Opinion
1254N/11
02-24-2012
The People of the State of New York v. Lashawn Solomon, DWIGHT WASHINGTON, CAREATHER WILLIAMS AND IBN MUHAMMAD, Defendants.
, J.
Defendant Lashawn Solomon is charged with two counts of violating Penal Law § 160.10(1), Robbery in the Second Degree as a class C felony; one count of violating Penal Law § 160.05, Robbery in the Third Degree as a class D felony; and three counts of violating Penal Law § 155.30(1), Grand Larceny in the Fourth Degree as a class E felony. Defendant Dwight Washington is charged with two counts of violating Penal Law § 160.10(1), Robbery in the Second Degree as a class C felony; one count of violating Penal Law § 160.05, Robbery in the Third Degree as a class D felony; two counts of violating Penal Law § 155.30(1), Grand Larceny in the Fourth Degree as a class E felony; and one count of violating Penal Law § 155.25, Petit Larceny as a class A misdemeanor. Defendant Careather Williams is charged with two counts of violating Penal Law § 160.10(1), Robbery in the Second Degree as a class C felony; one count of violating Penal Law § 160.05, Robbery in the Third Degree as a class D felony; two counts of violating Penal Law § 155.30(1), Grand Larceny in the Fourth Degree as a class E felony; and one count of violating Penal Law § 155.25, Petit Larceny as a class A misdemeanor. Defendant Ibn Muhammad is charged with two counts of violating Penal Law § 160.10(1), Robbery in the Second Degree as a class C felony; four counts of violating Penal Law § 160.05, Robbery in the Third Degree as a class D felony; five counts of violating Penal Law § 155.30(1), Grand Larceny in the Fourth Degree as a class E felony; and one count of violating Penal Law § 155.25, Petit Larceny as a class A misdemeanor.
After the hearing began, defendant Lashawn Salomon entered a plea of guilty and therefore, the hearing was discontinued as to that defendant.
On January 13, 17, 18, 19, and 23, 2012, upon stipulation by the attorneys, this Court conducted a Huntley, Mapp, and Wade hearing. (See People v Huntley, 15 NY2d 72 [1965]; Mapp v Ohio, 367 US 643, 81 SCt 1684, 6 LEd2d 1081 [1961]; and US v Wade, 388 US 218, 87 SCt 1926, 18 LEd2d 1149 [1967]). The Huntley hearing pertained to various oral and written statements allegedly made by defendants Careather Williams and Ibn Muhammad. The Mapp hearing pertained to money allegedly seized from Dwight Washington, Careather Williams and Ibn Muhammad, and various other items allegedly seized from the car owned by Ibn Muhammad; namely; United States currency, wigs, sunglasses, clothing, a bank robbery demand note, and a GPS unit. The Wade hearing pertained to a photo array identification procedure conducted with respect to defendant Dwight Washington.
A search warrant was issued by a Queens County Judge permitting the Police to examine the contents of the GPS Unit. Therefore, the examination of the GPS Unit is not within the scope of this hearing.
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The People called four (4) witnesses at the hearing: Police Officer Erica Madden, a nine and a half (9 ½) year veteran of the New York City Police Department; Detective Patrick Curran, a twenty-two (22) year veteran of the New York City Police Department; Detective Stephen Graziose, a twenty-one (21) year veteran of the Nassau County Police Department; and Detective Daniel Finn of the Nassau County Police Department. The defendants did not call any witnesses. Based on the testimony of the witnesses, this Court makes the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
This Court finds the testimony of Police Officer Erica Madden, Detective Patrick Curran, Detective Stephen Graziose, and Detective Daniel Finn to be credible.
