Opinion
5092-2003.
Decided March 17, 2006.
This decision embodies the Court's findings of fact and conclusions of law on defendant's motion to suppress certain identification evidence, which was granted just prior to trial. For the reasons set forth below, the Court concludes that the People did not meet their burden of going forward on the Wade-Dunaway hearing, and failed to elicit any evidence to support an independent source so as to permit an in-court identification by either the complainant or the purported eyewitness in this case. Accordingly, the motion to suppress is granted in all respects. In addition, inasmuch as the People failed to present any evidence during the bench trial, defendant's application for a trial order of dismissal is granted.
PROCEDURAL BACKGROUND
Defendant was arrested on November 7, 2003, and was arraigned on a felony complaint the following day. On November 20, 2003, the Court ordered an examination pursuant to Article 730 of the Criminal Procedure Law ("CPL"). Defendant eventually was found unfit to proceed and was duly committed on February 26, 2004. Defendant later became fit to proceed, and was arraigned on the indictment on June 8, 2004. The defendant was charged, in the indictment, with two counts of Attempted Robbery in the First Degree; Attempted Robbery in the Third Degree; Attempted Assault in the First Degree; two counts of Assault in the Second Degree; Criminal Possession of a Weapon in the Fourth Degree; and Attempted Grand Larceny in the Fourth Degree; arising from an incident on November 7, 2003, when he allegedly attempted to forcibly steal personal property from Krystle Rivera, and in the course of the commission of the crime or in the immediate flight therefrom, caused serious physical injury to Ms. Rivera who was not a participant in the crime.
On October 14, 2004, in a motion and conference part of this Court, defendant moved to suppress certain identification procedures of which he evidently had been given notice by the People. In their answering affirmation, dated October 21, 2004, the People alleged that an "eyewitness" to the crime had participated in a point-out identification of defendant, and that the complaining witness had been shown a photo array several days later. In a decision dated November 29, 2004, the Court ordered, inter alia, that a Wade/Dunaway hearing be conducted.
The matter then remained in the motion and conference part for nearly a year.
On November 9, 2005, two years and two days following this defendant's arrest, both sides evidently stated their readiness, and the case was sent to Trial Part 1 for the suppression hearing and the trial. Prior to the commencement of the hearing, the Court conducted an informal conference to determine whether there were any outstanding issues that could impede the progress of the trial, including any scheduling problems. The Court was provided a potential witness list containing the following names: Krystle Rivera, Hipolito Rodriguez, Police Officer Donald Troy, and Sergeant Anthony Rivera. It was agreed that the suppression hearing would begin at once and that, upon its completion, the matter would be marked "ready and passed" to Monday, November 14, 2005, following the Veterans' Day holiday on November 11, 2005, and the intervening weekend.
At the time, it seemed clear to the Court that the hearing would involve two alleged identification procedures a "point out" by a purported eyewitness and a later viewing of a photo array by the complaining witness. In addition, although there was some discussion during the informal conference about jury selection, defense counsel advised the Court and the prosecutor that defendant was considering whether to waive his right to a jury trial. By the time the conference was completed, it seemed likely that the trial testimony would be completed by November 16, 2005.
At the hearing, the People presented the testimony of Sergeant Anthony Rivers, and announced that they had no additional witnesses (Transcript at 3-34 hereinafter cited as T). As will be seen below the People presented no evidence whatsoever concerning the complaining witness' viewing of any photo array, and Sergeant Rivers' testimony centered exclusively upon an identification procedure involving the eyewitness. Perhaps not surprisingly, the People asked for permission for the Wade/Dunaway hearing to be bifurcated so that they would have an opportunity, if necessary, to elicit evidence of an "independent source" (T at 25). The Court granted that request (T at 27). Defendant presented no evidence at the hearing.
At the conclusion of the hearing, the Court reserved a decision and told both sides to expect a phone call advising them whether an independent source hearing would be necessary. The Court gave the defendant Parker warnings, and adjourned the matter for November 14, 2005 (T at 34-35). Later that day, the Court advised both sides to be prepared to go forward with the independent source hearing on November 14, 2005.
