Opinion
1645/03.
Decided January 19, 2005.
Charles J. Hynes, District Attorney, Kings County, Brooklyn, New York, Nicholas Batsidis, Esq., for the People.
Richard A. Grady, Esq., Brooklyn, New York, for the Defendant.
Defendant was charged with Robbery in the First Degree and related charges. He urged that he had been unlawfully arrested in his home in violation of the rule of Payton v. New York, 445 U.S. 573 (1980) and without probable cause in violation of the rule of Dunaway v. New York, 442 U.S. 200 (1979); that statements made by him and police arranged identifications should therefore be suppressed and, alternatively, should be suppressed because the statements were made involuntarily in violation of the rule of People v. Huntley, 15 NY2d 72 (1965) and that identification procedures were tainted by impermissibly suggestive police conduct.
A hearing was held on July 14, 2004 during which the prosecutor called two witnesses, Police Officer Janice Holmes and Detective Frank Recupero. Defendant presented no testimony.
The motions were denied, except for statements made during a custodial interrogation by Officer Holmes prior to the time defendant was advised of his rights pursuant to the teaching of Miranda v. Arizona, 384 U.S. 436 (1966). The rulings were made based on the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
On February 13, 2003, Detective Frank Recupero of the 88th Precinct began investigations of an attempted robbery of a livery cab driver and an accomplished robbery of a second driver, each of which had occurred in the vicinity of Washington and Greene Avenues. The first complainant, one Mohammed Badri, reported that on February 13, 2003, at 12:30 a.m. he had been flagged down by three Hispanics, two males and a female, which males had then demanded money and hit him over the head with what he thought was a gun. Mr. Badri stated that he had pulled the keys from the ignition, fled the cab and then observed the suspects running towards Washington Avenue.
The second complainant, one Paul Bacon, reported that on February 13, 2003, at 9:30 p.m. he had picked up one Hispanic male on Washington Avenue; that the man then demanded money and beat him over the head with an object; that he had handed the man some money and that the passenger had then left the cab. Mr. Bacon also stated that he had been immediately treated by an Emergency Medical Service (EMS) team that had been parked nearby.
Later the same evening, Detective Recupero interviewed an EMS worker named Edwin Rodriguez who stated that, while working in an ambulance parked in the vicinity of the robbery, he had observed a male Hispanic leave the passenger compartment of a livery cab with folded money in his left hand, that he had seen the man walk towards Greene Avenue and simultaneously had heard the driver, Paul Bacon, screaming for help.
On February 26, 2003, at approximately 8:30 p.m., Police Officer Janice Holmes received a radio call, directing her to proceed to Washington and Greene Avenues where a man had been stabbed. Officer Holmes and her partner, Police Officer Connor, promptly responded and saw the driver of a livery cab, one Chaundry Shariff, bleeding from the head.
Mr. Shariff told Officer Holmes that he had picked up three Hispanic passengers, two males and one female, at Brooklyn Hospital and brought them to the vicinity of 407 Washington Avenue. He further stated that upon leaving the taxi, the female passenger had said to Mr. Shariff, "Just give us the money," at which time one of the male passengers had grabbed his arm and rifled through his pockets. Simultaneously the second male hit him with a cane, he said, but no money or other property had been taken. According to Mr. Shariff, the three then ran into 407 Washington Avenue. Mr. Shariff also told Officer Holmes that he thought he also had been stabbed.
The Washington Avenue address is a three story residential apartment building containing at least six apartments, to which Officer Holmes had previously responded two or three times regarding domestic disputes involving people whose descriptions were generally similar to those given to her by the bleeding driver. Officers Holmes and Connor immediately entered that building and proceeded to the first apartment on the right, the same apartment to which Officer Holmes had previously responded. They knocked on the door of the apartment, but got no response other than the sound of a dog barking inside. They then knocked on the door of the apartment across the hall. A man in a wheelchair opened that door and told the officers that he had not seen his neighbor from across the hall that evening; that she had gone to the hospital a few days earlier.
