People v Davis

[*1] People v Davis 2005 NY Slip Op 50049(U) Decided on January 25, 2005 Supreme Court, Queens County Rotker, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 25, 2005
Supreme Court, Queens County

THE PEOPLE OF THE STATE OF NEW YORK

against

OMAR DAVIS, Defendant.



1192 - 04

Seymour Rotker, J.

An indictment has been filed against the defendant accusing him of the crime of rape in the first degree. The charge is that on January 8, 2004, defendant forcibly engaged in sexual intercourse with Angela Wilks.

Defendant, claiming that improper identification testimony may be offered against him, has moved to exclude the pretrial identification as well as the prospective identification testimony of Angela Wilks on the ground that they are inadmissible because the prior identification of the defendant by the prospective witness was improper.

The People have the burden of going forward to show that the pretrial identification procedure was not constitutionally impermissible. The defendant, however, bears the burden of establishing, by a preponderance of the evidence, that the procedure was impermissible. If the procedure is shown to be improper, the People then have the burden of proving by clear and convincing evidence that the prospective in-court identification testimony, rather then stemming from the unfair pretrial confrontation, has an independent source.

Defendant also claiming to be aggrieved by an unlawful acquisition of evidence, has moved to suppress a statement made by him on January 8, 2004, to Detective Howard in the presence of Police Officer John Webber, on the ground that it was involuntarily made within the meaning of CPL 60.45.

A confession or admission is admissible at trial in this State only if its voluntariness is established by the People beyond a reasonable doubt.

The assistant district attorney and defense attorney have stipulated to the testimony of Police Officer Heffernan.

A pretrial suppression hearing was conducted before me on January 12, 2005.

I give full credence to the testimony of the People's witness, Police Officer John Webber.

[*2]I make the following findings of fact:

Police Officer John Webber was working on an anti crime patrol on January 7 into January 8, 2004, having commenced his tour of duty at 10:00P.M. on January 7, 2004, along with his partner, Police Officer Winkler.

At approximately 3:11A.M. on January 8, 2004 a 911 call was received concerning Angela Wilks. At approximately 4:25A.M., Webber and Winkler were directed by their dispatcher to go to 106th Avenue and Roscoe Street within the confines of the 103rd precinct to speak to a female who was being assisted in a police vehicle by two uniformed officers. They arrived at the location within minutes and spoke to a female, Angela Wilks, who said she had been raped at gunpoint by a livery cab driver who at previous times had driven her in his cab. She said in words or substance on the day in question that he had taken her to his house around the corner and that his gray livery cab was parked in the driveway of the house where she had been taken.

Webber and Winkler went around the corner, where there was new house construction in the area, and only one of the houses had a gray car parked in the driveway.Webber noticed somebody looking out of the second floor window of the house. No one came in or out of the premises while they were there. Webber called his sergeant who arrived within minutes and also called the patrol car in which the complaining witness, Wilks, was riding and told the operator of the vehicle, Officer Heffernan, to bring Wilks to the area for a possible identification.

The sergeant knocked on the door of the premises, later identified as 178-11 107th Avenue, and the door was answered by a person later identified as defendant, Omar Davis. He was asked to step out onto the stoop of the premises. Heffernan's police car drove up and Wilks, from a distance of twenty feet, identified the defendant as the person who attacked her. There was no suggestive conduct by any police officers as to the identification process.

Defendant was arrested and taken to the 103rd precinct and at approximately 9:25A.M. on January 8, 2004, was interviewed by Detective Howard of the Special Victims Unit in the presence of Police Officer Webber. Howard advised the defendant in words or substance that he had the right to remain silent; that anything he said could be used against him in a court of law; he had the right to consult with an attorney at that stage or at any stage of the proceedings; and that if he couldn't afford an attorney one would be provided for him. To all of the aforesaid admonitions, the defendant said "yes" he understood and proceeded to make a statement.

I make the following conclusions of law:

The New York State Constitution prohibits the introduction at trial of identification evidence obtained by the government or its agents, if the identification was secured through unduly suggestive means. An identification procedure is "unduly suggestive" if it "creates a substantial likelihood that the defendant would be singled out for identification." People v. Chipp, 75 NY2d 327, 335, 553 N.Y.S.2d 72 (1990) cert. denied, 498 U.S. 833 (1990).

