Opinion
Indictment No. 1249-18
03-06-2019
THE PEOPLE OF THE STATE OF NEW YORK. v. JAMES GOODSON, Defendant.
For the People of the State of New York: Cyrus R Vance, Jr., District Attorney New York County By: Harrison Schweiloch. Esq. Assistant District Attorney For Defendant: By: Michael Hurwitz. Esq.
Unpublished Opinion
For the People of the State of New York: Cyrus R Vance, Jr., District Attorney New York County By: Harrison Schweiloch. Esq. Assistant District Attorney
For Defendant: By: Michael Hurwitz. Esq.
DECISION AND ORDER
JUAN M. MERCHAN, A.J.S.C.
Defendant James Goodson is charged with Robbery in the Third Degree (Penal Law §160.05), Burglary in the Third Degree (Penal Law §149.20,), and two counts of Petit Larceny (Penal Law §155.25). This Court conducted a Dunaway/Mapp/Wade/Huntley hearing on January 24th and 25th, 2019. The People presented the testimony of Police Officer (hereinafter "PO") Edgar Rusi and Detective (hereinafter "Det.") Michael Cousin-Hayes, both of the New York City Police Department (hereinafter "NYPD"). Defendant did not present any witnesses.
This Court, having had the unique opportunity to view the People's witnesses as they testified, to observe their demeanor and to hear their testimony, finds them to be credible.
The following sets forth this Court's findings of fact and conclusions of law.
Findings of Fact
PO Rusi of the 32nd Precinct has been a NYPD police officer for three years. He has made seventy-one arrests, twenty to thirty of which have been for petit larceny/shoplifting. Det. Cousin-Hayes, of the 28th Precinct, has been with the NYPD for fourteen years and has been a detective since 2015. He has made approximately three hundred and fifty arrests, seventy to one hundred of which involved robberies and burglaries. Additionally, Det. Cousin-Hayes has conducted approximately twenty to forty lineups.
March 1, 2018 -28th Precinct
Det. Cousin-Hayes testified that an "I-Card" investigation was lodged on March 1, 2018 after an incident at a Rite Aid store located at 2170 Eighth Avenue, in New York County, wherein Defendant was allegedly observed in the store at approximately 12:15 A.M. holding a Whole Foods bag in which he put toothpaste without paying. A store employee, Mr. Bah, told the detective that he observed Defendant from video in the security room and approached Defendant as he exited the store. A physical altercation ensued in the vestibule during which Defendant dropped his New York EBT (benefit) identification card (hereinafter "EBT card") before fleeing the scene.
Det. Cousin-Hayes testified that the witness, Mr. Bah, came to the 28lh Precinct later on March 1st, 2018 and brought the EBT identification card which was left at the scene. Det. Cousin-Hayes assembled a photo array (in evidence as People's Exhibit #1) which included the photograph from the EBT identification card. The photo array included photographs of five other Black males similar in appearance. Det. Cousin-Hayes did not conduct the photo array but when it was returned to him after it was shown to Mr. Bah, he observed that the witness did not pick out the defendant, who was in position #4, but instead selected another individual in position #6. As a result, Det. Cousin-Hayes issued a "Suspect-Only I-Card," based on the photograph of the defendant on the EBT card.
Det. Cousin-FIayes testified that he later became aware that, after viewing the photo array, Mr. Bah returned to the store and was informed by the manager (who had viewed the security footage from the incident earlier that day) that the defendant was the subject of a barring notice issued in November 2016. At that time, Defendant was photographed by store employees (photo in evidence as People's Exhibit #3) and told not to enter the store again. The store employees also photographed an EBT card in Defendant's possession. The EBT card contained the same photograph of Defendant as the EBT card recovered from the Rite Aid store on March 1st. 2018, but each card indicated a different month of birth. The store manager produced a file containing the November 2016 photographs of Defendant and his EBT card, and informed Det. Cousin-Hayes of the barring notice filed against Defendant back in November 2016.
The I-Card remained in the system without a "hit" for six weeks.
