Opinion
02057-2017
04-08-2019
The PEOPLE of the State of New York, Plaintiff, v. Deontay BOYD, Defendant.
The People by: ADA John Esposito, 125-01 Queens Boulevard, Kew Gardens, New York 11415 The Defendant by: Diana Nevins, Esq., The Legal Aid Society, 120-46 Queens Boulevard, Kew Gardens, New York 11415
The People by: ADA John Esposito, 125-01 Queens Boulevard, Kew Gardens, New York 11415
The Defendant by: Diana Nevins, Esq., The Legal Aid Society, 120-46 Queens Boulevard, Kew Gardens, New York 11415
Gene R. Lopez, J.
In the indictment, the defendant is charged with two counts of robbery in the second degree ( Penal Law § 160.10[1], [2][a] ), two counts of grand larceny in the fourth degree ( Penal Law § 155.30[4] ) and one count of criminal possession of stolen property in the fifth degree ( Penal Law § 165.40[2] ).
I. The Pre-Trial Suppression Hearing
A. Investigation conducted by Detective Gregory Lomangino
At the pre-trial suppression hearing, the People presented Detective Gregory Lomangino who stated that on June 15, 2017 at about 7:30 a.m., he telephoned Hector Vera who had reported he had been robbed the evening before. At that time Mr. Vera told the detective that he was punched in the face, then kicked as he laid on the ground and his cell phone and other property were taken. Mr. Vera suffered a black eye as the result of the robbery. Mr. Vera told Detective Lomangino that there were two robbers who he described as male black and about 20 years old. Detective Lomangino could not recall whether Mr. Vera provided a clothing description or the height, weight or hair style of the two robbers.
Mr. Vera provided information to Detective Lomangino as to how to use an app in order to track the location of Mr. Vera's cell phone. Using this app, Detective Lomangino learned the location of Mr. Vera's cell phone; the person with Mr. Vera's cell phone appeared to be moving west. Detective Lomangino and his supervisor drove to the area of Beach 69th Street and Rockaway Beach Boulevard where he observed the only vehicle in the area which was moving was a city bus. At about 7:45 - 7:50 a.m., Detective Lomangino and his supervisor boarded the bus and activated a feature on the app which caused a loud beeping sound. Detective Lomangino followed the sound and was directed to the defendant. The detective then heard an object drop to the floor of the bus. Detective Lomangino recovered a cell phone from beneath the defendant's seat and upon inquiry, the defendant denied ownership of the cell phone. Based on Mr. Vera's description of his cell phone Detective Lomangino recognized the cell phone as Mr. Vera's. The defendant was arrested.
B. Detective's Lomangino's Interview of Mr. Vera Before the Line-up
Detective Lomangino interviewed Mr. Vera at the precinct. Mr. Vera told Detective Lomangino that two male blacks beat him, punched and kicked him and took his cell phone. Detective Lomangino said that Mr. Vera identified the cell phone recovered from the bus as his cell phone. Detective Lomangino saw that Mr. Vera had a black eye. Detective Lomangino recalled that Mr. Vera remembered some facial feature on the defendant's face and believed Mr. Vera was speaking of the defendant's birth mark.
C. The Findings of the Hearing Court
The hearing court found that the line-up was unduly suggestive because the defendant was the only person in the line-up with a shackled foot and a large facial scar. The hearing court noted that although the following circumstances were less pronounced, the defendant, unlike the others, wore his hair in braids and wore a baseball hat with an adjustable band whereas the others did not have adjustable bands. The hearing court also noted that Detective Lomangino told Mr. Vera that the person arrested who had his cell phone was in the line-up and that his cell phone had been recovered. Moreover, the hearing court found Detective Lomangino failed to properly instruct Mr. Vera as to the viewing of the line-up. The hearing court ordered that an independent source hearing be held.
II. The Independent Source Hearing
The Testimony of Hector Vera
A. The Robbery
On June 14, 2017, at about 10:00 p.m., Mr. Vera had exited the Beach 60th Street subway station and was walking home to 5415 Almeda Avenue in the Arverne section of Queens County. After living in the area for eight years, which he described as a high crime neighborhood, he said he had developed a sense of apprehensive awareness to his surroundings. Mr. Vera had with him his backpack, his cell phone, a white i-phone 6, and some credit cards in his left pocket. Mr. Vera walked through a multi building complex as a short cut to his home.
Two males walked towards him and eventually passed him. When they were about 60 feet behind him, Mr. Vera saw that these two individuals had turned around and walked toward him. As Mr. Vera approached his building, he heard heavy foot steps around him. He was then punched on the right side of his face and fell to the ground. While on the ground, he was punched and kicked. To protect himself, he moved into a fetal position and covered his face. Mr. Vera recalled being punched three or four times on his arm and kicked six or seven times on his body.
