Opinion
No. 2015KN024892.
02-03-2016
The PEOPLE of the State of New York, Plaintiff, v. RODNEY R.Q., Luis A., and Markell W., Defendants.
Ada William Isbokwe, for People. Alexis Flyer, Esq., The Legal Aid Society, Le'Shera Hardy, Esq., Brooklyn Defender Services, Morris Shamuil, Esq., 18 B Assigned Counsel Services, for Defense.
Ada William Isbokwe, for People.
Alexis Flyer, Esq., The Legal Aid Society, Le'Shera Hardy, Esq., Brooklyn Defender Services, Morris Shamuil, Esq., 18 B Assigned Counsel Services, for Defense.
JOANNE D. QUINONES, J.
A Wade/Dunaway hearing was held before this court on January 21, 2016 and January 26 through 28, 2016. The People presented three witnesses: Police Officer Gerard Guzman, Police Officer Charles Friscia, and Police Officer Frank Stankevicius. The defendants did not call any witnesses. At the end of the testimony, the court heard oral arguments from both sides and adjourned the matter for decision.
I make the following findings of fact and conclusions of law:
FINDINGS OF FACT
Police Officer Guzman testified credibly that on April 21, 2015, he and his partner Officer Maximilian were patrolling in a vehicle in the vicinity of 4th Avenue near 36th Street (1/26/16 Transcript [“Tr”] at 6–7) when at approximately 9:13 PM he received a radio run of a robbery in progress at the Bay Parkway N line train station in Kings County (1/21/16 Tr at 11). The radio call indicated that there were four to five suspects involved, Black males between teenage and 20 years of age, one suspect was carrying a basketball, that another was wearing a silver T-shirt with yellow writing on the front of the shirt, and one was wearing a red jacket (1/21/16 Tr at 11–12). One of the males was short and one was about 5'8? to 6 feet tall (1/21/16 Tr at 12). There was no description regarding the skin tone of the suspects other than Black (1/26/16 Tr at 32) or of their hair styles (1/26/16 Tr at 9, 32). Dispatch advised that the suspects had boarded a southbound/Coney Island bound N train (1/21/16 tr at 12; 1/26/16 Tr at 11).
Another radio transmission indicated that the suspects had gotten off at 86th Street (1/26/16 Tr at 18), three stops south of the Bay Parkway station (1/21/16 Tr at 12). Officer Guzman proceeded to the 86th Street station to look for the suspects (1/26/16 tr at 17). A station agent or manager informed him that three to five males had run out of the station approximately five minutes before the officer's arrival (1/21/16 Tr at 13, 1/26/16 Tr at 18). The officer then returned to his vehicle and canvassed the area around the 86th Street train station for approximately five to ten minutes when he observed three to four males running into the Marlboro Community Center, located at 2298 West 8th Street, directly across the street from the 86th Street train station (1/21/16 Tr at 13, 1/26/16 Tr at 19–20). He exited the vehicle and stopped one of the males who matched the description he received from the radio (1/21/16 Tr at 13) by grabbing him by his knapsack (1/26/16 Tr at 33). When he did so, two of the other males stopped while two others went around the corner into the community center building (1/21/16 Tr at 13). After stopping the three individuals, Officer Guzman was approached by an unnamed employee of the community center (1/21/16 Tr at 14; 1/26/16 Tr at 34). Officer Guzman explained that he was investigating a robbery and the employee, who indicated that he knew all five individuals, went to get the other two (1/21/16 Tr at 14–15; 1/26/16 Tr at 34–35). Officer Guzman described the individuals stopped as follows: the one with the backpack had a basketball, one had a t-shirt with yellow writing and matched the “age of teenager”, and one was wearing a red jacket (1/21/16 Tr at 15). No one else in the area matched the description (1/21/16 Tr at 14). Officer Guzman then advised radio that he had “five possibles” at the Marlboro Community Center and radio advised the second mobile car, who had the complainant, to come to that location (1/21/16 Tr at 15). The distance between the Bay Parkway train station and the Marlboro Community Center is approximately one and a half miles (1/26/16 Tr at 27).
