Opinion
820/04
Decided May 16, 2005.
Defendant is charged in an indictment, inter alia, with Murder in the Second Degree. The defendant, claiming to be aggrieved by an unlawful arrest, seeks to suppress the identifications as unduly suggestive.
A Dunaway/Wade/Mapp hearing was held before this court, and Detective Robert Figueroa, Shield Number 7981 of the 81st Precinct Detective Unit, testified for the People. The defendant did not call any witnesses on his behalf.
Based on the evidence adduced at the hearing, this court makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
Detective Robert Figueroa, Shield Number 7981 of the 81st Precinct Detective Unit, was assigned to investigate the shooting death of Luther Bryant, that occurred in front of 555 Macon Street in King's County on November 10, 2003 at around 8:14 p.m. By the time the detective arrived at the scene, the body of the victim had already been removed, but there remained blood on the sidewalk and three shell casings on the ground. Detective Figueroa spoke to two witnesses, Andre Collins and the defendant's girlfriend, Sherice Hunter.
Collins told the detective that the victim, Luther Bryant, had introduced him to "Mel" several days earlier, and that on the night of the shooting, he and Bryant had driven with Mel to Mel's girlfriend's house. During the drive, Bryant "snapped on" the defendant, accusing him of not being a true friend, but someone who used his friends to get gas money and engage in "stupid things" like robberies. When the three arrived at the girlfriend's apartment, Collins and Luther Bryant remained in or near the car while "Mel," (later identified as the defendant), went inside his girlfriend's apartment. After waiting approximately 20 to 30 minutes, Collins and Bryant became impatient and started honking the horn and shouting out the window urging the defendant to return to the car so they could continue "hanging out."
Collins told the detective that at some point, the defendant came down to the ground floor, stood half way in the doorway and shot Luther Bryant several times. The defendant then got inside his car and drove away.
Collins called 911 and reported what happened. When the police arrived, he told them the shooter's name was "Mel." He gave them Mel's address, described the car, and provided the license plate number. Using this information, the police quickly established, through several computer checks, that "Mel" was Jamel Albritton, the defendant, and secured a photo of him.
On November 11, 2003, Detective Figueroa prepared a photo array. He placed the defendant's photo in Position Number Three and showed the array to Collins at the 81st Precinct. When shown the array and asked if he recognized anyone, Collins said "yes." While pointing to Number 3, the defendant, Collins stated "That's Mel." He told the detective that Mel had shot his friend. Collins signed his name and wrote the date and time of the identification beneath the defendant's photo.
At 12:50 a.m., that same day, Detective Figueroa showed the same array to Sherice Hunter. Before showing her the array, he covered the original photo array with a blank photo display folder. After viewing the array, Hunter stated that Number 3, the defendant, was her boyfriend Mel. The police then began a search for the defendant's whereabouts.
Collins accompanied the police on several canvasses of the area to search for the defendant, but Albritton was not found.
On January 29, 2004, the Tips Hotline received an anonymous phone call stating that the defendant would be flying into Laguardia airport that day under the name "David Jutt." The caller gave the arrival time and flight number. After confirming with the Port Authority police that a "David Jutt" was on the flight, Detective Figueroa, accompanied by two Port Authority police officers, boarded the plane and went to the defendant's seat. Detective Figueroa immediately recognized Albritton, took him into custody about 10:20 a.m., and escorted him to the 81st Precinct. At the precinct, the defendant identified himself as David Jutt and provided a driver's license with his photo and a social security card in the name of David Jutt.
When the defendant was taken into the interview room to be interrogated, he informed Detective Figueroa that he would not answer any questions and that he had an attorney and wanted to make a phone call. He gave the name and phone number of the attorney to the detective, and when Figueroa asked him who should he say is calling, the defendant answered "Jamel Albritton." David Coppin, the defendant's attorney, was notified.
Several days before the defendant's arrest, Detective Figueroa became aware that the defendant was wanted in connection with a home invasion robbery in the 69th Precinct. After the defendant was taken into custody, and it was determined that the witness on the homicide was out of state, the 69th Precinct was notified and the defendant was transferred to their custody between 8 and 8:30 p.m. Several hours later, the 69 th Precinct voided the arrest and the defendant was returned to the 81st Precinct around midnight. He was then placed under arrest for possession of forged instruments. The defendant was processed for that arrest and sent to criminal court to be arraigned.
Detective Figueroa contacted Collins's grandmother who relayed a message that Collins was needed to view a lineup. Arrangements were made for Collins to return to the state.
On February 3, 2004, attorney Coppin was notified that the defendant would be placed in a lineup. The defendant was then taken from criminal court to the 81st Precinct. Mr Coppin's request that the lineup be delayed a few hours to permit him to be present at the precinct, was granted.