April 13, 2018-32nd Precinct
On April 13th, 2018 at approximately 2:00 A.M., PO Rusi and his partner received a radio call of a suspect being held by store security at a Super Foodtown supermarket located at 2271 Eighth Avenue in the county of New York. Upon arriving at the location, the officers were informed by store employees that Defendant, who was in store security handcuffs, had shoplifted some toothpaste. Defendant was placed under arrest, handcuffed by PO Rusi and transported to the 32nd Precinct At the precinct, during routine arrest processing, PO Rusi was informed of the I-Card filed on March 1,2018 in the 28th Precinct. The 1-Card was labeled "Suspect only. No Probable Cause to Arrest." Det. Cousin-Hayes received a phone call that morning from officers in the 28lh Precinct who told him that they had the suspect in custody on another case.
Det. Cousin-Hayes testified that officers from the 28lh Precinct picked Defendant up from the 32nd Precinct and transported him back to the 28lh. The detective did not recall what time Defendant arrived at the 28lh. Defendant was placed in a holding cell.
Det. Cousin-Hayes testified that the arrest time was noted as 2:03 A M. on April 13tn and that since he already had Defendant's EBT card, a lineup was conducted later that day to confirm the defendant's identity with Mr. Bah. He further testified that after his sergeant conferred with the NYPD Legal Bureau, "...it was determined that an online booking report or arrest was appropriate based upon the current facts of the case." Hearing page 77, lines 2-4.
While detained in the holding cell, at 12:15 P.M. on April 13th, Defendant stated that "he was out of pocket anyway, he swung at me first." He later stated, at 3:20 P.M. in the fingerprinting area downstairs in the precinct, "he's not L.P. I don't know who he was. I had already dropped the stuff, I was just trying to get my ID back and he was swinging at me." The detective testified that there were no questions or threats put before the defendant by any officer preceding his statements. He also said, in substance, during one of his statements, that he did not sign a trespass notice so it is not legal. There was no testimony that Defendant was ever read his Miranda warnings.
Det. Cousin-Hayes testified that a lineup procedure was necessary to further the investigation of the March 1, 2018 incident. He began to look for fillers who were male. Black, medium complexion, between forty and fifty-five years of age. The lineup consisted of two police officers, the defendant, a suspect in another case, and a member of the public. Mr. Bah was in a separate room when the fillers and Defendant were brought into the lineup room. The men were all positioned in seat numbers one through five and held placards with a corresponding number. Defendant selected seat number three. Each man wore the same black bandana-style scarf to cover his hair.
Mr. Bah viewed the lineup on April 13th, 2018 at approximately 5:28pm in the lineup room at the 32nd Precinct. The room is equipped with a bench and a chair for the suspects, and a one-way mirror. Det. Cousin-Hayes brought Mr. Bah into the viewing room and read instructions on how the lineup procedure would proceed. Specifically, the detective testified that he told Mr. Bah that "...as part of an ongoing investigation that occurred at 2170 Eighth Avenue, the Rite Aid location, on March 1st, 2018, you are about to view a lineup. You will look through a one-way mirror. There will be five people in the lineup. They will not be able to see you. Each person on the other side of the room has a painted number situated above their head or would be holding a placard with the number on it. Take whatever time you need to view the lineup. The perpetrator may or may not be among the five people in the lineup. Do not assume that I know who the perpetrator is. Do not ask me or anyone else in the room for guidance during the procedure. Individuals presented in the lineup may not appear as they did on the date of the incident because features such as head and facial hair are subject to change. After you have an opportunity to view the lineup, 1 will ask you the following three questions: Do you recognize anyone? If you do, what is the number of the person you recognize? And number three, from where do you recognize the person? I may ask follow-up questions. After the identification procedure is concluded, do not discuss with other witnesses what was said or observed during the identification procedure."
Det. Cousin-Hayes testified that Mr. Bah stated "yes" to the first question, "Do you recognize anyone?" He then answered "three" and "Rite Aid" to the second and third questions. As a result of the lineup identification, Defendant was formally arrested for the March 1st, 2018 incident.
Contentions of the Parties
Defendant argues that the police lacked probable cause to arrest Defendant on April 13th, 2018 for the March 1st, 2018 incident. He further maintains that the police did not have authority to transport him from the 32nd Precinct to the 28the Precinct merely on the basis of an I-Card, and that he was essentially placed under arrest for the March 1st incident at the time he was picked up for transport. Defendant argues that since he was not identified in the photo array that the witness of the March 1st incident viewed, the case should have been further investigated before he was taken into custody and a lineup was conducted.
