Opinion
No. 192/2015.
07-25-2016
The PEOPLE of the State of New York, v. Avanti BROCK, Krystal Callender, Remy Smith, Javon Jeter, Zai Smith, Defendant(s).
Hon. Michael McMahon, District Attorney, Richmond County by ADA Kate Malloy. The Legal Aid Society by Eliza Pacheco, Esq., for Zai Smith. Eugene Lamb, Esq., for Remy Smith. Thomas Reilly, Esq., for Javon Jeter. Mark Fonte, Esq., for Krystal Callender. Mario Gallucci, Esq., for Avanti Brock.
Hon. Michael McMahon, District Attorney, Richmond County by ADA Kate Malloy.
The Legal Aid Society by Eliza Pacheco, Esq., for Zai Smith.
Eugene Lamb, Esq., for Remy Smith.
Thomas Reilly, Esq., for Javon Jeter.
Mark Fonte, Esq., for Krystal Callender.
Mario Gallucci, Esq., for Avanti Brock.
MARIO F. MATTEI, J.
The main issues before the court were the propriety of the police conduct in seizing the defendants as suspects in a robbery investigation, and detaining them for a show-up, and the voluntariness of statements made by the defendants.
Defendant Zai Smith pled guilty to this indictment and a subsequent indictment before this decision was rendered.
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A combined Dunaway/Huntley/Wade hearing was held on December 16 and 18, 2015.
The Defendants' Dunaway and Huntley motions are granted; the Wade motion is granted in part. This decision contains the court's findings of fact and conclusions of law.
The People called three witnesses at the hearing: Police Officers Valez and Wolfe, and Detective Morales. The defendants did not call any witnesses.
The witnesses and their testimony were credible.
On July 31, 2015, at approximately 11:25 A.M., Police Officer Valdez and his partners responded to a radio call of a "robbery in progress" at Arthur Kill Road and Veteran's Road West. The only description of the alleged perpetrators he received was "four male blacks and a black female." Within minutes he arrived at the corner of Arthur Kill Road and Veterans Road East and observed a group of individuals matching the description given over the radio on a bus stop. Officer Valdez and his partners approached the five individuals (now the defendants) and told them that they were not free to leave. One of the defendants, Avanti Brock, was putting his hands in his pocket and trying to leave the area. An officer handcuffed him. At this point none of the officers had their guns drawn. Mr Brock stated "There was a fight. I had nothing to do with it." The defendants were frisked. Officer Valdez then had all five defendants line up on a grass area. It is unclear if the individuals were standing or seated at the time. All of them had their hands behind their back. Avanti Brock was not handcuffed at this time. Officer Valdez called for a show-up over the police radio. At some point two additional officers arrived at the bus stop, making it a total of five officers in close proximity to the defendants.
While the aforementioned officers responded to the bus stop, Police Officers James Wolfe and Mavridis responded to the "robbery in progress" call by going to a city bus at the corner of Arthur Kill Road and Veterans Road West. Officer Wolfe heard a radio transmission prior to arriving at the bus which stated that a few people were stopped. Officer Wolfe entered the bus and met with the complainant. The complainant was the only person on the bus. He observed bruises on the complainant's face. The complainant told Officer Wolfe that he was jumped and they took his chain. After speaking with the complainant for a few minutes, Officer Wolfe told him that a few people were stopped and he needed to do a show-up. Officer Wolfe directed the complainant to the back seat of his marked police car. He drove the RMP one block away to Veterans Road East. During the drive he told the complainant "If you recognize anyone, let us know, and we will take it from there." Officer Wolfe drove the police car slowly by the five individuals that had been detained by Officer Valdez. Five officers were in close proximity of the defendants when the show-up procedure occurred It was daylight, the police car was approximately 50 feet from the five individuals, and nothing obstructed the complainant's view of the defendants when the complainant stated "That's them." Officer Wolfe did not stop the car.
Officer Valdez was informed that there was a positive identification of the defendants by the complainant. Each of the five officers proceeded to then handcuff and arrest an individual defendant. It was approximately 12:03 P.M. The defendants were transported in a van to the 123 Precinct.
At the 123 Precinct defendants Avanti Brock, Zai Smith, Krystal Callender and Javon Jeter were placed in a holding area. Defendant Remy Smith was placed in a different holding room because he was a juvenile. Remy Smith was not interviewed by the police because of his juvenile status. Each of the remaining defendants were taken individually to an interview room. The interview room, which is approximately ten foot by eight foot, contains a table, a chair against the wall and two chairs in the back facing the door. Each of the defendants were instructed to sit in the single chair against the wall. Detective Morales sat next to Officer Valdez in the chairs that were facing the door. Each defendant was uncuffed inside the interview room. Detective Morales introduced himself to each of the defendants and explained he was going to read the defendant his/her Miranda warnings before he spoke with them about what they were doing there. The detective read the warnings from a pre-printed sheet. The detective wrote each defendant's name, date of birth and address on the pre-printed form. He also included the date and time of the interview. The completed Miranda forms for defendants Brock, Zai Smith, Callender, and Jeter were introduced into evidence as Exhibits 1, 2, 3, and 4.
