Opinion
17–0677
02-06-2018
The PEOPLE of the State of New York, Plaintiff, v. Shantel CORDERO, Defendant.
Westchester County District Attorney, Mount Vernon Branch Judith E. Permutt, Esq., 571 White Plains Road, Eastchester, New York 10709, Attorney for Defendant
Westchester County District Attorney, Mount Vernon Branch
Judith E. Permutt, Esq., 571 White Plains Road, Eastchester, New York 10709, Attorney for Defendant
Adrian N. Armstrong, J.
The defendant is charged with one (1) count of Criminal Mischief in the Fourth Degree in violation of Penal Law § 145.00(4) ; one (1) count of Assault in the Third Degree in violation of Penal Law 120.00(1) ; one (1) count of Criminal Possession of a Weapon in the Fourth Degree in violation of Penal Law § 265.01(2) ; and one (1) count of Harassment in the Second Degree in violation of Penal Law § 240.26(1). A Wade/Huntley/Dunaway hearing was granted.
The Court has considered all of the testimony and finds credible all of the testimony of the witnesses. At the suppression hearing on February 5, 2018, the People first called Police Officer Andy Rivera of the Mount Vernon Police Department, who testified that on March 13, 2017, he along with his partner, Detective Christopher Dimase, responded to Mount Vernon Hospital to interview a victim of an assault. Officer Rivera testified that he identified the victim at the hospital, and spoke to her in her native language of Spanish since she did not speak English. Officer Rivera stated that the victim informed him that earlier in the day she was punched several times and hit with pliers by an angry patron at her place of employment, which was a laundromat located at 215 East Third St. in the City of Mt. Vernon. He was further informed by the victim that the alleged perpetrator frequented the laundromat and was given a description of a female, light skinned and possibly Hispanic. Officer Rivera was also given a receipt that the perpetrator left with a name of "Sunshine" and a telephone number listed thereon.
Detective Dimase testified that he was able to get a complete name that was registered to the phone number that was on the laundromat receipt. Detective Dimase stated that upon retrieving the name he placed it in the E–Justice database, and a photo of the defendant was produced which matched the description of the defendant. Detective Dimase further testified that he created a photo array of five other photos of similarly looking Hispanic women, and on March 19, 2017, he along with his partner visited the victim at her place of employment, and asked her to try to identify the person that assaulted her. Both Officer Rivera and Detective Dimase testified that the victim immediately identified the defendant in the photo array (People's Exhibit 2 in evidence).
The defendant voluntarily came to the Mount Vernon Police Department on March 22, 2017 after she was informed that the police were looking to speak with her. On that date, the defendant was placed in a room and questioned by Officer Rivera and Detective Dimase. The interview was videotaped (People's Exhibit 3 in evidence) and the relevant portions of the interview were played at the suppression hearing. Prior to Mirandizing the defendant, Detective Dimase asked the defendant if she was involved in an altercation with the victim at the subject laundromat. The defendant acknowledged the altercation and being present. The defendant was then properly Mirandized, to which she signed the Miranda waiver form and elaborated to the Detective regarding her involvement in the altercation. The defendant was then arrested for the assault of the victim.
Defendant contends that the photo array identification procedure was unduly suggestive. "[U]nduly suggestive pretrial identification procedures violate due process and therefore are not admissible to determine the guilt or innocence of an accused" ( People v. Chipp, 75 NY2d 327, 335 ). "Review of whether a pretrial identification procedure is unduly suggestive is subject to a well-established burden-shifting mechanism" ( People v. Holley, 26 NY3d 514, 521 ). At the first step, the People must meet only their "initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness" ( People v. Chipp, 75 NY2d at 335 ), which is a "minimal" burden of "production" ( People v. Ortiz, 90 NY2d 533, 538 ; see People v. Holley, 26 NY3d at 526–527 [Abdus–Salaam, J., concurring] ). "If this burden is not sustained, a peremptory ruling against the People is justified. If the People meet their burden of production, the burden shifts to the defendant to persuade the hearing court that the procedure was improper" ( People v. Holley, 26 NY3d at 521 ). In other words, "[w]hile the People have the initial burden of going forward to establish ... the lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive" ( People v. Chipp, 75 NY2d at 335 ; see People v. Holley, 26 NY3d at 521 ).
