Opinion
No. 2014KN055840.
04-02-2015
The PEOPLE of the State of New York, Plaintiff, v. RANDALL M., Defendant.
Yasmin Dwedar, Esq., Assistant District Attorney, for the King's County District Attorney's Office. Daniel Moore, Esq., Legal Aid Society, for Defendant.
Yasmin Dwedar, Esq., Assistant District Attorney, for the King's County District Attorney's Office.
Daniel Moore, Esq., Legal Aid Society, for Defendant.
Opinion
JOHN T. HECHT, J.
The charges in this case involve an assault and theft that allegedly occurred on July 26, 2014, in Prospect Park, Brooklyn, at approximately 10 PM, when a teenager who was skateboarding with friends was attacked by a number of other teens who beat him and stole his iPhone. At issue is his ability to identify the person who first attacked him, who is alleged to be the defendant.
On March 18–20, 2015, the Court conducted a Dunaway, Wade, and independent source hearing to determine if the complainant may be permitted to identify the defendant at trial (see Dunaway v. New York, 442 U.S. 200 [1979] ; United States v. Wade, 388 U.S. 218 [1967] ; Manson v. Brathwaite, 432 U.S. 98 [1977] ; People v. Adams, 53 N.Y.2d 241 [1981] ). Three witnesses testified at the suppression hearing.
Police Officer Robert Meka testified, and I credit his testimony, that on the day in question he was patrolling Prospect Park when he received a radio call that there had been a robbery in the park. The suspects were described as four or five black males, one of whom wore a white shirt and had “dreads.” Within a minute, the officer responded in his scooter to the call box from which the 911 call had originated and found two teens, one of whom was the complainant, who explained that he had been punched and knocked off his skateboard by one of the assailants, who took his iPhone. He described the individual in question as in his late teens, with long dreads and wearing a white shirt, who fled southbound on East Drive towards Flatbush Avenue. He did not say that the individual wore glasses (3/18/15 tr at 7–14).
References to “tr” are to the hearing transcript.
Police Officer David Mathura also testified, credibly, that he arrived at the call box in an unmarked car with two other officers within two minutes of the call of a robbery in the park and went on a canvass for suspects. He soon observed someone fitting the description-a black male sporting dreads and wearing a white T-shirt-walking with someone else southbound on Flatbush Avenue past Empire Boulevard, a short distance (one block) from the park. The officer slowed his vehicle. One of the officers may have called out, “Yo,” or said something else to the suspect, who took off running. He was apprehended nearby. He is the defendant. At the time Officer Mathura first saw him, the defendant was wearing glasses (3/18/15 tr at 17–21, 24–25, 27).
Officer Mathura called for the complainant to come to the location of defendant's detention for a showup identification. Within five minutes, the complainant arrived in a police car. Officer Mathura and another officer stood on either side of the defendant, one to two feet away from him. The defendant was handcuffed from behind. According to a signal that Officer Mathura received from a supervisor, he understood that the complainant had positively identified the defendant from inside the car. The defendant was taken to the precinct. He was found to have his own, but not the complainant's, cell phone on him. The defendant's companion also did not have the victim's iPhone (3/18/15 tr at 21–22, 26, 28–30).
Presumably because the officers who were in the vehicle with the complainant did not testify, the People conceded the suggestiveness of the showup and consented to an independent source hearing (3/18/15 tr at 3, 32; 3/19/15 tr at 3). The complainant testified. I fully credit his testimony. The complainant is 18 years old. At the time of the incident, he was skateboarding with friends up and down a hill in Prospect Park. When he was going downhill at about 15 miles per hour, he passed a group of four to six “kids” whose backs were towards him. He saw them-or more precisely their backs-for three to four seconds. When he reached the bottom of the hill he skated back up, although more slowly than when he had been going downhill. The group of individuals he had seen earlier had at this time spread themselves out across East Drive so that the complainant was forced in between them. He described one as having a tie-dyed blue shirt, black pants, and fitted cap, and another as wearing a white T-shirt and having thick, long dreads and very dark skin (3/19/15 tr at 6–12, 19).
In a memorandum of law dated March 31, 2015, the People appear to have withdrawn their concession that they were unable to prove lack of undue suggestion.
When the complainant was directly in front of this group, the one wearing white punched him in the face. The complainant landed on his back “in a state of shock.” With one hand, the individual who punched him reached into the complainant's pocket and continued to punch with his other hand. The assailant's companions began to punch the complainant as well. The complainant testified, “I didn't want to get jumped and hospitalized over a cell phone,” so he told them to “just take” the iPhone, which they did (3/19/15 tr at 11–14).