At the hearing which was conducted before this Court on the issue of undue suggestibility, the People had the burden to go forward with credible evidence to establish that the noticed pre-trial identification procedure was legally conducted and not unduly suggestive, People v. Chipp, supra. [*3]Here, the People served notice of a "Point Out" by the complainant.[FN1] The People have met their burden that the identification was proper.

Significantly, in People v. Duuvon, 77 NY2d 541, 569 N.Y.S.2d 346 (1991), a case decided by the Court of Appeals which addressed the propriety of a show up identification, the defendant was arrested, handcuffed, placed in the rear of the police car and was transported around the corner where he was identified by the employee of a dry-cleaning establishment that he had just robbed.[FN2] After conducting a hearing, the Court found that the employee's identification of the defendant, was not so suggestive as to create a substantial likelihood of misidentification.[FN3]

The factors considered by the Duuvon Court in determining whether the identification procedure was unduly suggestive included the proximity of the defendant's arrest to the scene of the crime and how close in time to the crime the defendant was apprehended. These same factors were evaluated by this Court. See People v. Neely, 219 AD2d 444, 645 N.Y.S.2d 494 (2d Dept. 1996)(identification by witness pursuant to canvas with police not unduly suggestive where close in place and time to crime); People v. Mitchell, 185 AD2d 249, 585 N.Y.S.2d 783 (one on one identification close in spatial and temporal proximity to crime proper); see also People v. Martinez, 3 AD3d 539, 770 N.Y.S.2d 635 (2d Dept. 2004); People v. Starr, 221 AD2d 488, 634 N.Y.S.2d 132 (2d Dept. 1995).

Significantly, in Duuvon, the defendant was arrested before the identification was made by the store employee. Here, defendant was only arrested after the victim identified him as the perpetrator. This Court has considered a number of factors in reaching its decision. Ms. Wilks, the complainant, was able to direct the police to defendant's house, which was around the corner from where she met the police. She stated that she knew the defendant because she had taken his cab on previous occasions and was familiar with him. Furthermore, she provided a description of his car as gray. Upon following the complainant's directions, the police were able to accurately identify the location of defendant, which was also the location of the crime. Once the police observed the only gray car at the described location, they knocked on the door and defendant answered the door. Upon opening the door and coming outside, the complainant, who had been transported back to the scene and was seated in a police car, identified him as the perpetrator and he was placed under arrest. [*4]Thus, defendant was actually apprehended at the location of the crime, within approximately an hour and a half of the crime's occurrence and was only arrested after the identification took place.

Furthermore, the crime was in close temporal proximity and location to the point-out and the complainant was not influenced by the police in identifying defendant as the perpetrator. Therefore, under the circumstances presented no undue suggestiveness exists and defendant's motion for suppression of the identification is denied.

Defendant also seeks suppression of his statement. However, defendant's post Miranda statement was not the fruit of an illegal arrest and the People have met their burden of establishing beyond a reasonable doubt that this statement was also voluntary. See People v. Witherspoon, 66 NY2d 973, 498 N.Y.S.2d 789 (1985). Defendant was fully and properly apprised of his Miranda rights and knowingly, intelligently and voluntarily waived them. See People v. Sirno, 76 NY2d 967, 563 N.Y.S.2d 730 (1990). Thus, defendant's post Miranda statement is admissible into evidence.

Accordingly, defendants' application to suppress the identification testimony and his statement is denied.

The foregoing constitutes the opinion, decision and order of the court.

Kew Gardens, New York

Dated: January 25, 2005

SEYMOUR ROTKER

JUSTICE SUPREME COURT

Footnotes

Footnote 1:Notably, even under circumstances where a civilian witness engages in a canvas with the police and spontaneously points out the suspect, a Wade hearing is required since the possibility exists that the police unduly influenced the witness. People v. Dixon, 85 NY2d 218 (1995).

Footnote 2:In Duuvon, only the employee's identification was challenged.

Footnote 3:In Duuvon, a store manager and an employee were working at the time of the robbery, which was the second time the defendant had robbed the location. The defendant fled the scene by jumping in a cab. After driving less than two blocks, the cab driver signaled the police and stopped in the path of the police car. The defendant got out of the cab and ran. The police chased the defendant and apprehended him approximately one-half block away and, at the same time, the manager, who had also been in pursuit, arrived and immediately and spontaneously identified the defendant as the robber.