Officer Madden testified that on September 11, 2010, she was employed by the New York City Police Department. Officer Madden was assigned to work an "anti-crime" detail within a high crime area in the 107th Precinct in Queens County. She was working with a partner, Sergeant Keifer. Both Officer Madden and Sergeant Keifer were in plain clothes and driving in an unmarked Police car. Officer Madden testified that at approximately 12:30 p.m., she was traveling northboundon 188th Street at the intersection of 64th Avenue. Officer Madden testified that she observed two (2) individuals, identified in Court as defendants Careather Williams and Dwight Washington, walking southbound on 188th Street. Officer Madden indicated that her attention was drawn to defendants Williams and Washington because they were both wearing heavy hooded sweatshirts. She noted that the defendants' clothing stood out to her because the temperature was warm that day. Officer Madden observed defendants Williams and Washington put up the hoods on their sweatshirts as they entered the Queens County Savings Bank located on 188th Street. Officer Madden immediately made a U-turn on 188th Street and pulled her car over to wait and observe the bank. Officer Madden testified that approximately one (1) minute later she saw defendants Williams and Washington run out of the bank and enter the rear door of a Toyota Camry that was attempting to pull out of a parking space.
Officer Madden testified that she believed that a bank robbery had just occurred and, therefore, she stopped the Toyota Camry by pulling her unmarked Police car in front it. Officer Madden indicated that the Toyota Camry had dark tinted windows and she was unable to determine how many people were inside the vehicle. Both Officer Madden and Sergeant Keifer exited their unmarked Police car. Officer Madden approached the Toyota Camry with her gun drawn. Officer Madden went to the rear passenger door of the Toyota Camry and Sergeant Keifer went to thefront driver's side door of the vehicle. Officer Madden ordered the occupants of the vehicle to open the rear car door. Officer Madden testified that when she opened the rear passenger door of the Toyota Camry, she immediately saw large amounts of U.S. currency on defendant Washington's lap. Officer Madden observed four (4) people in the vehicle, defendants Williams and Washington were in the rear of the vehicle, and defendants Muhammad and Solomon were in the front of the vehicle. Officer Madden described seeing money "floating out of the vehicle" and all over the inside of the vehicle. Officer Madden testified that defendant Washington was wearing a "yellowish latex glove" on his right hand. She also noticed various property strewn about the car; i.e., wigs and sunglasses. Officer Madden testified that there was an open duffel bag sitting on the center console with a wig laying on top of it. Officer Madden also observed that defendant Williams' hair looked different than it did when she previously observed her exiting the bank. Officer Madden indicated that one of the wigs inside the vehicle appeared to have been previously worn by defendant Williams.
Officer Madden and Sergeant Keifer removed the defendants from the vehicle, handcuffed them, and searched them. Officer Madden testified that she searched the pockets of defendant Washington's sweatshirt and recovered U.S. currency. Officer Madden searched the pockets of defendant Williams' sweatshirt and recovered U.S. currency. Officer Madden searched defendant Solomon and found U.S. currency. Officer Madden testified that Sergeant Keifer searched defendant Muhammad and recovered a wallet from his pocket. Officer Madden noticed that the wallet was unable to close because it contained a large amount of money. Officer Madden testified that the duffel bag, which was on the center console, was searched and three wigs, sweatshirts, clothing, shirts, sunglasses, and a bank robbery note were recovered. A portion of the recovered currency was later matched to an alleged Nassau County bank robbery. Officer Madden testified that the trunk of the Toyota Camry was also searched and that a wig, sweatshirts, clothing, and latex gloves were found. Officer Madden testified that each of the defendants was transported to the 107th Precinct for processing. On cross-examination, Officer Madden testified that the duffel bag and the vehicle were searched at the 107th Precinct and not at the scene. She also testified on cross-examination that, while she was handcuffing the defendants, a 911 radio dispatch communication came over her radio indicating that there had been a bank robbery at the Queens County Savings Bank. Officer Madden testified that she responded to the radio communication that they already had the suspects in custody.
Detective Curran testified that on September 11, 2010, he was employed by the New York City Police Department. At approximately 12:45 p.m., he was directed to respond to 188th Street in Queens regarding a "robbery in progress." Upon responding to the scene, he observed the Toyota Camry which had been pulled over. Detective Curran testified that he looked into the interior of the vehicle and observed cash thrown about the vehicle, gloves, wigs, clothing, a duffel bag and a GPS device. Detective Curran photographed the interior of the Toyota Camry. Shortly thereafter, he went to the 107th Precinct.