Defendant also maintains that the identification procedure and statements which followed his arrest should be suppressed as the fruit of an illegal arrest. In the alternative, he argues that the lineup was unduly suggestive, based on Mr. Bah's viewing of the photo array on March 1st and Mr. Bah's subsequent viewing of the single photo of defendant taken in 2016. He further argues that the statements were not spontaneous in nature.
The People maintain that the police had probable cause to arrest Defendant for the March 1st incident on April 13th based on the recovery of the EBI card found at the Rite Aid on March 1st with Defendant's photograph and information. They also rely on video surveillance footage of Defendant committing the crime (none of which was admitted into evidence at the hearing), and the identification of Defendant through the viewing of the 2016 barring notice photograph. The People further argue that the EBT card was recovered by a Rite Aid employee, not a member of NYPD, and should be admissible at trial. They maintain that, should the Court find that the EBT card was indeed recovered by NYPD, it should be admissible as abandoned property. The People further contend that the statements made in the holding cell should be admissible as spontaneous in nature, as Defendant was in custody but not being questioned. Finally, they argue that the lineup identification procedure was net unduly suggestive, nor was it tainted by the witness's viewing of the 2016 barring notice photograph.
Conclusions of Law
Dunaway
At a Dunaway hearing, when a Defendant challenges the legality of an arrest, the People have the initial burden of going forward to establish the existence of probable cause for the arrest. People v. Dodt, 61 N.Y.2d 408. 415 (1984); People v. Berrios, 28 N.Y.2d 361 (1971); People v. Malinsky, 15 N.Y.2d 86 (1965); People v. Martinez, 31 Mise.3d 201 N.Y. Dist. Ct. 2011). To satisfy its burden, the prosecution must present credible testimony. People v. Carmona, 233 A.D.2d 142 (1st. Dept. 1996); People v. Quinones, 61 A.D.2d 765 (1st Dept. 1978). Once the People have met their burden, the defendant bears the ultimate burden to establish the illegality of the police conduct by a fair preponderance of the evidence. Berrios, supra at 367; People v. Pettinato, 69 N.Y.2d 653, 654 (1986); People v. DiStefano. 38 N.Y.2d 640, 652 (1976); People v. DeFrain, 204 A.D.2d 1002 (4thDept. 1994).
"It has repeatedly been held that when an individual is handcuffed, searched and' placed in a police car for transport, the conduct constitutes an arrest (see. People v. Brnja, 50 N.Y.2d 366, 372, 429 N.Y.S.2d 173,406 N.E.2d 1066; People v Quarles, 187 A.D.2d 200, 203, 593 N.Y.S.2d 635, Iv. denied 81 N.Y.2d 1018, 600 N.Y.S.2d 206, 616 N E.2d 863; People v. Foster, 91 A.D.2d 1046, 1047, 458 N.Y.S.2d 645, appeal dismissed. 61 N.Y.2d 640, 471 N.Y.S.2d 851,459N.E.2d 1288; People v. Pittman, 83 A.D.2d 870, 871, 441 N.Y.S.2d 838, Iv. denied 56 N.Y.2d 813, 452 N.Y.S.2d 1034, 437 N.E.2d 1169). While simply transporting a suspect to another location, or even to a police station, does not in and of itself require the conclusion that a temporary detention has become an arrest. See People v Hicks, 68 N.Y.2d 234, 239 (1986); People v. Baily, 216 A.D.2d 1 (1st Dept. 1995), lv. denied 86 N.Y.2d 790 (1995), it is critical to consider how the detainee is treated once having arrived at the destination...Lastly, the combination of the length of time a defendant is detained and the manner in which he is held is of critical importance. Being . taken involuntarily, handcuffed and transported to a police station, and then held in a barred cell for over two hours, requires the conclusion that the initially proper detention of [a] defendant ...developed into an arrest." People v. Robinson, 282 A.D.2d 75, 80 (lsl Dept. 2001), lv. denied, 3 N.Y.3d 742 (2004). The test is "what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position." People v. Yuki, 25 N.Y.2d 585, 589(1970).