Mr. Vera lowered his arm from over his face once the punches and kicks stopped. Then one of the males, later identified as the defendant, demanded Mr. Vera's property. The defendant then went into Mr. Vera's right pocket while Mr. Vera was on his left side still on the ground. The defendant turned Mr. Vera over to his right side and then reached into Mr. Vera's left pocket and removed Mr. Vera's cell phone, his credit and debit cards which were in a case attached to the cell phone. The defendant and the second male then fled the area and entered a building near Beach 54th Street.
Mr. Vera estimated that the entire incident lasted about 20 to 30 seconds and estimated that 8 to 10 seconds elapsed from the time the defendant demanded his property and then searched his pockets. Mr. Vera also said that during this entire time he was looking at the defendant's face and had an unobstructed view of the defendant's face. Mr. Vera stated that the first thing he noticed of the defendant was his birthmark which was darker than his skin color and then noticed his skin color. Mr. Vera described the defendant as a light or medium skinned African America or Hispanic with braided hair and a dark birthmark between his eye brows. Mr. Vera also described the clothing worn by the defendant, blue jeans and a dark colored hoodie. Although this corridor was covered by a scaffolding, the area was well lit according to Mr. Vera, with large and very bright lights located under the scaffolding as well as street lamps between the buildings.
B. Investigation and Arrest
1. Mr. Vera's account of the Events After the Robbery
Mr. Vera went home and reported the robbery to the police. Mr. Vera told the 911 operator that the robbers were light skinned African American or Hispanic. The police arrived afterwards and Mr. Vera recounted what happened. Mr. Vera told the police that the two robbers were between 18 and 20 years old, heavier and taller than him, their clothing and one had braids with a light or brownish skin color. Mr. Vera then did a canvas of the area with the police but did not locate either the defendant or the other robber. He could not remember when he told the police of the defendant's birthmark.
2. Mr. Vera's Account of the Investigation Conducted by Detective Lomangino
When he was initially contacted by Detective Lomangino, Mr. Vera could not remember whether the detective asked him to describe the robbers. Mr. Vera said that he was concerned about his cell phone and explained to Detective Lomangino how to track his cell phone. Afterwards, Detective Lomangino called him back and told him that he found the guy who had his cell phone.
At some point later that day, two detectives arrived at his home and showed Mr. Vera his cell phone. One of the detectives asked Mr. Vera whether he would view a line-up and whether he could remember the face of the robber who had taken his property. Mr. Vera believed that is when he reported to the police that the robber had a birthmark.
3. Mr. Vera's Account of his Interview by Detective Lomangino
While at the precinct waiting for the line-up to occur, Mr. Vera told Detective Lomangino about his school and his background. Detective Lomangino recounted how he found Mr. Vera's cell phone including how he was able to track the phone to the bus, boarded the bus and located the phone. Mr. Vera could not remember Detective Lomangino telling him that the person who had his cell phone was in the line-up. Mr. Vera believed at this time he told Detective Lomangino that the robber had a birthmark and wore his hair in braids.
4. Mr. Vera's account of the Line-up
Mr. Vera remembered that there six or more males in the line-up who were seated either in chairs or on stools. Mr. Vera stated that all were wearing blue jeans and a white shirt but thought none wore any hats. Mr. Vera said he took his time when he viewed the line-up, as advised by the investigating detective. Mr. Vera looked at each individual, in turn, over a period of one to two minutes. Mr. Vera chose the defendant who was seated in position No.5 because he recognized him, knew it was him and it was clearly obvious to him he was the person who robbed him.
When questioned by the prosecutor, Mr. Vera explained the following:
Prosecutor: What made you choose number five [the defendant]?
Mr. Vera: "I just knew it was him, like, I just recognized him."
Prosecutor: What did you recognize about number five?
Mr. Vera: His face, that - -
Prosecutor: Describe in a little more detail what you recognized about the face of number five?
Mr. Vera: "It's hard to tell. Like, how do you describe someone if you already know who it is, like how can you put into words how you picked them if you already knew. I already saw his face, right. So like it was clearly obviously it was him, so like if I had to give you characteristics, it would have to be the braids, the face structure."
Prosecutor: That's what I'm asking. What were the characteristics about the face that made you recognize number five?