Detective Curran testified that, after arriving at the 107th Precinct, he met with an individual named Ibn Muhammad. He introduced himself and indicated to Ibn Muhammad that he wanted to speak with him. Ibn Muhammad was handcuffed in the Detective Squad at that time. Detective Curran testified that he read to Ibn Muhammad his "Miranda Warnings" using a Miranda sheet that was admitted into evidence as People's Exhibit 2. Detective Curran asked Ibn Muhammad if he understood his rights and was willing to answer questions. Ibn Muhammad indicated that he understood his rights, signed and initialed the Miranda sheet, and agreed to answer questions. Ibn Muhammad made various oral statements to Detective Curran. At the conclusion of the discussion, Ibn Muhammad declined to give a written statement to Detective Curran. Detective Curran was not asked, in Court by the prosecutor, to identify the individual who he referred to as Ibn Muhammad and who had made the oral statements to him.
Detective Curran testified that he next spoke with an individual named Careather Williams. He introduced himself and indicated to Careather Williams that he wanted to speak with her. Careather Williams was handcuffed in the Detective Squad at that time. Detective Curran testified that he read to Careather Williams her "Miranda Warnings" using a Miranda sheet that was admitted into evidence as People's Exhibit 5. Detective Curran asked Careather Williams if she understood her rights and was willing to answer questions. Careather Williams indicated that she understood her rights, signed and initialed the Miranda sheet, and agreed to answer questions. Careather Williams made various oral statements to Detective Curran. At the conclusion of the discussion, Careather Williams reduced her oral statements to writing and signed her written statement, which was admitted into evidence as People's Exhibit 6. On cross-examination, Detective Curran indicated that four (4) hours elapsed between the time his interview with Careather Williams began, and when it ended. Detective Curran was unable to explain the reason that the interview lasted four (4) hours. Detective Curran was not asked, in Court by the prosecutor, to identify the person who he referred to as Careather Williams and who had made the oral and written statements to him.
Detective Graziose testified that on September 11, 2010, he was employed by the Nassau County Police Department. At some time after 12:45 p.m., he was called in to investigate a string of bank robberies that had occurred in Nassau County. He was directed to respond to the 107th Precinct in Queens County. Detective Graziose arrived at the 107th Precinct at approximately 3 p.m. and met with Detective Curran. Detective Graziose testified that after his discussion with Detective Curran, he next spoke with an individual named Ibn Muhammad.Ibn Muhammad was handcuffed in the Detective Squad at that time. He introduced himself and indicated to Ibn Muhammad that he wanted to speak with him about various bank robberies which occurred in Nassau County. Detective Graziose testified that he had been present when Detective Curran read Ibn Muhammad his "Miranda Warnings." Ibn Muhammad made various oral statements which Detective Curran reduced to writing. The written statement was admitted into evidence as People's Exhibit 10. Detective Graziose was not asked, in Court by the prosecutor, to identify the person who he referred at as Ibn Muhammad and who had made the oral and written statements to him.
Detective Graziose testified that he and Detective Finn next spoke with an individual that Detective Finn identified, in Court, to be defendant Careather Williams. Defendant Williams was handcuffed in one of the interview rooms in the Detective Squad at that time. They introduced themselves and indicated to defendant Williams that they wanted to speak with her about a number of bank robberies which had occurred in Nassau County. Detective Graziose testified that Detective Finn read to defendant Williams her "Miranda Warnings" using a Miranda card, which was admitted into evidence as People's Exhibit 19. Detective Finn asked defendant Williams if she understood her rights and was willing to answer questions. Defendant Williams indicated that she understood her rights, signed and initialed the Miranda card and agreed to answer questions. Defendant Williams made various statements to both Detective Graziose and Detective Finn over three and a half (3 ½) hours. Defendant Williams also identified and signed various photographs. The photographs were admitted into evidence as People's Exhibits 12, 15, 17, 21, 22, 23, 25, 26, 27, 29 and 30. Detective Graziose and Detective Finn reduced defendant Williams' various oral statements to separate written statements according to the bank involved and the date of each alleged bank robbery. Defendant Williams reviewed the written statements and signed the written statements. The written statements were admitted into evidence as People's Exhibits 11,14,16,20,24,and 28.