On November 14, 2005, the People announced that they were not ready to proceed with the independent source hearing. Although the complaining witness had appeared in the District Attorney's Office on Friday, November 11, 2005, she told the prosecutor that she was fearful because a defense investigator had learned her address, interviewed her and tried to speak with her again (T at 37). The complainant called the prosecutor on Sunday, November 13, 2005, and stated that she would not appear. Then, when the prosecutor called on Monday morning, November 14, 2005, the complainant did not answer the telephone (T at 37-38).
The prosecutor thereupon requested a two-month adjournment. When the Court asked why two months were necessary, the prosecutor stated that she had another case "on November 30th that also has to go to trial . . . [and] has a 30.30 issue" (T at 38). In addition, the prosecutor noted that "for two weeks in December I'm not going to be in the office" (T at 38-39). The Court denied the request for the two-month adjournment, but granted a continuance until the following day. Observing that the defense lawyer had a prior commitment in any event for the next morning, the Court scheduled the matter to be heard at 2:15 p.m. on November 15, 2005, which would give the People "a day and a half to find your complainant and figure out what you want to do" (T at 40). Absent from the People's application was any statement about the availability of the purported eyewitness whose alleged identification of defendant was the subject of Sergeant Rivers' testimony during the Wade hearing and whose opportunity to see defendant during the alleged crime would constitute a major focus of the independent source hearing.
On November 15, 2005, the People announced that they were not ready to proceed. The prosecutor stated that she and Sergeant Rivers went to the complaining witness' home the preceding evening in an effort to serve her with a subpoena. The prosecutor stated, "Although I could hear some noise inside of the apartment, [the complainant] did not open the door." Noting that "the mail was being delivered by the mailman," the prosecutor told the Court that "we did place the subpoena in her mailbox directing her to come to your courtroom today." Nevertheless, the complainant did not appear, and, according to the prosecutor, "she did not answer any of my phone calls." The People then asked for an adjournment until January (T at 41-42). The Court denied that request. After a brief recess, defendant executed a waiver of his right to a jury trial (T at 43-44).
Shortly thereafter the prosecutions supervisor appeared in court. The supervisor asked for one of three alternatives: first, an adjournment until January; second, an adjournment to the next day so that a material witness order could be prepared; and third, a stay so that an Article 78 petition could be prepared (T at 48-49). Upon hearing from defendant's counsel, the Court learned for the first time that the alleged visit from the defense investigator had occurred substantially earlier perhaps even a year earlier, and that the prosecutor had known about it for about three months (T at 50, 56). Nevertheless, although denying the People's request for a two-month adjournment, the Court gave the prosecutor yet another continuance of one full day (T at 57-59).
On November 16, 2005, the prosecutor again requested an adjournment, noting that the People needed the complainant in order to complete the independent source hearing. The prosecutor then stated that the Court essentially would be granting a trial order of dismissal if it forced the People to go forward. Conspicuously absent from the People's presentation at that time was a request for a material witness order one of the items for which the supervisor had sought the one-day adjournment on the previous day. (T at 60-63). In any event, the Court denied the request for the adjournment noting, among other things, that the People must have known all along that they would need the complainant to testify at the independent source hearing, for they introduced no proof regarding the photo array that she had supposedly viewed (T at 63-66). Nevertheless, the Court sua sponte agreed to reopen the matter of the independent source in the event that the complainant materialized during the trial.
At that point, the Court invited the People to deliver their opening statement, and the prosecutor declined (T at 66-69). The Court construed this as a waiver of the right to make an opening statement and then directed the People to call a witness (T at 69). The prosecutor implied that her understanding was that the matter had been scheduled only for the independent source hearing, for which she had planned to present the complainant (T at 69-70). Observing that the prosecutor had given notice of four potential witnesses, the Court adjourned the matter for the following morning and directed the People to have the other witnesses ready (T at 70).
Defense counsel moved for a trial order of dismissal, and the Court denied the application (T at 72).
On November 17, 2005, the matter was called at 9:50 a.m. The prosecutor asked for a recess until 10:30 a.m. The Court asked whether a witness would appear at that time. The prosecutor said "no," and told the Court that she was asking for the recess "[b]ecause my supervisor wants to come over." The Court denied that request, and told the prosecutor, "You may call a witness." The People stated that they had no witnesses to call and did not anticipate having any evidence to present on that day (T at 73-75). The Court then asked whether the defendant would like to call any witnesses, at which point defense counsel moved for a trial order of dismissal. When the People were invited to respond, the prosecutor took the position that the trial had not yet started for double jeopardy purposes because no witness had been sworn. After hearing arguments from both sides, the Court adjourned the case until November 28, 2005 (T at 75-80A).
