Opinion
No. 2183/13.
07-08-2014
The PEOPLE of the State of New York v. Cori DESILVA aka Eric Taylor, Defendant.
Fionnuala O'Doherty, Esq., Assistant District Attorney, New York County District Attorney's Office, New York, for the People. David J. Cohen, Esq., Cohen & Forman, LLP, New York, for the Defendant.
Fionnuala O'Doherty, Esq., Assistant District Attorney, New York County District Attorney's Office, New York, for the People.
David J. Cohen, Esq., Cohen & Forman, LLP, New York, for the Defendant.
Opinion
JILL KONVISER, J.
On February 14, 2014, this Court conducted a combined Dunaway/Huntley/Mapp/Wade hearing. Police Officers Ismail Abdullah, Kharloz Ortiz, and Timothy Earley testified for the People. The defendant did not present any evidence. In lieu of oral argument, the defendant requested an opportunity to submit a legal memorandum with respect to the issues raised at the hearing. The defendant submitted that memorandum on March 25, 2014. On April 22, 2014, the People filed their response, and on May 16, 2014, the defendant submitted a reply. The defendant's motion is granted in part and denied in part as follows.
Findings of Fact
Police Officer Ismail Abdullah testified that he has been a member of the New York Police Department (hereinafter “NYPD”) for approximately seven years, is currently assigned to the 5th Precinct, and has been part of the Anti–Crime Unit of that precinct for approximately three years. On Saturday, May 11, 2013, Abdullah, who was assigned a 12:00 p.m. to 8:35 p.m. shift, was working in plain clothes with his partners, Police Officers Paola Russell and Kharloz Ortiz. Ortiz testified that he has been a member of the NYPD for approximately six years, has been assigned to the 5th Precinct for approximately four years, and has worked with Abdullah in the Anti–Crime Unit for approximately three years. At approximately 3:00 p.m. on May 11, 2013, the officers were riding in an undercover police car—a yellow taxi—in the vicinity of Catherine and Madison Streets in Manhattan. Abdullah testified that there is a bus stop on the corner of Catherine and Madison, and that further down the block on Catherine there is a recreation center, housing development—the Smith Houses—homeless shelter, school, and playground. While on Catherine Street near the intersection of Catherine Slip and Madison Street, Abdullah observed three Asian men who appeared to be chasing someone. Abdullah, who thought it was “weird” and “odd” that three men were running “pretty fast” together, continued to watch, hoping to catch a glimpse of the individual being chased. Soon, two of the gentlemen, who appeared elderly, stopped running, while the youngest, whom Abdullah later learned to be Jack Chan, continued the chase “pretty fast,” while on his cell phone. Abdullah told Ortiz, who was driving the taxi, to follow Chan. As the officers arrived in front of 60 Catherine Slip, Abdullah observed the man Chan was chasing—the defendant—an African–American man. As Chan was about to catch up to the defendant, the defendant turned, looked at Chan, and “took off running” again. Abdullah noticed that the defendant, who was “trying to run real fast,” had “a slight limp,” and was “tossing stuff” or “trying to discard something as he was running .” Ortiz drove into an alleyway to try to cut the defendant off, and as the taxi came out of the alleyway, the defendant practically ran right into it. All three officers got out of the taxi, but none drew a weapon. Abdullah took his shield out of his shirt, identified himself as a police officer, had the defendant “stop,” and asked why he was running. The defendant told Abdullah that he was being chased by three Asian men who were trying to “jump” him. As Abdullah “didn't really know what was going on,” he instructed Ortiz to locate the guy who was doing the chasing, and pointed in Chan's direction, and told the defendant to “stay right here.” Abdullah directed Ortiz over the radio to Chan, the “guy wearing the tan shirt,” and as Ortiz walked over, Chan was on his cell phone with 911 reporting a robbery. Ortiz informed Chan that he was a police officer and that they had stopped the man he was chasing. Chan then pointed at the defendant and explained that he was chasing him because he had just committed a robbery on Madison Street. As Ortiz and Chan walked closer to where the defendant was standing with Abdullah, Chan said, “that is the guy.”
At the hearing, Abdullah identified the defendant as the individual whom he observed being chased on May 11, 2013.
