Opinion
2018-1079
03-26-2019
The PEOPLE of the State of New York, Plaintiff, v. Zachary WILLIAMS, Defendant.
For the People: SANDRA DOORLEY, ESQ., Monroe County District Attorney, By: CHRISTOPHER BOKELMAN, ESQ., Assistant District Attorney, 47 S. Fitzhugh Street, Rochester, New York 14614 For the Defendant: TIMOTHY DONAHER, ESQ., Monroe County Public Defender, By: JULIE CIANCA, ESQ., Assistant Public Defender, 10 N. Fitzhugh Street, Rochester, NY 14614
For the People: SANDRA DOORLEY, ESQ., Monroe County District Attorney, By: CHRISTOPHER BOKELMAN, ESQ., Assistant District Attorney, 47 S. Fitzhugh Street, Rochester, New York 14614
For the Defendant: TIMOTHY DONAHER, ESQ., Monroe County Public Defender, By: JULIE CIANCA, ESQ., Assistant Public Defender, 10 N. Fitzhugh Street, Rochester, NY 14614
Christopher S. Ciaccio, J.
Defendant Zachary Williams is charged with one count of robbery in the first degree. The indictment alleges that he stole several items at knife-point from a Wal-Mart in the Town of Gates.
The defendant moved by Omnibus Motion dated January 16, 2019 to suppress: 1) statements he gave to law enforcement on the ground of involuntariness; 2) an in-court identification of the defendant by a witness, because the "show-up" identification procedure was unduly suggestive, and 3) items taken from a duffel bag that the defendant was holding when he was apprehended, on the ground that the search of the bag was without a warrant.
Defendant also moved to suppress all tangible evidence, statements and the identification on the ground that they were the fruits of a "poisonous tree" ( Wong Sun v. United States, 371 US 471, 487 [1963] ), i.e., that law enforcement lacked probable cause to apprehend and take him into custody.
The court granted a combined Huntley/Wade/Mapp and probable cause hearing.
The People called three witnesses: Sergeant David Kaiser, Officer Michael Daly, and Officer Edwin Bower, all with the Gates Police Department. Six exhibits were offered by the People and received into evidence. Exhibits 1, 3, 4, and 5 are DVDs made from body-worn cameras worn by law enforcement. Exhibit 6 is a Google satellite map of the area involved in the incident. Exhibit 2 is a sworn statement of a witness, one Eric Royster, an employee of Wal-Mart.
What follows are the court's Findings of Fact based on the testimony it finds credible and accurate and its Conclusions of Law.
FINDINGS OF FACT
On December 12, 2018 Sergeant David Kaiser responded to a report of a possible robbery at the Walmart in the Town of Gates on Chili Avenue. The report said that a white male, wearing a black jacket, black pants and black boots, and carrying a black duffel bag and a machete-style knife, had left the store and was fleeing toward a McDonald's restaurant, also located on Chili Avenue.
Sergeant Kaiser proceeded in the direction of the McDonald's restaurant when he saw a person who matched the defendant's description running northbound away from the McDonald's and towards a public transit bus stopped at the corner of Chili Avenue and Brooks Avenue. Sgt. Kaiser observed the person boarding the bus and paying the fare. Kaiser positioned his vehicle to prevent the bus from pulling away, got out of his vehicle, approached the door of the bus, drew his weapon, and ordered the suspect to get on the floor of the bus. He was able to observe the suspect reach for a machete-like knife attached to the defendant's belt. The defendant complied with the order to get on the floor of the bus, and as he did so he put the duffel bag he was carrying on the seat next to him.
Other officers responded, including Officer Edwin Bower, who handcuffed the defendant. Officers cut off two knives attached to the defendant's belt and placed them in a side pocket of the duffel bag.
Sergeant Kaiser's body-worn camera footage was received as Exhibit 2.
After the defendant was secured and placed in the patrol car driven by Officer Bower, Sergeant Kaiser returned to Wal Mart and interviewed a witness, one Eric Royster, an employee at the Wal-Mart. Royster gave a statement of his encounter with the defendant. That statement was received, over defendant's objection on hearsay grounds, as Exhibit 2.
In his statement Royster stated that he had observed a white male enter the store and wearing a black hat, black hoodie, black jeans, and black boots. The person placed a television set and a gallon of milk in a shopping cart, took a black Russell athletic jacket off a rack and concealed it inside a duffel bag, then attempted to exit the store without paying, passing all points of sale. Royster said he approached the male, identified himself as an Asset Protection worker, and asked him to follow him back inside the store to the Asset Protection office, which the male did. Before going into the office, the male pulled out a "machete-type" knife from his waist band, pointed it at Royster, and ran from the store toward a McDonald's restaurant on Chili Avenue.
After taking the statement, Kaiser informed Royster that he was going to take him outside the Wal-Mart and show him a "person of interest," who may or may not have been involved in the recent robbery. Officer Bower assisted Kaiser conducting the "show-up" identification procedure. In a well-lit area and from a distance of about 10 feet, Royster saw a male sitting in the back of a marked patrol vehicle. The rear door was open. Royster identified the male as the defendant.