Mr. Vera: "I can't answer that question because it's so hard to, I mean, for me to describe something like that. It's, how can I say, once you, like, if you see something and you already know if you have seen an apple, before you see an apple, you know it's an apple. It's clearly obvious that - - I can't tell you exactly the detail of the face." (August 16, 2018, T. at 41-42)
Prosecutor: The next morning, what did you tell the police about that [the birth mark]?
Mr. Vera: It was when - - remember having this conversation with the guy who went to my house with the phone, he asked me I was going to do a lineup. He told me if I could remember the guy's face because at first I told him I didn't want to go. I just didn't want to get out of my house. He told me if I didn't go through to look at the lineup, they would have to release the guy and the thing will be over like nothing happened. So I said sure, I will do it. I remember his face and told him." (August 16, 2018, T. at 48)
III. The findings after the Independent Source Hearing
Applying the factors set forth in Neil v. Biggers , 409 US 188, 199-200 (1972) , this court found that Mr. Vera had an independent recollection of the defendant and therefore his in-court identification would be admissible. This court noted that since neither party asked Mr. Vera whether he had observed any significant differences between the defendant and the fillers at the line-up, there was no factual basis to determine how much, if any, the corrupting effect of the suggestive line-up had on Mr. Vera's identification of the defendant.
"These [factors] include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself." (Id. )
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A. Defendant's Motion to Reargue
The defendant now contends that this court should have considered the findings by the hearing court as to what constituted the "corrupting effect of the identification procedure." The defendant maintains that the hearing court found that the line-up identification was unduly suggestive because the defendant was the only person with braids, a shackled foot, a large facial scar and the baseball hat he wore was the only with an adjustable band. The defendant also maintains that the hearing court also found that Detective Lomangino had told Mr. Vera that the person who had his iPhone was had been arrested and was in the line-up and that the Detective did not "properly instruct the complainant [Mr. Vera] about the viewing of the lineup." (People v. Boyd , Sup Ct, Queens County, April 9, 2018, Lopresto, J., indictment No. 2057-2017 at p 5)
IV. DECISION
The Court of Appeals stated in People v. Chipp , 75 NY2d 327, 335 (1990) that:
"By contrast corporeal lineups, properly conducted, generally provide a reliable pretrial identification procedure and are properly admitted unless it is shown that some undue suggestiveness attached to the procedure. While the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification, it is the defendant who bears the ultimate burden of proving the procedure was unduly suggestive (People v. Berrios , 28 NY3d 361). Where suggestiveness is shown, it is the People's burden to demonstrate the existence of an independent source by clear and convincing evidence ( People v. Rahming , 26 NY2d 411, 417 ).
The Court of Appeals also stated that an identification procedure is unduly suggestive if it "create[s] a substantial likelihood that the defendant would be singled out for identification." (Id. At 336)
The Second Circuit in Raheem v. Kelly , 257 F3d 122, 133 (2001) stated the following:
"If the court finds, however, that the procedures were suggestive, it must then determine whether the identification was nonetheless independently reliable...In sum, the identification evidence will be admissible if (a) the procedures were not suggestive or (b) the identification has independent reliability."
"If the pretrial process was unduly suggestive, the court must then weigh the ‘corrupting effect of the suggestive[ness]’ against other factors indicating that the identification may be independently reliable, Manson v. Brathwaite , 432 U.S. at 114, 97 S.Ct. 2243, for even a suggestive procedure ‘does not in itself intrude upon a constitutionally protected interest’ if it did not contribute significantly to the identification of the defendant, id. , at 113 n.13, 97 S.Ct.,2243, (citation omitted). (at 135)
In determining whether a witness's in-court identification of the defendant has reliability independent of the unduly suggestive identification procedures, the court looks generally to the factors set out in Neil v. Biggers , taking into account ‘[1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness’ degree of attention, [3] the accuracy of the witness' prior description of the criminal, [4] the level of certainty demonstrated by the witness at the confrontation, and [5] the length of time between the crime and the confrontation.' (citations omitted) A good or poor rating with respect to any one of these factors will generally not be dispositive, (citation omitted), and in each case, the question of independent reliability must be assessed in light of the totality of the circumstances (citations omitted)." (Id.)
At the suppression hearing, Detective Lomangino was the sole witness. He stated that Mr. Vera had told him that the robbers were two male blacks about 20 years of age and that Mr. Vera remembered something about the defendant's face but could not verbalize it. Detective Lomangino could not remember or recall whether Mr. Vera provided a clothing description, or the height or hair style of the robbers.
