Opinion
Ind. No. 5452/18
06-26-2023
The People of the State of New York v. Ralief Bradford, Defendant.
Appearing on behalf of the Defendant: Michael Sheinberg, Esq. Appearing for the People: Assistant District Attorney Sarah Jafari, Kings County District Attorney's Office
Unpublished Opinion
Appearing on behalf of the Defendant: Michael Sheinberg, Esq.
Appearing for the People: Assistant District Attorney Sarah Jafari, Kings County District Attorney's Office
Jill Konviser, J.
On January 10, January 13, and January 25, 2023 this Court conducted a combined Dunaway, Wade, Mapp hearing. Prior to the start of testimony the People moved to bifurcate the Wade hearing. The Court reserved decision at that time. Detectives Katherine Siljkovic, Salamir Taylor, Reaz Mohammed and Michael Perez, all of the New York City Police Department (NYPD), testified for the People. The defendant did not present any evidence. The parties made oral arguments on March 7, 2023, supplemented with case law. The defendant's motion is granted in part and denied in part. The Court credits the testimony of the People's witnesses and makes the following findings of fact and conclusions of law.
Findings of Fact
Detective Katherine Siljkovic testified that she has been employed by the NYPD for approximately 12 and one-half years, currently assigned to the 75th Precinct Detective Squad.On July 15, 2018 she was working a 4:00 p.m. to 12:00 a.m. tour. At approximately 5:10 p.m. she received a call regarding a person shot in the vicinity of Pine Street and Blake Avenue in Brooklyn. She responded to the location and observed multiple uniformed officers. There, she observed a young black male, whom she later learned to be Justin Richey, with blood all over his shirt laying face up on the sidewalk being administered CPR from police personnel. Det. Siljkovic observed spent bullets and bullet holes opposite 1258 Blake Avenue and indicated that four shell casings were found in a red bandana in a trash compacter at 1250 Sutter Avenue (Cypress Houses) approximately a block and a half from 1258 Blake Avenue. A cane was also recovered in the rear of 1250 Sutter Avenue on the grass. Richey was subsequently transported to Brookdale hospital where he was pronounced dead at 5:36 p.m. of gunshot wounds to the torso and hip. Det. Siljkovic subsequently reviewed surveillance video that depicted portions of the altercation, including an individual in dark clothing wearing black and gold sneakers.
At approximately 7:26 p.m. Det. Siljkovic received information from a confidential source that "Ralief" killed "Chuck," in relation to a Front Side (Blood), Back Side (Crip) gang feud in the Cypress Houses. She conducted computer checks that revealed that an individual named "Ralief Bradford" lived in the Cypress Houses at 1210 Sutter Avenue and that he was on parole. At approximately 9:20 p.m. she interviewed Confidential Witness 1 (CW1) who stated they were on Blake Avenue when they observed a "heavier male fighting with a younger boy [who] body slammed the victim and hit the victim with a cane and another male, different from that [heavier] male pulled out a firearm and shot the victim and fled toward Euclid Avenue" (Tr. 1/10/23 at 24). CW1 described the shooter as a light skinned male black wearing jeans, a red durag on his head, approximately five-seven to five-eight and light colored hair" (Tr. 1/10/23 at 25).
Det. Siljkovic identified the defendant at the hearing as Ralief Bradford.
Due to a Defense Attorney Eyes Only Protective Order the witnesses were referred to by numbers at the hearing. Defense counsel was provided with a key to indicate which confidential number corresponded to which witness.
At approximately 10:00 p.m. Det Siljkovic interviewed Confidential Witness 2 (CW2). CW2 indicated they were on Black (sic) Avenue between Euclid and Pine and saw Chuck, whom they knew from the neighborhood doing chores and yard work. While they were talking, two males approached and an argument ensued about someone being a Crip. CW2 told the males to leave. A few minutes later they returned with a third male with a cane "and a fight ensued between the males and Chuck" (Tr. 1/10/23 at 28). One of the males hit Chuck with a cane and then the shooter "went in between two parked cars and pulled out a small revolver with a black handle and shot the victim" (Tr. 1/10/23 at 28). CW2 described the shooter as "light skinned male black, thin build, short hair, wearing all black clothing and a red durag hanging out of his pants' pocket." Id.