While at the precinct, the defendant was placed in the interview room on the second floor. When Collins arrived at the precinct, he was placed in a closed room to prevent him from seeing the defendant before the lineup. Thereafter, Detective Figueroa went to select five fillers. When the fillers arrived, attorney Coppin selected Position Number 4 for the defendant, and requested that hats be worn by all of the participants. All rings, earrings and other jewelry were removed from all of the participants. The defendant was offered a phone book to sit on to further camouflage any height differences, but he refused.
Collins viewed the lineup through a one-way mirror in the presence of Detective Figueroa, a sergeant, and attorney Coppin. When asked if he recognized anyone, Collins said "Yes, Number 4. He's the one that shot my man." Three Polaroid photos were taken of the lineup, and were introduced into evidence as People's Exhibit 3. One of the photos shows participants holding numbers 1 to 3 (participant Number 4 is partly visible); the second, shows participants 4 to 6; and the third shows the entire lineup (participant number 6 is partially obscured). After being identified in the lineup, the defendant was arrested and charged for the death of Luther Bryant.
CONCLUSIONS OF LAW
There was Probable Cause For Defendant's Arrest
In a motion to suppress, the People have the burden of establishing that there was probable cause for defendant's arrest. Dunaway v. New York, 442 U.S. 200. Probable cause is based on an objective standard and requires knowledge that a reasonable person would believe that a crime has been or is being committed, and that the defendant is the person who committed it. People v. Wilmer, 90 AD2d 918.
Here, the facts elicited by Detective Figueroa from defendant's friend, Andre Collins, who was with the defendant and the victim on the night of the shooting, gave rise to probable cause to arrest the defendant. See People v. Reid, 141 AD2d 774 (probable cause to arrest can stem from information received from civilian witnesses).
On the night of the shooting, Collins, the victim Luther Bryant, and the defendant, who Collins knew as "Mel," drove to Mel's girlfriend's house. While Collins and Bryant remained in the area in or near the car, the defendant went inside his girlfriend's apartment. After waiting for approximately twenty to thirty minutes, Collins and Bryant became impatient and began honking the horn and shouting out of the window, urging the defendant to return to the car. When the defendant came down, Collins saw him shoot Bryant several times and then flee in his vehicle.
Collins called 911 and reported what happened. When the police arrived, he told them the shooter's name and address, described the vehicle he was driving, and provided the license plate number.
Collins's presence at the scene, coupled with his personal observation of the shooting, gave the police probable cause to arrest the defendant. People v. Jean-Charles, 226 AD2d 395 (holding that information provided by an identified citizen accusing another individual of a crime is legally sufficient to provide the police with probable cause for an arrest).
Notwithstanding the fact that they had probable cause to arrest the defendant, the police were unsuccessful in their efforts to locate him to effectuate an arrest. Collins had accompanied the police on several canvasses of the area to search for the defendant, but they could not find him.
On January 29, 2004, the police received a call on the Tips Hotline, from an anonymous caller, stating that the defendant would be flying into Laguardia Airport that day under the name David Jutt. The record is devoid of any evidence that the police had any information about the caller. See People v. Bigelow, 66 NY2d 417; People v. Johnson, 66 NY2d 398; Spinelli v. United States, 393 U.S. 410; Aguilar v. Texas, 378 U.S. 108 (requiring the police to establish that the informant has some basis of knowledge and that his information is reliable).
However, this court finds that the police acted properly by responding to the call, because probable cause had already been established by the information provided by Collins. At most, the caller's information revealed only the defendant's whereabouts, and was not, as the defendant contends, the sole basis upon which probable cause had been established. In any event, prior to acting on the caller's information, Detective Figueroa verified with the Port Authority that they had a passenger named David Jutt on the flight. See People v. Elwell, 50 NY2d 231 (finding that a sufficient basis of knowledge can exist if the police independently observe or can corroborate the informant's statement). Detective Figueroa was able to confirm the defendant's identity, by simply looking at the defendant, who he immediately recognized as the person pictured in the photo array and identified by Sherice Hunter as her boyfriend and by Collins as "Mel," the shooter. See section on admissibility of the identification procedure, infra. The Admissibility of the Physical Evidence
Once at the precinct, the defendant identified himself as David Jutt and produced a driver's license and a social security card bearing that name. The defendant's motion to suppress this evidence is denied.
In a Mapp hearing to suppress physical evidence, the burden is on the People to show the legality of the police conduct. Once met, the defendant bears the burden, by a preponderance of the evidence, to show that his Fourth Amendment right to be free from an unreasonable search and seizure has been violated. This court concludes that the defendant has failed to satisfy his burden.
Both the driver's license and the social security card were voluntarily produced by the defendant, in an effort to prove his identity. The incriminating nature of the identification became apparent, when the defendant later asked to speak with his attorney. It was at that time, that the defendant identified himself as "Jamel Albritton."
