People v Mitchell

[*1] People v Mitchell 2005 NY Slip Op 50161(U) Decided on January 18, 2005 Supreme Court, Bronx County Massaro, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2005
Supreme Court, Bronx County

THE PEOPLE OF THE STATE OF NEW YORK,

against

JASON MITCHELL, a/k/a JAY ONE, Defendant.



5176/2003



For the People of the State of New York

HONORABLE ROBERT T. JOHNSON

District Attorney

By: SARA I. JACOBSON, ESQ.

Assistant District Attorney

For Jason Mitchell

Bronx Defenders

By: MARIA TOBIA, ESQ.

Dominic R. Massaro, J.

Defendant, Jason Mitchell, is charged with two counts of Assault in the First Degree (Penal Law § § 120.10 [1], [2]), and related offenses. He moves to suppress his identification and arrest as lacking probable cause. At a combined Wade/Dunaway (see United State v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 [1967]; Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 [1979]) hearing, the People called one witness: New York City Police Detective Jose Ramirez. Defendant did not call any witnesses. The Court finds the testimony of Officer Ramirez to be credible. Suppression is denied.

Factual Setting

The People's Case

On November 1, 2003, in the vicinity of 431 East 135th Street in Bronx County, Orlando Figueroa was allegedly assaulted by two individuals resulting in him being hospitalized at Lincoln Hospital. Over the course of the next few days, Detective Nick Speranza interviewed him at the hospital. Mr. Figueroa told Detective Speranza that he was accosted by two individuals he knows from the neighborhood in which he lives. He indicated that one of them was the superintendent of the building in which he resides, and the other individual was known as "Jay One." Although he did not know Jay One's real name, Mr. Figueroa informed Detective Speranza that he had seen him approximately three to four times a week for the past year. Mr. Figueroa also indicated that Jay One was a male black with braids, between twenty-five and thirty years of age, who weighed approximately 170 pounds.

Detective Speranza conveyed this information to Detective Ramirez. Detective Ramirez [*2]recognized the alias Jay One as belonging to Defendant because he had investigated an incident approximately two years beforehand in which Defendant, using that alias, was the victim of a shooting. In addition, Defendant closely matched the description provided by Mr. Figueroa.

On November 3, the detectives arrested Wilfedo Noe, the superintendent of Mr. Figueroa's building, for this incident. The next day at the 40th Precinct Stationhouse, Detective Ramirez interviewed Mr. Noe, who confirmed that he is the superintendent of the building in which Mr. Figueroa resides, and also indicated that he committed this assault with Defendant, who he named. Mr. Noe further indicated that he knew Defendant for many years, allowed him to sleep in his basement for the past year, and knew his alias as Jay One. The detective then showed a photograph of Defendant to Mr. Noe, who confirmed Defendant's identity as the other attacker.

As a result of the above information, Detective Ramirez prepared a six-photo array containing Defendant's photograph and, on November 4, with Detective Speranza present, showed it to the victim at Lincoln Hospital. Mr. Figueroa identified Defendant, who was in position number three, as the individual who assaulted him with the alias Jay One.

On November 10, 2003, Detective Ramirez arrested Defendant.

Arguments of Counsel

Defendant claims that the People failed to meet their burden because they did not have Detective Speranza testify and Detective Ramirez did not know what was specifically stated in Detective Speranza's conversation with Mr. Figueroa, including whether anything suggestive was conveyed by the detective. Defendant further claims that a Rodriguez (see People v. Felix Rodriguez, 79 NY2d 445 (1992) hearing is needed because the People are alleging that the identifications were confirmatory. Lastly, Defendant claims that the People failed to provide any notice of Mr. Noe's identification.