The show-up procedure took place less than an hour after the defendant ran out of the Wal-Mart.
Officer Bower and Sergeant Kaiser identified the defendant as the person in the show-up and who had been on the public transit bus carrying two knives.
Back at the Wal-Mart Officer Bower brought the black duffel bag inside the store and showed it to the witness Royster, who identified the bag as similar to the one carried by the defendant. The bag was opened and its contents inspected and eventually inventoried.
Following the identification procedure, Officer Bower accompanied the defendant to the hospital and was with him while the defendant was being treated. The defendant made several spontaneous statements in Officer Bower's presence, unsolicited by anything Officer Bower did or said, regarding his complicity in the attempted robbery of the Wal-Mart.
CONCLUSIONS OF LAW
Probable Cause for the Arrest
Pursuant to Criminal Procedure Law § 140.10, a police officer may arrest a person for:
"(b) A crime when he or she has reasonable cause to believe that such person has committed such crime, whether in his or her presence or otherwise."
When the information that forms the basis for the arrest has come from a 911 caller, the information must pass a two-prong test: "Courts must evaluate both the basis of the informant's knowledge and the reliability or veracity of the informant himself ( People v. Argyris , 24 NY3d 1138, 1141-42[2014], citing to Spinelli v. United States , 393 US 410 [1969] ; Aguilar v. Texas , 378 US 108 [1964] ); People v. Johnson , 66 NY2d 398, 402-403 [1985] ).
The Court of Appeals has "(i)n applying the Aguilar-Spinelli rule, moderated the rigidity of the two-pronged test by holding that evidence corroborating the informant's statements may, in some cases, satisfy either the basis-of-knowledge or the veracity/reliability prong (Argyris at 1138, citing to and quoting People v. Elwell , 50 NY2d 231, 234—235 [1980] [basis-of-knowledge prong may be satisfied only by "confirmation of sufficient details suggestive of or directly related to the criminal activity informed about]; and People v. DiFalco , 80 NY2d 693, 695 [1993] ["the veracity component ... may ... be satisfied by police corroboration of details that are not, if taken separately, suggestive of criminal activity"] ).
Here, Sergeant Kaiser had received a 911 report generated by a Wal-Mart employee that a white male wearing black pants, black jacket, and carrying a black duffel bag had just robbed at knife-point the Wal-Mart on Chili Avenue and then fled toward a McDonald's restaurant and from there north on Chili Avenue. The report was received only several minutes after the robbery; Sgt Kaiser responded to the scene less than one minute after receiving the report.
Sergeant Kaiser saw a person fitting the description of the suspect: he was carrying a machete-like knife on his belt and attempting to board a bus a short distance from the McDonald's. Sergeant Kaiser arrested him.
Accordingly, Sgt Kaiser had reasonable cause to arrest the defendant, given the identity and reliability of the 911 caller; the specificity of the suspect's description and the exact match with the suspect; the brief period of time between Kaiser's response and the time of the incident; the confirmation of details provided by the caller; and the coordination between the suspect's movements up Chili Avenue location and where Kaiser saw the defendant boarding the bus.
Thus, no part of the subsequent interactions between law enforcement and the defendant, including defendant's custodial statements and his presence at the show-up identification procedure, were tainted by an illegal arrest or custodial interference with the defendant's liberty.
The Motion to dismiss all evidence seized or observed on the defendant because law enforcement lacked probable cause to take him into custody is DENIED.
Statements
At a hearing to consider suppression of statements made by a defendant, it is the People's burden to prove beyond a reasonable doubt that the statements were voluntarily made and not the result of coercive police activity or otherwise made in violation of his constitutional rights ( People v. Guilford , 21 NY3d 205, 208 [2013], People v. Anderson , 42 NY2d 35, 38-39 [1977] ). Miranda warnings are required whenever a person is subjected to custodial interrogation; that is, when a person's freedom of movement is restrained in a manner associated with a formal arrest, and the questioning is intended to elicit incriminating evidence (See Miranda v. Arizona , 384 US 436 [1966] ; People v. Bennett , 70 NY2d 891, 893-894 [1987] ; People v. Shelton , 111 AD3d 1334 [4th Dept 2013], lv denied 23 NY3d 1025 [2014] ).
Here, the defendant was in custody from the time he was handcuffed on the bus to and through his transport to the hospital and at the hospital while being treated. There was no testimony that Miranda warnings were ever read to him. However, the statements referenced in the People's notice filed pursuant to CPL 710.30 were not the product of any "questioning intended to elicit incriminating evidence." Rather, the defendant made spontaneous statements in response to questions by hospital personnel and in response to his jacket being taken out of his duffel bag, and thus are admissible.
"The inculpatory statements made by defendant after he invoked his right to counsel were spontaneous and not the result of police interrogation or its functional equivalent" ( People v. Lipscomb , 214 AD2d 970, 970 [4th Dept 1995], citing People v. Rivers, 56 NY2d 476, 479—480, rearg. denied 57 NY2d 775 ). Further, "the police are under no affirmative obligation to prevent a talkative person in custody from making incriminating statements ( People v. Rivers, supra, 56 NY2d at 479 ).