Detective Graziose testified that on September 13, 2010, he went to the residence of one of the bank tellers, Claudia Forkin, who had been working during the alleged bank robbery at TD Bank in Oceanside, Nassau County, New York. He informed Ms. Forkin that he would show her a photo array of six (6) males. He informed her that the person who robbed her may or may not be in the photo array. Detective Graziose then showed Ms. Forkin the photo array and asked her if she recognized anyone, and if so, where from. Ms. Forkin said she identified the individual in position 2 in the photo array as the man who robbed her at TD bank on Long Beach Road, in Oceanside on August 15, 2010. Detective Graziose testified that the person in position 2, of the photo array, was defendant Dwight Washington. On cross examination, defense counsel for defendant Washington pointed out that at the top left corner of the photo array sheet there was a small seal which reads "New York, New Jersey High Intensity Drug Trafficking Area." The photo array was admitted into evidence as People's Exhibit 18.
Detective Finn testified that he spoke to an individual named Ibn Muhammad. Detective Finn introduced himself and indicated to Ibn Muhammad that he wanted to speak with him. Ibn Muhammad was handcuffed in the Detective Squad at that time. Detective Finn testified that he read to Ibn Muhammad his "Miranda Warnings" using a Miranda card that was admitted into evidence as People's Exhibit 31. Detective Finn asked Ibn Muhammad if he understood his rights and was willing to answer questions. Ibn Muhammad indicated that he understood his rights, signed and initialed the Miranda card, and agreed to answer questions. Ibn Muhammad made various statements to Detective Finn regarding a bank robbery at the TD Bank on Long Beach Road, Oceanside, Nassau County, New York, allegedly occurring on August 15, 2010. Detective Finn reduced Ibn Muhammad's oral statements to writing. Ibn Muhammad reviewed the written statement and signed the written statement. The written statement was admitted into evidence as People's Exhibit 32. Detective Finn continued to speak with Ibn Muhammad about other bank robberies that allegedly occurred in Nassau County. Detective Finn testified that Ibn Muhammad also identified a photograph that he viewed. The photograph was admitted into evidence as People's Exhibit 33. Ibn Muhammad gave oral statements about various other bank robberies occurring in Nassau County. At the conclusion of the discussion, Ibn Muhammad declined to give a written statement regarding any other bank robberies. When Detective Finn was asked by the prosecutor, in Court, to identify the person who he had been referring to as Ibn Muhammad, Detective Finn pointed out defendant Dwight Washington.
CONCLUSIONS OF LAW
Defense counsels argue that there was no reason or basis for the stop of the Toyota Camry in which the defendants were traveling. Defense counsels point out that at the time of the car stop, the Police had no information that a bank robbery had occurred and there was no Vehicle and Traffic Law basis to stop the vehicle. Defense counsels contend that all the Police had observed prior to the car stop were two individuals in heavy clothes running out of a bank. Further, defense counsels assert that the testimony adduced at the hearing failed to establish a basis for the defendants to be removed from the car and searched. Defense counsels conclude that everything occurring after the defendants were removed from the car should be suppressed. Defense counsel for defendant Washington contends that the photo array identification of his client was unduly suggestive and that there was a seal appearing on the photo array sheet which reads, "New York, New Jersey High Intensity Drug Trafficking Area." Defense counsel argues that this seal tainted the identification procedure.
The People respond that Officer Madden had a basis to stop the Toyota Camry based on the defendants' suspicious actions; i.e., wearing inappropriate clothing for the season, pulling up hoods over their heads before entering a bank, and running out of the bank a minute later. The People argue that the defendants were properly removed from the Toyota Camry based on the excessive amount of money in the car. The People further argue that the search of the defendants, the duffel bag, and the car, including the trunk, were all proper since they occurred incident to a lawful arrest. The People argue that the photo array was not unduly suggestive and that seal on the photo array did not taint the identification procedure since it was illegible.