Det. Siljkovic indicated that at approximately 10:50 p.m. an anonymous call was received by the 75th Precinct Detective Squad, the tipster stated that" Ralief, shot Chuck" (Tr. 1/10/23 at 29). Approximately ten minutes after that call Det. Siljkovic prepared a photo array using the defendant's recent parole photo, with an additional five filler photos of individuals she determined to have similar characteristics to the defendant. She used the photo manager program and searched "light skinned black males and light skinned Hispanic males" (Tr. 1/13/23 at 133). The defendant's parole photo was in position six. She then called the 73rd Precinct Detective Squad in order to have a detective with no connection to the case administer the array so that it would be a double-blind procedure. Detective Salamir Taylor of the 73 Squad, whom Det. Siljkovic did not know personally, subsequently arrived at the 75th Precinct. She handed Det. Taylor a folder with the photo array documents consisting of the instruction sheet, the photo array report, and the photo array, which were received in evidence as People's 1a, 1b and 1c respectively. The photo array shown to CW2, People's 1c, was redacted to remove a white star on the defendant's shirt. As such, each of the photos had a black line across the bottom of the photo. (Tr. 1/10/23 at 40). She did not discuss the case or the subject of the array with Taylor. On July 16, 2018 at 1:10 a.m. Det. Taylor entered the 75th Precinct Detective Squad interview room and administered the array to CW2. Det. Taylor subsequently returned the folder to Siljkovic and indicated that CW2 had selected number six (the defendant), as the shooter (TR. 1/10/23 35-36). Based on the positive identification, Det. Siljkovic issued a Suspect I-Card for the defendant.
This anonymous "tip" was a different individual than the earlier confidential source. (Tr. 1/10/23 at 29-30).
The exhibit was introduced through Det. Siljkovic and received through Det. Taylor. The documents introduced in evidence at the hearing were redacted to remove identifying information for CW2.
CW1 did not view a photo array.
On July 17, 2018 Det. Siljkovic interviewed Confidential Witness 3 (CW3) at the 84th Precinct Detective Squad. CW3, who knew the victim as Chuck, was on the way to a deli near Euclid and saw Chuck with another person inside the gate of a residence. CW3 subsequently saw two males on Euclid Avenue near Blake Avenue say "he's over here" and walk toward Chuck where a dispute ensued - the males wanted the victim to come out of the gate to fight (Tr. 1/10/23 at 43). Chuck told CW3 that "they think I am Crip" (Tr. 1/10/23). A "heavier male and Chuck began to tussle on the sidewalk and the heavier male hit Chuck with a cane" (Tr. 1/10/23 at 44). CW3 then observed a "light skinned male black with freckles and a skinny build pulled out a.38 long revolver with a black handle and shot Chuck multiple times and fled with the other two males toward the Cypress Houses" (Tr. 1/10/23 at 44). CW3 said that Chuck said "no, stop" before the shooter fired (Tr. 1/10/23 at 44). Det. Siljkovic thereafter created another photo array using the same steps she had employed for the first photo array. The defendant's parole photo was placed in position one. Detective Reaz Mohammed of the 84th precinct Detective Squad, whom Det. Siljkovic did not know personally, was asked to administer the photo array. She did not discuss the case, nor did she indicate who the subject was in the array. She handed Det. Mohammed a folder with the photo array documents consisting of the instruction sheet, the photo array report, and the photo array, which were received in evidence as People's 2a, 2b and 2c subject to connection. Det. Mohammed administered the array in People's 2 to CW3 on July 17, 2018 at 9:00 p.m. Det. Mohammed returned the folder to Det. Siljkovic and indicated that CW2 selected number one (the defendant) as being "the shooter" (Tr. 1/10/23 at 48). Subsequently, at 10:05 P.M., Det. Siljkovic modified the Suspect I-Card to a Probable Cause I-Card.
People's 2c was not redacted in the way People's 1c had been redacted as the individuals were all wearing different colored shirts. People's 2a, 2b, and 2c were however similarly redacted to remove identifying information for CW3.
