Opinion
Index No. 2023-50362
02-14-2023
The People of the State of New York, v. Cecil Lloyd II, Defendant.
For the People: Melinda Katz, District Attorney, Queens County (Nicholas Balboni, Esq., Of Counsel) For the Defendant: Matthew Thomas, Esq.
Unpublished Opinion
For the People: Melinda Katz, District Attorney, Queens County (Nicholas Balboni, Esq., Of Counsel)
For the Defendant: Matthew Thomas, Esq.
Cassandra M. Mullen, J.
The defendant is charged with Attempted Robbery in the First Degree [P.L. § 110/160.15(4)], two counts of Criminal Possession of a Weapon in the Second Degree [P.L. § 265.03(3) and 265.03(1)(B), respectively], and Menacing in the Second Degree [P.L. § 120.14(1)]. He has moved for an order: (1) finding that the police lacked probable cause to arrest the defendant and therefore any resulting evidence should be suppressed as fruits of the poisonous tree; (2) suppressing physical evidence as the result of an unlawful search and seizure; (3) suppressing identification testimony, contending that the pretrial identification procedure was unduly suggestive; and (4) suppressing statement evidence, contending that the defendant's statements were obtained as the result of an unlawful custodial interrogation.
A Mapp/ Huntley/ Dunaway/Wade hearing was held before this Court on February 7, 2023. The People called two witnesses at the hearing, PO Michael Devonish and PO Jaime Pinero.
On January 20, 2023, the defendant filed a Post-Hearing Motion to Suppress, moving, in addition to above, for a discovery sanction striking PO Devonish's testimony. The People declined to file a response, and instead relied on the hearing record.
Findings of Fact
PO Michael Devonish, of the NYPD 114th Precinct, testified that on March 20, 2022, at around 4:20 am, while he was on routine patrol in an unmarked police vehicle, he and Lieutenant Deschamps responded to a 911 call in the vicinity of 31st Avenue and 45th Street in Astoria, Queens, NY. When he arrived at the location, a male Hispanic came to the passenger side of the police vehicle and reported that someone displayed a gun at him, specifically the extended magazine, and that the person was around the corner in a vehicle.
PO Devonish further testified that he asked the witness to come into his car to show them where the vehicle was, but the witness stated he will go there in his car and will point out the vehicle when he sees it. The witness then turned onto 45th Street, stopped in front of a black Dodge Charger, and while pointing at the vehicle with his left hand stated, "that is the car with the person with the gun." PO Devonish stopped in front of the car, and he and Lieutenant Deschamps exited the vehicle, approached the driver's side, and called for and additional police car as there were multiple people inside. PO Devonish described the defendant as seated in the rear passenger side.
The individuals were asked to exit the vehicle. The defendant was placed into handcuffs at that time. PO Rossi stated that there was a gun in the car. PO Devonish testified that while on scene, after individuals were placed into custody, he also observed the gun in the vehicle, by looking into the rear passenger side with a flashlight. The firearm remained in the vehicle until members of the NYPD Evidence Collection Team arrived on scene and make the firearm safe. PO Devonish learned from the officer who handled the firearm that it was loaded.
Once the individuals from the car were all placed under arrest, PO Devonish continued speaking to the complainant, Mr. Molina. Mr. Molina reported that he was walking to his car with his friend when the defendant approached Mr. Molina, stated that Mr. Molina owes the defendant $200, and brandished a firearm, at which point Mr. Molina ran to his car with his friends.
PO Jaime Pinero, also of the NYPD 114th Precinct, testified that on March 20, 2022, at approximately 4:20 am, while he was on routine patrol, he responded to a 911 call at 45th Street and 31st Avenue, in Astoria, Queens County, NY. He stated that when he arrived at the location, he observed several officers standing at the back passenger door of a black Dodge Charger that was occupied by five people. At that point, PO Pinero assisted Lieutenant Deschamps in removing the defendant from the rear passenger seat of the vehicle and placing the defendant in handcuffs. Immediately after placing the defendant in handcuffs and walking off to the side with the defendant, PO Pinero heard PO Rossi state that there was a firearm in the floorboard of the vehicle.