The five males were then taken outside and lined along the fence of the community center (1/21/16 Tr at 16). The five individuals were not handcuffed (1/21/16 Tr at 16). Approximately four to five officers were standing to the left and right of the five individuals (1/21/16 Tr at 16–17) and anywhere from three to eight officers, some in uniform and some in civilian clothes, were on the location before the complainant's arrival (1/26/16 Tr at 22–23, 25, 37). There were also multiple police cars on the scene (1/21/16 Tr at 23). The complainant arrived in a vehicle, which was positioned about 10 feet away from the five individuals, (1/21/16 Tr at 17) and the window was down (1/26/16 Tr at 37). After the complainant indicated “Yes, that's them” to an officer, there was no testimony as to who that officer was, (1/21/16 Tr at 21), Officer Guzman asked the complainant if he was sure and the complainant answered that he was and pointed to all five individuals (1/21/16 Tr at 18, 21). Officer Guzman asked the complainant if he was sure approximate three to four times and the complainant answered that he was (1/21/16 tr at 18). The complainant identified the individuals as the people who assaulted him (1/21/16 Tr at 18) and recognized what they were wearing (1/21/16 Tr at 18; 1/26/16 Tr at 27, 53) and their faces (1/26/16 Tr at 27, 53). The identification took place at approximately 9:55 pm (1/26/16 Tr at 27). On cross-examination and later on re-direct, Officer Guzman indicated that after the complainant positively identified the five males as a group, each male was individually walked closer to the complainant by a police officer (1/26/16 Tr at 26–27, 37, 52) and the complainant positively identified each individual (1/16/16 Tr at 7, 52–53).
Police Officer Charles Friscia, testified credibly that on April 21, 2015, he was working foot patrol in plain clothes at the Stillwell Avenue station on the N line when he received a radio run at approximately 9:13 PM of a robbery at the Bay Parkway N train station (1/27/16 Tr at 63–64). The radio run indicated that the suspects were five male youths, one wearing a red jacket and black sweat pants and approximately 5'5? in height and another wore a gray hoodie (1/27/16 Tr at 64–65). On cross-examination, he added that the description included that one was carrying a basketball (1/27/16 Tr at 89). He also learned via radio that the suspects were on a southbound N train in the last car (1/27/16 tr at 65). Officer Friscia then performed a canvass at the Stillwell Avenue station, which is four stops south of the Bay Parkway station (1/27/16 Tr at 65). After canvassing the Stillwell Avenue station, Officer Friscia got into an unmarked vehicle to canvass in the direction of the 86th Street N subway station because radio had advised that the youth had de-trained at that station (1/27/16 Tr at 65–66). At approximately 9:37 PM, Officer Friscia received a communication indicating that five individuals were stopped at the community center (1/27/16 Tr at 66–67). Officer Friscia went to that location and saw five males Blacks, ranging in age from teens to early twenties sitting inside of the community center with Officer Guzman and his partner (1/27/16 Tr at 68). One of the males was wearing a red jacket and black sweat pants and one was wearing a grey hoodie, which he testified matched the description he received over the radio run (1/27/16 Tr at 68–69).
The five males were then lined up, side by side and uncuffed, along a fence on the sidewalk outside of the community center (1/27/16 Tr at 69). A radio call was made requesting that the complainant be brought to the location (1/27/16 Tr at 69). Officer Frisica, Officer Guzman and other officers, he couldn't recall how many, were standing to the sides of the five individuals (1/27/16 Tr at 69–70). The car containing the complainant was positioned in front of the five individuals, approximately 15 feet away, and the complainant's car window was down (1/27/16 Tr at 70–71). Officer Friscia approached the vehicle and asked the complainant if any of the individuals were the ones who robbed or assaulted him (1/27/16 Tr at 71). The complainant identified the five individuals immediately and responded that the male in the red took his cell phone and the others surrounded and assaulted him (1/27/16 Tr at 71). All five individuals were shown to the complainant at once and he pointed out all five individuals at one time (1/27/16 Tr at 92–93). The complainant indicated that he recognized their faces (1/27/16 Tr at 72).