The detective read each question on the form. Each defendant responded "Yes" to the questions. The detective memorialized each response and then had each defendant place their initials next to each written response. Each defendant then signed the form. Each defendant indicated they understood their rights. The detective then explained that he/she was here because there was a robbery that occurred where somebody was assaulted on a bus and some property was taken. The detective asked each defendant if he knew anything about it.
Avanti Brock was the first defendant brought to the interview room. He stated in sum and substance that he was sitting in the back of the bus with Zai and Javon when a fight broke out towards the middle of the bus. They went to the middle to see who was fighting. He then saw that the bus driver appeared to be he calling the cops. People started exiting the back of the bus. He got off the bus with everybody. They went to the closest bus stop. He was stopped by the police and then he was let go. He went to the next bus stop where he was stopped by police and brought to the precinct. He stated that he didn't take anybody's property. He didn't hit anybody. He was just witnessing the fight.
Zai Smith was the second defendant brought to the interview room. He stated in sum and substance he was in the back of the bus with Avanti and the light skinned guy. A fight broke out in the middle of the bus. He went to go see what was going on with the fight when he saw his brother. He was trying to hold his brother back so his brother wouldn't get involved in anything. People got off the bus and he got off the bus as well. He was stopped by the police and then they were all brought back to the precinct. Det Morales asked Zai Smith if he had anything else to say and Zai Smith told him "I didn't hit anybody. I didn't take anybody's stuff."
Krystal Callender was the third defendant brought to the interview room. She stated in sum and substance that she was in the back of the bus with a female friend who was her girlfriend's friend. A fight broke out. She was going to see what was going on. Her friend held her back so she wouldn't get involved. She got off the bus and was stopped by the police. She stated that one of the boys brought up before her to speak to the detective is one of the boys who took the phone. Later that day when Detective Morales was leaving the precinct Callender asked to speak to him again. She was brought out of the holding cell by Officer Valdez. As Detective Morales was walking with her to the detective squad she asked Morales if a knife was recovered. Morales told her that no knife was recovered, and asked her "Why?" She said because she heard a "blicky" was recovered. The detective informed her that nothing was recovered. She was brought back to the holding cell after that conversation without ever being taken back to the detective squad room.
Jevon Jeter was the fourth and last defendant brought to the interview room. He stated in sum and substance that he was in the back of the bus. A fight occurred towards the middle. People got off the bus. He got off the bus. He said he was not involved in anything. He didn't hit anybody. He didn't take anything.
Each defendant was asked if they wanted something to eat or drink. Neither Detective Morales or Police Officer Valdez made any promises or threats to the defendants.
PROBABLE CAUSE
Since probable cause to arrest is present when "... information which would lead a reasonable person who possesses the same expertise as the officer to conclude, under the circumstances, that a crime is being or was committed" (People v. McRay, 51 N.Y.2d 594, 602 [1980] ; People v. Luccioni, 120 A.D.2d 617, 617 [2d Dept.1986] ), the People did not sustain their burden in establishing that there was sufficient information as to the description of the defendants as the individuals who committed the robbery. The only testimony elicited as the basis for the arrests was the description "four black males and one black female." A description involving only the race of a suspect, and no other identification indicators, can never be sufficient, or specific enough, to constitute probable cause to seize and detain an individual (see People v. Walker, 198 A.D.2d 826 [4th Dept 1993] ; People v. Garcia, 203 A.D.2d 2 [1st Dept 1994], lv denied 83 N.Y.2d 967[1994] ).
When the police first observed the defendants they were at a bus stop. Their actions were not indicative of any criminal behavior. Even so, rather than approach and inquire, the officers immediately indicated to the defendants that they were not free to leave. All the defendants were frisked. Nothing was recovered on any of the them. There was no additional information or identification factors connecting any of the defendants to this incident. While the officers might have been allowed to stop the defendants and inquire (People v. DeBour, 40 N.Y.2d 210 [1976] ; People v. Thompson, 127 AD3d 658 [1st Dept 2015] ), they did not have a right to forcibly detain the defendants absent probable cause (People v. Brnja, 50 N.Y.2d 366 [1980] ). The fact that defendants "fit the meager, general description of the perpetrators was insufficient, without more, to establish probable cause to arrest them. When first observed by the officers, [defendants] were not engaged in any suspicious behavior indicating criminal activity ... No inquiry was made which might have added information to the officers' mere suspicion that the [defendants] were the perpetrators they sought. Thus, the facts failed to satisfy the requirements for probable cause" (People v. Riddick, 110 A.D.2d 787 [2d Dept 1985] [internal citations omitted] ).