At that time, Lieutenant Deschamps walked away while PO Pinero waited with the defendant. Lieutenant Deschamps soon returned and instructed PO Pinero to walk the defendant to the front of the RMP to conduct a show up. While PO Pinero stood with the defendant in front of the RMP, Lieutenant Deschamps walked to another vehicle that contained the complainant and the other witnesses and shined a flashlight on the defendant. Lieutenant Deschamps then proceeded back to PO Pinero, advised him there was positive identification of the defendant, and instructed him to place the defendant in the back of the police car.
The defendant was transported to the 114th Precinct for arrest processing. PO Devonish drove the vehicle back to the precinct, with the firearm inside. On a video-taped statement with PO Devonish present, a detective from the 114th Precinct advised the defendant of his Miranda warnings and spoke to him about the incident.
The video-taped statement from the 114th Precinct was offered into evidence as People's Exhibit 1. PO Devonish's body-worn camera video was offered into evidence as People's Exhibit 2.
Conclusions of Law
A. Legality of Defendant's Arrest
The police have probable cause to arrest an individual when they have "information sufficient to support a reasonable belief that an offense has been [committed] or is being committed or that evidence of a crime may be found in a certain place." People v. Jones, 202 A.D.3d 821, 825 [2d Dept. 2022]. While mere suspicion or conduct equally susceptible to innocent or culpable interpretation is not sufficient, probable cause does not require proof beyond a reasonable doubt. People v. Guthrie, 25 N.Y.3d 130, 133 [2015]; People v. Alexander, 200 A.D.3d 790 [2d Dept. 2021], lv denied 37 N.Y.3d 1159 [2022]; People v. Kamenev, 179 A.D.3d 837 [2d Dept. 2020], lv denied 35 N.Y.3d 1027 [2020]. It is well settled that a "witness's identification of [a] defendant at a photographic array furnishe[s] probable cause for his arrest." People v. Ballinger, 62 A.D.3d 895 [2d Dept. 2009], lv denied 13 N.Y.3d 794 [2009]; People v. Pena, 95 A.D.3d 541 [1st Dept. 2012]; People v. Walton, 309 A.D.2d 956 [2d Dept. 2003].
Considering the totality of the circumstances (People v. Geddes, 171 A.D.3d 1210 [2d Dept. 2019], lv denied 33 N.Y.3d 1069 [2019]), the firsthand information obtained from the complainant, the officers' observations, the defendant's location in the vehicle, and the firearm recovered in the vehicle, the People sufficiently established probable cause for defendant's arrest. People v. Edmondson, 191 A.D.3d 1015 [2d Dept. 2021], lv denied 36 N.Y.3d 1119 [2021]; People v. Brown, 180 A.D.3d 1063 [2d Dept. 2020], lv denied 35 N.Y.3d 968 [2020]; People v. Mendoza, 49 A.D.3d 559 [2d Dept. 2008].
B. Suppression of Physical Evidence
The next issue before the Court is the admissibility of the firearm recovered from the back passenger seat of the vehicle. When a defendant moves to suppress physical evidence, the People "have the burden of going forward to show the legality of the police conduct in the first instance" (People v. Knight, 205 A.D.3d 928, 929 [2d Dept. 2022], appeal dismissed 38 N.Y.3d 1151)]. Once the People meet this burden, the defendant "bears the ultimate burden of proving the illegality of the search and seizure" People v. Lewis, 208 A.D.3d 595 [2d Dept 2022]; People v. Julien, 201 A.D.3d 948 [2d Dept. 2022], lv denied 38 N.Y.3d 951 [2022]).