Officer Stankevicius testified credibly that on April 21, 2015, while in a marked patrol car with his partner Officer Colon, he received a radio run of a robbery in progress at the Bay Parkway N line subway station (1/28/16 Tr at 109–110, 116). Officer Stankevicius responded to the scene and spoke to the complainant who advised him that five male Blacks, aged 14–17, took his cell phone (1/28/16 Tr at 110–112). The complainant indicated that he followed the individuals to the southbound N platform (1/28/16 Tr at 111) and that some of the individuals got on the southbound N train but that two ran out of the station (1/28/16 Tr at 118). The complainant indicated that he would be able to recognize the perpetrators if he saw them again (1/28/16 Tr at 111) and at no point did the complainant express any hesitation about the canvass (1/28/16 Tr at 120). Officer Stankevicius then took the complainant to his patrol car to canvass the surrounding area and the nearby Avenue P station on the F line which was in the direction the complainant saw two of the individuals run (1/28/16 Tr at 113, 119–120). Officer Stankevicius couldn't recall what, if anything, he and his partner talked about during the canvass (1/28/16 Tr at 113, 118), but testified that he told the complainant to look around the area and see if anyone fit the description and that he also asked the complainant if he had any further description that could be put over the air (1/28/16 Tr at 113). At some point during the canvass, Officer Stankevicius received a radio run that five possibles were stopped at West 8th and 86th Street (1/28/16 Tr at 113–114). Officer Stankevicius advised the complainant that they were heading to 86th Street to view five possible suspects (1/28/16 Tr at 123–124).
Upon arrival at the show-up location, Officer Stankevicius' car was approached by an unmarked car driven by the anti-crime team (1/28/16 Tr at 114). The complainant was taken from the rear of Officer Stankivicius' marked vehicle and placed into the rear of the unmarked vehicle (1/28/16 Tr at 115). This occurred about four car lengths away from where the five males were lined up (1/28/16 Tr at 124). Officer Stankevicius couldn't remember what officer was inside the unmarked vehicle with the complainant, but recalled that there was an officer who drove the unmarked vehicle closer to where the individuals were (1/28/16 Tr at 125). He did not see any officer or the complainant exit the unmarked vehicle (1/28/16 Tr at 126). Officer Stankevicius' involvement ended with the transfer of the complainant from his vehicle to the unmarked vehicle (1/28/16 Tr at 115, 124).
CONCLUSIONS OF LAW
At a Wade/Dunaway hearing, the People have the initial burden of going forward to show by credible evidence the propriety and reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure (People v. Jackson, 98 N.Y.2d 555, 559 [2002] ; see generally Dunaway v. New York, 442 U.S. 200 [1979] ; People v. DeBour, 40 N.Y.2d 210 [1976] ). Once the People have done so, the burden shifts to the defense to prove that the identification procedure was unduly suggestive (Jackson, 98 N.Y.2d at 559 ).
