Opinion
No. 1606/2011.
2012-02-24
PEOPLE of the State of New York v. Anthony HART.
Damien Brown, Esq, for the Defendant. David J. Weiss, Esq., Asst. District Attorney, for the People.
Damien Brown, Esq, for the Defendant. David J. Weiss, Esq., Asst. District Attorney, for the People.
GUY J. MANGANO JR., J.
The defendant is charged with Burglary in the First Degree (Penal Law § 140.30), Burglary in the Second Degree (Penal Law § 140.25), Burglary in the Third Degree (Penal Law § 140.20), Robbery in the First Degree (Penal Law § 160.15), Robbery in the Second Degree (Penal Law § 160.10), Menacing in the Second Degree (Penal Law § 120 .14), Petit Larceny (Penal Law § 155.25), Intimidating a Victim in the Third Degree (Penal Law § 215.15) and Tampering with a Witness in the Third Degree (Penal Law § 215.11). A combined Dunaway/Mapp/Wade/Rodriguez/Huntley hearing was ordered and held. The People called two witnesses: New York City Police Detectives Anselm Lezama and Craig Wagner.
FINDINGS OF FACT
This Court finds the People's witnesses to be credible.
On February 22, 2011, Detective Anselm Lezama became the lead investigator of a home invasion robbery which occurred earlier that day at 1590 East New York Avenue, apartment 9G, Brooklyn. The detective's supervisor provided a possible suspect by the name of “Ant”, as well as a telephone number belonging to the possible suspect: 718–581–8023. After speaking with his supervisor, Detective Lezama responded to the location, 1590 East New York Avenue, apartment 9G, Brooklyn.
At the scene, the detective met with complainant, Karen Dickerson, who stated that two male blacks; one of them goes by the street name “Ant” and is approximately five eight tall, was wearing a black jacket and blue jeans. The second perpetrator stood about five foot ten inches tall, was wearing a blue jacket, black hoodie, blue skinny jeans. The complainant also told Detective Lezama that she recognized both men and that they hang out in front of the building. Ms. Dickerson stated that she had known the suspect Ant, defendant herein, for approximately two months prior to the robbery. Moreover, Ms. Dickerson and her cousin would often see Ant in the building lobby, two, three and four times a day on a daily basis. On one occasion Ms. Dickerson recalled that the perpetrators stopped so Ms. Dickerson's cousin and Ant could exchange telephone numbers. Ms. Dickerson confirmed the telephone number provided to Detective Lezama as belonging to defendant.
Later that same day, Detective Lezama accompanied Ms. Dickerson to the 73rd Police Precinct so the complainant could look through some photographs. Based upon the physical description of defendant provided by Ms. Dickerson, Detective Lezama generated photographs from the New York City Police Department's photograph manager database. The second photograph retrieved from the printer was immediately identified by Karen Dickerson as the perpetrator, defendant herein. Also present at the 73rd Precinct was Antonio Fulton, Karen Dickerson's 15 year old son. Antonio Fulton also knew the alleged perpetrator, Anthony Hart, from the neighborhood and immediately identified a photograph of defendant.
Braced with two positive confirmatory identifications, Detective Lezama performed a computer investigation of the suspect, Anthony Hart. It was learned that defendant had a court date in an unrelated matter on February 23, 2011, in New York City Criminal Court, Kings County, located at 120 Schermerhorn Street, Brooklyn, where he was arrested and transported back to the 73rd Precinct Brooklyn Robbery Squad.
Defendant was placed in an interview room and Detective Lezama read Miranda warnings from a pre-printed sheet of paper containing six questions. Defendant responded that he understood each question and the detective memorialized his affirmative answer by writing the word “yes” at the end of each question. Defendant then penned his initials next to each question, signed the page and stated to the detective that he was willing to answer questions. No questioning was conducted at this time. The entire process was completed at approximately 1:16 pm.
Defendant was then placed back in the holding cell. Prior thereto, Detective Lezama searched defendant and recovered two cell phones, some United States Currency, his belt and his shoelaces. Once in the cell, Detective Lezama took one more photograph of defendant which he showed once more to Karen Dickerson, who immediately identified defendant once again as one of the perpetrators of the home invasion.
While defendant was waiting in the cell, he was given a cordless telephone to use. Detective Craig Wagner's desk was located approximately 8 to 10 feet from the holding cell and he was able to hear defendant's telephone conversation. Defendant was speaking on the phone, being “loud and crying.” While Detective Wagner was working, he heard defendant “getting upset, crying, saying mom, come on, please, mom, come on, do whatever it takes there, I don't want to go back to jail, go there talk to them.” Detective Wagner instructed defendant to stop his loud conversation and hang up the phone. Defendant initially stated “no, I'm on the phone with my mother.” However, immediately upon Detective Wagner opening the cell door, defendant hung up the phone.
Annoyed at what had just transpired, Detective Wagner stated to defendant, “I hope you didn't tell your mother to go threaten somebody.” Defendant responded: “yo Detective, I'll do whatever it takes. I don't want to go back to jail. If you were me you would do the same thing.” The detective ended the conversation, “There was no way I would do the same thing.” Obviously upset, defendant responded, “You're right, I'm wrong, you're right.”
