Opinion
0941-2008.
Decided December 20, 2010.
The People were represented by District Attorney Robert Johnson, by Debra Guarnieri, (718) 838-7293.
The defendant was represented by V. Marika Meis of Bronx Defenders, (718) 838-7846.
The defendant is charged with one count of Murder in the Second Degree, one count of Manslaughter in the Second Degree, and two Counts of Criminal Possession of a Weapon in the Second Degree. On November 8, 9 and 10, 2010, this court conducted a hearing pursuant to Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979); United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); and People v. Huntley, 15 NY2d 72, 255 NYS2d 838, 204 NE2d 179 (1965). The People called three witnesses, retired Detective Luis Aponte ("Det. Aponte"), Police Officer Jerry Choi ("PO Choi"), and Police Officer George Thomas ("PO Thomas"), whose testimony the court credits. The defendant did not present any witnesses. In an oral decision on November 10, 2010, the court found that the arresting officer had probable cause to arrest the defendant and denied defendant's motion to suppress the pretrial identification procedures and the statements. The following constitutes the court's finding of fact and conclusions of law.
FINDINGS OF FACTS
Det. Aponte was employed by the New York City Police Department ("NYPD") for twenty-five years until he retired in 2009. He was a detective for approximately fourteen years and was assigned to the 46th Precinct Detective Squad, Bronx County for about fifteen years. On February 2, 2008, he was assigned the investigation of the shooting of Mr. Timothy Kim which occurred that day at about 5:30 p.m. at the Urban Terrain Athlete's Foot Clothing and Shoe Store, located at 2467 Grand Concourse, Bronx.
Det. Aponte responded to the scene where he spoke to Witness Number 1 who described the perpetrator as a male Hispanic, in his 40's, six feet tall, 200 pounds, light skin with a clear complexion, and a big nose. She told Det. Aponte that at the time of the shooting, the shooter wore Fila sweat pants which was different from the clothes he wore earlier in the day when he initially entered the store. Det. Aponte communicated with Witness Number 1 through an interpreter, PO Choi. On February 2, 2008, PO Choi, a Korean-American, had been a member of the NYPD for five years and was assigned to the 46th Precinct. He speaks Korean fluently as he was raised speaking Korean at home and also attended Korean school to learn to read and write Korean.
The witnesses were assigned numbers as their identities were not disclosed at the hearing.
Det. Aponte interviewed a second witness at the scene, Witness Number 3, who described the shooter as a male Hispanic, heavyset with a medium complexion. Det. Aponte conducted a preliminary identification procedure with Witness Number 3 at about 6:40 p.m. The identification procedure was conducted in the "Real Time Crime Van," which is a mobile vehicle in which a witness is able to view photographs in the "Photo Manager" computer to aid in identifying perpetrators of crimes. The Photo Manager is a computer database which stores arrest photographs and pedigree information of arrestees which are then classified, among other criteria, by sex, race/ethnicity, skin tone, age, built, and precinct of arrest. The Photo Manager program allows the witness to view hundreds of pictures, six photographs at a time — the equivalent of an electronic photographic array. The detective at the scene is able to enter the description of the perpetrator into the computer and, based on the information entered, the computer generates photographs of arrestees.
Det. Aponte entered into the computer the description that he received on February 2, 2008, that is, a male, Hispanic, heavyset, in his 40's. Witness Number 3 viewed numerous photographs for about 15 minutes, but did not identify anyone as the assailant. The defendant's photographs were not among the photographs Witness Number 3 viewed that evening because the defendant had never been classified as male-Hispanic in all his prior numerous arrests. During the course of the hearing, Det. Aponte went to the 46th Precinct and retrieved the photographs of defendant's last twenty-one arrests to verify that he was always classified as Black-male.
During the course of the investigation, Det. Aponte learnt that the shooter had been in the store earlier that day and was involved in an altercation with the victim during which the shooter was hit in the face. The shooter called 911 and reported the assault. Police officers responded to the scene of the assault. During the course of reporting the assault to the 911 operator, the then victim-turned shooter gave his name as James Jackson. Det. Aponte was able to retrieve the name from the 911 recording. Det. Aponte also retrieved images of the shooter from the store surveillance camera.