By November 28, 2005, the Court had received memoranda from both sides in letter form. On that date, the Court formally closed the suppression hearing, granted the motion to suppress the identification testimony, and granted the motion for trial order of dismissal (T at 83).
FINDINGS OF FACT
The Court found Sergeant Anthony Rivers to be credible, and credits his testimony in all material respects.
Sergeant Rivers, has been employed in the New York City Police Department for a little more than 17 years, has been a sergeant for three years and is assigned to the 49th Precinct in the Bronx (T at 4). On November 7, 2003, at about 7:40 a.m., the sergeant was driving alone in a marked police car when he received a radio transmission stating that a woman was being assaulted on Eastchester Road, and that Police Officers Haas and Troy were responding to the scene. Later, another radio transmission reflected that Officer Haas had spoken to the complainant and a witness, and that the alleged assault actually was a robbery (T at 4-6, 12, 22). Sergeant Rivers' recollection of the description of the perpetrator was as follows: "I believe it was blue jeans, something of that sort. I don't know exactly. It was a baseball cap" or "some sort of hat" (T at 6, 13).
Sergeant Rivers, who was about two blocks away from the alleged incident, saw a person who, he believed, matched the description. The Sergeant approached defendant and told him that he "needed to detain him shortly so that we can clear up a matter" (T at 6-7, 13-16). At the sergeant's direction, defendant stepped out into the street, and, shortly thereafter, a police car arrived. Inside that car were Officers Haas and Troy and a "male Latino" witness, who was in the back seat. The witness said, "That's him right there" (T at 7, 17-21). The sergeant then arrested defendant because it was his "understanding" that the witness had "actually witnessed the entire crime that took place." The sergeant received that information from the other officers and never spoke to the complainant directly himself; in addition, other than hearing the words "that's him right there," the sergeant never communicated with the witness. Nor did the sergeant know what, if anything, was said to the witness by the other officers before he pointed out defendant from the back seat of the police car (T at 8, 19-21).
CONCLUSIONS OF LAW
The People have the initial burden of presenting evidence to show that an identification procedure was lawful. See, e.g., People v. Dodt, 61 NY2d 408, 415 (1984); People v. Berrios, 28 NY2d 361, 367 (1971). If that burden is met, the defendant must prove, by a preponderance of the evidence, that the identification procedure was unduly suggestive or was the product of an illegal detention. See, e.g., People v. Gethers, 86 NY2d 159, 162 (1995); People v. Rahming, 26 NY2d 411, 416 (1970). If the defendant meets that burden, the People must establish an independent source for any subsequent in-court identification by clear and convincing evidence. See, e.g., United States v. Wade, 388 U.S. 218 (1967); People v. James, 67 NY2d 662, 664 (1986); People v. Dodt, 61 NY2d at 417; People v. Rahming, 26 NY2d at 416.
As to the identification by the "male Latino" witness, defense counsel conceded that Sergeant Rivers had a right to briefly detain defendant for the purpose of determining whether he fit the description that had been broadcast over the radio (T at 30). Here, however, the People did not meet their burden of going forward with credible evidence tending to show that the information possessed by Rivers concerning the crime and the description of the alleged perpetrator was sufficient to permit the sergeant to hold defendant for the purpose of displaying him to the witness. Moreover, even if Rivers had sufficient information to detain defendant for that purpose, the People did not meet their burden of going forward with proof tending to establish that the subsequent "show up" was reasonable under the circumstances and not unduly suggestive.
According to Rivers' testimony, the information supplied during the radio transmissions reflected that someone had been "robbed" by a person wearing a "baseball cap" or "some sort of hat" (T at 6, 13). Although Rivers initially suggested that the transmission described the perpetrator as wearing "blue jeans" or "something of that sort," he immediately conceded that he did not really know this to be the case (T at 6). In situations in which the police are acting upon information supplied by other officers over a radio, the reliability of the data is presumed, but its sufficiency is not. See, e.g., People v. Skinner, 220 AD2d 350, 351 (1st Dept. 1995), appeal denied, 87 NY2d 1025 (1996). In other words, an adequate description must be supplied to the suppression court during the hearing so that the judge can make his or her "own independent determination" that the defendant did, in fact, match the description. People v. Dodt, 61 NY2d at 415.