Applying that test to the circumstances herein, the level of intrusion upon Defendant's liberty was such that a reasonable man, innocent of any crime, would reasonably believe he was not free to go and was under arrest. People v. Hicks, supra at 240; People v. Baily, supra. Defendant was handcuffed and transported in a police vehicle with two detectives. At the precinct, he was held in a cell for at least five hours until the lineup was conducted.
Based on the forgoing. Defendant was ostensibly under arrest as he sat in the 32Rd Precinct holding cell. The question is whether that arrest was supported by probable cause. Probable cause "does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been.. .committed" by the person arrested. People v. Shulman, 6 N.Y.3d 1,2526 (2005), cert. den. 547 U.S. 1043 (2006), quoting People v. Bigelow, 66 N.Y.2d 417,423 (1985); People v. Graham, 211 A.D.2d 55 (1st Dept. 1995), app. den. 86 N.Y.2d 795 (1995). The "inquiry is not as to the defendant's guilt but as to the sufficiency for arrest purposes of the grounds for the arresting officer's belief that [the] defendant was guilty ." Shulman, 6 N.Y.3d at 26, quoting People v. Coffey, 12 N.Y.2d 443, 452 (1963), cert. den. 376 U.S. 916(1964).
There was no testimony regarding the significance of a "suspect-only I-Card," however, this Court takes judicial notice of its use as a notification tool used throughout the NYPD to inform its members that a person is wanted for questioning in connection with a specific crime.
Police interference with an individual's liberty must be reasonably related in scope to the circumstances which justify the interference in the first place. People v. Wheeler, 2 N.Y.3d 370 (2004). Courts must consider the totality of circumstances in evaluating the events surrounding a defendant's encounter with the police. People v. Stephens, 47 A.D.3d 586 (Is* Dept. 2008).
A "suspect-only" I-Card differs from a "probable cause to arrest" 1-Card, in that, at best, the police must have reasonable suspicion that a crime has been committed in order to detain a defendant named in a suspect-only I-Card for further investigation. See, generally, People v. Martinez, 80 N.Y.2d 444, 447 (1992); People v. DeBour. 40 N.Y.2d 210 (1976). In the absence of probable cause, this Court must consider whether the actions of the police in detaining Defendant in order to conduct a lineup violated his State and Federal constitutional rights to be free of unreasonable governmental intrusions. People v. Hicks, supra at 239.
This Court finds that at the time the detectives of the 32nd Precinct picked up Defendant, they had, at the very least, reasonable suspicion to believe that he had committed a crime based on the EBT card which was the basis for the wanted card. It was appropriate for the police to detain Defendant in order to arrange a lineup for viewing by Mr. Bah. People v. Hicks. supra', People v. Shays', 232 A.D.2d 174 (1st Dept. 1996). Probable cause to arrest followed his confirmed identification at the lineup.
Wade
At a Wade hearing, the People have the burden of going forward with credible evidence establishing the reasonableness of the police conduct and the lack of undue suggestiveness in identification procedures. See People v. Dodt, supra at 415: People v. Berrios, supra. To satisfy its burden, the prosecution must present credible testimony. People v. Carmona, supra. Once the People have met their initial burden, the defendant bears the ultimate burden of establishing the illegality of the police conduct by a fair preponderance of the evidence. People v. Berrios, supra at 367.
The People have met their initial burden of establishing the reasonableness of the police conduct at the lineup and the lack of undue suggestiveness. People v. Oriiz, 90 N.Y.2d 533, 537 (1997), Iv. den. 98 N.Y.2d 700 (2002). Participants in a lineup or photo array should share the same general physical characteristics as the suspect. People v. Kirby, 34 A.D.3d 695 (2nd Dept. 2006), Iv. denied 8 N.Y.3d 598 (2007); People v. Burns, 138 A.D.2d 614 (2nd Dept. 1988), Iv. denied 71 N.Y.2d 1024 (1988). There is no requirement that a defendant be surrounded by people nearly identical to him in appearance. People v. Chipp, 75 N.Y.2d 327 (1990); People v. Hoehne, 203 A.D.2d 480. 481 (2nd Dept. 1994), Iv. denied, 83 N.Y.2d 967 (1994); Matter of Raymond A., 178 A.D.2d 288, 289 (1st Dept. 1991); People v. Henderson. 170 A.D.2d 532, 533 (2nd Dept. 1991), Iv. denied, 77 N.Y.2d 995; People v. Jackson, 151 A.D.2d 694 (2nd Dept. 1989), Iv. denied, 89 N.Y.2d 806 (1997).