The complainant testified that he made eye contact with the first assailant and, although he could not say how long his observation lasted, he said that he looked directly at the “kid” for “probably about like half second, two seconds, maybe three. I couldn't give you a reasonable answer. It's been too long.” He did not testify that the assailant wore glasses. He described the lighting conditions on East Drive at the time as fairly good, with street lights on alternating sides of the drive every thirty to fifty feet (3/19/15 tr at 13–15).
When asked if he could now make out what the assailant looked like, the complainant stated that he could not, given the length of time since the incident, although “in a lineup possibly I would be able to effectively—like, something would like—the memory would hit me. ” He said there is “a good chance I could recognize him, but also there is maybe a chance that I might not” (3/19/15 tr at 15–16).
After this incident, which, he acknowledged, “shook” him up, the police arrived. He described the assailant to them as an individual wearing an oversize white T-shirt and having dreads. He went with the police. While in the police car, he heard a police radio transmission that “they got him,” after which the officers “asked me to identify him.” The victim said that when he was taken to view the suspect he instantly recognized the defendant to be his assailant. He testified that when he was looking at the defendant, an officer inside the car asked, “Is this the guy?” The witness described the defendant as sweating—“because he just ran from the scene of the crime”—trying to “put up” his dreads—“so that maybe he would not fit the description”—and wearing the same T-shirt as the assailant (3/19/15 tr at 17–21).
First, as to the Dunaway issue, the police acted permissibly in conducting a showup; therefore, the showup is not a suppressible fruit of an unlawful stop. The police were justified in briefly detaining the defendant, who matched the given physical description and direction of flight of the suspect, in order to allow the complainant to make an identification shortly after and near the alleged incident (see People v. Brisco, 99 N.Y.2d 596 [2003] ).
The decisive and important issue presented is whether, on these facts, the complainant was sufficiently able to observe his assailant during the commission of the offense so that at trial he may be permitted to identify the defendant as that assailant. Wholly apart from the well-known “vagaries” of eyewitness identification (see United States v. Wade, 388 U.S. 218, 228 [1967] ) is that a showup is an inherently suggestive procedure because a single suspect, usually handcuffed and surrounded by police officers, is shown to the witness (see People v. Brisco, 99 N.Y.2d 596, 612–13 [2003] [noting that showups are inherently but not necessarily “unduly” suggestive] [majority opinion and Smith, J., dissenting] ). That occurred here. Moreover, the People presented no evidence at the pre-trial hearing, except for the testimony of the complainant himself, of what transpired in the police car when the officers took the complainant to the showup (cf. People v. Jerry, 2015 N.Y. Slip Op 02499 [2d Dept Mar. 25, 2015] [People established reasonableness and nonsuggestiveness of showup “through the testimony of the police officers who transported the complainants to the showup and provided a detailed account of the physical circumstances of the procedure”] ). Although the complainant may not have realized that the police suggested to him that he identify the defendant as the perpetrator, they did so when they allowed the complainant to hear a police transmission that “they got him” and an officer asked, also suggestively, “Is this the guy?” (see People v. Francis, 303 A.D.2d 598 [2d Dept 2003] ). Because a showup “must be scrutinized very carefully for evidence of unacceptable suggestiveness and unreliability ” (see People v. Ortiz, 90 N.Y.2d 533, 537 [1997] [internal brackets and citation omitted; emphasis added] ), I find that the People have failed to prove that the showup was not unduly suggestive and unreliable (as the People themselves apparently initially conceded).
Besides the factors already noted, the witness's identification of the defendant as his assailant appears to have been influenced by what he inferred was guilty conduct on the part of the defendant. But not only were the witness's inferences based on observations unrelated to the accuracy of his identification, they were likely wrong and at least partly attributable to police conduct. The witness concluded that the defendant was sweating “because ... he just ran from the scene of the crime.” In fact, the defendant had been walking when the police first encountered him. The officers, who were in an unmarked car and did not announce that they were police, slowed down their vehicle and may have called out to the defendant, after which he began to run. This is not to say that the police acted improperly in stopping the defendant but that their permitting the showup to proceed while the defendant was still sweating from his flight further impaired its reliability as an accurate identification procedure (see Ortiz, 90 N.Y.2d at 537 [People must show “lack of any undue suggestiveness in a pretrial identification procedure”] [citation omitted] [emphasis in original] ).