REASONABLE SUSPICION FOR THE STOP OF THE VEHICLE:
The 4th Amendment to the United States Constitution guarantees that Citizens shall be free of unreasonable searches and seizures, of individual liberty and privacy, and the right to be left alone. The landmark Court of Appeals decision in the case of People v. De Bour, 40 NY2d 210, 352 NE2d 562 [1976], firmly established that "Before the police may stop a person pursuant to the common-law right to inquire there must exist at that moment a founded suspicion that criminal activity is present," and "the police may not justify a stop by a subsequently acquired suspicion resulting from the stop." It has been long held that the stop of an automobile constitutes a limited seizure of its occupants for federal and state constitutional purposes (see Delaware v. Prouse, 440 US 648, 99 SCt 1391, 59 LEd2d 660 [1979]). The Court of Appeals has specifically held that in order for a Police Officer to legally stop a vehicle, the Officer needs to have either observed a violation of the Vehicle and Traffic Law, or reasonably suspects that the occupants had been, were then, or were about to be engaged in criminal conduct. (See People v. Spencer, 84 NY2d 749 [1995] cert denied 516 US 905, 116 SCt 271, 133 LEd2d 192 [1995]; People v. Sobotker, 43 NY2d 559 [1978]; People v. May, 81 NY2d 725 [1992]); People v Ingle, 36 NY2d 413 [1975]).
In this case, Officer Madden testified that she observed defendants Washington and Williams entering a bank, in a high crime area, with clothing that was suspicious given the weather conditions. Specifically, the defendants were wearing heavy hooded sweat shirts on a warm day when Officer Madden was wearing a T-shirt. Officer Madden observed defendants Washington and Williams put up their hoods before entering the bank and then she observed them race out of the bank and into a moving Toyota Camry. Officer Madden testified that she believed that a bank robbery had occurred. This Court finds that the observations of Officer Madden correctly supported her belief. It is clear that a Police Officer may not stop a vehicle merely based on a hunch. However, Officer Madden's belief was sufficiently grounded in otherwise inexplicable and suspicious behaviors by the defendants. The observations of Officer Madden were sufficient to indicate that criminal activity was afoot; namely, that a bank robbery had just occurred and that the defendants were fleeing therefrom. Hence, this Court finds that Officer Madden had reasonable suspicion to pursue the defendants and stop the Toyota Camry, into which they fled, to conduct a further investigation. Since Officer Madden was approaching a vehicle with dark tinted windows containing individuals that she suspected were involved in a bank robbery, her approach with her gun drawn, and her command that the occupants open the vehicle's door were justified for Police Officer safety. (See People v. Robinson, 74 NY2d 773, 774-775 [1989] cert denied 493 US 966, 110 SCt 411, 107 LEd2d 376 [1989]; People v. Douglas, 42 AD3d 756 [3rd Dept 2007] lv denied 9 NY3d 922 [2007]; People v. Shackleford, 57 AD3d 578 [2nd Dept 2008] lv denied 12 NY3d 762 [2009]; People v. Sutherland, 40 AD3d 890 [2nd Dept 2007]). The mere fact that Officer Madden had her gun drawn did not transform the stop into an arrest. (See People v. Clark, 172 AD2d 679 [2nd Dept 1991]; People v. Mateo, 122 AD2d 229 [2nd Dept 1986] lv denied 69 NY2d 952 [1987]; People v. Pitt, 110 AD2d 723 [2nd Dept 1985] cert denied 474 US 922, 106 SCt 254, 88 LEd2d 261 [1985]; People v. Allen, 73 NY2d 378 [1989]).
REMOVAL OF THE DEFENDANTS FROM THE VEHICLE:
Officer Madden testified that as soon as she opened the rear door of the Toyota Camry, she saw large amounts of U.S. currency on defendant Washington's lap. She described seeing money "floating out of the vehicle" and money all over the inside of the vehicle. She also noticed that defendant Washington was wearing a "yellowish latex glove" on his right hand, and that there were wigs and sunglasses strewn throughout the car. She saw an open duffel bag sitting on the center console, with a wig sticking out of the top. Finally, Officer Madden testified that she noticed that defendant Williams' hair looked different than it did when she observed her running from the bank. The conduct of defendants Washington and Williams in entering into and fleeing from the bank, together with the observations by Officer Madden of the interior of the Toyota Camry were sufficiently suspicious enough to warrant Officer Madden removing the defendants from the vehicle to continue the investigation and for Police Officer safety concerns. (See People v. Robinson, 74 NY2d 773, 774-775 [1989] cert denied 493 US 966, 110 SCt 411, 107 LEd2d 376 [1989]; People v Douglas, 42 AD3d 756 [3rd Dept 2007] lv denied 9 NY3d 92 [2007]). Moreover, these observations, when taken together, correctly elevated the suspicion level of Officer Madden from reasonable suspicion to stop the defendants, and the Toyota Camry, to probable cause to arrest the defendants for robbing the Queens County Savings Bank.