The officers returned to the right front apartment and resumed knocking on the door, at which point a third officer told them that, from outside, through a window he had seen people inside the apartment. Officer Holmes then stated through the closed door that it would be taken down if the door was not opened.
At that point, codefendant Nelson Sanabria opened the door and defendant Karlos Ramos, without further action or direction from the officers, stepped out into the first floor hallway and yelled "They had a fight; it was self defense." Nelson Sanabria then said, "He hit him so he hit him back." Officer Holmes then observed the female whom she had previously known by the name "Sarah" — one Syrita Vegerano — inside the apartment.
While in the hallway defendant Ramos continued to make statements to the effect that the driver had hit him and he had hit the driver back in self defense. Officer Holmes then said, "Let's see if it's you," and escorted defendant unhandcuffed outside to an ambulance in which the driver was receiving medical care from the EMS crew. Mr. Shariff then viewed defendant and said "Yes, that's the one that hit me with the stick."
The same identification procedure was repeated with Nelson Sanabria and Syrita Vegerano, and each was identified as one of the culprits. Each of the three identifications occurred about thirty minutes after the police officers had arrived at the scene.
As it happened, the EMS crew included Edwin Rodriguez, who had been nearby when Mr. Bacon had been robbed on February 13, 2003. Spontaneously, he then said to Officer Holmes that he had seen defendant Ramos commit a similar crime on Greene Avenue — that defendant had "robbed a taxi guy around the corner about a week ago."
After that, Officer Connor pointed out to Officer Holmes part of a wooden cane lying in the street nearby and the cane fragment was then recovered by Officer Connor. Officer Holmes then saw several other items on the back seat of the cab and outside on the ground. They included U.S. mail and prescription bottles with Syrita Vegerano's name and address on them.
Defendant was then arrested, transported to the precinct, and placed in a holding cell where Officer Holmes asked him what had happened. Without having been advised of his rights as prescribed by the Miranda case, defendant said that the cab driver had hit his girlfriend and then had come after him, at which point he had hit the driver with a stick because the driver was bigger than he.
Mr. Rodriguez also came to the precinct where he repeated to Detective Recupero his earlier statement to Officer Holmes — that he had seen defendant rob a taxi driver on Greene Avenue several days earlier. On February 26, 2003, at 11:15 p.m. Detective Recupero advised Syrita Vegerano of her rights pursuant to the teaching of the Miranda case and Miss Vegerano made a statement which was written by Detective Recupero and signed by her. In that statement Miss Vegerano stated that on that date she, along with defendant and her son, Nelson Sanabria, had taken a cab from Brooklyn Hospital to 407 Washington Avenue where she got into an argument with the driver, whereupon defendant had hit the driver with a cane and the three went into her apartment at 407 Washington Avenue. At 11:40 p.m. she gave a second statement, which she declined to sign, describing a similar incident about two weeks earlier during which defendant had begun hitting a cab driver — apparently complainant Mohammed Badri — but that the driver had jumped out of the car.
At about 2:00 a.m. on February 27, 2006 Detective Recupero informed Nelson Sanabria of his rights as prescribed by the Miranda case and Nelson Sanabria also made a written statement which he signed. In that statement, Mr. Sanabria said that on February 26, 2003 at around 6:30 p.m. he, his mother and defendant took a cab home from Brooklyn Hospital; that when the cab arrived at 407 Washington he went inside to get another dollar; that while in the apartment he heard a noise "like a piece of wood breaking." He further stated that he then looked out of the window and saw the driver lying on the ground and defendant walking away. Mr. Sanabria then made a second signed written statement describing an incident about two weeks earlier when the three hailed a cab at a bus stop and defendant also began hitting the driver — again apparently Mohammed Badri.
On February 27, 2003 at approximately 3:20 a.m. Detective Recupero spoke with defendant Karlos Ramos, who was then in a holding cell near the detective's desk. Defendant was provided food and drink and also was allowed to make telephone calls. He was not handcuffed during the conversation, no threats or promises were made, and defendant, who spoke and understood English, was alert.