At the independent source hearing, Mr. Vera was the sole witness. Mr. Vera stated that during the robbery he had the opportunity for about 8 to 10 seconds to look directly into the defendant's face as the defendant leaned over him to rummage through his pockets in order to take his property. Mr. Vera stated that the first facial feature he observed of the defendant was his birthmark which was darker than his skin color and then he observed the color of the defendant's skin. Mr. Vera also stated that the defendant had braids and was wearing blue jeans and a dark hoodie. When the police officers arrived at his home after he telephoned 911 to report the robbery, Mr. Vera stated that he provided to them the physical characteristics and clothing description of the robbers which included that they were about 18 to 20 years old, taller and heavier than him, and that the defendant had braids and was either a light skinned African American or dark skinned Hispanic. When Detective Lomangino initially telephoned Mr. Vera, Mr. Vera was uncertain whether the detective asked him for a description of the robbers and that the conversation focused on how to locate Mr. Vera's cell phone. While at the precinct awaiting the line-up, Mr. Vera stated that he thought he advised Detective Lomangino that the defendant had a birthmark and braids.
This court previously found, in considering the factors set out in Neil v. Biggers , Mr. Vera's prospective in-court identification of the defendant independently reliable of the corrupting effect of the suggestive factors found by the suppression court. The defendant now challenges that determination in his motion to reargue. He argues this court failed to adequately weigh the corrupting effect of the suggestive factors found by the suppression court against the factors indicating that the identification may be independently reliable.
1. Reliability Independent of the Corrupting Factors
Opportunity to View
Mr. Vera's opportunity to view the defendant was good in terms of the duration of the overall encounter and favors reliability. The area beneath the scaffolding was well lit. Mr. Vera first observed the defendant and the second robber as they walked past him. After he was attacked and forced to the ground, the defendant punched and kicked, then searched Mr. Vera's right pocket, then turned him to over to his right side and removed his property from his left pocket. Mr. Vera estimated the entire incident lasted 20 to 30 seconds during which he had an unobstructed view of the defendant's face.
Degree of Attention
Mr. Vera described his neighborhood as a high crime area. After living in the area for eight years he had developed a sense of apprehensive awareness to his surroundings, explaining that, "Yes, I mean it's a bad neighborhood, so you just feel like anything could happen." Mr. Vera, alert to his surroundings, saw the defendant and another male approach and pass him as he took a short cut to his building. He then saw both men together turn and walk toward him. Just before he was attacked he heard their heavy footsteps. Plainly, Mr. Vera's attention was focused on the defendant and the other male from the moment he first saw them from 60 feet as they walked toward him; indeed, the defendant approached to within one or two feet of Mr. Vera when he demanded his property, an estimated 8 to 10 seconds before he was thrown to the ground. During that time Mr. Vera looked directly at the defendant's face. The degree of Mr. Vera's attention to the defendant just prior to and during the robbery also favors reliability.
Accuracy of Prior Descriptions of Defendant
Mr. Vera described the defendant at the independent source hearing as having a dark birthmark between his eyes along with braided hair. He also described the defendant as a light or medium skinned African American or Hispanic wearing blue jeans and a dark colored hoodie. Mr. Vera said the first thing he noticed was the defendant's birthmark which was darker than his skin color. Mr. Vera, in his report to 911, described the robbers as light skinned African Americans or Hispanics. Mr. Vera told the police officers who responded to his 911 call that the two robbers were between the ages of 18 and 20, both of whom were taller and heavier than him. He also described one of the robbers as having braids with a light or brownish skin tone. However, he was not certain whether he told the responding officers of the defendant's birthmark. While at the precinct and prior to the line-up Mr. Vera believed he told Detective Lomangino of the defendant's birthmark and braids.
Detective Lomangino said Mr. Vera told him when he interviewed Mr. Vera by phone at about 7:30 the morning following the robbery that two black males had robbed him. Each were about 20 years old. Detective Lomangino said he could not remember whether Mr. Vera had provided a description of the height, weight or hair style of the two robbers. It is clear from the context of Detective Lomangino's testimony before the suppression court that once Detective Lomangino, learned from Mr. Vera that Mr. Vera was tracking his cellphone that Detective Lomangino's immediate focus was obtaining the tracking information from Mr. Vera so that he could track the cellphone. Within 20 minutes of his call to Mr. Vera Detective Lomangino had tracked Mr. Vera's cellphone to the defendant who was a passenger on a city bus on Rockaway Beach Boulevard. Detective Lomangino said Mr. Vera told him at the precinct before the line-up was administered of some distinctive facial feature of the defendant and believed Mr. Vera was speaking of the defendant's birthmark.