The Court of Appeals has noted that the search of an automobile is less intrusive than the search of one's person or home because one has a lesser expectation of privacy in an automobile than in one's home. People v. Kreichman, 37 N.Y.2d 693 (1975). The Court of Appeals has therefore also held that an officer's simple "peering inside an automobile does not constitute a search." People v. Class, 63 N.Y.2d 491, 494 (1984), rev'd, 475 U.S. 106, on remand, 67 N.Y.2d 431 (1986). Furthermore, under the automobile exception to the search warrant requirement, the police may search a vehicle and any containers found inside when they have probable cause to believe that it contains contraband, a weapon, or evidence of a crime. Pennsylvania v. Labron, 518 U.S. 938 (1996); Maryland v. Dyson, 527 U.S. 465 (1999).
An officer may stop a vehicle to investigate criminal activity when he has a reasonable suspicion that its occupants have been, or are about to engage in conduct in violation of the law. People v. Sobotker, 43 N.Y.2d 559 (1978). Furthermore, the police can seize contraband, evidence, or instrumentalities of a crime when these items are in open view and the officer makes his observations from a lawful vantage point. People v. Spinelli, 36 N.Y.2d 77 (1974). When items are seized in plain view, it must be immediately apparent to the officer that the items are evidence of a crime, contraband, or otherwise subject to seizure. An officer may use aids, such a flashlight to enhance his ordinary sense perception, provided that the officer has a right to be present at the site of the invasive activity. People v. Rudasil, 43 N.Y.2d 789 (1977).
In order to "forcibly or constructively stop an individual," the police must have "reasonable suspicion that the person is involved in criminal acts or poses some danger to the officers." People v Harrison, 57 N.Y.2d 470, 476 [1982]; see also People v De Bour, 40 N.Y.2d 210 [1976]. Thus, where a vehicle is lawfully parked on the street, a police officer's "directive to a defendant [sitting therein] to exit a lawfully parked vehicle must be based upon a reasonable belief that the defendant was, in fact, involved in criminal acts or that he posed some danger to the officer." People v. Eugenio, 185 A.D.3d 1050, 1051-1052 [2d Dept. 2020]. Further, "without additional grounds for suspicion, it is improper for police to direct occupants out of a parked car." People v. Thomas, 275 A.D.2d 276, 278 [1st Dept. 2000], lv denied 95 N.Y.2d 939 [2000]. Reasonable suspicion has been defined as the "quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe criminal activity is at hand." People v Ahmad, 193 A.D.3d 961, 962 [2d Dept. 2021].
In this case, the Court concludes that the police had both an objective credible reason to approach the vehicle, and reasonable suspicion to stop the occupants of the car and order them out of the car. The testimony sufficiently establishes that PO Rossi observed the firearm in plain view after the defendant had been removed from the car and placed into handcuffs for officer safety. People v. Allen, 73 N.Y.2d 378 (1989) (finding the police officers were entitled to handcuff defendant to effect his nonarrest detention in order to ensure their own safety).
Therefore, the defendant's motion to suppress the firearm is denied.
C. Suppression of Identification Testimony
The next issue is the admissibility of the Mr. Molina's identification testimony. When a defendant seeks to suppress identification evidence, the People bear the initial burden of "establishing the reasonableness of the police conduct and the lack of any undue suggestiveness." People v. Sosa-Marquez, 177 A.D.3d 1003, 1004 [2d Dept. 2019]. Once the People meet this burden, the defendant "bears the ultimate burden of proving that a pretrial identification procedure was unduly suggestive." People v. McDonald, 138 A.D.3d 1027, 1028 [2d Dept. 2016].
The showup or identification evidence must be scrutinized very carefully for unacceptable suggestiveness or unreliability. People v. Ortiz, 90 N.Y.2d 533 (1997); People v. Duuvon, 77 N.Y.2d 541 (1991). The identification must be suppressed where no effort is made to provide for a reliable identification and the combined result of the procedures employed establish that the showup was unduly suggestive. Ortiz, at 533. The admission or suppression of these street showup protocols turns on specific and varying circumstances in individual cases. Duuvon, at 541. § 74:6. Showups, 4 Criminal Procedure in New York § 74:6 (2d).