Defendant was first advised of his rights as follows by the detective, who read them from a form. Specifically, Detective Recupero informed defendant: (1) that he had the right to remain silent and refuse to answer any questions; (2) that anything he said could be used against him in a court of law; (3) that he had the right to consult an attorney before speaking to the police and have an attorney present during any questioning, then or in the future; (4) that if he could not afford an attorney, one would be provided for him without cost; and (5) that if he did not have an attorney available he had the right to remain silent until he had an opportunity to consult with one.
As each right was read, defendant was asked if he understood and each time defendant answered yes. Defendant was then asked if, having been advised of his rights, he was willing to answer questions and he answered that he was. Defendant's answers were noted on the form, whereupon defendant signed it and the detective also signed it, endorsing the date and time. Defendant then stated that on February 26, 2003, between 6:30 and 7 p.m. he left Brooklyn Hospital with his girlfriend, Syrita Vegerano; and her son, Nelson; that the three took a cab. to 407 Washington Avenue where a dispute occurred about the fare and the driver punched the female in the mouth; that he then struck the driver with a wooden walking stick at which point the driver fell to the ground and started to bleed. Defendant also stated that he had not robbed the driver but that he could have if he had so desired. He added that it would be "dumb" to do such a thing in front of his home.
On February 27, 2003, at 1:30 p.m. Detective Recupero conducted a lineup at the 88th Precinct which included defendant and was viewed by Mohammed Badri and Paul Bacon. Defendant was not then represented by counsel.
Prior to viewing the lineup, the witnesses, Mr. Badri and Mr. Bacon, came to the precinct where they were kept separate from defendant and the five fillers. Defendant chose position number two in the lineup and the lineup was then photographed, which photographs were received in evidence.
Prior to viewing the lineup Mr. Badri and Mr. Bacon were told that if they recognized anybody, to indicate the person by the number held. The witnesses then separately viewed the lineup and Mohammed Badri stated that he recognized defendant from the attempted robbery incident on Greene Avenue on February 13, 2003. Mr. Bacon failed to make an identification.
CONCLUSIONS OF LAW
1. Standing Issue
At the outset, defendant is confronted with a formidable obstacle concerning whether standing to complain of a violation of the rule of Payton v. New York, 445 U.S. 573 (1980) has been demonstrated. While that case established that — absent exigent circumstances — police may not lawfully make a warrantless nonconsensual entry into a suspect's home to make a routine arrest, it is also well settled that the burden of demonstrating that the premises violated is his "home" rests on defendant. See People v. Ortiz, 83 NY2d, 840, 842-43 (1994); People v. Arthur, 290 AD2d 387 (1st Dep't 2002); People v. Andrews, 216 AD2d 571 (2nd Dep't 1995); People v. Phillips, 118 AD2d 600, 601 (2nd Dep't 1986).
The evidence relied upon by defendant includes the testimony that the address he gave to the arresting officer was 407 Washington Avenue; Office Holmes' testimony that she went to the female defendant's apartment because she knew that the female lived in that apartment with two Hispanic men; defendant's statement to Officer Holmes that the driver who had picked them up at the hospital had driven them "home," and defendant's statement to Detective Recupero that it would be dumb to rob someone "in front of my own house."
That evidence would seem sufficient to establish that defendant resided at 407 Washington Avenue — a multiple dwelling containing at least six apartments — but falls well short of demonstrating that defendant indeed resided in the apartment in which the female defendant was known to reside, i.e., that he was one of the "two Hispanic males" that Officer Holmes thought resided there. That gap is the more conspicuous and telling when it is noted that Officer Holmes made it clear that the female arrested was the same one the officer had previously encountered as a resident of the apartment, but no such evidence was elicited as to defendant. For all that appears from the evidence, defendant could as easily have been an occupant of another apartment in the building — one who was acquainted with and visiting a female tenant of a different apartment — a not unusual situation. See People v. Stephanski, 286 AD2d 859 (4th Dep't 2001). In that case, defendant was also found in the apartment of a female friend and there too, the court found that defendant lacked standing to urge a violation of the rule of the Payton case. "There was no evidence `establishing the nature or length of his occupancy or any indicia of a legitimate or reasonable expectation of privacy in the apartment at the time the police. . . . [arrived]'" Ibid. See also People v. Mendoza, 278 AD2d 433 (2nd Dep't 2000); People v. Mills, 159 AD2d 520 (2nd Dep't 1990); People v. Chirse, 132 AD2d 615, 616 (2nd Dep't 1987). It thus appears — and is concluded — that defendant has failed to demonstrate standing to complain that the rule of the Payton case was violated.
