Opinion
Indictment No. 01384-2014
01-19-2016
THE PEOPLE OF THE STATE OF NEW YORK v. TERRELL MILLER Defendant.
APPEARANCES: Michael J. Flaherty, Jr., Acting Erie County District Attorney Paul E. Bonanno, Esq., Assistant District Attorney Appearing for the People Joseph Terranova, Esq. Appearing for the Defendant
DECISION AND ORDER APPEARANCES: Michael J. Flaherty, Jr., Acting Erie County District Attorney
Paul E. Bonanno , Esq., Assistant District Attorney
Appearing for the People Joseph Terranova , Esq.
Appearing for the Defendant Case , J.
In his Omnibus Motion, the Defendant requested an Order suppressing at trial the People's use of certain statements that he made to a members of law enforcement during the course of their investigation, along with any identification testimony that may be given by a witness who previously identified him during a police-arranged identification procedure. Based upon the evidence presented at an evidentiary hearing conducted on November 12, 2015, the Defendant's motions to suppress are hereby denied.
FINDINGS OF FACT
On August 3, 3014, at approximately 7:30 p.m., Cheektowaga Police Officer John Jones responded to a 911 call of a burglary at 217 Crocker Street in the Village of Sloan, located in the Town of Cheektowaga. He spoke to the complainant, Nazlie Krasniqi, who informed him that a black male, also accompanied by a white male, entered her house without permission and put a gun to her throat. A neighbor from across the street informed Jones that he heard a scream and saw at least one person run out of Krasniqi's side door and go toward Francis Street. The information was then put out over the police radio.
Cheektowaga Police Officer Jeffrey Filipski also responded to the call and went down Francis Street, which is one street over from Crocker Street. There, he encountered to two men who said they saw a large black male, about 6'3" tall, with a gray hoodie come out of a back yard and head northbound toward Broadway Street. He said to the men: "There's some serious stuff going on back there. . . you need to get out of here." This information was then put out over the police radio.
Cheektowaga Police Officer Christian Wachowiak was patrolling the area with his partner, Officer Scott Leising, when they heard the burglary call at issue. At the time, they were conducting a traffic stop and had just placed the operator of the vehicle in custody when Wachowiak heard the call that the burglary suspects were headed down Francis Street. Wachowiak left his partner in the patrol vehicle and walked on foot down Francis Street to check on some of the yards and canvass the area for witnesses. He spoke to a witness, John Mazur, who saw a white male and a black male run north on Francis. The black male, who wore a gray hoodie, jumped into a large gray or tan SUV with large black or tan rims and skinny tires, and drive eastbound on Broadway. This information was also put out over the police radio.
Officer Leising, having heard this information over the radio, decided to check his vehicle's license plate reader, which is mounted to the outside of the police vehicle. The reader checks the plate numbers of passing vehicles and also records an image of the vehicle, which can be displayed on a laptop inside the patrol vehicle. Leising's patrol vehicle had been pointed in the eastbound direction on Broadway for some time, so he scrolled through the image on his laptop of vehicles that had passed by his patrol car since the burglary had been reported. At 7:35 p.m., Leising saw the image of a vehicle that matched the above description. The plate number on the vehicle came back to a Hailey Hiatt at 102 Roesch Street, Buffalo.
Shortly thereafter, Buffalo Police Officer Frank Gatti heard over the police radio the description of the vehicle and the suspect, and also the address to which the vehicle was registered. As he drove by, he saw the vehicle and a person matching the physical description of the suspect coming out of the house. Gatti exited his patrol vehicle, approached the person (who he identified at the hearing as the Defendant, Terrell Miller), checked him for weapons, and then placed him in the back of his patrol vehicle. This information was also put out over the police radio.
At about 8:30 p.m., Cheektowaga Police Detective Christopher Chojnacki was called into work to investigate the burglary at issue. He drove the complainant, Ms. Krasniqi, to 102 Roesch Street to see if she could identify the Defendant. On the way, he informed her that he wanted her to look at a person of interest, and they he parked about 4 houses away from the Defendant's location. He asked her and her son (who apparently went along to help translate for his mother) to wait in the patrol car. He spoke to Hailey Hiatt briefly, who stated that the SUV belonged to the Defendant, who was her boyfriend. Then he had the Defendant stand in the middle of the street without handcuffs or police officers handling him, and brought Krasniqi to within about thirty feet. He asked her if the Defendant was the person who robbed her. She became visibly shaken and identified the Defendant as the burglar, but then made some comments (through her son) about his facial hair and other physical characteristics not being as she remembered them to be. Chojnacki asked her to return to the patrol car to compose herself. After a few minutes, he conducted the show-up again in the same manner, only Krasniqi stood a little closer this time. She again identified the Defendant, although this time with much less equivocation.
The Defendant was then transported to Cheektowaga Police Headquarters. Chojnacki advised him of his Miranda Rights from a pre-printed card (see People's Exhibit 5). He indicated that he understood his rights and that he was willing to talk to Chojnacki. An interview was conducted, and a recording of the same was placed into evidence as People's Exhibit 6.