Det. Aponte obtained a photograph of James Jackson by conducting a search in the Photo Master computer database for photograph of anyone named James Jackson who resided within the confines of the 46th Precinct. He compared the photograph of the James Jackson that he got from Photo Master with the image of the shooter on the surveillance tape and saw that they looked alike.
Det. Aponte complied a photographic array of six individuals, two rows of three, whose facial characteristics were similar to that of James Jackson, whose photograph was placed in position number three, that is, the last one in the first row. On February 3, 2008, Det. Aponte showed the photographic array to Witness Number 3 at the witness's place of residence. Within a couple of seconds Witness Number 3 picked out James Jackson and thereafter signed the photographic array under the picture of James Jackson.
After the positive identification on February 3, 2008 by Witness Number 3, Det. Aponte made a wanted poster which was disseminated in black and white among the officers at the 46th Precinct. The wanted poster had the name James Jackson; his photograph — front and profile; and a description of a male, black, 5'9", tall, weighing 220 pounds, bald and clean shaven.
At roll call on February 4, 2008, PO Thomas, a seventeen-year veteran of the NYPD who was assigned to work the 7:00 a.m. to 3:30 p.m. tour of duty at the 46th Precinct, was informed about the shooting. He was told that the victim was likely to die, and was given a wanted poster of the defendant. PO Thomas was later informed by one of the investigating detective that the shooter had an acquaintance in that area of 2270 Walton Avenue, in the confines of the 46th Precinct.
PO Thomas's assignment on February 4, 2008 was to be Sergeant Rosa's ("Sgt. Rosa") driver. They decided to canvass the area of 2270 Walton Avenue to look for the shooter. At about 2:30 p.m., while driving along Walton Avenue in the vicinity of 2270 and 2240 Walton Avenue, PO Thomas saw from behind, a lone light-skinned male about the same height and weight as in the poster, wearing a scull cap and carrying a bag, walking along Walton Avenue in the same direction that PO Thomas was driving. PO Thomas saw that the person walking on the street matched the photograph and fitted the description in the wanted poster. They made eye contact. PO Thomas drove the car about one and one-half car lengths ahead so as not to make the person nervous. When he looked back, the person had disappeared. PO Thomas reversed the car along Walton Avenue to look inside of 2240 Walton Avenue as that was the only building that had a point of entry in that area. 2240 Walton Avenue housed a preschool on the first floor and had glass windows in the entryway. He saw a uniformed school safety agent who looked at him and indicated with her arms — which the PO Thomas interpreted as "what's going on." The agent then looked to her right, and back at PO Thomas with a concerned look on her face. PO Thomas saw a pair of knee in the direction that the school safety agent looked. PO Thomas's suspicion was aroused by his belief that the person he saw on the street was the person in the wanted poster combined with the reaction of the school safety agent. He and Sgt. Rosa went inside the building to investigate.
PO Thomas approached the individual who was sitting down and asked him what he was doing at the location. The individual responded that he was there to borrow a pen to write something down. PO Thomas asked for his name and he responded James Johnson, however, he failed to produce identification when requested to do so by PO Thomas. PO Thomas observed that not only did the person sitting down looked like the person in the wanted poster, but he had redness and swelling around his nose which corroborated the information PO Thomas received at roll call that the shooter was punched in the nose during the earlier altercation with the victim on the day of the shooting. For safety reasons PO Thomas told him that they had to go outside. Once outside PO again asked for identification, but was told that he did not have any. PO Thomas showed him the picture on the wanted poster and asked him if it was him. The defendant responded "yeah, I guess if you want it to be." PO Thomas thereafter handcuffed him and took him to the 46th Precinct for further investigation by the detectives.