Moreover, even if standing had been demonstrated the evidence does not show a violation. The rule "prohibits the police from crossing the threshold of a suspect's home to effect a warrantless arrest in the absence of exigent circumstances. The evil to which the rule is addressed is the unsupervised invasion of a citizen's privacy in his own home." People v. Minley, 68 NY2d 952, 953 (1986). The court ruled there that neither the letter nor the spirit of the Payton rule was violated and this case, while similar, is stronger in important respects against defendant's position. In the Minley case, the police went to defendant's home to arrest him and one officer, gun drawn, knocked on the door. Another saw defendant peek out a window, recognized him as the person they had come to arrest and directed him to come outside. Defendant complied and was taken into custody. There was no evidence defendant had been "in any way threatened or that he had even seen the officer's gun." Id. At 953-54.
In the instant case, the police did not intend to make an arrest, inside or outside of the apartment when they knocked. No weapons were drawn and no one was directed to come out of the apartment. Nor did the police threaten the physical well being of defendant or anyone else. In the final analysis, all police orders come with an implied warning that a failure to comply might well result in adverse consequences of some kind. If a suspect may be ordered out of his home in the circumstances set forth in the Minley case, the conduct here could hardly be called radically different or unreasonable.
Moreover, even if the apartment qualified as defendant's "home" and the conduct of the police be construed as an invasion of his privacy there, the failure to obtain an arrest warrant prior to defendant's arrest would still not be unlawful because exigent circumstances existed calling for immediate action. See People v. Hodge, 44 NY2d 553, 557 (1978).
Those circumstances included (1) the serious and violent nature of the offense and the suggestion that the victim had been stabbed by an instrument not recovered. See People v. Hodge, supra at 558; see also Warden v. Hayden, 387 US 294, 299 (1967); (2) that the police were in hot pursuit of the culprits and in possession of evidence that the perpetrators had recently fled to the apartment. See Warden v. Hayden, supra at 298; People v. Hodge, supra; People v. Karpel, 66 AD2d 960, 961 (3rd Dep't 1978); (3) the risk that one or more of the culprits would escape if time were taken to obtain an arrest warrant. See Warden v. Hayden, supra at 299; (4) that the manner of the investigation was not unjustifiably intrusive, given the situation encountered by the police. See People v. Hodge, supra; see also Wayne v. United States, 318 F.2d 205, 212 (DC Cir 1963).
It is also worthy of note that the injured victim was available outside to terminate the chase by identifying the culprits — as he did — or to exonerate defendant and his companions and permit the pursuit of the true culprits to resume. See United States v. Sanchez, 422 F.2d 1198, 1200 (2d Cir 1970); People v. Brnja, 70 AD2d 17, 25-6 (2nd Dep't 1979), aff'd, 50 NY2d 366 (1980).
2. The Dunaway Issue
By the time defendant came out of the apartment, the evidence at hand included the driver's description of the three culprits and that they had fled into 407 Washington Avenue, as well as the information that he had picked them up at Brooklyn Hospital; the fact that his description accorded with the prior contacts of Officer Holmes with occupants of the female defendant's apartment and the statement of her neighbor that she had gone to the hospital a few days earlier, all coupled with the refusal of the three in the apartment to respond to the knocking on the door by the police until informed, in substance, that the police were aware of their presence and determined to confront them. It seems clear that the evidence described provided probable cause to arrest each of the three present in the apartment. See C.P.L. § 140.10(1)(b).