Indeed, as the Court of Appeals held more than 20 years ago in Dodt, "summary statements" that the defendant matched the description just do not suffice to meet the People's burden of going forward. Id. at 415-16. Sergeant Rivers' inability to recall a useful description beyond "some sort of hat" which, after all, could apply to nearly anyone on a November morning in the Bronx requires the Court to conclude that the People have not met their burden of going forward with proof to establish the lawfulness of defendant's detention for the purpose of displaying him to the alleged eyewitness. This being the case, the motion to suppress must be granted as to the show up identification by the eyewitness, and any in-court identification by that witness would have to be preceded by a finding of an independent source. See, e.g., People v. Gethers, 86 NY2d at 161-62; People v. Dodt, 61 NY2d at 417.
Moreover, even if the People had met their burden of going forward as to the detention, the Court would be required to suppress and order an independent source hearing in any event, for the prosecution did not meet their burden of going forward as to the show up itself. In People v. Ortiz, 90 NY2d 533, 537 (1997), the Court of Appeals has provided guidance concerning the allocation of proof concerning show up identifications. The Court stated:
Showup identifications are disfavored, since they are suggestive by their very nature . . . Nevertheless, prompt showup identifications which are conducted in close geographic and temporal proximity to the crime are not presumptively infirm,' and in fact have generally been allowed . . . This is not to say that showup identifications are routinely admissible. Indeed, while in Duuvon this Court upheld the admissibility of identification testimony resulting from a showup, we emphasized there that the proof must be scrutinized very carefully for [evidence of] unacceptable suggestiveness and unreliability' . . . Where there is no effort to make the least provision for a reliable identification and the combined result of the procedures employed' establish that the showup was unduly suggestive, the identification must be suppressed . . .
While the defendant bears the ultimate burden of proving that a showup procedure is unduly suggestive and subject to suppression, the burden is on the People first to produce evidence validating the admission of such evidence. Initially, the People must demonstrate that the showup was reasonable under the circumstances. The People also have the burden of producing some evidence relating to the showup itself, in order to demonstrate that the procedure was not unduly suggestive . . . the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure'[emphasis added]; see also People v. Riley, 70 NY2d 523, 531.
Here, the Court could infer, based upon Rivers' testimony, that the show up occurred in close temporal proximity to the second radio run because the sergeant testified that it was a "short" period. There was no testimony, however, establishing the length of time between the crime itself, the first radio run, and then the second radio run. It appears, from Rivers' testimony, that Officers Haas and Troy located the complainant and then the witness and interviewed them both; the length of time this took is not entirely clear. The Court also has no evidence whatsoever tending to show a lack of suggestiveness. The Court has no clue as to what might have been said to the alleged eyewitness before Officers Haas and Troy drove him to the scene where Sergeant Rivers was holding defendant. The People have not met their burden of going forward concerning the show up.
The evidence concerning the photo array is even less sparse. In fact, it is nonexistent. It appears from the motion papers that the complaining witness viewed a photo array and identified defendant's picture. At the hearing, the People did not introduce the photo array into evidence for inspection by the Court and introduced no proof whatsoever concerning the circumstances surrounding the viewing of the photo array. This being the case, the Court had no choice but to suppress and order an independent source hearing. See, e.g., People v. Holmes, 202 AD2d 1011, 1012 (4th Dept.), appeal denied, 83 NY2d 911 (1994); People v. Jerome, 111 AD2d 874 (2nd Dept.), appeal denied, 66 NY2d 764 (1985).
Finally, as to both the complainant and the eyewitness, the Court firmly believes that the People reasonably should have anticipated that an independent source hearing would be required in this case. After all, the People, having answered "ready" for hearing and trial in the "motion and conference part," undoubtedly knew that they were not going to introduce any evidence concerning the photo array at the Wade hearing. This being true, they must have expected, when they began the hearing on November 9, 2005, that the complainant would be needed to testify at an independent source hearing. Hence, the fact that the People spoke to their complainant two days later and learned only then about her reluctance to testify based upon events that had occurred months earlier is completely mystifying. Equally beyond comprehension is the People's failure either to call the alleged eyewitness or to explain his absence in seeking an adjournment of the independent source hearing. After all, there was no claim that he had become reluctant to testify. Given that his show up identification was the centerpiece of the People's case at the Wade/Dunaway hearing, the fact that he was left conspicuously unmentioned during numerous colloquies about the adjournment applications is wholly surprising.