The Dunaway Portion
The testimony elicited at the hearing establishes that on April 21, 2015, Officer Guzman stopped and detained five male Blacks, three of which were the defendants herein, in the vicinity of the Marlboro Community Center located on W 8th and 86th Street. “An investigative detention is constitutionally permissible only where it is based upon reasonable suspicion of criminal activity” (People v. Williams, 73 AD3d 1097, 1098 [2nd Dept 2010], citing People v. Hicks, 68 N.Y.2d 234, 238 [1986] ). Reasonable suspicion requires that an officer have “that quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe [that] criminal activity is at hand” (Williams, 73 AD3d at 1098, citing People v. Woods, 98 N.Y.2d 627, 628 [2002] ). Prior to his stop of the defendants, the information available to Officer Guzman included that there had been a robbery a short time ago at the Bay Parkway train station, three stops north of the 86th Street station, as well as the general direction in which the suspects had fled, the number of suspects, the race of the suspects, an age range of the suspects, approximate heights for some of the suspects, and clothing descriptions for some of the suspects. Additionally, the officer had information that a group of male Blacks were seen de-training at the 86th Street train station approximately five minutes before the officer's arrival. Minutes after he left the 86th Street train station, Officer Guzman observed a group of four to five Black males who fit the descriptions he had received over the radio running towards the Marlboro Community Center. Based on the information available to him and his personal observations of the males, Officer Guzman had reasonable suspicion to stop and detain the individuals, which included the three defendants herein, for the purposes of a showup identification (see People v. Moore, 734 N.Y.S.2d 86, 86 [2nd Dept 2001] [reasonable suspicion to detain defendants was found when the information given to police included a restricted escape route and a description of the perpetrators]; People v. Ortiz, 284 A.D.2d 187, 187 [1st Dept 2001] [description of the suspects provided reasonable suspicion to stop and detain defendants when that description was specific as to the number of persons involved and the fact that two women on bicycles were a part of the group] ); People v. Pena, 251 A.D.2d 66, 66 [1st Dept 1998] [detailed description of the suspects provided reasonable suspicion when it was specific as to the number of males and females in the group, race, approximate age, clothing, and the fact that one of the individuals in the group had an bandage wrapped around her arm]; see also Williams, 73 AD3d at 1099 [trial court's suppression of showup identification reversed where reasonable suspicion established by observations of two men including defendant running down stairs of building after gunshots had been heard in same building in early morning hours and where one of two men ran back up stairs when confronted by police] ). Accordingly, the showup identification is not suppressible as the fruit of an unlawful stop and the defendants' motions to suppress the identification procedure on this ground are denied.
The Wade Portion
Showup identifications are inherently suggestive, and only “permissible if exigent circumstances require immediate identification' or if the suspects are located at or near the crime scene and can be viewed by the witness immediately' “ (People v. Brisco, 99 N.Y.2d 596, 599 [2003] [internal citations omitted], citing People v. Riley, 70 N.Y.2d 523, 529 [1987] ). A showup must be examined to determine if it was conducted as part of an “unbroken chain of events” or part of an ongoing investigation (People v. Duuvon, 77 N.Y.2d 541, 544–45 [1991] [showup found permissible because it was “one unbroken chain of events-crime, escape, pursuit, apprehension and identifications-all within minutes and within a New York City block and a half”] ). The identification must also be made in close geographic and temporal proximity to the crime (People v. Ortiz, 90 N.Y.2d 533, 537 [1997] ).
In the instant case, the People have demonstrated that the showup was conducted within close geographic and temporal proximity to the location of the crime. The time that elapsed between the incident and the showup was between forty-five minutes to an hour (see Brisco, 99 N.Y.2d at 597 [showup procedure conducted at scene of crime, within an hour of crime and in context of continuous, ongoing investigation found reasonable]; People v. Jerry, 126 AD3d 1001, 1002 [2nd Dept 2015] [showup conducted within 40 minutes of the crime was permissible]; cf. People v. Johnson, 81 N.Y.2d 828, 831 [1993] [showup conducted nearly 2½ hours after the crime was impermissible, however, “the limits of an appropriate time period between the alleged crime and showup identification may vary from case to case”). The location of the showup was approximately a mile and a half from the scene (see People v. Greene, 39 AD3d 268, 269–70 [1st Dept 2007] [showup conducted two miles from the scene of the crime was permissible given that the perpetrator fled the scene by train and the identification took place at the location of the arrest].