But even if the evidence be assumed to fall short of probable cause when defendant Ramos exited the apartment, it plainly provided reasonable suspicion to detain him for further investigation and, upon identification by the driver as one of the culprits, rose to the level of probable cause to arrest. See People v. Hicks, 68 NY2d 234 (1986).
3. Issues as to Defendant's Statements
At the outset, it seems clear that the post arrest inquiry of defendant by Office Holmes ("What happened?") while defendant was in a cell at the precinct constituted a violation of the rule of Miranda v. Arizona, 384 US 436 (1966). Defendant had not been given the warnings prescribed by the Miranda case, supra. Further, the question crossed the line into custodial interrogation. See People v. Rivers, 56 NY2d 476 (1982). Defendant's statement that the driver had struck the female and menaced defendant Ramos before being struck by defendant Ramos must therefore be suppressed. Miranda v. Arizona, supra.
But defendant's first statement after the door was opened and he had exited the apartment ("they had a fight; it was self defense") was spontaneously made. And the rule is well settled that statements which are not the product of interrogation — volunteered statements — are in no way affected by the rule of the Miranda case. Miranda v. Arizona, supra at 478; People v. Torres, 21 NY2d 49, 54 (1967). The same is true of statements made as a result of interrogation if the suspect is not in custody. See People v. Williamson, 51 NY2d 801 (1980). The objection addressed to that statement, therefore, is also without merit.
As to the interrogation of defendant Ramos by Detective Recupero beginning at 3:20 a.m. on February 27, 2003, the first question is whether those statements were tainted and therefore inadmissable because of the failure to advise defendant of his Miranda rights prior to the custodial interrogation earlier by Officer Holmes. Whether the resulting statement of defendant Ramos (that he had hit the driver with a stick after the man had struck the female defendant and came after defendant Ramos) was tainted by the earlier event and should be suppressed is a function of the "cat out of the bag" theory — i.e., whether defendant's statements to Detective Recupero were made on constraint of the first statement to Officer Holmes and "not truly voluntary." See People v. Chapple, 38 NY2d 112, 114 (1975). See also United States v. Bayer, 331 US 532 (1947). That, in turn, depends upon whether or not "there is such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning." People v. Chapple, supra at 115.
In that regard, the conduct of Officer Holmes was not flagrant. See People v. Harris, 77 NY2d 434, 441 (1991). Further, the Miranda warnings were given, and the commencement of Detective Recupero's interrogation occurred as noted above, at 3:20 a.m. — more than five hours after the brief exchange between defendant Ramos and Officer Holmes. There is ample authority for the proposition that such a break in circumstances like those presented here is more than sufficient. See People v. Davis, 287 AD2d 376 (1st Dep't 2001) (forty minute break between suppressed statement and admissible statement); People v. Cooke, 299 AD2d 419 (2nd Dep't 2002) (more than three hours between initial, illegal arrest and admissible statement); People v. Rifkin, 289 AD2d 262 (2nd Dep't 2001) (Five hour break between statements made prior to Miranda warnings and admissible statement); People v. Benedetto, 248 AD2d 480 (2nd Dep't 1998) (Two hour break between statement made prior to Miranda warnings and admissible statement); People v. Velasquez, 171 AD2d 825 (2nd Dep't 1991) (Four hour break between statement made prior to Miranda warnings and admissible statement). Nor was there testimony by defendant to support the claim that his statement to Detective Recupero was made on constraint of the prior inadmissible statement. See People v. Rifkin, supra at 263. Moreover, the facts here are, in an important respect, very similar to those in People v. Smith, 275 AD2d 951, (4th Dep't 2000). In this case, as there, "the initial violation of defendant's rights consisted of a simple question and answer without benefit of Miranda warnings [citations omitted] in which defendant denied guilt. Thus that earlier `unwarned statement cannot be said to have committed him to later confessing the crime'. . . ." Id. at 952. Thus the "cat out of the bag" issue must be resolved against defendant Ramos.