Since the law is clear that it was the prosecution's burden to establish, by clear and convincing evidence, that each of these two witnesses would provide identification testimony from a source other than the photo array and show up procedures involved in this case [ see, e.g., People v. Chipp, 75 NY2d 335], the Court has little choice but to suppress in light of the People's failure to meet their burden during the independent source hearing. The motions to suppress are granted in all respects.
THE TRIAL ORDER OF DISMISSAL
As noted above, the People stated their readiness for "hearing and trial" in another part of this Court. It is now clear that the prosecutor was prepared to present only the testimony of Sergeant Rivers on the Wade/Dunaway hearing. Therefore, the People presumably must have known on November 9, 2005 two years and two days after defendant's arrest that they were not going to present evidence concerning the photo array and that, as a consequence, they would need a competent witness to establish an independent source prior to the complainant making an in court identification of the defendant. Yet, they evidently waited until after the hearing to alert the complainant and, as is now clear, they learned that, based on events that occurred months earlier, their witness had become reluctant to appear.
Then, after seeking and obtaining several one-day continuances for the purpose of attempting to contact the complainant and submitting a material witness order (which never was forthcoming), the People were told that there would be no further adjournments, and that they would be required to proceed. Had defendant not waived a jury, there is little doubt that this Court could have selected a jury with or without the prosecutor's participation. See Matter of Hynes v. George, 76 NY2d 500, 504-06 (1990). Jeopardy clearly would have attached [ see CPL § 40.30(1)(b)], the prosecutor could have been required to open and present evidence [ see CPL § 260.30(3) (5)], and upon a failure of proof, the Court could have issued a trial order of dismissal. See CPL § 290.10(1). Here, however, because defendant opted to waive his right to a trial by jury, the People attempt to exploit that waiver and urge the Court that it was powerless to issue a trial order of dismissal under the authority of Matter of Holtzman v. Goldman, 71 NY2d 564 (1988). The Court does not find merit with this position.
First, as the decision in Hynes squarely holds, the Court has the right to require the People to proceed. Second, Hynes itself distinguished Holtzman because the judge in the latter case simply defaulted the People, using the trial order of dismissal device, despite their protestations from the very beginning that they were not ready to proceed. Here, the situation was dramatically different. The People not only answered ready before me, but actually proceeded to a hearing. By the time the hearing had concluded, both sides were ready to proceed and fully expected to appear the following Monday for jury selection, unless the defendant opted for a bench trial, a matter that had already been discussed. And, it was only their apparent failure to communicate with their complainant that led to the surprise announcement on Monday morning that the People could not follow through with the events that they themselves had set in motion.
This is yet another distinction from Holtzman. While the matter is not absolutely clear from the Court of Appeals' opinion, it appears that the judge in Holtzman may have encouraged the jury trial waiver by announcing that he was going to require the People to proceed. See 71 NY2d at 567-68.
Under the circumstances, the Court had every right to require the People to proceed. Yet, rather than doing so immediately, the Court gave the prosecutor several one-day continuances to give the People an opportunity to change the complainant's mind or, in the alternative, to obtain a material witness order. Although the Court stood ready to issue such process on the People's application, the prosecutor never sought such assistance, choosing instead repeatedly to request two-month adjournments. Eventually, of course, the Court required the People to proceed. And, when they failed to open or present any evidence, the Court simply issued a ruling that occurs as a matter of course whenever the proof is insufficient as a matter of law a trial order of dismissal. Although the procedural device used in Holtzman bears the same name as the order involved here, the facts of this case demonstrate that the situation before this court is analytically indistinguishable from that posed in Hynes. The Court therefore concludes that this case is governed by Hynes, not the Holtzman decision. For the foregoing reasons, the Court adheres to its decision granting the trial order of dismissal.
The foregoing constitutes the Decision and Order of this Court.