The People first claim that no notice has to be given for confirmatory identifications, and, in any event, contend that they established that Mr. Noe was sufficiently familiar with Defendant so as to allow him to make an in-court identification. As per Defendant's contention that Detective Ramirez's testimony alone was insufficient, the People argue that the fact that Mr. Noe gave Defendant's name to the detective provided him with sufficient probable cause to place Defendant's photograph in an array to show to Mr. Figueroa. The People further claim that it was not necessary to call Detective Speranza to testify because Detective Ramirez himself conducted the array. Moreover, the People claim that as they met their initial burden, Defendant failed to meet his reciprocal burden by not eliciting any evidence that anything improper or suggestive occurred.

Discussion

In the Dunaway (supra), portion of the hearing, the People have the initial burden of going forward to establish the legality of the police conduct and that the arrest of a defendant is supported by probable cause. See People v. Parris, 83 NY2d 342 (1994); People v. Di Stefano, 38 NY2d 640 (1976). Probable cause exists where the facts and circumstances known to law enforcement would warrant a reasonable person to conclude, under all of the circumstances, that a defendant had committed or was committing a crime. See People v. Bellinger, 74 NY2d 633 (1989); People v. Vasquez, 162 AD2d 153 (1st Dept. 1990), lv. denied, 76 NY2d 867 (1990).

Initially, regarding the fact that Detective Ramirez received information from Detective [*3]Speranza, as explained by the Court of Appeals in People v. Ketcham, 93 NY2d 416, 419-20 (1999): Under the fellow officer rule, a police officer can make a lawful arrest even without personal knowledge sufficient to establish probable cause, so long as the officer is acting "'upon the direction of or as a result of communication with'" a fellow officer or another police agency in possession of information sufficient to constitute probable cause for the arrest (People v Mims, 88 NY2d 99, 113 [1996]; People v Maldonado, 86 NY2d 631, 635-636 [1995]; People v Landy, 59 NY2d 369, 375 [1983]). Information received from another police officer is presumptively reliable (Landy, supra, at 375). Where, however, an arrest is challenged by a motion to suppress, the prosecution bears the burden of establishing that the officer imparting the information had probable cause to act (Mims, supra, at 113-114).

See also People v. Robinson, 8 AD3d 131, 132-33 (1st Dept. 2004) ("[T]he fellow officer rule applies whenever the officer providing the information indicates that he acted 'as a result of communication with a . . . [fellow] officer or another police department provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest.'"), lv. denied, 3 NY3d 680 (2004), quoting, People v. Horowitz, 21 NY2d 55, 60 (1967); People v. Brown, 304 AD2d 321 (1st Dept. 2003) ("The arrest of [a] defendant by a fellow officer, based upon communication received from . . . [another] officer was . . . lawful."), lv. denied, 100 NY2d 536 (2003).

Therefore, the fact that Detective Ramirez received information from Detective Speranza is of no moment. Rather, the issue before the Court is whether the police as a whole possessed probable cause to arrest Defendant.

In situations where probable cause is based upon the hearsay relation of another, New York still follows the test adopted by the Supreme Court under the Aguilar-Spinelli (see Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 [1964]; Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 [1969]) standard (see People v. Jose Rodriguez, 52 NY2d 483 [1981]; People v. Marin, 161 AD2d 393 [1st Dept. 1990]), even though the High Court now follows the "totality of the circumstances" analysis enunciated in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). Therefore, "[b]efore the liberty of one of our citizens may be placed in jeopardy on the hearsay relation of another, it must be shown that the informant has some 'basis of knowledge' from which he could properly conclude that the subject of the tip was indeed involved in illegal activity and that the informant himself is reliable." Jose Rodriguez, supra at 488-89, quoting, Aguilar, 378 U.S. at 114, 84 S.Ct at 1514, 12 L. Ed. 2d at 729.