"A photo array is unduly suggestive if some characteristic of one picture draws the viewer's attention in such a way as to indicate that the police have made a particular selection" ( People v. Yousef , 8 AD3d 820, 821 [2004] [internal quotation marks and citations omitted], lv denied 3 NY3d 743 [2004] ; see People v. Muniz , 93 AD3d 871, 872 [2012], lv denied 19 NY3d 965 [2012] ; People v. Lawal , 73 AD3d 1287, 1288 [2010] ). "Accordingly, the relevant characteristics of the individuals included in a photograph array must be sufficiently similar so as to not ‘create a substantial likelihood that the defendant would be singled out for identification’ " ( People v. Lanier , 130 AD3d 1310, 1312 [2015], lv denied 26 NY3d 1009 [2015], quoting People v. Chipp , 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990] ).
This Court rejects the defendant's contention of unduly suggestiveness, because "the subjects depicted in the photo array [were] sufficiently similar in appearance so that the viewer's attention [was] not drawn to any one photograph in such a way as to indicate that the police were urging a particular selection," the photo array itself was not unduly suggestive ( People v. Quinones , 5 AD3d 1093, 1093 [2004], lv denied 3 NY3d 646 [2004] ). Likewise, the circumstances in which the police presented the photo array were not unduly suggestive. During the victim's interview with the police, upon presenting the photo array, the police officer asked her to identify the person that assaulted her, but the officer neither told her the perpetrator was actually depicted in the photo array, nor did the officer instruct her that she was required to make an identification (see People v. Floyd , 45 AD3d 1457, 1459 [2007], lv denied 10 NY3d 811 [2008] ).
The evidence at the suppression hearing established that defendant's statement made to the officer prior to having received Miranda warnings ( Miranda v. Arizona , 384 US 436 [1996] ) should be admissible. Defendant bears the burden of establishing that she was in custody so as to require the administration of Miranda warnings prior to questioning. People v. Brown , 24 Misc 3d 892 (Sup Ct, NY County 2009) ; People v. Colon , 5 Misc 3d 365 (Sup Ct, NY County 2004). This court finds that defendant has failed to meet her burden by eliciting testimony from Detective Dimase to demonstrate that she was in custody at the time she made the inculpatory statement prior to being Mirandized.
The issue of whether a person is in custody is generally a question of fact ( People v. Centano , 76 NY2d 837 [1990]. In deciding whether a defendant was in custody, the test is not what the defendant thought, but rather, whether a reasonable person, innocent of any crime, would have believed that he or she was in police custody (see People v. Yukl , 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970] ). The factors to be considered include the amount of time the individual spent with the police, whether his freedom of action was significantly restricted, the location of the questioning and atmosphere under which he was questioned, his degree of cooperation, whether he was apprised of his constitutional rights, and whether the questioning was investigatory or accusatory in nature (see People v. Macklin , 202 AD2d 445, 46 [2d Dept 1994], lv denied 83 NY2d 912 [1994) ].
The record supports that when defendant made a statement at the police department prior to her arrest, a reasonable innocent person in her position would not have thought that she was in custody (see People v. Yukl , 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970] ; see also Stansbury v. California , 511 US 318 [1994] ). Defendant voluntarily went to the Mount Vernon police department, was questioned in a nonthreatening manner for approximately thirty minutes, and while being interviewed at the police department, defendant was not handcuffed or restrained in any manner, and the police did not do anything to convey that defendant was not free to leave (see People v. Andrango , 106 AD3d 461, 461 [2013], lv denied 21 NY3d 1040 [2013] ).
Therefore, this Court finds that the defendant was not in custody before being arrested at the police department. This conclusion is not undermined by the detective's testimony that defendant was not free to leave from the police station since his subjective intentions were never conveyed to the defendant (see People v. Andrango , 106 AD3d at 461 ). "A policeman's unarticulated plan has no bearing on the question whether a suspect was in custody' at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation" ( Berkemer v. McCarty , 468 US 420, 442 [1984] ).
As to the Dunaway portion of the hearing, "[a]n officer may arrest a person when the officer has probable cause to believe that the person has committed a crime (see Dunaway v. New York , 442 US 200 ). That legal conclusion is to be made after considering "all of the facts and circumstances together" ( People v. Bigelow , 66 NY2d 417, 423 [1985] ). Under all the facts and circumstances of this case, this Court finds that the arresting officer had probable cause to believe that defendant had committed a crime, and thus, to arrest defendant (see People v. De Bour , 40 NY2d 210 [1976] ; People v. McCrary , 71 AD3d 1049 [2010] ; People v. Stevens , 43 AD3d 1088 ).
Accordingly, defendant's motion is denied in its entirety.
This constitutes the Decision and Order of this Court.