This Court has closely examined People's Exhibits #1 and #2 (a) - (d) and finds that the fillers were similar in appearance to Defendant in both the photo array (in which there was a misidentification) and the lineup. The record does not indicate any impermissive conduct on the part oi the police in conducting the lineup procedure or in dealing with the witness. Mr. Bah. The photo array shown to Mr. Bah was properly composed of individuals who resembled Defendant. Shown to the witness six weeks before the lineup, the photo array was sufficiently attenuated, so as to remove any undue suggestiveness. In fact, the witness did not identify Defendant after viewing the photo array. Therefore, the lineup procedure was not unduly suggestive and is admissible at trial. The People will be permitted to introduce evidence of the procedure.
Mapp
At a Mapp hearing, the People have the burden of going forward with credible evidence establishing that the seizure of property was lawful. See People v. Dodt, supra; People v. Berrios, supra. To satisfy its burden, the prosecution must present credible testimony. People v. Carmona, supra. Once the People have met their initial burden, the defendant bears the ultimate burden of establishing the illegality of the police conduct by a fair preponderance of the evidence. Berrios, supra at 367. "[A]ny inquiry into the propriety of police conduct must weigh the interference it entails against the precipitating and attending conditions." People v. DeBour, 40 N.Y.2d 210, 223 (1976).
Defendant's EBT identification card was recovered by store employee, Mr. Bah, in the vestibule of the Rite Aid location after the alleged altercation with Defendant on March 1, 2018. No police action was involved in the recovery of the EBT card. Therefore, the card is admissible at trial. People v. Jones, 47 N.Y.2d 528 (1979). The People will be permitted to offer the card on their direct case.
Huntley
At a Huntley hearing, the People have the burden of proving beyond a reasonable doubt that a defendant's statement was voluntarily made. See People v. Huntley, 15 N.Y.2d 73 (1965); People v. Holland, 48 N.Y.2d 861, 862 (1979); Criminal Procedure Law §60.45(2).
Generally, statements that are the product of custodial interrogation must be preceded by Miranda warnings. See Miranda v. Arizona, 384 U.S. 436 (1966). For a statement to be admissible, the People must prove that it was made pursuant to a voluntary, knowing and intelligent waiver of the privilege against self-incrimination. People v. Miranda, supra. "Coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." People v. Mateo, 2 N.Y.3d 383, 413-414, (2004).
It is well established that spontaneous statements or volunteered statements that are made while in custody, which are not the product of questioning or its functional equivalent are admissible whether Miranda warnings are administered or not. See People v. Torres, 21 N.Y.2d 49 (1967). Spontaneity, in the context of the right to pre-interrogation warnings, turns on the question of whether a statement by a defendant was the product of "express questioning or its functional equivalent." Rhode Island v. Innes, 446 U.S. 291 (1980); People v. Bryant, 59 N.Y.2d 786 (1983); People v. Maerling, 46 N.Y.2d 289 (1978). For a defendant's statement to be considered spontaneous, the spontaneity must be genuine and not the result of inducement or provocation, encouragement or acquiescence, no matter how subtly implied. Rhode Island v. Innes, supra.
Here, neither statement was the product of express questioning by the police or its functional equivalent, nor is there any evidence that it was the product of any promises or threats, either express or implied. See People v. Ferro, 63 N.Y.2d 316, 322 (1984), cert. den. 472 U.S. 1007 (1985); People v. Holland, supra; People v. Grant, 96 A.D.3d 779, 780-781 (2nd Dept.), Iv. den. 19 N.Y.3d 1026 (2012).
Accordingly, Miranda warnings were not required and the statements are admissible at trial. The People will be permitted to introduce the statements into evidence in their direct case.
Summary
Defendant's motion to suppress is denied in its entirety. The People will be permitted to elicit evidence regarding Defendant's identification, the identification card recovered from the store, and the statements he made to Det. Cousin-Hayes.
This opinion constitutes the Decision and Order of the Court.