Unquestionably, probable cause to arrest Defendant existed here in light of the fact that it is well settled that information that is based on an individual's personal dealings with a defendant satisfies the basis of knowledge element. See People v. Rivera, 288 AD2d 142 (1st Dept. 2001), lv. denied, 97 NY2d 732 (2002). Indeed, in People v. Nichols, 156 AD2d 129, 130 (1st Dept. [*4]1989), lv. denied, 76 NY2d 740 (1990), the First Departments held: "Unlike a paid or anonymous informant, an eyewitness-victim of a crime can provide probable cause for the arrest of his assailant despite the fact that his reliability has not been previously established or his information corroborated. In fact, an accusation against a specific individual from an identified citizen is presumed reliable." People v. Gonzalez, 138 AD2d 622, 623 (2nd Dept, 1988), lv. denied, 71 NY2d 1027 (1988).

See also People v. Peterkin, 151 AD2d 407 (1st Dept. 1989) ("'It is well settled that information provided by an identified citizen accusing another individual of the commission of a specific crime is sufficient to provide the police with probable cause to arrest.' People v. Hairston, 117 AD2d 618, 620 [2nd Dept. 1986], lv. denied, 67 NY2d 884 [1986]."), aff'd, 73 NY2d 985 (1990). Likewise, it is also well settled that a co-defendant or co-perpetrator is considered reliable because "it can be inferred that an individual in the informant's position would not lightly mislead the police and thereby exacerbate his predicament." People v. Comforto, 62 NY2d 725, 727 (1984).

Here, Detectives Ramirez and Speranza conducted a thorough investigation in which they learned from the complainant that the individuals who attacked him were the superintendent of his building and someone with the alias Jay One. After arresting the superintendent, that individual informed the police of Defendant's identity and confirmed his identity via a single photograph. Furthermore, Detective Ramirez recognized Defendant's unusual alias from a prior case he handled. See People v. Cameron, 268 AD2d 307 (1st Dept. 2000) (probable cause warranting the arrest of a defendant exists where "an identified citizen-eyewitness supplied the police with defendant's unusual name and other information"), lv. denied, 94 NY2d 917 (2000); People v. Rodriquez, 254 AD2d 181 (1st Dept. 1998) (police had probable cause to conclude that defendant was the same person who had been identified by other witnesses due, in part, to his nickname), lv. denied, 92 NY2d 985 (1998). In addition, Detective Ramirez took Defendant's photograph and placed it in a six-photo array and showed it to Mr. Figueroa. From this photographic array, a positive identification was made. See People v. Roberson, 299 AD2d 300 (1st Dept. 2002) (police had probable cause to arrest defendant after his photograph was selected from a photo array), lv. denied, 99 NY2d 619 (2003). All of these factors clearly establish that there was probable cause to arrest defendant.

Regarding the Wade (supra), portion of the hearing, as recently opined by the Court of Appeals in People v. Jackson, 98 NY2d 555, 558-59 (2002): [In-court] [i]dentification testimony . . . is properly admitted unless it is shown that [a pre-trial identification] procedure was unduly suggestive (see People v. Chipp, 75 NY2d 327, 335 [1990], cert. denied, sub nom., Chipp v. New York, 498 U.S. 833, 111 S. Ct. 99, 112 L. Ed. 2d 70 [1990])). Although the People have the initial burden of establishing the reasonableness of the police conduct in a pretrial identification procedure, the defendant bears the ultimate burden of proving that the procedure was unduly suggestive. Without such a showing on the part of the defendant, there is [*5]neither a need for nor a burden on the People "to demonstrate that a source independent of the pretrial identification procedure exists for the witness's in-court identification" (id.).

However, where there is an independent source for a witness's in-court identification, it is irrelevant whether a pretrial photo array that was shown to the witness was unduly suggestive. See People v. Howard, 87 NY2d 940 (1996). Indeed, a Wade (supra) hearing is "not necessary in the case of an identifying witness who is familiar with the perpetrator because that witness will naturally be 'impervious to police suggestion.'" People v. Dixon, 85 NY2d 218, 224 (1995), quoting, Felix Rodriguez, supra, at 452. See also People v. Gissendanner, 48 NY2d 543, 552 (1979) ("In cases in which the defendant's identity is not in issue, or those in which the protagonists are know to one another, suggestiveness is not a concern.").