The defendant was then transported to the Homicide Task Force for a line-up. He was secured in a cell away from the witnesses who were later brought to the precinct to view the lineup. Det. Aponte arranged to have four individuals from a shelter be fillers in the lineup. The appearances of individuals selected were similar to that of the defendant, in that, they were of light skin tone and had bald to close-cropped hair style. The defendant chose to sit in position number 4 during the lineup. The clothing of all five, including the defendant, were covered with a sheet for viewing by the witnesses. The witnesses, numbers 1, 3, and 4, viewed the lineup separately. Photographs of the lineup were introduced into evidence.
At the request of Det. Aponte, PO Choi again acted as a Korean interpreter for Witness Number 1 at the lineup. PO Choi interpreted the instructions from Det. Aponte and any responses that Witness Number 1 may have had. PO Choi and Aponte accompanied Witness Number 1 to the viewing where she positively identified position number 4 as being from the store. The witness thereafter signed the lineup report sheet indicating that number 4 was positively identified. Witness Number 3 viewed the lineup and identified the person in position number 4 as the shooter. Witness Number 4 viewed the lineup but did not make an identification.
CONCLUSIONS OF LAW
At a suppression hearing, the defendant has the ultimate burden of proving the illegality of the police conduct, however, the People have the initial burden of going forward with evidence of the legality of the police conduct. See People v. Baldwin, 25 NY2d 66, 70, 250 NE2d 62, 302 NYS2d 571 (1969), People v. Berrios, 28 NY2d 361, 367, 270 NE2d 709, 321 NYS2d 884 (1971). The People have met their burden.
An individual's freedom of movement is interfered with by the police when the individual is stopped or pursued while fleeing to avoid contact with the police. People v. Martinez, 80 NY2d 444, 447, 606 NE2d 951, 591 NYS2d 823 (1992). As such, the action by the police in either the stop or pursuit is analyzed by the level of information the police had at the time of the intrusion, as set forth in People v. De Bour, 40 NY2d 210, 352 NE2d 562, 386 NYS2d 375 (1976). When deciding whether a police officer's interference with an individual's freedom of movement is reasonable, the court must weigh whether the officer's action was both justified at its inception and reasonably related in scope to the circumstances. See People v. Williams II, 98 NY2d 93, 98, 772 NE2d 1150, 745 NYS2d 792, (2002); De Bour, 40 NY2d at 215.
The Court of Appeals in De Bour set forth four levels of permissible intrusion by the police into an individual's freedom of movement. Under the second level of intrusion, a police officer may interfere with a citizen's freedom, but short of a seizure, to gain explanatory information under the common-law right of inquiry when the officer has a founded suspicion that criminality is afoot. De Bour, 40 NY2d at 223 . Under the third level of intrusion, a police officer is authorized in De Bour, and pursuant to CPL § 140.50(1), to forcible stop and temporarily detain an individual person when he "reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor." Id. Reasonable suspicion is a "quantum of knowledge to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand. To justify such an intrusion, the police officer must indicate specific and articulable facts, which along with any logical deductions, reasonably prompted that intrusion." People v. Cantor, 36 NY2d 106, 112-113, 365 NYS2d 509, 113, 324 NE2d 872 (1975). An officer who has reasonable suspicion to detain a suspect also has the authority to frisk the suspect if the officer reasonably believes he is in danger. De Bour, 40 NY2d at 223; CPL § 140.50 (3). A defendant may be moved during a non-arrest detention if the facts so warrant. See People v. Hicks, 68 NY2d 234, 239, 500 NE2d 861, 508 NYS2d 163 (1986).
The fourth and highest level of intrusion set forth in De Bour permits the police to arrest and take a person into custody when he has probable cause to believe that the person has committed a crime or an offence in his presence. De Bour, 40 NY2d at 223, CPL § 140.10.
A police officer who does not have personal knowledge sufficient to establish probable cause can make a lawful arrest under the fellow officer rule as long as he is acting on communication from a fellow officer who had information sufficient to constitute probable cause for the arrest. People v. Ketcham, 93 NY2d 416, 419, 712 NE2d 1238, 690 NYS2d 874 (1999). Information received from a fellow police officer is presumptively reliable. Ketcham, 93 NY2d 420. Once the legality of the arrest is challenged, the People must demonstrate that the officer or agency imparting the information itself possessed the requisite probable cause. People v. Lypka, 36 NY2d 210, 214, 326 NE2d 294, 366 NYS2d 622 (1975); People v. Ramirez-Portoreal, 88 NY2d 99, 113, 666 NE2d 207, 643 NYS2d 502 (1996).