On July 18, 2018 at approximately 8:00 a.m. Detective Perez from Warrants called and informed Siljkovic that the defendant had been taken into custody at a shelter in Queens. While Perez was still at the shelter, Det. Siljkovic asked Perez about the defendant's cell phone and gold and black sneakers, which Perez retrieved. The defendant was subsequently brought to the 75th Precinct. At approximately 9:15 a.m. Det. Siljkovic went to the 75th Precinct Detective Squad interview room where she introduced herself to the defendant and asked if he needed anything to eat or drink, to which he replied "no" (TR. 1/10/23 at 54). At approximately 12:25 p.m. she went to interview the defendant, but he declined to speak (Tr. 1/10/23 at 55). Det. Siljkovic then obtained fillers from a shelter and, along with members of the NYPD, prepared a lineup. The first lineup was conducted on July 18, 2018 at 3:40 p.m. - the defendant chose possession number four - there were five fillers. Photographs of this lineup were admitted into evidence as People's 3a, 3b, and 3c. The defendant and fillers were seated and covered with a sheet from their necks down and all wore a black durag to cover their hair as some of the fillers had different hairstyles. CW2 was contacted and told to come to the 75th Precinct pursuant to the investigation. The defendant and fillers were in the lineup room with the door closed, no window, with a security officer present so that CW2 would not be able to see anyone prior to the lineup. CW2 came on their own and was brought into a supervisor's office. The lineup information report, lineup viewing report and lineup pre-viewing instructions were admitted in evidence at the hearing as People's 4a, 4b and 4c, respectively. Det. Siljkovic reviewed the pre-viewing instructions (People's 4c) with CW2 prior to the lineup. People's 4a, the lineup information report, included case information, the viewing witness' name (redacted) and pedigree information pertaining to the defendant and the fillers. People's 4b contained instructions that were read to CW2 after viewing the lineup to which CW2 responded that they recognized number four as being the shooter and were absolutely sure. CW2's identifying information and signature were redacted from the lineup report. Det. Siljkovic did not say anything to the witness beyond that with which was on the paperwork. No other witnesses were present while CW2 was at the precinct.
After CW2 had left, at approximately 4:30 p.m. the defendant's girlfriend arrived with food and beverages that were given to the defendant, she then left.
CW3 arrived at approximately 4:35 p.m. and was met by Det. Interdonati in the back of the precinct and brought to the supervisor's room. CW3 never observed the defendant or fillers prior to the lineup as they were still in the lineup room with its windowless door closed and a security officer present. The lineup information report, lineup viewing report and lineup pre-viewing instructions were admitted in evidence at the hearing as People's 6a, 6b and 6c, respectively. They were filled out in the same way as the previous reports and included the new fillers' and CW3's information, the latter of which was redacted. Det. Siljkovic followed the same procedure as with CW2. The defendant chose to remain in position four. Photographs of the second lineup were admitted as People's 5a and 5b in evidence at the hearing. The defendant and fillers were again seated with a sheet from the neck down and durags for the lineup. At approximately 4:50 p.m. CW3 viewed this lineup and identified number four, stating "he's the shooter" (Tr. 1/10/23 84; People's 6b). CW3 indicated they were "very sure" of the identification (People's 6b).
Two of the fillers from the first lineup changed.
Det. Siljkovic subsequently contacted CW1 and prepared a third lineup for viewing. She followed the same procedures as she had for the first two. Photographs of this lineup were admitted in evidence as People's 7a, 7b and 7c at the hearing. The lineup information report, lineup viewing report and lineup pre-viewing instructions were admitted in evidence at the hearing as People's 8a, 8b and 8c, respectively. They were filled out in the same way as the previous reports and included the fillers' and CW1's information, the latter of which was redacted. The defendant and fillers were seated with a sheet from the neck down and durags for the lineup and defendant again chose to remain in position number four. At approximately 7:35 p.m. CW1 viewed this lineup and identified number four, for "shooting the boy" (Tr. 1/10/23 at 96; People's 8b). CW1 stated "I'm sure" when asked how sure they were of the identification (Tr. 1/10/23 at 96; People's 8B).
A filler was replaced.
