant, Richard Smalls, under arrest. On approximately August 6, 2020, he was assigned to assist in an investigation of several robberies, one on July 3, 2020, at 64 Wetherole Street, Queens County, NY, and one on July 28, 2020, at 98-10 64th Avenue, Queens County, NY. On or about August 13, 2020, Detective Torres became the lead detective on the case, replacing Detective Falcaro. During his investigation, Detective Torres recovered video surveillance pertaining to the July 3 incident, from an apartment building at 64-85 Wetherole Street and from the 63rd Avenue subway station. Detective Torres also recovered video surveillance pertaining to the July 28 incident, from an apartment building located at 98-10 64th Avenue, as well as from the 67th Drive subway station.
Detective Torres further testified that at around 9:30 am, on August 14, 2020, he and other officers met with Ms. Ann Marie Johnson, at her office at the HELP Meyer Shelter, on Randall's Island. She stated she knew why they were there, that she observed the defendant on the news, as well as in front of the building on the day prior to their arrival, and that at that time she was going to call 911 but by the time she had the opportunity to call, she no longer observed the defendant. Detective Torres showed Ms. Johnson a still image taken from the surveillance video at the 67th Avenue subway station on July 28, 2020, and she stated that she recognized the defendant in the image.
The still image shown to Ms. Johnson was offered into evidence as People's Exhibit 2.
Detective Ronald York, of the NYPD 112th Detective Squad, testified that he was assigned to assist in the investigation so on August 14, 2020, at around 10 am, he was present at the HELP Meyer Shelter with Detective Torres and Police Officer Dolan. He stated that they met with Executive Director Ann Marie Johnson at her office, and she told them that her duties and responsibilities included assisting clients and residents with finding permanent homes, job placement, and directing them to get services with social workers. She was shown a still photograph of the defendant, Richard Smalls, and she stated she recognized him, specifically that she had prior interactions with him, that he needed services in locating his social worker, so they had a five-to-ten-minute conversation at that time. She stated this conversation was face to face, and that the lighting was good. She further stated that he had been a client of hers at the Shelter for about a one and a half months, and that during that time, she had approximately five to ten interactions with him when they would exchange pleasantries in which they would say "good morning" or "good afternoon". She further stated he stood out to her because he often wore brightly colored clothing.
Later that day, on August 14, 2020, at around 9 pm, Detective Torres returned to the HELP Meyer Shelter, and while in the security office with three to four other people, he inquired if anyone would be able to recognize Richard Smalls in a photograph, at which time Ms. Edwards said she would. At around 9:30 pm, Detective Torres showed her a still image from the July 3, 2020 video from the 63rd Avenue subway station, and she stated she recognized the defendant in the image. She said that she spoke with him several times face-to-face when he would request the door to his shelter room to be unlocked, that they explained pleasantries during these interactions, and that she had seen him wearing the same exact outfit from the still image on previous occasions inside the shelter.
The still image shown to Ms. Edwards was offered into evidence as People's Exhibit 1.
The defendant now moves for suppression of identification testimony. Both parties requested an opportunity to file memoranda of law prior to this Court rendering a decision. The defendant filed a memorandum of law on March 16, 2023, the People filed a memorandum of law in response on March 30, 2023, and the defendant filed a reply memorandum of law on April 3, 2023.
Conclusions of Law
At issue is the admissibility of Ms. Johnson and Ms. Edwards' identification testimony. When a defendant seeks to suppress identification evidence, the People bear the initial burden of "establishing the reasonableness of the police conduct and the lack of any undue suggestiveness" (People v. Sosa-Marquez, 177 A.D.3d 1003, 1004 [2d Dept 2019], appeal denied 35 N.Y.3d 944 [2020]). Once the People meet this burden, the defendant "bears the ultimate burden of proving that a pretrial identification procedure was unduly suggestive" (People v. McDonald, 138 A.D.3d 1027, 1028 [2nd Dept. 2016]). In the case at bar, the witnesses were shown a single photo, which the Court of Appeals has held "carries the risk of undue suggestiveness" (People v. Marshall, 26 N.Y.3d 495, 506 [2015]). However, when the People establish that a witness has "sufficient familiarity with defendant such that [a] single-photograph identification of defendant was confirmatory," (People v. McBayne, 204 A.D.3d 549, 550 [1st Dept. 2022] appeal denied 38 N.Y.3d 1152 [2022]), that identification is not considered unduly suggestive and will not be subject to suppression (see, People v. Richardson, 200 A.D.3d 984 [2nd Dept. 2021], appeal denied 38 N.Y.3d 930 [2022]; People v. Jackson, 151 A.D.3d 746, 746 [2nd Dept. 2017], appeal denied 29 N.Y.3d 1128 [2017]).