SEARCH OF THE DEFENDANTS:
Officer Madden testified that as soon as the defendants were removed from the Toyota Camry, they were handcuffed and placed under arrest. She testified that at the same time, she received a radio call that there had been a bank robbery at the Queens County Savings Bank. Officer Madden testified that various sums of currency were recovered from each of the defendants. In addition, Officer Madden stated that she observed the contents of defendant Muhammad's wallet as it was handed to her by Sergeant Keifer because the wallet could not close as it was stuffed with money.
Since this Court finds that there was probable cause to arrest the defendants upon them exiting the car, the search of the defendants was legally permissible as a search incident to a lawful arrest. (See People v. Weintraub, 35 NY2d 351 [1974]; People v. Anderson, 91 AD3d 789 [2nd Dept 2012]; People v. Ralston, 303 AD2d 1014 [4th Dept 2003]). Defendants' motions to suppress the items recovered pursuant to a search of each of the defendants are hereby denied. SEARCH OF THE DUFFEL BAG AND THE TOYOTA CAMRY:
Officer Madden testified that she observed an open duffel bag on the center console of the Toyota Camry and she noticed a wig protruding out. The duffel bag and the wig were in plain view. She testified that the duffel bag was searched at the scene incident to arrest. Officer Madden also testified that the inside and the trunk of the Toyota Camry were searched at the scene incident to arrest. On cross-examination, she testified that the duffel bag and the trunk were searched back at the 107th Precinct. It is well settled that "[a] police officer's entry into a citizen's automobile . . . is a significant encroachment upon that citizen's privacy interest" (see People v. Torres, 74 NY2d 224, 229-30 [1989]; People v. Aquino, 119 AD2d 464, 465 [1st Dept 1986]). An ordinary traffic infraction standing alone will not justify a search of the vehicle. However, circumstances unique to the automobile context justify a search incident to a lawful arrest when it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle" (see Thornton V. United States, 541 US 615, 124 SCt 2127, 158 LEd2d 905 [2004]; People v. Belton, 55 NY2d 49 [1982], rearg denied 56 NY2d 646 [1982]; People v. Ellis, 62 NY2d 393 [1984]; People v. Cruz, 7 AD3d 335 [1st Dept 2004], lv denied 3 NY3d 672 [2004]; People v. Powell, 32 AD3d 544, 545 [2nd Dept 2006 ]; People v. Langen, 60 NY2d 170 [1983] cert denied 465 US 1028 [1984]; People v. Orlando, 56 NY2d 441 [1982]). If probable cause justified the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search (see United States v. Ross, 456 US 798, 102 SCt 2157, 72 LEd2d 572 [1982]). Furthermore, in these circumstances, the location of the car search, whether it is on the roadside or at the Precinct, is of no moment. This Court finds that both the duffel bag and the Toyota Camry were properly searched incident to the arrest of the defendants. Defendants' motions to suppress the items recovered pursuant to the search of the duffel bag and the Toyota Camry are hereby denied. STATEMENTS BY THE DEFENDANTS: Defendant Muhammad:
Defendant Muhammad allegedly made oral statements to Detective Curran, oral statements and a written statement to Detective Graziose, and oral statements and a written statement to Detective Finn.