The People may offer hearsay evidence to establish probable cause provided that the hearsay evidence meets the two-prong test established in Aguilar-Spinnelli. Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509; 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584; 21 L. Ed. 2d 637 (1969); Ketcham, 93 NY2d 420. They must demonstrate the reliability of the informant and the basis of the informant's knowledge, that is, the informant is generally trustworthy and the information was obtained in a reliable way. Ketcham, 93 NY2d 420. The first prong of the Aguilar-Spinnelli test is satisfied when the informant is an identified citizen, as an identified citizen informant is presumptively reliable. See People v. Hetrick, 80 NY2d 344, 604 NE2d 732, 590 NYS2d 183 (1992).
To satisfy the second prong of the Aguilar-Spinnelli test, the People must demonstrate that the informant's knowledge was based on criminal activity of which he has personal knowledge. People v. Rodriguez, 52 NY2d 483, 491, 420 NE2d 946, 438 NYS2d 754 (1981)("If an informant carefully describes the underlying circumstances in which he obtained his information and his description of such circumstances clearly indicates that he speaks with personal knowledge of the event which he relates, the "basis of knowledge" requirement is satisfied.").
Here, the People established that Det. Aponte had probable cause to arrest the defendant, and under the fellow officer rule, so did PO Thomas. The informants, Witnesses Numbers 1 and 3, satisfied both prongs of the Aguilar-Spinnelli test. They are identified citizen informants who are presumed to be reliable. Both witnesses were present in the store at the time of the shooting and gave Det. Aponte a description of the shooter. Witness Number 3 positively identified the defendant in the photographic array. Witness Number 1 was able to tell Det. Aponte that the clothing that the defendant wore at the time of the shooting was different from what he wore earlier in the day. The information about the earlier altercation was confirmed by Det. Aponte from the 911 tape which produced the defendant's name. The positive identification of the defendant in the photographic array by Witness Number 3 gave Det. Aponte probable cause to arrest the defendant. See People v. Lebron, 238 AD2d 150, 656 NYS2d 201, (1st Dept. 1997), lv. denied, 90 NY2d 895, 685 NE2d 219, 662 NYS2d 438 (1997), cert. denied, 2010 U.S. Dist. LEXIS 69318 (N.D.N.Y July 12, 2010). PO Thomas had reasonable suspicion to stop the defendant based on his observation that the defendant physically resembled the photograph in the wanted poster and he was in the area where PO Thomas was informed that the person in the wanted poster had an acquaintance. People v. Joseph , 10 AD3d 580 , 581, 782 NYS2d 89 (1st Dept. 2004), lv. denied, 3 NY3d 740, 820 NE2d 298, 786 NYS2d 819 (2004). At the very least the common law right to inquire, People v. Collado , 72 AD3d 614 , 615, 900 NYS2d 46 (1st Dept. 2010), lv. denied, 15 NY3d 850, 935 NE2d 819, 906 NYS2d 27 (2010). In any event, the common law right to inquire was elevated to reasonable suspicion when the defendant, after making eye contact with PO Thomas, took evasive action to avoid the police Id. The school safety agent's reaction to the presence of the defendant in the school area confirmed that his action was specifically designed to avoid the police. Having reasonable suspicion that the defendant was the person in the wanted poster, PO Thomas had the right to stop and detain the defendant. De Bour, 40 NY2d at 223; CPL § 140.50 (3).