While the People have shown the reasonableness of the showup, in order to meet their burden of production at a Wade hearing the People must also offer “some evidence relating to the showup itself, in order to demonstrate that the procedure was not unduly suggestive” (Ortiz, 90 N.Y.2d at 537 ). This second element of the People's burden may be met through the testimony of an officer who transported the complainant to the location of the showup and who can provide a detailed account of the physical circumstances of the procedure (People v. Mack, 2016 WL 313643, 1 [2nd Dept 2016] [People met their burden by providing the testimony of one detective, who both transported the complainant to the showup and was able to provide a detailed description of the showup procedure]; People v. Ervin, 118 AD3d 910, 911 [2nd Dept 2014] [same] ). As the Court of Appeals has stated, “[w]hile 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” (Ortiz, 90 N.Y.2d at 537, citing People v. Chipp, 75 N.Y.2d 327, 335 [1990] ). Here, the People have failed to meet their threshold burden.
In the instant case, Officer Stankevicius testified that the complainant was removed from his marked police vehicle and placed into the rear of an unmarked vehicle which was then driven closer to the location of the five individuals for the showup. No officer from the unmarked vehicle was called to testify. Officer Stankevicius himself could not recall what officer was in the car with the complainant at the time. The record is silent as to how long the complainant was in the unmarked vehicle prior to the identification. From this record, it cannot be ascertained who was with the complainant in the unmarked vehicle at the time of the identification, whether anything was said to the complainant while he was in the unmarked vehicle prior to the identification, or whether the complainant said anything while he was in the unmarked vehicle prior to the identification.
This case is distinguishable from People v. Mitchell, 185 A.D.2d 249 [2nd Dept 1992], where the Second Department reversed the hearing court's decision which granted a motion to suppress identification testimony. In Mitchell, the People did not produce at the hearing the officers who were seated in the car with the complainant when the identification was made. In Mitchell, however, the testifying officer received a description of an individual who had just committed a robbery in the area and upon observing an individual who matched the description, gave chase. The suspect escaped by jumping over a fence, but the officer communicated a description of the suspect to fellow officers who were in the area. As the officer turned onto the block to where the suspect was running just before his escape, he observed the defendant already in police custody. At approximately the same time, the officer noticed the complainant, who was sitting in a nearby police car with other officers, positively identify the defendant by pointing him out and saying “That's him.” The identification in Mitchell was a spontaneous, unprompted identification that took place at approximately the same time, that is, simultaneously with the defendant's arrest. Here, the identification by the complainant was neither spontaneous nor unprompted (see generally People v. Dixon, 85 N.Y.2d 218, 223 [1995] ). And significantly, there has been no testimony in the instant matter regarding the length of time that elapsed between the time the complainant was placed into the unmarked vehicle and the time of the showup identification or what was said to or by the complainant during that time. As such, the People have not provided this court with a witness that can provide a detailed account of the entire showup procedure and have failed to meet their burden of showing the lack of any undue suggestiveness.
Moreover, in the instant case the circumstances of the showup, when taken as a whole, render the showup unduly suggestive. Here, the five suspects were lined up side by side along a fence. They were flanked by officers to their left and right. There were multiple officers, as many as eight, and multiple police vehicles on the scene. The complainant had been informed by Officer Stankevicius that he was being taken to a location to view possible suspects, he was transferred into another vehicle and driven closer to the suspects by an unidentified officer, and then asked whether any of the individuals were the ones who robbed or assaulted him. The suspects were shown to the complainant, and eventually identified by the complainant, together as a group. Additionally, during the showup one of the suspects was carrying a basketball. Although an individual with a basketball was part of the description of the suspects, the record is silent with regard to whether the suspect held the basketball of his own accord or was directed to do so by the police (see People v. James, 128 AD3d 723, 725 [2nd Dept 2015] [police's active involvement in draping shirt over defendant after complainant showed hesitation in identifying shirtless defendant rendered showup unduly suggestive] ). While some of these factors, taken alone or even together, do not necessarily make a showup identification unduly suggestive, “[i]t is the cumulative effect of what otherwise might be individually permissible that makes this particular showup identification unduly suggestive” (People v. Cruz, 129 AD3d 119, 126–7 [1St Dept 2015] ). Accordingly, the defendants' motions to suppress the showup identification is granted and an independent source hearing is ordered.
This constitutes the decision and order of the court.