At the hearing, Ortiz identified the defendant as that individual.
The officers later learned the identity of the two complaining witnesses—Mr. Huang and Mr. Chan, Jack Chan's father.
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Meanwhile, Abdullah, who was standing with the defendant, received a radio transmission with respect to a robbery in progress at Catherine and Madison. Abdullah responded and requested a description of the perpetrator. The description he subsequently received was of an elderly African American male. As the defendant did not appear to be elderly, Abdullah requested additional information from the dispatcher. Then, approximately four to five minutes after having received the earlier radio transmission, Ortiz gave Abdullah a thumbs up signal, that Abdullah understood to mean that Chan had identified the defendant as the perpetrator of a crime. Ortiz then communicated to Abdullah that Chan was an eyewitness to the robbery, but not the actual complaining witness, so other officers went to the area of Catherine Slip and Madison Street to try to locate the complaining witnesses. In the meantime, Abdullah asked the defendant for his name and identification. The defendant told him that his name was Eric Taylor, but that he did not have any identification. Abdullah frisked the defendant and felt what he believed to be a cell phone in the defendant's pocket, but he did not remove the phone.
Meanwhile, Police Officer Timothy Earley, a member of the NYPD and the 5th Precinct for approximately ten years, received a radio transmission that “Housing” police officers had located the complaining witnesses. Earley drove his unmarked police car to the corner of Catherine Slip and Madison Avenue where he met with the officers and two older Asian men—whom he believed to be the complaining witnesses. Earley asked what happened, but neither man spoke English. Earley or his partner made a radio transmission in English, requesting the location of the officers with the suspect. Earley then drove the complaining witnesses to where Adbullah was waiting with the defendant. The complaining witnesses were in the back seat of the police car approximately six to seven feet away from the defendant. Abdullah, Russell, and their Sergeant, all of whom were in plainclothes and did not have their guns drawn, were standing near the defendant, who was not in handcuffs. Ortiz and Chan approached the back of the police car where the two complaining witnesses were seated. Chan translated as the two older men only spoke Chinese. Chan told Ortiz that, according to his father, the defendant had pushed him to the ground, causing him to sustain a cut to his hand. Chan told Ortiz that each of the complaining witnesses told Chan that the defendant was “the guy” who had robbed them. Ortiz then communicated to Abdullah that the complaining witnesses had identified the defendant as the individual who had robbed them. Abdullah placed the defendant under arrest.
The defendant was then transported to the 5th Precinct where Abdullah searched him in front of the desk sergeant and removed a cell phone from his pocket. Abdullah asked the defendant for pedigree information, including his name, and the defendant again told him his name was Eric Taylor. Abdullah processed the defendant and fingerprinted him. The defendant's fingerprints were rejected as the name submitted with those fingerprints was incorrect. Abdullah warned the defendant that if he provided an incorrect name, he could be charged with an additional crime, and asked him what his real name was, and the defendant responded, Cori DeSilva. Abdullah asked why he had provided an incorrect name and the defendant responded that he was on parole. At some point during arrest processing, while the defendant was in a holding cell, he stated to Abdullah, in sum and substance, they got their money back. Abdullah had not been speaking to the defendant at the time and had not asked him any questions prior to his statement.
Conclusions of Law
This Court fully credits the testimony of Police Officers Ismail Abdullah, Kharloz Ortiz, and Timothy Earley.
Dunaway
The defendant argues that the police forcibly seized him from the inception of this street encounter without reasonable cause to believe he had committed any crime. The People disagree, arguing instead, that the police scrupulously guarded the defendant's rights throughout this street encounter with him. See People v. Debour, 40 N.Y.2d 210 (1976). As the touchstone of any encounter between police officers and citizens is one of reasonableness, the People, under the particular facts and circumstances of this case, demonstrated the lawfulness of the police conduct during this street encounter, and, further, established that the police had probable cause to arrest the defendant, contrary to the defendants' contention. See People v. Wheeler, 2 NY3d 370 (2004) ; People v. Finlayson, 76 A.D.2d 670 (2d Dept.1980).