Defendant challenges the warrantless arrest, the admissibility of the statements made at the precinct and the constitutional validity of the identification procedures employed by the police.
CONCLUSIONS OF LAW
DUNAWAY ISSUE
Regarding the propriety of the warrantless arrest, the victim's identification of the defendant's photograph from the array was alone sufficient to establish probable cause ( see People v. Soberanis, 289 A.D.2d 343,lv denied98 N.Y.2d 693;People v. Nixon, 240 A.D.2d 764;People v. Hayes, 191 A.D.2d 644,lv denied82 N.Y.2d 719).
WADE/RODRIGUEZ ISSUES
It is well settled that the People have the burden of going forward to establish the reasonableness of the police conduct and the lack of suggestiveness of the pretrial identification procedure, while defendant bears the ultimate burden of proof to establish that a pretrial identification procedure was unduly suggestive ( see People v. Berrios, 28 N.Y.2d 361;People v. Jackson, 108 A.D.2d 757). At the Rodriguez portion of the hearing, the burden shifts back to the People to establish that the identification was merely confirmatory because the witness knows defendant so well that the relationship vitiates undue police suggestion ( see People v. Rodriguez, 79 N.Y.2d 445;see also People v. Coleman, 73 AD3d 1200).
Concerning the propriety of the single photographic arrays, the record of the hearing clearly establishes that Karen Dickerson and her teenaged son, Antonio Fulton, were able to name the perpetrator and give a physical description immediately after the crime was committed, and also informed the investigating detective that they knew defendant from the neighborhood. Thus, the single photographic showup was confirmatory in nature as the People have established “that the witness[es] know[ ] defendant so well as to be impervious to police suggestion” (People v. Rodriguez, 79 N.Y.2d 445,supra at 452).
The determination as to whether an identification is confirmatory compels the Hearing Court to consider “the number of times [the witness] viewed defendant prior to the crime, the duration and nature of the encounters, the setting, the period of time over which the viewings occurred, the time elapsed between the crime and the previous viewings, and whether the two had any conversations” (People v. Rodriguez, 79 N.Y.2d 445,supra at 451). The finding by the Court that the identification was confirmatory is “tantamount to a conclusion that, as a matter of law, the witness is so familiar with the defendant that there is little or no risk' that police suggestion could lead to a misidentification” (People v. Rodriguez, 79 N.Y.2d 445,supra 450). Thus, significantly more than a “fleeting or distant” relationship would be sufficient to remove the taint of an unduly suggestive police procedure ( see People v. Collins, 60 N.Y.2d 214).
While the Court of Appeals has found it conceivable, for example, that a store clerk “could be influenced by suggestiveness to make a misidentification” after seeing a customer “four dozen times,” and thus ordered a hearing to “explore” the witness' prior familiarity with the defendant (People v. Rodriguez, 79 N.Y.2d 445,supra at 450–51), such exploration would seem unnecessary where a witness observed defendant for two months prior to the commission of the crime and knew of defendant to such an extent that she was able to provide a name and telephone number to the police after the incident ( see People v. Chambers, 226 A.D.2d 284,appeal denied88 N.Y.2d 981).
In the case at bar, the robbery victim and her son were able to name the defendant as the perpetrator immediately after the crime was committed, and informed the investigating detective that they saw defendant approximately two to four times per day for over a two month period before the incident. Based upon the foregoing, the single photographic arrays were confirmatory in nature as the People have established “that [each] witness knows defendant so well as to be impervious to police suggestion” (People v. Rodriguez, 79 N.Y.2d 445,supra at 452;see People v. Chambers, 226 A.D.2d 284,supra; People v. Serrano, 207 A.D.2d 676,appeal denied84 N.Y.2d 1015).
HUNTLEY ISSUE
As for the admissibility of defendant's statements made at the precinct, the record is clear that defendant answered in the affirmative as to whether he understood the Miranda warnings read from a pre-printed document detailing the rights of a defendant in custody. Further, defendant initialed each of the six sentences and also signed his name on the page. Thus, under the totality of the circumstances, this Court finds that defendant knowingly, intelligently and voluntarily waived his Miranda rights before making the statements ( see People v. Washington, 155 A.D.2d 635,appeal denied75 N.Y.2d 925;see also People v. Davis, 55 N.Y.2d 731). However, the record is clear that the statements were voluntarily and spontaneously made by defendant, and were not the product of police interrogation or its functional equivalent ( see People v. Rivers, 56 N.Y.2d 476;see also People v. Davis, 261 A.D.2d 411,lv denied93 N.Y.2d 1002;People v. Green, 258 A.D.2d 531,lv denied93 N.Y.2d 971;People v. Schreiber, 250 A.D.2d 786,lv denied92 N.Y.2d 905). While a portion of defendant's statements were made in response to a question raised by Detective Morgan, the brunt of the statements concern a telephone conversation between defendant and his mother which was overheard by the detective while defendant was inside the holding cell of the police precinct.
According, the statements will not be suppressed.
This shall constitute the Decision and Order of the Court.