Moreover, had there been a violation of the rule of the Payton case, the statement made to Detective Recupero would also have been for substantially the same reasons sufficiently attenuated from the violation to be admissible. See People v. Harris, supra at 437.
As to the voluntariness question, the evidence establishes beyond a reasonable doubt that defendant was properly advised of his rights pursuant to the teaching of the Miranda case, supra and that he knowingly and voluntarily waived his right against self incrimination and his right to counsel.
4. Issues Concerning Identification Procedures
The contentions of defendant concerning the identification issues fall into four categories, (1) that there was a violation of the rule of the Payton case requiring that all identifications of defendant after he left the apartment be suppressed. (2) that the identification of defendant by Edwin Rodriguez, the EMS crew member, upon observing defendant at the rear of the ambulance in the company of Officer Holmes was the product of impermissibly suggestive police conduct and must be suppressed, (3) that the show up identification by complainant Bahdri upon observing defendant at the rear of the ambulance in the company of Officer Holmes was the product of impermissibly suggestive police conduct and must be suppressed and, (4) that the identification of defendant in the lineup by complainant Bahdri was the product of impermissibly suggestive police conduct and must be suppressed.
A. Contention Based on the Claimed Violation of the Payton Rule
It has been concluded — as noted above — that there was no such violation. Moreover, even if there had been a violation of the Payton rule, it is settled that such a violation does not require suppression of evidence of a lineup identification when the arrest was based upon probable cause. See People v. Jones, 2 NY3d 235 (2004).
B. Contention Based Upon the Identification made by the EMS Crew Member
As the facts establish, the viewing Officer Holmes had no knowledge that Mr. Rodriguez was a potential witness as to defendant's involvement in a prior robbery. Thus the viewing, and identification, of defendant at the rear of the ambulance on February 26, 2003 was not the product of a police arranged identification procedure. It is settled that an accidental or unarranged showup is not unnecessarily or impermissibly suggestive since such an event is not attributable to any misconduct on the part of the police or prosecutor. See People v. Maddox, 139 AD2d 597 (2nd Dep't 1988).
C. Contention based upon the show-up identification of defendant by Complainant at the rear of the ambulance.
While showup identifications (as opposed to lineups) are generally suspect and disfavored, an exception to the rule is such identification procedures soon after the commission of a crime after a suspect has taken flight. It is settled that such procedures are reasonable and necessary to permit identification of a suspect while the victim's memory is freshest and to permit release of any suspect erroneously detained, as well as the prompt resumption of pursuit of the true culprit. See e.g., United States v. Sanchez, 422 F.2d 1198, 1200 (2d Cir 1970); Bates v. United States, 405 F2d 1104, 1106 (D.C. Cir 1968); People v. Brnja, 70 AD2d 17, 25-6 (2nd Dep't 1979), aff'd, 50 NY2d 366 (1980). The showup identification of defendant here, approximately thirty minutes after the crimes charged, was clearly permissible in all the circumstances. See People v. Duuvon, 77 NY2d 541 (1991); People v. Love, 57 NY2d 1023 (1982). See also People v. Smith, 38 NY2d 882 (1976). Nor — with defendant not handcuffed or otherwise clearly in custody — was the procedure employed unduly suggestive. See People v. Smith, 286 AD2d 636, 637 (1st Dep't 2001); People v. Kennerly, 117 AD2d 624 (2nd Dep't 1986).
D. Contention Based Upon Alleged Unfairness of the Lineup
A reasonable similarity in appearance to defendant of the fillers in a lineup is required, in the interests of basic fairness, but it is not necessary that the fillers be nearly identical in appearance. See People v. Chipp, 75 NY2d 327, 336 (1990); People v. Gallant, 150 AD2d 602 (2nd Dep't 1989); People v. Mattocks, 133 AD2d 89, 90 (2nd Dep't 1987). By the applicable standard, neither the makeup of the lineup nor the procedure employed in conducting it was impermissibly suggestive. See People v. Chipp, supra.
This constitutes the decision and order of the court. The clerk is directed to send copies to defendant and the District Attorney.