The descriptions of the defendant prior to the line-up are not inconsistent. The fact that Detective Lomangino could not remember whether Mr. Vera had provided a description of the height, weight or hair style of the robbers cannot be imputed to Mr. Vera. The prior descriptions by Mr. Vera of the defendant are good and support the reliability of his in-court identification of the defendant independent of the unduly suggestive factors found by the suppression court.
Length of Time Between Crime and Line-up Confrontation
The length of time between the crime and Mr. Vera's viewing of the line-up was short, about 24 hours and supports the reliability of his in-court identification of the defendant independent of the corrupting factors. Mr. Vera was robbed on June 14, 2017 at about 10:00 p.m. He subsequently viewed a line-up on June 15, 2017 at about 10:30 p.m.
Level of Certainty Demonstrated at the Line-Up
Mr. Vera's certainty in selecting the defendant at the line-up was strong. He testified at the independent source hearing that looked at each individual, in turn in the line-up, over a period of one to two minutes. He remembered there were six people in the line-up, all of whom were seated. All were wearing blue jeans and a white shirt. He did not believe any of them wore a hat. Mr. Vera selected the defendant seated in the number 5 position because of his face. When pressed by the prosecutor what he recognized about the defendant's face, he explained "I already saw his face, right. So like it was clearly obviously it was him, so like if I had to give you characteristics, it would have to be the braids, the face structure.
The Line-Up's Suggestiveness
The suppression court found the line-up was suggestive because the defendant was the only person in the line-up whose foot was shackled and had a large facial scar. To a lesser degree, the suppression court also found the defendant was the only person who wore his hair in braids and wore a baseball cap with an adjustable band whereas the others did not have adjustable bands.
INSERT
Based upon Mr. Vera's testimony at the independent source hearing, Mr. Vera demonstrated that after the robbery he was able to describe the race, clothing, facial features and hairstyle of the robbers.
A. The Corrupting Factors
1. Shackled Foot
Mr. Vera stated that all the participants in the line-up were seated but could not recall whether they were seated in chairs or on stools. A fair implication is that Mr. Vera did not concentrate on the furniture or the layout of the room but rather than on the faces of the participants. The defendant's foot being shackled had no effect on Mr. Vera.
2. Large Facial Scar
Mr. Vera stated that the first facial feature he recalled noticing of the defendant was that he had a birthmark. At the line-up all of the participants wore bandages in the same area of their faces to ensure all participants were reasonably similar in appearance.
3. Baseball Hat with Adjustable Band
Mr. Vera stated that he believed that none of the participants in the line-up were wearing hats. This court finds the corrupting effect of a baseball hat with a different strap had a de minimus to no effect on Mr. Vera's identification of the defendant at the line-up.
4. Hair braids
A review of the photographs introduced by the People at the suppression hearing reflects that each participant wore a baseball hat backwards in order to cover most or all of their hair. Although some of the defendant's braids were visible under the hat, Mr. Vera had included in his descriptions to Detective Lomangino and to the responding police officers that the defendant had braids.
Given the totality of the testimony from Mr. Vera, the corrupting effect of the line-up found by the hearing court did not significantly contribute to Mr. Vera's identification at the line-up. Therefore, Mr. Vera has an independent recollection of the defendant and therefore Mr. Vera's prospective in court identification is admissible.
B. Remaining Arguments
The defendant also contends that this court's finding that Mr. Vera "was able to describe to the police the defendant's clothing, race, hair and facial feature" was erroneous. The defendant claims that Detective Lomangino testified that Mr. Vera could not describe the hairstyle or clothing of the robbers. The defendant also claims that this court overlooked that Mr. Vera initially reported to the 911 operator that he had been robbed by three black males and that Mr. Vera only mentioned braids and clothing of one of the robbers until after the line-up.
Mr. Vera stated that shortly after he reported the incident to the police, he provided the police the physical characteristics and clothing description of the robbers. (August 15, 2018, T. at 25)(August 16, 2018, T. at 26). Mr. Vera also stated that he told the police that the male who searched his pockets was a light skinned African American or medium skinned Hispanic who had braids. (August 16, 2018, T. at 47-48) Mr. Vera further stated that on June 15, 2017 and before the lineup was conducted he informed the police that the male had a birth mark on his face. (August 16, 2018, T. at 48)
Lastly, the defendant contends that there was no evidentiary support for Mr. Vera's conclusion his neighborhood was a high crime area. This court disagrees. Mr. Vera, a 19 year old college student, who has lived in the neighborhood for 8 years could reasonably ascertain whether the neighborhood was considered a bad or high crime area. Mr. Vera stated that as a result of living in this area, you must have a greater awareness of your surroundings.
For all these reasons, this court adheres to its initial decision.
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.