CONCLUSIONS OF LAW
A. FIFTH AND SIXTH AMENDMENT PRINCIPLES
The Fifth Amendment to the United States Constitution and Article I, Section 6 of the New York State Constitution precludes the use of confessions or admissions that were made involuntarily. The Sixth Amendment to the United States Constitution prevents the People from introducing an accused's statement if it was elicited in violation of his right to consult with counsel. Collectively, these protections are codified under CPL § 60.45.
In the Fifth Amendment sense, a statement will be deemed "voluntary" when the People demonstrate beyond a reasonable doubt that the Defendant's decision to speak with law enforcement was the "product of his free and rational choice" (Greenwald v. Wisconsin, 390 US 519 [1968], People v. Huntley, 15 NY2d 72 [1965]). More particularly, if the statement was the product of custodial interrogation, the People must establish that the Defendant was "adequately apprised" of his Fifth and Sixth Amendment rights, and that he knowingly and voluntarily waived them prior to the initiation of any questioning (Miranda v. Arizona, 384 US 436 [1966]; Moran v. Burbine, 475 US 412 [1986]). However, once a person in custody unequivocally invokes his Fifth Amendment right to be silent or Sixth Amendment right to counsel, any statements elicited by the police thereafter may be considered "involuntarily made" (People v. Harris, 57 NY2d 335 [1982]; People v. Ferro, 63 NY2d 316 [1984]).
To determine whether a defendant is "in custody" for the these purposes, "the test is . . . what a reasonable man, innocent of any crime, would have thought had he been in the Defendant's position" (People v. Yukl, 25 NY2d 585 [1969]). Interrogation occurs where the investigating officer's inquiries, comments, or actions are "reasonably likely to elicit an incriminating response" (Rhode Island v. Innis, 446 US 291 [1980]; People v. Lynes, 49 NY2d 286 [1980]). An effective waiver of rights will be found only where the "totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension" in the rights being given (Burbine, supra; People v. Cunningham, 49 NY2d 203 [1980]). B. IDENTIFICATION PROCEDURES
The Due Process Clause of the Fifth Amendment to the United States Constitution and Article I, Section Six of the New York State Constitution preclude the prosecution from calling a witness to name the Defendant as the perpetrator of a crime where that witness has previously been exposed to a police arranged pretrial identification procedure that was unduly suggestive (United States v. Wade, 288 US 218 [1933]; People v. Riley 70 NY2d 523 [1987]). An identification procedure is unduly suggestive when it creates a "substantial likelihood that Defendant would be singled out for identification" (People v. Chipp, 75 NY2d 327 [1990]). Suggestiveness can arise from the composition or content of a particular procedure, or by the manner in which it was conducted (People v. Adams, 53 NY2d 241 [1981]). Where an identification procedure is challenged, the People bear the initial burden of establishing that it was not unduly suggestive, and that the investigating officers behaved reasonably in its administration (Chipp, supra). In assessing whether or not the People have satisfied these requirements, the hearing Court will employ a totality of the circumstances analysis (People v. Logan, 25 NY2d 184 [1969]). If the People satisfy this burden, it then becomes incumbent upon the Defendant to establish, by a preponderance of the evidence (see People v. Caple, 31 AD2d 752 [2nd Dept 1969]), that the procedure used created a "substantial likelihood of irreparable misidentification" (People v. Brnja, 50 NY2d 366 [1980]), or that the officer's conduct was unreasonable (Adams, supra). If the Defendant is successful in this regard, the People must then demonstrate by clear and convincing evidence (see People v. Rhamming, 26 NY2d 411 [1970]), that the witness had a separate basis or source, independent of the tainted procedure, by which he can reliably identify the Defendant (Chipp, supra). C. ANALYSIS
Based upon the evidence, the Court finds that the Defendant's statements were voluntarily made pursuant to CPL 60.42. The Defendant was adequately apprised of his Miranda Rights before any questioning began, and his waiver of his right to remain silent was knowingly, intelligently and voluntarily entered into. Detective Chojnacki did not mistreat him before or during the interrogation, and he was offered food and drink. During the course of the interrogation, he appeared to clearly understand the questions being asked, and was cooperative in answering them. At no point did the officers ever threaten or otherwise attempt to coerce the Defendant into making statements. Additionally, at no point did the Defendant ever request to end the interview or to speak to an attorney. The entire interview lasted less than an hour. For these reasons, the statements were lawfully obtained and, thus, shall not be suppressed.
Finally, the show-up identification procedure was not unduly suggestive. The procedure was conducted in close spatial and temporal proximity to the scene of the crime. Furthermore, the show- up was part of an "unbroken chain of events" and an "ongoing investigation" (see People v. Howard, 22 NY3d 888 [2013]). Nothing was said or done to the complainant to suggest the identity of the Defendant, nor was anything done to the Defendant to cast him in a negative light. Therefore, the identification of the Defendant at trial by the complaining witness, Ms. Krasniqi, shall not be suppressed.
WHEREFORE, the Defendant's motions to suppress are DENIED. Dated: January 19, 2016
Buffalo, New York
/s/_________
Hon. Kenneth F. Case, J.C.C.