Detective Salamir Taylor testified that he has been employed by the NYPD for eighteen and one-half years, currently assigned to Counter Terrorism Division Shield HUMINT Operations Unit in Washington D.C. On July 15 and 16, 2018, he was assigned to the 73rd Precinct Detective Squad. At approximately 12:45 a.m. on July 16 he received a call from the 75th Precinct requesting that he conduct a double-blind photo array. He proceeded to the 75th Precinct approximately 10 minutes later and met Det. Siljkovic, whom he did not know previously. They did not discuss the case. Det. Siljkovic handed him a folder with the photo array documents consisting of the instruction sheet, the photo array report, and the photo array that were received in evidence as People's 1a, 1b and 1c respectively. Det. Taylor had no information concerning the subject of the array or which number they were. Det. Taylor proceeded to the room with CW2. He opened the folder and at approximately 1:10 a.m. began reading the pre-viewing instructions to CW2. He then read the questions word for word from the photo array report. CW2 indicated they recognized number six as the shooter. Det. Taylor then read CW2 a confidence statement and they indicated they were "absolutely sure." Det. Taylor completed the array report forms and had CW2 sign or initial the appropriate sections on each form indicated. He thereafter returned the documents to Det. Siljkovic. He had no further involvement with the case.
Detective Reaz Mohammed testified that he has been employed by the NYPD for eleven years, currently assigned to the 84th Precinct Detective Squad. On July 17, 2018 at approximately 8:30 p.m. he was at the 84th Precinct when he was asked by Det. Siljkovic to administer a double-blind photo array. He did not know Det. Siljkovic and they did not discuss the case. She handed him a folder with the photo array documents consisting of the instruction sheet, the photo array report, and the photo array that were received in evidence as People's 2a, 2b, and 2c, respectively. Det. Mohammed did not know the subject of the array, or in which position they were. Det. Mohammed introduced himself to CW3 and brought them into a room at approximately 8:40 p.m. They did not discuss the array prior to entering. He opened the folder and read the pre-viewing instructions to CW3 and had the witness sign and date the bottom prior to providing the witness with the array. CW3 made an identification indicating that they recognized number one from "the incident, the shooter" (Tr. 1/25/23 at 209). He then read the confidence statement to which CW3 responded "very, very sure" (Tr. 1/25/23 at 210). Det. Mohammed read all of the instructions verbatim as printed. He thereafter returned the documents to Det. Siljkovic. He had no further involvement in the case.
Detective Michael Perez of the Warrant Section Regional Fugitive Task Force testified that he was in his 21st year with the NYPD and that he had been in his current command, a U.S. Marshal led task force, for approximately three years. On July 18, 2018 he was a member of the Brooklyn North Violent Felony Squad and was assigned to apprehend an individual named Ralief Bradley, whom he identified at the hearing as the defendant. He had received an I-Card that included a photograph of the defendant. He did computer inquiries that indicated the defendant was being supervised by New York State Parole with a parole address of 102-10 Ditmars Boulevard, room 122, East Elmhurst, Queens. He contacted Parole and they confirmed the defendant had last reported on July 16, 2018, that the Ditmars address was a family shelter and, based on a prior home visit, that the defendant was staying there with a young child and Tahkeyma McIver, the child's mother. (Tr. 1/25/23 at 171). Detective Perez proceeded to the location at approximately 7:55 a.m. and showed the photograph to a staff member who confirmed the defendant was assigned room 122 on the ground floor and that he had signed in on July 17, 2018. Detectives Perez and Brennan, plain clothed but wearing bullet proof vests with their police shields displayed, proceeded to room 122 while Detective Garcia and Sergeant Tomins went around the outside to secure the perimeter. Perez knocked on the door and when the defendant opened it and stepped into the threshold, the Detective asked him to step out. When the defendant stepped out, he was taken into custody without incident. Perez told the defendant he needed to come back to the precinct (Tr. 1/25, 2023 at 173-175). Detective Garcia and Sergeant Tomins brought the defendant to the car while Detectives Perez and Brennan received permission to enter the apartment from Ms. McIver. Inside the location Perez observed it was one large room with a kitchenette and bathroom. He observed men's and women's clothes, several pairs of sneakers along a wall, cell phones, a dresser, crib and assorted baby items. After exiting the apartment Det. Perez called Det. Siljkovic to inform her of the defendant's apprehension and to ask whether she needed anything else. Det. Siljkovic requested the defendant's black and gold sneakers worn during the crime and his cell phone. After speaking to Siljkovic, Perez returned to the apartment and knocked on the door. He again asked Ms. McIver if he and Det. Brennan could enter and speak to her - she replied yes and allowed them to enter. Perez asked her for the defendant's cell phone, which she handed to him. When Perez asked if he could have the black and gold sneakers, she said ok. They did not make any promises or threats either time they spoke to Ms. McIver and their guns were never drawn during the encounters. Perez described both interactions as calm and polite. They left the location at approximately 8:15 a.m. Neither Perez nor anyone in his presence discussed the case with the defendant and the defendant never asked for an attorney. It took approximately an hour to get to the 75th Precinct where Perez lodged the defendant and handed the phone and sneakers to a detective.