The school agent's reaction coupled with defendant's explanation that he was in the school area to borrow a pen to write something down, further aroused PO Thomas's suspicion as it indicated that the defendant was not in a place he was expected to be in. A reasonable and prudent person in PO Thomas's position would have been suspicious when the defendant who resembled the photograph in the wanted poster and who took steps to avoid the police, gave his name as James Johnson — somewhat similar to the name in the wanted poster — but denied having identification. Having the right to temporarily detain the defendant, PO Thomas acted reasonably when he asked the defendant to leave the building given the violent nature of the crime and the fact that there were children in the school. The defendant was not under arrest at the time that he and the police officers left the building, nor would a reasonable person in the defendant's position, innocent of a crime, would have thought that he was under arrest. Hicks, 68 NY2d at 240. There was no show of force as the defendant was not handcuffed and the police officers did not have their guns drawn. Id.
Reasonable suspicion was elevated to probable once the defendant admitted, albeit indirectly, that he was the person in the wanted poster when he said, in response to PO Thomas's inquiry if he was the person in the wanted poster, "yeah, I guess if you want it to be me." Under the fellow officer rule, PO Thomas reasonably relied on the information that Det. Aponte, who had probable to arrest the defendant communicated via the wanted poster, when he arrested the defendant.
Wade Hearing
Although not all persons in the photographic array shared the identical skin tone and the defendant's appeared to have the lightest skin tone among the photographs, that alone did not render the photographic unduly suggestive. In People v. Chipp, 75 NY2d 327, 335, 552 NE2d 608, 553 NYS2d 72 (1990), cert. denied, 498 U.S. 833, 111 S. Ct. 99, 112 L. Ed. 2d 70, (1990), the Court of Appeals held that "[t]here is no requirement, however, that a defendant in a lineup be surrounded by people nearly identical in appearance." Id. at 336. The Court further held that "the difference in skin tone of three of the fill-ins, when considered together with the similarity of age, height and body type of all the fill-ins was not sufficient to create a substantial likelihood that the defendant would be singled out for identification." Id. The standard established in Chipp applies to photographic arrays. People v. Lee, 96 NY2d 157, 163, 750 NE2d 63, 726 NYS2d 361 (2001)("We conclude that the subtle differences in the photographs, including the arrest plates, were not "sufficient to create a substantial likelihood that the defendant would be singled out for identification.").This court reviewed both the photographic array and the photographs of the lineup and find that the defendant has not met his burden to prove that the pretrial identification procedures were unduly suggestive. The court finds that while there was some variation in the shade of the skin tone of the individuals in the photographic array, the overall appearance of the photographic array was not unduly suggestive. The People are not required to provide photographs that are "nearly identical in appearance." There was nothing about the appearance of the persons in the photographic array or of the defendant that created a substantial likelihood that the defendant would be singled out for identification. The fact that the photographic array was shown to the witness at the witness's place of residence and the defendant was positively identified without any suggestion by Det. Aponte, further supports the People's evidence that identification procedure was not unduly suggestive.
Likewise, the lineup was not unduly suggestive as the appearance of fillers in the lineup did not create a substantial likelihood that the defendant would be singled out for identification. An examination of the photographs of the lineup shows that the fillers and the defendant were similar in skin tone and hairstyle, close cropped to bald, and were seated with their clothes covered. See People v. McBride , 14 NY3d 440 , 448, 928 NE2d 1027, 902 NYS2d 830 (2010), cert. denied, 178 L. Ed. 2d 212, 2010 U.S. LEXIS 7189 (2010).
Huntley Hearing
The burden is on the People to show beyond a reasonable doubt that the statement, "yeah, I guess if you want it to be me," that the defendant made to PO Thomas was voluntary and not obtained by means of coercion or unfairness. See Huntley, 15 NY2d 72 at 78. In this case, the court finds that the defendant was not in custody when he made that statement and that the questions were investigatory, in that, PO Thomas was trying to determine if he was in fact James Jackson who was wanted for the shooting. See People v. Huffman, 41 NY2d 29, 34, 359 NE2d 353, 390 NYS2d 843 (1976); People v. Bennett, 70 NY2d 891, 893, 519 NE2d 289, 524 NYS2d 378 (1987).
Accordingly, defendant's motion to suppress the lineup identification and the statements is denied.
The foregoing constitutes the Decision and Order of the court.