Regarding the oral statements to Detective Curran, defense counsel moves to preclude the use of said statements based upon the People's failure to timely serve notice of the statements to defendant Muhammad. The People concede that the oral statements allegedly made by defendant Muhammad to Detective Curran were not previously turned over to defendant Muhammad. The People indicated that they litigated the oral statements in order to use them on cross examination should defendant Muhammad take the stand and testify. Therefore, the People sought to establish that the statements were voluntarily made by defendant Muhammad. The People elicited testimony from Detective Curran that he read "Miranda Warnings," using a Miranda sheet, to an individual who he referred to as Ibn Muhammad. Detective Curran testified that he asked the individual if he understood his rights and was willing to answer questions. Detective Curran testified that the individual indicated that he understood his rights, signed and initialed the Miranda sheet, and agreed to answer questions. Thereafter, the individual made various statements to Detective Curran. At the conclusion of the discussion, the individual declined to give a written statement. The prosecutor failed to have Detective Curran identify defendant Muhammad as the person who was read his "Miranda Warnings," and who voluntarily made the oral statements. Defendant Muhammad's motion to preclude said oral statements is granted since the People failed to give the defendant timely notice of said statements pursuant to C.P.L. § 710.30. The People are also precluded from using said statements on cross examination since they failed to establish that defendant Muhammad was the individual that voluntarily made the statements to Detective Curran.
Regarding the oral statements and written statement to Detective Graziose, defense counsel argues that defendant Muhammad was in custody for over seven hours and that the People failed to establish that he was treated fairly and properly. The People elicited testimony from Detective Graziose that he was present when Detective Curran read "Miranda Warnings," using a Miranda sheet, to an individual named Ibn Muhammad, and that individual was asked if he understood his rights and was willing to answer questions. Detective Graziose testified that the individual indicated that he understood his rights, signed and initialed the Miranda sheet, and agreed to answer questions. Thereafter, the individual made various oral statements to Detective Graziose. At the conclusion of the discussion, Detective Graziose reduced the oral statements to writing. Detective Graziose testified that the individual reviewed the written statement and signed the statement. Again, the prosecutor failed to have Detective Graziose identify defendant Muhammad as the person who was read his "Miranda Warnings," and who made the oral and written statements to Detective Graziose. It is imperative that the People establish that the specific defendant was advised of his or her "Miranda Warnings," that the specific defendant knowingly, intelligently, and voluntarily waived the right to remain silent, and that the specific defendant voluntarily gave the statements. It is impossible for this Court to find those requisite factors without an in Court identification of the person that the witness is referring to, especially with multiple co-defendants. Consequently, defendant's motion to suppress the oral and written statements must be granted since the People failed to establish that defendant Muhammad was the individual that was read his "Miranda Warnings" and who knowingly, intelligently and voluntarily waived his "Miranda Rights" and voluntarily gave the oral and written statements to the Detectives.
Regarding the oral statements and written statement to Detective Finn, defense counsel moves to suppress use of the oral statements and written statement based upon the People failing to establish that defendant Muhammad made the statements. The People elicited testimony from Detective Finn that he read "Miranda Warnings," using a Miranda card, to an individual he referred to as Ibn Muhammad. Detective Finn testified that he asked the individual if he understood his rights and was willing to answer questions. Detective Finn testified that the individual indicated that he understood his rights, signed and initialed the Miranda card, and agreed to answer questions. Thereafter, the individual made various oral statements to Detective Finn. At the conclusion of the discussion, Detective Finn reduced the oral statements to writing. Detective Finn testified that the individual reviewed the written statement and signed the written statement. Detective Finn indicated that he continued to speak with the individual about other bank robberies allegedly occurring in Nassau County. The individual gave statements about other bank robberies. At the conclusion of the discussion, the individual declined to give a written statement regarding any other bank robberies. When Detective Finn was asked by the prosecutor, in Court, to identify the person that he had been referring to as Ibn Muhammad, Detective Finn incorrectly pointed out defendant Dwight Washington. Since Detective Finn was unable to identify defendant Muhammad as the individual who was read his "Miranda Warnings," and who knowingly, intelligently and voluntarily waived his right to remain silent and voluntarily gave the oral statements and a written statement to Detective Finn, the People have failed to meet their burden regarding same. Consequently, the defense motion to suppress the oral and written statements must be granted.
Defendant Williams:
Defendant Williams allegedly made oral statements and a written statement to Detective Currant, and oral statements and written statements to Detective Grazes.