Conclusions of Law
The Court fully credits the testimony of Detectives Katherine Siljkovic, Salamir Taylor, Reaz Mohammed and Michael Perez.
Dunaway
The People have met their burden of demonstrating that the police had probable cause to arrest the defendant. At the time the Probable Cause I-Card was issued, two identified citizen witnesses had positively identified the defendant in double-blind photo arrays. See People v. Read, 74 A.D.3d 1245, 1246 (2nd Dept 2010); People v. Warren, 12 A.D.3d 708 (2nd Dept 2004); People v. Sanders, 239 A.D.2d 528 (2nd Dept 1997). So, too, the defendant's arrest was lawful. The defendant voluntarily answered the door and was taken into custody once he stepped out of the door's threshold into the hallway. See, People v. Garvin, 30 N.Y.3d 174, 177 (2017) (a warrantless arrest of a suspect in the threshold of a residence is permissible under the Fourth Amendment, provided that the suspect has voluntarily answered the door and the police have not crossed the threshold); Payton v. New York, 445 U.S. 573 (1980).
Wade
At a Wade hearing, the People have the initial burden of "producing evidence in support of the fairness of the identification procedure" (People v Holley, 26 N.Y.3d 514, 521, [2015]; see also People v Chipp, 75 N.Y.2d 327, 335 [1990]). If the People meet their burden, the onus shifts to the defendant to prove that the procedure was "improper" or "unduly suggestive" (Holley, 26 N.Y.3d at 521; Chipp, 75 N.Y.2d 327 at 335). The defendant concedes that none of the witnesses was improperly bolstered by making identifications in the presence of any other witness during either the showing of the arrays or the three lineups. The defendant also does not challenge the actual police conduct as being suggestive during the administration of the arrays or the lineups. Rather, the defendant focuses his motion to suppress on the makeup of the arrays and lineups, arguing that the defendant was improperly singled out by their composition.
The People argue that, in addition to all five of the identification procedures having been properly conducted, none of the procedures was unduly suggestive in composition.
The Two Photo Arrays
The two photo arrays herein were administered in a double-blind procedure. Pursuant to Criminal Procedure Law (CPL) section 60.25(1)(c), for a photographic array to be admissible, it is required that the administrator of the array not know who the suspect is and where the suspect is located within the array. "The 'blind/blinded' criterion is intended to deny the administrator of an identification procedure the knowledge that could prompt him (sic) to send signals, even unwittingly, to the viewing witness" (Hibel, New York Identification Law §4.06[4], at 4-62 [2021]). The two photo arrays in this case met the threshold for admissibility pursuant to CPL 60.25(1)(c). The arrays were prepared by Detective Siljkovic and administered by Detectives Taylor (for CW2) and Mohammed (for CW3). Neither of the administering detectives had any knowledge of the target or his position in the array. As noted, the defendant is not challenging the administration, but rather, the composition of the arrays. The defendant argues that the use of the defendant's parole photo in both arrays was unduly suggestive, as it depicts an individual "more in the distance" and therefore different in relative size, appearing "incredibly smaller" to the arrest photos of the five fillers. As such the defendant was highlighted to the array viewer (Tr. 3/7/23 at 5). The defendant further argues that the defendant is lighter skinned and wearing a darker shirt than the others. Furthermore, in the array shown to CW3 (People's 2c), the defendant's shirt is the only one with a visible star. As such the defendant argues that the arrays as constructed were per se suggestive in that they drew the viewer to the defendant.