The witness also believed that defendant was trying to hide his dreads by “put[ting them] up”—a questionable memory given that the defendant was rear-cuffed at the time and there is no evidence that he knew that the perpetrator had been described as having dreads. Thus, in addition to all the factors that tainted the identification, the witness may have identified the defendant because the witness believed at the time, and continues to believe, that the defendant looked guilty, not because the defendant was the perpetrator of the crime.
The independent source hearing is intended to mitigate the effect of the suggestive showup by requiring the People to prove that sufficient evidence exists of a source for the witness's identification of the defendant, other than the showup, before the witness may be permitted at trial to identify the defendant as the perpetrator of the crime. For the reasons that follow, the suggestive showup was not overcome by clear and convincing evidence that the complainant has an independent source for his identification of the defendant. Although I credit the complainant's truthfulness, no matter how honestly he may believe that he identified the correct person on the night in question, he lacks the ability to make a reliable in-court identification of the defendant as the person who victimized him. The record does not establish that if the witness were permitted to identify the defendant at trial as the perpetrator of the charged crimes he would be doing so based on his observation of the perpetrator during the commission of the crimes and not based on his recognizing the defendant from the police-arranged showup whose circumstances led him to conclude that defendant was the perpetrator (see Wade, 388 U.S. at 229 [“It is a matter of common experience that, once a witness has picked out the accused, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial”] [citation omitted] ).
In considering the due process concerns implicated in the showup, and in concluding that no reliable source exists for the victim's identification of defendant, I have weighed the factors enumerated in Neil v. Biggers, 409 U.S. 188, 199–200 [1972]. These are the victim's opportunity to observe his assailant during the crime; his degree of attention; the accuracy of his prior description; the degree of certainty in his prior identification; and the lapse of time between the crime and the identification. I address these factors with an eye to the reliability of the proposed identification testimony, because “reliability is the linchpin” (Manson v. Braithwaite, 432 U.S. 98, 114 [1977] ).
There are reported cases in which identifications have been allowed when the time the victim had to observe his or her assailant was “less than a minute” (see People v. Thomas, 17 NY3d 923, 927 [2011] [Ciparick, J., dissenting] ) or even “only a few seconds” (Matter of Jason V., 171 A.D.2d 447 [1st Dept 1991] ), or “a matter of seconds” (People v. Androvett, 135 A.D.2d 640, 642 [2d Dept 1987] ). In one case, the time was as short as “three to five seconds” (People v. Hyatt, 162 A.D.2d 713 [2d Dept 1990] ). I have found no reported case, however, nor have the People directed me to one, in which the time, as here, of the face-to-face encounter between victim and assailant was as little as from one-half a second to “maybe” three seconds. In fact, suppression has been granted where, as here, the opportunity of a victim of a group assault to view his assailant was only “seconds,” among other reasons because the circumstances of the assault provided only a “fleeting opportunity to observe [the] assailants” and therefore precluded a reliable identification (see People v. Mankhar, 25 Misc.3d 1243(A) [Sup Ct Kings County 2009] ).
Aside from the vanishingly small amount of time the complainant had to view his assailant in the present case (as little as one-half a second ), none of the other factors that sustained the reliability of the identifications in the above-cited decisions was present. For example, in Jason V., “although the time to observe the assailant was only a few seconds,” there were “good lighting conditions, both before and after the incident, and the complainant had good reason to observe his assailant after he was struck” (Jason V., 171 A.D.2d 447 ). Here, in contrast, the incident occurred in a park at night. Clearly this cannot be called “good lighting conditions,” with street lights giving illumination only every thirty to fifty feet. There was, for example, no testimony as to where, in relation to these spread-out street lights, the incident occurred. When the victim in this case was struck in the face, a number of individuals piled on top of him, further diminishing his ability to identify the one who had given the first punch that landed him on the ground, unlike the situation in Jason V., where the complainant was still able to observe his assailant after the attack.
Similarly, in Androvett, the scene of the crime was “well-lit,” so that the witness was “able to give a detailed description of the defendant to the police” (Androvett, 135 A.D.2d at 642 ). Not only was the description here bare-boned—notably, it included no description of any facial feature of the defendant—it was limited to race, gender, age, complexion, hairstyle and clothing. This is not “detailed.”