Regarding the oral statements and a written statement to Detective Currant, defense counsel moves to preclude the use of said statements based upon the People's failure to timely serve notice of the statements to defendant Williams. The People concede that the oral statements and the written statement allegedly made by defendant Williams to Detective Currant were not previously turned over to defendant Williams. The People indicated that they litigated the statements in order to use them on cross examination should defendant Williams take the stand and testify. Therefore, the People sought to establish that the statements were voluntarily made by defendant Williams. The People elicited testimony from Detective Currant that he read "Miranda Warnings," using a Miranda sheet, to an individual he referred to as Caretaker Williams. Detective Curran testified that he asked the individual if she understood her rights and was willing to answer questions. Detective Curran testified that the individual indicated that she understood her rights, signed and initialed the Miranda sheet, and agreed to answer questions. Thereafter, the individual made various statements to Detective Curran. At the conclusion of the discussion, Detective Curran testified that the individual reduced her oral statements to a written statement which she reviewed and signed. Again, the prosecutor failed to have Detective Curran identify defendant Williams as the person who was read her "Miranda Warnings," and who voluntarily made the oral statements and the written statement to him. Defendant Williams' motion to preclude said oral statements and the written statement is granted since the People failed to give the defendant timely notice of said statements pursuant to C.P.L. § 710.30. The People are also precluded from using said statements on cross examination since they failed to establish that defendant Williams was the individual that voluntarily made the statements to Detective Curran.
Regarding the oral statements and written statements to Detective Graziose and Detective Finn, defense counsel moves to suppress the use of said statements as not voluntary based upon the length of time that the defendant was in custody before making said statements. The People elicited testimony from Detective Graziose and Detective Finn regarding their meeting with Careather Williams in the Detective Squad. Detective Finn identified, in Court, defendant Williams as the person they met with. Detective Finn testified that he read to defendant Williams her "Miranda Warnings" using a Miranda card. Detective Finn testified that he asked defendant Williams if she understood her rights and was willing to answer questions regarding various Nassau County bank robberies. Detective Finn testified that defendant Williams indicated that she understood her rights, signed and initialed the Miranda card, and agreed to answer questions. Thereafter, defendant Williams made various statements about several Nassau County bank robberies. At the conclusion of the discussion, Detective Finn testified that he and Detective Graziose reduced the oral statements of defendant Williams to a number of written statements which defendant Williams reviewed and signed. This Court holds that defendant Williams was properly given her "Miranda Warnings" and knowingly, intelligently and voluntarily waived her right to remain silent. Defendant Williams then answered the questions of Detective Graziose and Detective Finn, and voluntarily provided written statements. This Court concludes that the oral and written statements made by defendant Williams were voluntarily made by defendant Williams without any threats, physical force or coercion. (See People v. Vidal, 44 AD3d 802, 844 NYS2d 55 [2nd Dept 2007] lv denied 9 NY3d 1010, 850 NYS2d 398 [2007]). Consequently, defendant Williams' motion to suppress the oral and written statements made to Detective Graziose and Detective Finn is hereby denied. PHOTO ARRAY REGARDING DEFENDANT WASHINGTON:
This Court has reviewed the photo array and examined each of the six (6) photographs contained therein. The six (6) photographs depict individuals who exhibit similar characteristics as the defendant. This Court finds that a viewer's attention is not particularly drawn to the defendant. (See People v. Parker, 257 AD2d 693, 684 NYS2d 300 [3rd Dept 1999] lv denied 93 NY2d 1024, 697 NYS2d 583 [1999]). This Court holds that there was nothing unduly suggestive regarding the photo array, or the manner in which Detective Graziose presented the photo array to the complainant. This Court finds that the People established the reasonableness of the Police conduct and the absence of suggestiveness in the photo array. (See People v. Douglas, 306 AD2d 696, 760 NYS2d 373 [3rd Dept 2003]). Finally, this Court finds that the seal in the top left corner of the photo array is practically illegible to the naked eye. Upon a close examination one can discern the words "New York, New Jersey High Intensity Drug Trafficking Area." Nevertheless, this Court finds that said seal did not taint the photo array since under these circumstances, even if the complainant had noticed the markings, they would not have influenced her selection of the defendant's photo (see People v. Devonish, 165 AD2d 723 [1st Dept 1990]. Consequently, defendant Washington's motion to suppress the identification is hereby denied.
This constitutes the Opinion, Decision and Order of this Court
Dated: February 24, 2012
Mineola, New York
Hon. Norman St. George
Acting Supreme Court Justice