To find that the People have met their burden of proving that the extent of prior familiarity between both Ms. Johnson and Ms. Edwards with the defendant was such that their identifications of the defendant were merely confirmatory, the Court must conclude, as a matter of law, that "the witness is so familiar with the defendant that there is little or no risk that police suggestion could lead to a misidentification" (People v. Rodriguez, 79 N.Y.2d 445, 450 [1992]). In Rodriguez, the Court of Appeals held that the confirmatory identification exception "may be confidently applied where the protagonists are family members, friends or acquaintances" and that "[a]t the other extreme, it clearly does not apply where the familiarity emanates from a brief encounter" (id, at 450).
Further, after Rodriguez, case law has established that prior contacts which are insufficient to prove familiarity as a matter of law, to justify denial of a hearing, may suffice to prove familiarity once a hearing is held and all the Rodriguez factors are evaluated. See, e.g., People v. Breland, 83 N.Y.2d 286, 295 (1994) (after hearing, sufficient familiarity found, where prior contact, although "brief," was "intense" and "focused" since the witness met the defendant in the context of arranging assassination); People v. Walker, 289 A.D.2d 53, 53-54 (1st Dept. 2001) (after hearing, sufficient familiarity found, where witness, who had seen the defendant only around five times, had reason to focus on him and noticed his distinctive eyes and gait); People v. Lainfiesta, 257 A.D.2d 412, 416 (1st Dept. 1999) (after Rodriguez hearing, failure to serve notice upheld, as witness detailed circumstances of four prior observations of defendant, including how she learned his identify and had reason to remember him); People v. Cherny, 179 A.D.2d 938, 938-939 (3rd Dept. 1992) (victim saw defendant a "number" of times and recognized him as "ferret man"); People v. Perkins, 196 A.D.3d 1107, 1107-1108 (4th Dept. 2021) (victim dated defendant for two months); People v. Burgess, 40 A.D.3d 322 (1st Dept. 2007) (witness saw defendant daily for a few months including the same day as the photo identification).
Contrary to the defendant's argument in his memorandum of law, courts have consistently upheld the use of hearsay at Rodriguez hearings. See, People v. Jacobs, 65 A.D.3d 594, 595 (2nd Dept. 2009) (at a Rodriguez hearing, the People properly established the complaining witness's prior familiarity with the defendant through the testimony of the police officer); see also, People v. Colon, 196 A.D.3d 1043 (4th Dept. 2021) (stating that "the People are not obligated to call the identifying witness at a Rodriguez hearing" and "the People met their burden of establishing that the identification of defendant by witness two was confirmatory by presenting the testimony of a police detective, which established that defendant and witness two, through her relationship with the codefendant, had known each other for at least a year and had met on several occasions); see also, People v. Waterman, 56 A.D.3d 329, 329-330 (1st Dept. 2008) (the People properly established through the detective that the witness knew the defendant's first name and his address, accurately described the defendant's girlfriend, had seen the defendant on nearly a daily basis in the neighborhood for approximately one year, and had several prior conversations with the defendant); see also, People v. Graham, 283 A.D.2d 885, 886-888 (3rd Dept. 2001) (detective's testimony at a Rodriguez hearing established that the defendant and the witness were "long-time acquaintances" and obviated the need for the witness to testify).
In People v. Smith, the Court explains that "although the People are not obligated to call the identifying witness at [the] Rodriguez hearing they nonetheless must come forward with "sufficient details of the extent and degree of the protagonists' prior relationship" with one another." Some relevant factors to be considered in this regard include "the number of times the witness saw the defendant prior to the crime, the duration and nature of those encounters, time periods and setting of the viewings, time between the last viewing and the crime, and whether the two individuals had any conversations". Smith, 137 A.D.3d 1323, 1326 (3rd Dept. 2016). Whether an identification is confirmatory requires a case-by-case analysis, which rests on the length and quality of the prior contacts between the witness and the defendant but always requires a relationship which is more than just "fleeting or distant." People v. Coleman, 73 A.D. 1200 (2nd Dept. 2010).
In the opinion of the Court, the testimony adduced at the hearing established that both Ms. Edwards' and Ms. Johnson's prior familiarity with the defendant falls closer to the extreme of "friends or acquaintances" than the extreme of a "fleeting or distant" relationship or "brief encounter" (People v. Waring, 183 A.D.2d 271 [2d Dept 1992]). Accordingly, the Court finds that under the totality of the circumstances, both single-photograph identifications were confirmatory and need not be suppressed.
In the testimony of Detective York, Ms. Johnson is the Executive Director of the HELP Meyer Shelter where the defendant resided for about a month to six weeks. During that time, she interacted with him at least five to ten times, including an instance when she met with him in her office. On that occasion, she assisted him with determining with whom he should discuss social work services. They met face to face and the lighting was good. She also told the case detectives that she exchanged pleasantries with the defendant on other occasions, such as good morning or good afternoon, as indicated earlier. Additionally, she told both Detective York and Detective Torres that she saw the defendant at the shelter the day before and wanted to call 911, but when she got the opportunity, the defendant was no longer present.