Hyatt involved an identification made after an observation of as little as three to five seconds, but “the complaining witness was able to see the defendant entering her bedroom through the window, under good lighting conditions, at a distance of 10 to 15 feet,” and “her description was sufficiently specific as to establish her ability to observe the perpetrator at the time of the crime” (Hyatt, 162 A.D.2d at 714 ). Both factors that sustained the reliability of the identification in Hyatt —the good lighting conditions and the specificity of the description—are lacking here. I also infer that in Hyatt (in which there appears not to have been any charge of assault) the complainant was more self-possessed than the complainant here because her observations were not accompanied by a punch to the face that “shock[ed]” her.
Instructively, an independent source for an identification was found in People v. Williams, 222 A.D.2d 149, 150–51 [1st Dept 1996], where the victim was “inches” away from, and “face-to-face” with, her assailant in a well-lit hallway in an incident that lasted “two to three minutes, during which time the victim never' took her eyes off him,” and she was able to give the police a detailed and accurate description.
To the extent that these cases suggest a baseline for a reliable identification, they show that in this case the complainant's opportunity to observe his assailant during the crime was inadequate. The incident occurred at night in a park that was lit by streetlamps only every thirty to fifty feet. The victim was thrown to the ground by the force of a punch to the face before he was pummeled by a number of individuals. He was able to see the first assailant—allegedly the defendant—for only one-half a second to “maybe” three seconds. Although this incident would certainly have caused him to pay attention, his attention was not focused on identifying his assailants as much as on his personal safety (“I didn't want to get hospitalized over a cell phone”), as demonstrated by his inability to give a detailed description of any of them and of the first assailant in particular, whom he described rather generically as being a black teen, having dreads and very dark skin, and wearing a white T-shirt. The complainant admitted that he was in a state of shock, which may have detracted from, rather than supported, a reliable identification (see People v. Abney, 13 NY3d 251, 268 [2009] [discussing effect of event stress as affecting eyewitness identification] ). The certainty he expressed in his identification of the defendant a few minutes after the incident, notably after the complainant had overheard that the police had “got him,” and when an officer asked, “Is this the guy?” is of little consequence because these suggestive expressions compounded the unreliability of what was already a suggestive procedure (see People v. LeGrand, 8 NY3d 449, 458 [2007] [post-event information (i.e., statements or questions by the police to the witness) may affect the accuracy of an identification] ). Further, the correlation between a witness's confidence and the accuracy of his identification is not necessarily direct (id. ). Even more to the point, as the complainant admits, candidly and to his credit, he does not believe that he could identify the individual who assaulted him. At best, in a lineup “possibly something would like—the memory would hit me, ” which is hardly an affirmation that he can identify his assailant. In short, the complainant is unable to make a positive identification at trial.
As to the Neil v. Biggers factor of whether the victim gave an accurate description to the police, the only physical characteristics that he described, aside from race and gender, were the assailant's complexion and hair and that he appeared to be in his “late teens.” While some elements of this description match the defendant, who is a black male in his teens and sports dreads, because the description was so lacking in detail it could apply to most any young adult black male with dreads. To this observer, the defendant, who was sixteen years old at the time, does not appear (even several months after the incident) to be in his late teens, nor does his complexion appear to be “very dark.” But this is not dispositive. Nor is the fact that the complainant implicitly described an individual who did not wear glasses (when he testified that he made eye contact with and looked directly in the face of his assailant), and the defendant, according to police testimony, wore glasses on the night in question. What is dispositive is that the description is too lacking in detail to assure the Court that the victim had a sufficient opportunity to observe, describe, and recognize his attacker. Again, the victim's opportunity to observe and therefore describe, let alone recognize, his attacker was insufficient to permit a reliable identification.
I make one final comment. Although it might be argued that adolescents are particularly attuned to identifying each other, under very similar facts also involving teenagers, suppression has been granted where, as here, the circumstances precluded a reliable identification (see People v. Mankhar, 25 Misc.3d 1243(A) [Sup Ct Kings County 2009] ; see also People v. Foster, 200 A.D.2d 196, 203 n 6 [1st Dept 1994] [“it would be very hard to find that the People have met their burden” where a complainant's viewing of the perpetrator was “a matter of seconds” and it was followed by a suggestive identification procedure] ).
There are psychological studies indicating an “own-age bias” such that individuals may exhibit superior discriminability for faces of people their age (see, e.g., Matthew G. Rhodes and Jeffrey S. Anastasi, The own-age bias in face recognition: A meta-analytic and theoretical review, Psychological Bulletin, Jan 2012 at 146–74). Those studies are beyond the scope of this decision.
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For these reasons, defendant's motion to suppress is granted, and the complainant will not be permitted to make an in-court identification of the defendant.
The foregoing constitutes the decision and order of the Court.