The record is unsupported by any evidence that the property was recovered as the result of a police search, or that the defendant was unlawfully seized at the time that the evidence was obtained. As a result, defendant's motion to suppress this evidence is denied.
The Photo Identification Procedure was Not Unduly Suggestive
Based on the information given to them by Collins, the police established that "Mel" was the defendant, Jamel Albritton, and were able to obtain a photograph of him from the computer. Even though Collins had already established that he knew the defendant and that they were "hanging out" together on the night of the shooting, Detective Figueroa placed defendant's picture in a photo array, in any event, and showed the array to Collins. When asked whether he recognized anyone, Collins said "yes", and pointed to Number 3, the defendant's picture, sating "That's Mel." Collins told Detective Figueroa that Mel was the shooter. After identifying the photo, Collins signed his name, the date, and the time, 12:45 a.m. beneath the defendant's photo. This court has examined the array, that was introduced into evidence as Peoples' Exhibit Number 1, and finds that the array was not unduly suggestive.
Generally, there is no requirement that the participants in a photo array be identical in appearance. All that is required is that they resemble each other sufficiently so as not to single out the defendant for identification. People v. Chipp, 75 NY2d 327.
Here, the men pictured in the array appear to be approximately the same age as the defendant, have similar skin tones and complexions, facial hair, which includes a mustache and a goatee-like beard and are wearing similar hairstyles, which appear to be low-cut afros. Minutes later, the same array was shown to Sherice Hunter, the defendant's girlfriend. Before showing her the array however, Detective Figueroa covered the array with a blank photo display folder, that was introduced into evidence as People's Exhibit Number 2. The folder permitted the six array photos to remain visible, but concealed the area where Collins had written his name, the date and the time. After viewing the array, Hunter identified Number 3, the defendant, as her boyfriend "Mel."
This court concludes that the neither the photo array nor the identification procedure was unduly suggestive.
The Delay from Arrest to Arraignment
Criminal Procedure Law, section 140.20, requires a police officer, after performing his preliminary police duties, to bring, without unnecessary delay, a person arrested without a warrant to a local criminal court for arraignment. When the delay is over 24 hours, a presumption is raised that the delay is unnecessary, and unless explained, constitutes a violation of C.P.L. 140.20. See People v. Maxian, 77 NY2d 422.
Here, the defendant contends that his arraignment was unnecessarily delayed in order to arrange for Collins to return to the state. This contention is refuted by the evidence.
The record reveals that after being taken into custody, it was determined that the defendant was wanted in connection with a home invasion robbery within the confines of the 69th Precinct. Between 8 and 8:30 p.m., the defendant was transferred to the 69th Precinct, and was not returned to the 81st Precinct until after midnight. It was then, that the defendant was placed under arrest for Criminal Possession of Stolen Instruments and was processed for this crime. The defendant was taken to criminal court, where he was arraigned on these charges.
As a preliminary matter, defendant's detention did not exceed 24 hours. Moreover, based on the evidence adduced at the hearing, this court finds that the defendant's arraignment was not strategically delayed or postponed for the sole purpose of ensuring that the witness would arrive. Rather, the evidence reflects that the delay, to the extent that one existed, resulted from a police investigation into the defendant's possible involvement in an unrelated crime within the confines of the 69th Precinct. See People v. Faison, 265 AD2d 422). Since defendant's attorney, Coppin, had been notified at the time of defendant's arrest, a claim that a delay was intended to prevent the right of counsel from attaching, cannot be sustained, and is therefore denied.
The Lineup Identification by Andre Collins
Detective Figueroa contacted Collins's grandmother and told her that Collins needed to view a lineup. Arrangements were then made for Collins, who had been out of state, to come to the precinct.
While at the precinct, Collins was placed in a closed room and remained separated from the defendant and the fillers. To further ensure the integrity of the lineup, the viewing was delayed, pending attorney Coppin's arrival. Coppin selected Position Number 4 for the defendant, and his request, each of the participants was required to wear hats and were instructed to remove all rings, earrings, and other jewelry. The defendant was even offered a book to sit on to camouflage any height differences. However, he refused.
After viewing the lineup through a one-way mirror, Collins was asked whether he recognized anyone. He answered "Yes, Number 4. He's the one that shot my man." This court has examined the three Polaroid photos that were taken of the lineup and introduced during the course of the hearing, and concludes that this identification was not unduly suggestive. In fact, the added precautions taken by defendant's attorney, who was present during the viewing, helped ensure the integrity of the proceedings. As reflected in the photograph, each of the participants is a male black, approximately the same age, height and weight as the defendant, and is wearing a dark colored hat, blue jeans, and dark colored shirts (except Participant Number 3, whose shirt is tan colored).
Defendant's motion to suppress the identification is denied.
This constitutes the decision, motion and opinion of this court.