Similarly, with regards to Ms. Edwards' identification, when shown the still photograph of the defendant, she stated she recognized Mr. Smalls. When Detective Torres inquired how she recognized him, she said that she spoke to him face-to-face. She was able to provide detail of the context of when they spoke face-to-face, when he would request the door to his room to be unlocked. She remembered specifics about his responses, the fact that they exchanged pleasantries such as "please" and "thank you". She remembered the clothing that he wore which matched the clothing in the photo, because she had seen him inside the shelter in the same clothing. Both were sufficiently familiar with the defendant to recognize him in the still photographs, and thus the single-photo identifications were confirmatory.
This case is distinguishable from People v. Underwood, on which the defendant heavily relies in support of his argument that the identification by Ms. Edwards should be suppressed. Underwood, 239 A.D.2d 366 (2nd Dept. 1997). In Underwood, the court held that in the context of an Independent Source Hearing, where the defendants' faces were covered and the complainant identified them only by their coats, the People could not meet their burden and the identification was suppressed as the fruit of an illegal arrest. The case at hand, however, addresses confirmatory identifications made prior to the defendant's arrest, in the context of a Rodriguez hearing.
This distinction is important because an Independent Source hearing and a Rodriguez hearing are two very different inquiries. At issue in a Rodriguez hearing, is whether the witness was familiar with the defendant prior to the commission of the crime, whereas in an Independent Source hearing, the question is how well the witness observed the defendant during the commission of the crime. Thus, the Court is unpersuaded by the defendant's argument regarding the visibility of a suspect in a photograph as it relates to a Rodriguez hearing.
Notably, both Ms. Richards and Ms. Johnson knew the defendant's name, thereby independently "establish[ing] that [their] identification[s] [were] confirmatory" (People v. Bolden, 197 A.D.2d 528 [2d Dept. 1993], appeal denied 82 N.Y.2d 922 [1994]; see, People v Rodriguez, 47 A.D.3d 417 [1st Dept 2008], appeal denied 10 N.Y.3d 816 [2008], in which the Appellate Division held that the fact that the "victim knew defendant's first name" was an important factor in "ensur[ing] that the identification was not susceptible to police suggestion"; see also, People v. Ortega, 237 A.D.2d 108 [1st Dept. 1997], appeal denied 89 N.Y.2d 1039 [1997], in which the Appellate Division held that where the witness had seen the defendant frequently for a year and knew his nickname, he knew the defendant "so well as to be impervious to police suggestion" and People v. Legette, 256 A.D.2d 593 [2nd Dept. 1998], appeal denied, 93 N.Y.2d 854 [1998], in which the Second Department upheld a finding that the complainant's identification of the defendant was confirmatory, noting that the two were acquaintances who lived near each other and played basketball together and finding that it was "significant" that the victim identified the defendant by his nickname).
While a witness's knowledge of a defendant's name is not, on its own, dispositive, the Court finds that in this case, it underscores the fact that Ms. Richard's and Ms. Johnson's identifications were confirmatory. It appears to the Court that under the circumstances, both Ms. Richards' and Ms. Johnson's familiarity with the defendant was such that they would have been "impervious to police suggestion" (People v. Rodriguez, supra). Accordingly, their identification testimony is admissible in evidence. Thus, the defendant's motion is denied.
Regarding the defendant's argument about Ms. Johnson's subsequent observation of the defendant on video tape while in the grand jury, the motion is also denied. Courts hold that "a lay witness may give an opinion concerning the identity of a person depicted in a surveillance [video] if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the [video] than is the jury" People v. Grady, 204 A.D.3d 1524, 1525 (4th Dept. 2022), leave to appeal denied, 38 N.Y.3d 1134, (2022); see also, People v. Mosley, 200 A.D.3d 1658 (4th Dept. 2021); see also, People v. Sanchez,, 95 A.D.3d 241 (1st Dept. 2012); see also, People v. Russell, 165 A.D.2d 327 (2nd Dept. 1991), aff'd, 79 N.Y.2d 1024 (1992). Thus, the observation of the defendant in the surveillance tape is not an identification of the defendant as the perpetrator of the crime, subject to C.P.L. § 710.30 notice, but the lay witness's opinion concerning the individual's identity in the video. Furthermore, the Court finds that the People sufficiently established at the hearing Ms. Edwards' and Ms. Johnsons' familiarity with the defendant such that their identifications of him would be impervious to police suggestion.
Therefore, the defendant's motion is denied in its entirety.
This constitutes the decision and order of the Court.
The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.