The star graphic was specifically redacted in People's 1c but not in People's 2c.
The People argue that Detective Siljkovic used the parole photo as it was a recent photo. In People's 1c, the array shown to CW2, Det. Siljkovic redacted the visible star graphic on the defendant's shirt by blacking it out and made a similar redaction to the bottom of each of the other five photos as two of the other fillers were wearing plain black shirts. As to People's 2c, the array shown to CW3, no redactions were made.
The defendant is wearing black with a white star graphic, filler 2 is wearing red, filler 3 is wearing blue, fillers 4 and 5 are wearing white and filler 6 is wearing grey.
The Court agrees with the defendant. While the dark color of his shirt was matched by two fillers in People's 1c, the defendant is further away from the camera showing more of his torso, while the fillers photos are head shots - the defendant stands out. In People's 2c the defendant is not only the only individual in a black shirt, which was part of the description, but because his photo includes a portion of the star graphic, a graphic that had been redacted in 1c, he is further set apart and the viewer is drawn to his photo. The difference in appearance - a more distant defendant in 1c and only the defendant depicted in a black shirt with a star graphic in 2c, immediately draws the viewer's attention to the defendant's photograph, as it did with this viewer, thus impermissibly highlighting the defendant's photograph. See People v. Shea, 54 A.D.2d 722, 722, (2d Dept 1976) (photo array found to be impermissibly suggestive where defendant's color photograph was not an official "'mug shot,'" and was much smaller in size than the others) cf. People v. Mainella, 2 A.D.3d 1330 (4th Dept 2003); lv denied 2 N.Y.3d 742 (2003).
As such the Court finds that the two photo arrays, although properly conducted, were unduly suggestive requiring that the People establish an independent source for the admission of identification evidence as to CW2 and CW3.
The Lineups
As with the array, defense counsel does not challenge the manner in which the lineups were conducted, again challenging the composition of each of the three lineups based on disparities in age, height, weight, complexion and shirt color, between the fillers and the defendant. The Court has already ordered an independent source hearing as to the identifications of CW2 and CW3 based on a finding that the photo arrays shown to those witnesses were unduly suggestive and, as such, the admissibility of the lineups is also contingent of the determination of independent source. CW1's lineup identification, however, was not preceded by a photo array and therefore, its admissibility stands on its own.
"While the fillers used in a lineup must be sufficiently similar to the defendant so that no characteristic or visual clue would orient the viewer toward the defendant as a perpetrator of the crimes charged, there is no requirement that a defendant in a lineup be accompanied by individuals nearly identical in appearance" People v Baez, 172 A.D.3d 893, 893-894 [2d Dept 2019]) (internal citations omitted); lve denied 34 N.Y.3d 928 (2019); see People v Chipp, supra at 336 [1990]). Here, the fillers sufficiently resembled the defendant. See People v Fingall, 136 A.D.3d 622, 623, (2nd Dept 2016); People v Speaks, 124 A.D.3d 689, 690, [2nd Dept 2015], affd 28 N.Y.3d 990 [2016]). Moreover, Det. Siljkovic took reasonable steps to conceal any differences between the appearances of the lineup participants and the defendant (see People v Bradley, 160 A.D.3d 760, 761 [2nd Dept 2018]) by having the men seated, with a colored sheet held up to their necks, and their numbers held in front of them to account for any differences in the color of their shirts, as well as their height and weight. Baez, supra. Furthermore, to the extent the defendant was wearing a white t-shirt, which was not part of the description of the shooter, is of no moment as a ubiquitous white t-shirt does little to draw one's attention. See People v. Drayton, 70 A.D.3d 595 (1st Dept 2010) (fact that defendant was the only person in photo array in a white shirt, even where victim's description included reference to a white shirt, was unlikely to attract the victim's attention as a white shirt is an extremely common article of clothing (emphasis added); People v Tinnen, 238 A.D.2d 615, 616 (2nd Dept 1997) (fact that defendant had on a red shirt in the lineup did not draw undue attention to him, especially in light of the fact that the witness had not identified him as wearing a red shirt.) cf. People v. Pena, 131 A.D.3d 708 (2nd Dept 2015). In addition, the men all wore black durags on their heads to account for any differences in hairstyles. Baez supra., citing People v DeJesus, 140 A.D.3d 788, 789, [2nd Dept 2016]; People v Brown, 47 A.D.3d 826, 827 [ 2nd Dept 2008]; People v Johnson, 306 A.D.2d 214, 215 (2nd Dept 2003). Furthermore, the photographs taken of the lineup reflect that any slight differences in skin tone between the defendant and the fillers were "not so apparent as to orient the viewer toward the defendant as the perpetrator of the crimes charged." People v. Gough, 203 A.D.3d 747 (2nd Dept 2022); see People v. Spence, 92 A.D.3d 905.