The People have established beyond a reasonable doubt that the defendant's statements were voluntarily made and not the result of coercive police activity, and that there was no violation of his constitutional rights. The defendant's motion to suppress his statements is DENIED.
The "Show-up" Identification procedure
Show-up identifications, in the absence of exigent circumstances, are permissible where the show-up was "reasonable under the circumstances - that is, when conducted in close geographic and temporal proximity to the crime - and the procedure used was not unduly suggestive" ( People v. Brisco , 99 NY2d 596, 597, 788 NE2d 611, 611-12 [2003] ).
"Whether a crime scene show-up is unduly suggestive is a mixed question of law and fact" (Brisco , i.d. ; see also People v. Dangerfield , 140 AD3d 1626, 1627, 33 NYS3d 612, 613 [4th Dept 2016] ).
The fact that the suspect is in handcuffs and in the presence of police officers when seen by the witness does not render the identification procedure impermissible. (see People v. Johnson, 122 AD3d 1338, 1339 lv. denied 25 NY3d 1166
Here, the show-up procedure was not unduly suggestive. The witness had ample opportunity to become familiar with the defendant's features, having watched him as he walked through the Wal-Mart, and then again when he walked him back to the security office. The identification procedure took place in "close geographic and temporal proximity" to the crime in question, less than an hour. Even though the defendant was in handcuffs and in the presence of officers, this did not render the procedure suggestive. The officer did not state that the defendant was the person who had robbed the Wal-Mart earlier that evening, but rather carefully pointed out that the person to be identified "may or may not have been involved."
The motion to suppress an in-court identification is DENIED.
Search of the duffel bag
"On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance" ( People v. Hernandez, 40 AD3d 777, 778, 836 N.Y.S.2d 219 [2d Dept 2007] ; see People v. Berrios, 28 NY2d 361, 367B368 [1971] ); People v. Hall , 54 Misc 3d 1217(A), 54 NYS3d 611 [NY Co Ct 2016]
Law enforcement searched defendant's duffel bag without a warrant, and "(a)ll warrantless searches presumptively are unreasonable per se " ( People v. Jimenez, 22 NY3d 717, 721 [2014] ), quoting People v. Hodge, 44 NY2d 553, 557 [1978] ), thus, the People have the burden of overcoming the presumption of unreasonableness (see People v. Hall , 54 Misc 3d 1217(A), 54 NYS3d 611 [NY Co Ct 2016] ).
In order to do so the People must show 1) that some exigency existed to justify the search of the bag, and 2) that the search was not significantly divorced in time or place from the arrest ( People v. Smith, 59 NY2d 454, 458 [1983] ; People v. Jimenez, 22 NY3d 714, 721—722 [2014]; People v. Hall , 54 Misc 3d 1217(A), 54 NYS3d 611 [NY Co Ct 2016] )
Here, the People cannot meet their burden. The bag was not within the defendant's grabbable area at the time of the search (see People v. Jimenez, 22 NY3d at 722, citing People v. Smith, 59 NY2d 454 at 458 [1983] ), but was rather safely out of defendant's reach, thus the police could not have reasonably believed that the search of the bag was necessary to preserve any evidence that might have been in it (see People v. Gokey, 60 NY2d 309, 312 [1983] ; see also People v. Wilcox, 134 AD3d 1397, 1399 [4th Dept 2015] : "At the time the jacket was searched, defendant was handcuffed in an interview room ... and there was no reasonable possibility that the defendant could have reached it" (quoting People v. Morales, 126 AD3d 43, 46 [1st Dept 2014] ).
As to the second requirement, the search occurred several minutes after the defendant's arrest and therefore did not occur "contemporaneously" with the arrest (see People v. Gokey, 60 NY2d at 312 ).
That the police had an "enhanced" ( People v. Wylie, 244 AD2d 247, 251 [1st Dept 1997] ) reason to search, because they believed that the bag to be searched contained evidence of the crime for which the defendant was arrested, does not make the warrantless search valid (see People v. Thompson, 118 AD3d 922, 924 [2nd Dept 2014] ).
The People argue that because the police put the knives, taken from the defendant's belt at the time of the arrest, into the bag, they were justified in re-opening the bag and taking out the knives. Once inside the bag, they were justified in taking out everything else in the bag.
The argument fails. First of all, the testimony established that the knives were placed into some sort of side pocket of the duffel bag, not into the main container area, which is borne out by the body-worn camera. Secondly, even if the knives had been placed inside the bag along with and in the same compartment as the other contents of the bag, law enforcement's search was not justified. There was no testimony — and nothing to establish the People's burden as to the reasonableness of the search — that the knives couldn't be taken out without seeing or inspecting the rest of the contents of the bag.
Accordingly, the motion to suppress the items found pursuant to the search of the bag is GRANTED.
CONCLUSION
The motion to suppress statements is DENIED. The motion to suppress an in-court identification is DENIED . The motion to suppress physical evidence seized from the defendant's bag is GRANTED.
The above constitutes the Decision and Order of the Court.