To begin, Abdullah observed the defendant being chased down the street by three men—two who appeared elderly. When the youngest of the three—Jack Chan—who appeared to be on his cell phone, caught up to the defendant, the defendant looked in Chan's direction, then took off running again. Abdullah watched as the defendant, who appeared to be limping, tried to discard items as he ran. The police, uncertain as to what had transpired among the four men, followed the still running defendant. Almost fortuitously, as their taxi exited an alleyway, the running defendant drew near. While Abdullah arguably had reasonable suspicion to believe that the defendant had committed a crime at this point—after all, he observed two elderly men with a young man, who was trying to make a cell phone call, chasing the defendant who, despite a limp, was nevertheless running really fast and discarding items as he ran—and, thus, would have been entitled to seize the defendant forcibly, he did not. Rather, Abdullah took far less intrusive measures. Indeed, he simply approached the defendant, identified himself as a police officer, asked the defendant to stop, and posed a single, non-accusatory question—why are you running. See People v. Debour, 40 N.Y.2d 210 (1976) ; see generally People v. Wyatt, 14 AD3d 441 (1st Dept.2005) ; People v. Leak, 303 A.D.2d 251 (1st Dept.2003) ; People v. Sonds, 287 A.D.2d 319 (1st Dept.2001) ; People v. Lopez, 258 A.D.2d 388 (1st Dept.1999) ; People v. Acosta, 249 A.D.2d 161 (1st Dept.1998) ; People v. Blyden, 239 A.D.2d 301 (1st Dept.1997) ; People v. Liner, 133 A.D.2d 555 (1987). Said inquiry, including Abdullah's request that the defendant “stop,” did not constitute a forcible seizure of the defendant. See People v. Casimey, 39 AD3d 228 (1st Dept.2007) (finding that asking the defendant to stop did not constitute a seizure); People v. Bora, 83 N.Y.2d 531 (1994) (holding that a uniformed police officer's direction to the defendant to stop did not constitute a seizure); People v. Jenkins, 209 A.D.2d 164 (1st Dept .1994) (finding that directing a defendant to stop and to show his hands did not constitute a seizure); People v. Reyes, 199 A.D.2d 153 (1st Dept.1993) (concluding that a police officer identifying himself as the police and telling the defendant to stop did not constitute a seizure).
Further, Abdullah's single question—why are you running—was a reasonable and obvious inquiry. The defendant's response, that he had been victimized by the three men chasing him, required further inquiry. Unsure whether the defendant was a victim, Abdullah told him to stay where he was while other officers questioned Jack Chan, one of the chasers, who was located just down the block from where the defendant was standing. Abdullah's instruction to the defendant, to remain where he was while the officers inquired further, did nothing to transform the encounter into a forcible seizure. See People v. Francois, 61 AD3d 524 (1st Dept.2009) (finding that an officer asking the defendant to accompany him, while guiding the defendant by the arm, did not constitute a seizure); People v. Stevenson, 55 AD3d 486 (1st Dept.2008) (concluding that telling a defendant to stop and blocking his path did not constitute a seizure); People v. Grunwald, 29 AD3d 33 (1st Dept.2006) (holding that an officer's request to “come over here” did not constitute a seizure); People v. Cherry, 30 AD3d 185 (1st Dept.2006) (finding that an officer raising his hand to stop a defendant from leaving did not constitute a seizure); People v. Smoot, 209 A.D.2d 731 (2d Dept.1994) (concluding that telling the defendant to “hold on” did not constitute a seizure).