Again, the shooter was dressed in a black shirt and, notably, as Det Siljkovic had the lineup participants hold a sheet to their necks, only a smidgen of the defendant's shirt was visible.
Thus, considering the totality of the circumstances surrounding the lineup viewed by CW1, the People have established the fairness of the procedure and the defendant has not met his burden of demonstrating that the lineup was improper or unduly suggestive. See, People v Holley, supra; People v Chipp, supra. Accordingly, the lineup is admissible and CW1 will be permitted to make an in-court identification at trial.
Mapp
The defendant also moves to suppress the recovery of the defendant's cell phone and a pair of black and gold sneakers from inside the apartment in Queens that were recovered by Det. Perez inside the apartment after the defendant was taken into custody. Det. Perez testified that he and Det. Brennan initially entered the apartment with the consent of the defendant's girlfriend, Ms. McIver, to inform her of the defendant's arrest. At the time Det. Perez spoke to her he observed inter alia cell phones and several pairs of sneakers inside the apartment. After leaving the apartment he called Det. Siljkovic to inform her of the defendant's arrest. Det. Siljkovic requested the defendant's cell phone and the black and gold sneakers. Det. Perez returned to the apartment, again receiving permission for him and Det. Brennan to enter from Ms. McIver. He asked her for the defendant's cell phone, which she handed to him, and for the pair black and gold sneakers that he observed on the floor, to which she said ok.
"[T]he police may lawfully conduct a warrantless search when they have obtained the voluntary consent of a party who possesses the requisite degree of authority and control over the premises or personal property in question" People v. Ortiz, 87 A.D.3d 602, 603 (2nd Dept 2011) lve denied People v. Ortiz, 17 N.Y.3d 954 (2011) (machete voluntarily relinquished by the defendant's girlfriend who lived in the apartment with the defendant) see People v. Cosme, 48 N.Y.2d 286, 290 [1979]. With respect to apparent authority, "where the searching officers rely in good faith on the apparent capability of an individual to consent to a search and the circumstances reasonably indicate that... [the] individual does, in fact, have the authority to consent, evidence obtained as the result of such a search should not be suppressed" People v Williams, 210 A.D.3d 913, 913 (2d Dept 2022) quoting People v. Adams, 53 N.Y.2d 1, 9 (1981). An objective evaluation of the evidence establishes that Ms. McIver had apparent authority to consent to the police entry and subsequent recovery of both the defendant's cell phone and sneakers as a "party who shares a common right of access or control over property may voluntarily consent to the search of the property." People v. Williams, 210 A.D.3d 913 (2nd Dept 2022); see also People v. Persaud, 212 A.D.3d 654 (2nd Dept 2023). Accordingly, the cell phone and sneakers were lawfully recovered from the apartment.
Conclusion
The defendant's motion to suppress the identifications and the property recovered from his apartment is GRANTED to the extent of ordering an Independent Source hearing as to an in-court identification by CW2 and CW 3 and otherwise DENIED as to the property recovered from the apartment and the lineup and potential in-court identification by CW1.
This constitutes the Decision and Order of this Court.