SHOW–UP PROCEDURE
"Showup procedures are permissible, even in the absence of exigent circumstances, when they are spatially and temporally proximate to the commission of the crime and not unduly suggestive" (People v. Huerta, 2016 N.Y. Slip Op 05508 [2d Dept 2016] [internal citations omitted] ). The police did not say or do anything improper or suggestive to influence the complainant's choice of the defendants at the show-up. Even though there were uniformed officers near the defendants (see, People v. Jerry, 126 AD3d 1001 [2d Dept 2015], lv denied 25 NY3d 1165 [2015] ; People v. Peterson, 110 AD3d 1103 [2d Dept 2013], lv denied 23 NY3d 966 [2014] ; People v. Charles, 110 AD3d 1094 [2d Dept 2013], lv denied 22 NY3d 1197 [2014] ; People v. Mais, 71 AD3d 1163 [2d Dept 2010], lv denied 15 NY3d 775 [2010] ), the defendants were not in handcuffs nor being physically held by any police officers during the show-up procedure. The show-up identification was not unduly suggestive, and as it occurred a short distance away from where, and shortly after, the incident occurred, it was done properly and in a timely manner (People v. Duuvon, 77 N.Y.2d 541[1991] ; People v. Cortez, 221 A.D.2d 255, 256 [1st Dept 1995] ; People v. Doherty, 198 A.D.2d 296 [2d Dept 1993], lv denied 83 N.Y.2d 804 [1994] ; People v. Sturgis, 199 A.D.2d 549 [2d Dept 1993], lv denied 83 N.Y.2d 858 [1994] ). The People have met there burden of going forward and the defendants have not met their burden, either individually or collectively, of proving that the showup procedure was unduly suggestive (see People v. Chipp, 75 N.Y.2d 327 [1990] ; People v. Ortiz, 90 N.Y.2d 533 [1997] ).
However, since the show-up identification was conducted immediately after the unlawful arrests, the identification is suppressed as the fruit of the poisonous tree (Wong Sun v. United States, 371 U.S. 471[1963] ; People v. Lane, 102 A.D.2d 829 [2d Dept 1984] ).
INDEPENDENT SOURCE
The record indicated that the officer spoke with the complainant and that the complainant observed the individuals who allegedly robbed him. Since the complainant's in court identification of the defendants could possibly be supported by an independent source not related to the illegal arrest, and may be admissible at trial (People v. Gordon, 87 A.D.2d 636 [2d Dept 1982] ; US v. Crews, 445 U.S. 463 [1980] ), an independent source hearing is ordered (People v. Gray, 2016 N.Y. Slip Op 00378 [2d Dept 2016] ; People v. Burts, 78 N.Y.2d 20 [1991] ; People v. Gethers, 86 N.Y.2d 159 [1995] ).
CUSTODIAL INTERROGATIONS
The statements made by each defendant at the police precinct, as well as the statement made by Avanti Brock at the scene, were the product of custodial interrogation.
Since Avanti Brock was in custody, and not read his Miranda warnings, his statement at the scene is suppressed.
Detective Morales did not make any threats or promises or coerce the defendants in any way to make statements at the precinct. Since each defendant was advised of his/her Miranda rights, waived those rights, and consented to answer questions, the statements were voluntarily made. However, the statements will not be admissible on the People's case in chief.
There is no evidence that the statements given by the defendants were properly attenuated from the illegal police conduct. Given the age of each defendant, and the circumstances of their detention, there was no intervening event between the defendants' illegal arrests and their statements which would purge the taint of the unlawful arrests (Wong Sun v. United States, supra; People v. Gordon, 87 A.D.2d 636 [2d Dept 1982] ; People v. Gundersen, 255 A.D.2d 454 [2d Dept 1998], appeal withdrawn 93 N.Y.2d 853 [1999] ). Therefore, the statements made at the precinct are inadmissible for any purpose other than impeachment; Brock's statement at the scene may not be used for any purpose.
CONCLUSION
Accordingly, it is hereby
ORDERED, defendants' motion to suppress identification evidence is granted to the extent that the show-up identification is suppressed but an independent source hearing is granted; and it is further
ORDERED, defendants' motion to suppress statement evidence is granted to the extent that the People are precluded from using any statement on their direct case; and it is further
ORDERED, that defendant Brock's statement made at the scene is not admissible for any purpose.
This opinion shall constitute the Decision and Order of the Court.