As Police Officer Ortiz interviewed Jack Chan—whom the defendant had indicated was involved in victimizing him—Abdullah received a radio transmission with respect to a robbery in progress in the vicinity of where he had first observed the defendant. As the description of the perpetrator did not precisely match the defendant, Abdullah requested clarification. Meanwhile, Ortiz communicated to Abdullah that Chan was an eyewitness to the robbery and had identified the defendant as the perpetrator of the robbery. Despite having probable cause to arrest the defendant at that point, in an abundance of caution, Abdullah waited to obtain confirmation from the actual victims of the robbery that the defendant, not Chan or anybody else, was the perpetrator. While the complaining witnesses were being transported to the location for a prompt, on-the-scene identification procedure, Abdullah was entitled to ask the defendant for his name and identification. See People v. Walker, 55 AD3d 343 (1st Dept.2008) ; People v. Rodriguez, 49 AD3d 431 (1st Dept.2008). And, having just learned that Chan had identified the defendant as the perpetrator of the robbery, Abdullah was entitled to frisk the defendant, although he refrained from removing any property from him. See People v. Smith, 292 A.D.2d 280 (1st Dept.2002) ; People v. Herrell, 278 A.D.2d 339 (2d Dept.2000) ; People v. Cruz, 173 A.D.2d 320 (1st Dept.1991). Minutes later, the complaining witnesses' identifications of the defendant enhanced the already existing probable cause. See Norasteh v. State of New York, 44 AD3d 576 (1st Dept.2007) (internal citations omitted); People v. Taylor, 61 AD3d 537 (1st Dept.2009) ; People v. Peterkin, 151 A.D.2d 407 (1st Dept.1989). That Abdullah learned about the identifications, not firsthand, but from a fellow police officer, is of no moment, as an arrest is still lawful if an officer acts as a result of communications with a fellow officer, provided that as a whole, the police were in possession of sufficient information to constitute probable cause, as was the case here. See People v. Rosario, 78 N.Y.2d 583 (1991) ; People v. Genyard, 276 A.D.2d 299 (1st Dept.2000).
The defendant's contention that the officers' use of the taxi to block his path constituted a forcible seizure is unpersuasive, and the cases relied on by him to support that position are distinguishable from the instant matter. In Matter of Wesley M., 195 A.D.2d 350 (1st Dept.1993), and People v. Ferry, 152 A.D.2d 952 (4th Dept.1989), police officers responding to radio transmissions concerning past crimes, were actively involved in searching for the perpetrators, and, upon glimpsing individuals whom they believed to be the perpetrators, used police cars as a means of apprehending the perpetrators. That is simply not the case here, where Abdullah, having observed an unusual set of circumstances unfold before his eyes—a man on a cell phone joined by two elderly men chasing another man, who despite a limp, was attempting to outrun them while he discarded objects—intervened in the most expeditious and reasonable manner possible. That the defendant ran directly into the path of the taxi did not constitute a forcible seizure of him. Accordingly, the defendant's motion is denied.
Wade
The defendant's motion to suppress identification evidence is denied.
Jack Chan's Identification
The People have demonstrated that the street encounter during which Jack Chan identified the defendant was not police arranged, and was, therefore, free of any undue suggestiveness. See e.g., People v. Cascoigne, 189 A.D.2d 714 (1st Dept.1993) ; People v. James, 194 A.D.2d 558 (2d Dept.1993). Indeed, Chan, who had been chasing the defendant moments earlier, without prompting, pointed him out to Officer Ortiz, while informing Ortiz that the defendant was the perpetrator of the robbery. That Ortiz first told Chan, who was on his cell phone reporting the crime to the police, that he was a police officer and that they had stopped the man he was chasing did not render Chan's identification unduly suggestive under these facts and circumstances. See People v. Grant, 77 AD3d 558 (1st Dept.2010) ; People v. Gatling, 38 AD3d 239 (1st Dept.2007) ; People v. Williams, 15 AD3d 244 (1st Dept.2005) ; People v. Gil, 21 AD3d 1120 (2d Dept.2005) ; People v. Fox, 11 AD3d 709 (2d Dept.2004) ; People v. Stafford, 215 A.D.2d 212 (1st Dept.1995). Accordingly, the defendant's motion so suppress Jack Chan's identification is denied.
The Show Up Identifications
Similarly, the People have demonstrated that the show up identifications of the complaining witnesses were not unduly suggestive. While show up identifications are generally disfavored, a show up which is conducted in close proximity to the time and place of the crime, and which is part of a continuous chain of events, is permissible. See People v. Love, 57 N.Y.2d 1023 (1982) ; People v. Purdie, 50 AD3d 347 (1st Dept.2008). In the instant matter, the show up identifications occurred within minutes of the crime and within blocks of where the crime took place. See People v. Brown, 288 A.D.2d 152 (1st Dept.2001) ; People v. Hudson, 71 AD3d 1046 (2d Dept.2010). Furthermore, while “simultaneous” show ups-show ups conducted with multiple witnesses at the same time-are generally frowned upon, they are, nonetheless, admissible when they occur in close spacial and temporal proximity to the crime, as they did here. See People v. Barnes, 219 A.D.2d 527 (1st Dept.1995) ; People v. Fox, 11 AD3d 709 (2d Dept.2004) ; People v. Lambert, 212 A.D.2d 637 (2d Dept.1995).