In assessing whether a showup is "unduly suggestive," courts consider factors such as whether the suspect is in police custody, suggestive remarks by the police and comments that a suspect was detained. A showup identification of defendant by a citizen-informant was unduly suggestive, where police told the informant beforehand that "they had gotten the person" and "needed to make sure" it was the person he had seen. People v. McNeil, 834 N.Y.S.2d 99 , appeal after new trial 881 N.Y.S.2d 417, leave to appeal denied 13 N.Y.3d 861, habeas corpus dismissed 2019 WL 1897750.
The fact that a showup identification is conducted with the defendant sitting in the back of a police car is not necessarily unduly suggestive, nor is the fact that the suspect is standing next to a police car, particularly an unmarked car. Also, other indicia of the suspect being in police custody, such as the presence of uniformed officers standing next to the suspect, do not necessarily constitute undue suggestiveness. 31 Carmody-Wait 2d § 174:40
However, a show-up at which the defendant was identified by the complainant was unduly suggestive where the complainant was able to hear a police radio bulletin indicating that the automobile had been located and that two men were being held, and the show-up took place while the defendant and the codefendant were handcuffed and standing together next to the automobile surrounded by other police officers. People v. Francis, 303 A.D.2d 598 [2d Dept. 2003]. A showup identification of the defendant resulted from an unduly suggestive procedure where not only is the defendant flanked by plainclothes police officers, but the arresting police officer also tells the witness to look in the "general direction" of the defendant while a light that described as a "take down" light or "alley" light is shining on the defendant. People v. Dubinsky, 289 A.D.2d 415 [2nd Dept. 2001].
Here, the People failed to meet their burden of establishing that the showup identification by the complainant was proper and was not unduly suggestive. As a starting point, the People did not present the proper witness at the hearing, specifically a witness who was able to testify to any firsthand knowledge of how the showup was conducted. PO Devonish and PO Pinero both testified that Lieutenant Deschamps conducted the showup. Neither of them was able to testify to what Lieutenant Deschamps said or asked of the complainant during the showup, nor were they able to testify to how the complainant responded.
To the contrary, the defense presented Lieutenant Deschamp's body camera video in which Lieutenant Deschamps advised the complainant that a firearm was recovered, and stated during the showup, "that's him right there, look," while simultaneously shining a flashlight on the defendant. Additionally, the defendant was handcuffed when he was displayed to the witnesses, he was in front of a police car with flashing police lights, and the defendant was displayed to four witnesses simultaneously. Furthermore, the complainant was advised that a firearm was recovered in the vehicle. While each of these facts alone would not necessarily deem the showup unduly suggestive, the Court finds that all of them, when taken together, collectively contributed to an unduly suggestive identification procedure that created a substantial likelihood of misidentification. In fact, such suggestiveness is further belied by the fact that the defendant did not match the physical description of the person initially described for the robbery.
Lieutenant Deschamp's body camera video was offered into evidence as Defense Exhibit A.
Notwithstanding the above, once a pretrial identification has been suppressed as tainted, a pretrial determination must be made as to whether the witness has an independent source for an in-court identification . People v. Sheffield, 185 A.D.2d 256, 257, [2d Dept. 1992]; People v. Burts, 571 N.Y.S.2d 418 (1991).
Therefore, the defendant's motion to suppress the identification is held in abeyance subject to an independent source hearing.
D. Suppression of Defendant's Statements
1. Statements Made at the Scene
When a defendant is the subject of a custodial interrogation by the police, it is well-settled that the police must administer Miranda warnings to the defendant. People v. Paulman, 5 N.Y.3d 122 [2005]; see also Miranda v. Arizona, 384 U.S. 436 [1966]. However, statements by a defendant that are "spontaneous and not the product of custodial interrogation or its functional equivalent" are admissible despite the lack of Miranda warnings. People v. Roper, 208 A.D.2d 571, 571 [2d Dept. 1994]; People v Latimer, 75 A.D.3d 562, 563 [2d Dept. 2010]; People v Tyrell, 67 A.D.3d 827, 828 [2d Dept. 2009] ("Volunteered statements are admissible provided the defendant spoke with genuine spontaneity and not the result of inducement, provocation, encouragement or acquiescence"); People v. Hinds, 13 A.D.3d 554, 554 [2d Dept. 2004]. Similarly, statements overheard by the police are generally not subject to suppression unless they are the "product of police activity" (People v. Giddens, 161 A.D.3d 1191, 1193 [2d Dept 2018]) or "attributable to police suggestion, prompting, or other misconduct." People v. Eldridge, 213 A.D.2d 667, 668 [2d Dept 1995].