However, when such a relationship is alleged, a hearing pursuant to Felix Rodriguez, supra, is to be conducted to determine the "extent of the complainant's prior familiarity with the defendant." People v. Williamson, 79 NY2d 799, 800 (1991); Felix Rodriguez, supra at 451. In this portion of the hearing, "the People must show that the protagonists are known to each other, or where there is no mutual relationship, that the witness knows defendant so well as to be impervious to police suggestion." Felix Rodriguez, supra at 452. Factors the court is to consider include "the number of times the . . . [witness] viewed [the] defendant prior to the crime, the duration and nature of the encounters, the setting, the period of time over which the viewings occurred, the time elapsed between the crime and the previous viewings, . . . whether the two had any conversations, [and] [w]hether . . . [the witness] told the police prior to being shown the defendant's photograph that he recognized the [defendant]." Felix Rodriguez, supra at 451. See also People v. Collins, 60 NY2d 214, 219 (1983) ("When a crime has been committed by a family member, former friend or long-time acquaintance of a witness there is little or no risk that comments by the police, however suggestive, will lead the witness to identify the wrong person. . . . But in cases where the prior relationship is fleeting or distant it would be unrealistic to ignore the possibility that police suggestion may improperly influence the witness in making an identification.").

In Williamson, supra, the Court of Appeals held that an identification was confirmatory where the witness had seen the defendant more than ten times in the store where she had worked and more then twenty times in the neighborhood where they both had lived. See also People v. Rosales, 216 AD2d 162, 163 (1st Dept. 1995) ("[T]he witness's viewing of defendant in his neighborhood prior to the incident and at the time of the shooting coupled with his selection of defendant from a photo array . . . amply demonstrated the existence of an independent source for his in-court identification."), lv. denied, 86 NY2d 846 (1995).

In the case at bar, Mr. Noe was sufficiently familiar with Defendant so as to make his identification from the single photograph shown to him at the 40th Precinct Stationhouse confirmatory. He informed Detective Ramirez that he not only acted with Defendant in committing this offense, but that he also knew Defendant's name, had known him for many years, allowed him to sleep in his basement for the past year, and knew his alias as Jay One. Moreover, as the People correctly note, because the identification was confirmatory, no CPL § 710.30 (1) (b) notice was required. See People v. Gillette, 292 AD2d 250 (1st Dept. 2002), lv. denied, 98 NY2d 675 (2002). [*6]

Likewise, the victim, Mr. Figueroa was also sufficiently familiar with Defendant so as to make his identification from the photo array shown to him at the hospital confirmatory. He informed Detective Ramirez via Detective Speranza that although he did not know Defendant's real name, he knew him by his alias Jay One. He further informed the detectives that he had seen Defendant in his neighborhood approximately three to four times a week for the past year. Mr. Figueroa also provided the detectives with a very precise description of Defendant's physical appearance.

In any event, even if Mr. Figueroa's was not sufficiently familiar with Defendant so as to make his identification confirmatory, his identification of Defendant from the six-photo array was not so unduly suggestive as to taint any in-court identification by that witness. As the Court of Appeals stated in Chipp, supra, at 336, "[t]here is no requirement . . . that a defendant in a lineup be surrounded by people nearly identical in appearance." Indeed, this Court, having viewed the photo array, finds it to be fair in that Defendant was not highlighted. Rather, "a review of the array reveals that the individuals depicted were of similar appearance." People v. Gilbert, 295 AD2d 275, 276 (1st Dept. 2002), lv. denied, 90 NY2d 558 (2002). See also People v. Alexander, 270 AD2d 136 (1st Dept. 2000), lv. denied, 94 NY2d 945 (2000).

ORDERED, that the defendant's motion to suppress his identification and arrest as lacking probable cause is denied

The foregoing opinion constitutes the decision and opinion of the Court.

Dated: Bronx, New York

January 18, 2005

DOMINIC R. MASSARO,

Justice of the Supreme Court