Moreover, the defendant has failed to demonstrate that the show up was unduly suggestive. See People v. Berry, 50 AD3d 1047 (2d Dept.2008). Indeed, standing alone, the fact that the suspect is in the company of several plain-clothed police officers, does not render a show up impermissibly suggestive. See People v. Grant, 77 AD3d 558 (1st Dept.2010). Additionally, there is no reason to believe that either witness improperly influenced the other witness's identification. See People v. Wilburn, 40 AD3d 508 (1st Dept.2007). Nor is there any reason to believe that Jack Chan's non-police arranged identification of the defendant influenced the complaining witness' show up identifications that occurred just minutes later. See People v. George, 4 AD3d 142 (1st Dept.2004) ; People v. You, 270 A.D.2d 6 (1st Dept.2000). This Court, therefore, finds that the show up identifications were tolerable in the interest of a prompt identification of the perpetrator. See People v. Wilburn, 40 AD3d 508 (1st Dept.2007) ; People v. Burns, 133 A.D.2d 642 (2d Dept.1987). Accordingly, the defendant's motion to suppress the show up identifications is denied.
Mapp
The People have met their burden of proving the lawfulness of the seizure of physical evidence, including the defendant's cell phone, from his person at the 5th Precinct. The hearing evidence establishes that subsequent to the defendant's arrest, he was taken to the 5th Precinct for arrest processing. Once there, he was searched at the precinct desk, and property was recovered from him. Of course, a defendant who has been lawfully arrested may be searched at a police station pursuant to that arrest. See People v. Bacon, 19 AD3d 287 (1st Dept.2005) ; People v. Defares, 209 A.D.2d 875 (3d Dept.1994). Accordingly, the defendant's motion to suppress physical evidence is denied.
Huntley
The defendant's motion to suppress statements made by him is granted in part and denied in part as follow.
Statement in Response to Pedigree Questions
While processing the defendant's arrest at the 5th Precinct, Officer Abdullah asked the defendant his name. After learning that the defendant's fingerprints did not match the name that he provided, Abdullah again asked the defendant his name. When the defendant provided a different name, Abdullah asked why he had done so. The defendant responded, in substance, that he was on parole. It is well-settled that questions related to an individual's pedigree, including name, address, and date of birth, fulfill important administrative functions and, therefore, do not constitute custodial interrogation. See Pennsylvania v. Muniz, 496 U.S. 582 (1990). Here, Abdullah's initial questions were reasonably related to non-investigatory, informational needs—establishing the defendant's true identity. Abdullah's inquiry, however, with respect to why the defendant had lied about his name was not reasonably related to obtaining pedigree information. See People v. Johnson, 253 A.D.2d 702 (1st Dept.1998) ; People v. Ryff, 27 N.Y.2d 707 (1970). Accordingly, the defendant's response—that he was on parole—is inadmissible.
Spontaneous Statement
At some point during arrest processing, while the defendant was in a holding cell, he stated to Abdullah, in sum and substance, they got their money back. Prior to the defendant's statement, Abdullah had not been speaking to him and had not asked any questions. The hearing evidence establishes, therefore, that the defendant's unsolicited statement was entirely spontaneous. See People v. Norman, 77 AD3d 497 (1st Dept.2010) ; People v. Burton, 57 AD3d 261 (1st Dept.2008) ; see also People v. Vasquez, 235 A.D.2d 322 (1997) ; People v. Davis, 234 A.D.2d 88 (1st Dept.1996) ; People v.. Tarleton, 184 A.D.2d 463 (1st Dept.1992) ; see generally People v. Rodriguez, 55 AD3d 351 (1st Dept.2008). Accordingly, the defendant's motion to suppress is denied.
Conclusion
This constitutes the Decision and Order of the Court.