Here, PO Pinero testified that while he was placing the defendant in the back of the police car, the defendant stated that whatever the police find in the car is his. Such statement was spontaneous rather than the product of police activity or suggestion. See People v. Rada, 177 A.D.3d 558 [1st Dept 2019], lv denied 34 N.Y.3d 1162 (2020) (arrested defendant's statement to victim was not subject to suppression); People v. Cascio, 79 A.D.3d 1809, 1811 [4th Dept. 2010] ("Defendant was aware of the detective's presence throughout the conversation, and he nevertheless spoke freely and unguardedly"); People v. Cooper, 38 A.D.3d 678 [2d Dept. 2007](defendant's statement in the presence of police not subject suppression); People v. Pierre, 241 A.D.2d 559 [2d Dept 1997], appeal denied 91 N.Y.2d 878 (1997) (statement that was overheard by detective was admissible). Accordingly, defendant's motion to suppress this statement is denied.
2. Statements Made at Police Precinct
Miranda rights can be waived by the defendant provided that such waiver is made "knowingly, intelligently, and voluntarily." People v. Stevens, 203 A.D.3d 1181 [2d Dept. 2022]. Such a waiver is determined "upon an inquiry into the totality of the circumstances surrounding the interrogation, including an evaluation of the defendant's age, experience, education, background, and intelligence." People v. Santos, 112 A.D.3d 757, 758 [2d Dept. 2013]. The People bear the burden of establishing, beyond a reasonable doubt, that defendant voluntarily waived those rights. People v. Smith, 199 A.D.3d 1023 [2d Dept. 2021]. However, where a defendant unequivocally requests the assistance of counsel, the police may not question the defendant outside the presence of his attorney. People v Dawson, - N.Y.3d -, 2022 NY Slip Op. 02772 [2022].
Here, the squad detective read the defendant Miranda warnings and he freely agreed to speak with the police after acknowledging that he understood his rights. The detective did not pressure or coerce defendant to waive his rights and there is no evidence that the defendant, under all the circumstances, failed to understand the nature of his waiver.
The defendant argues in his post-hearing motion that the statement should be suppressed because the defendant was in custody in the holding cells of the 114th precinct for seven to eight hours prior to being questioned by the police. However, the amount of time spent at the precinct is not, in itself dispositive, nor is seven to eight hours considered to be an unreasonable amount of time. See People v. Gega, 74 A.D.3d 1129 [2d Dept. 2010] ("The record supports the Supreme Court's determination that, under the circumstances here, the defendant's statements, made 25 hours after last receiving his Miranda warnings, were not involuntary.")
Therefore, the branch of the defendant's motion to suppress his video-taped statement at the precinct is denied.
Decision of the Court
Based upon the foregoing, the branch of the defendant's seeking to suppress physical evidence is denied.
The branch of defendant's motion seeking to suppress the identification procedure is held in abeyance, subject to an independent source hearing.
The branch of the defendant's motion seeking suppression of the defendant's statements to PO Pinero is granted, except as to the statement, "whatever we find in the car, is mine." As to that portion of the statement, the motion is denied. As to any statements to PO Pinero not elicited by the People at the hearing, the motion is granted.
The branch of the defendant's motion seeking suppression of the defendant's statement to Lieutenant Deschamps is granted, as the People presented no evidence as to that statement.
The branch of the defendant's motion seeking suppression of the defendant's video-taped at the precinct statement is denied.
The branch of the defendant's motion moving to strike PO Devonish's hearing testimony is denied. The defendant may address any remaining discovery sanctions with the trial judge.
This constitutes the decision and order of the Court.
The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.