People v Rodriguez

[*1] People v Rodriguez 2005 NY Slip Op 50461(U) Decided on March 17, 2005 Supreme Court, Kings County Hall, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2005
Supreme Court, Kings County

THE PEOPLE OF THE STATE OF NEW YORK,

against

Alvin Rodriguez, Defendant.



1604/04

L. Priscilla Hall, J.

Defendant is charged in an indictment, inter alia, with Murder in the Second Degree, for the shooting death of Kemar McCormock on June 16, 2002.

A Dunaway, Wade, Huntley hearing was held before this court and Detectives Dennis Murphy, Shield Number 4578 of the 70th Precinct Detective Squad; John Burns, Shield Number 1269 of the Brooklyn South Apprehension Team; Matthew Hopp, Shield Number 6744 of the 70th Precinct; and Charles Platt, Shield Number 1404 of the 70th Precinct Detective Squad, testified for the People. The defendant did not call any witnesses on his behalf.

Based on the testimony adduced at the hearing, this court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

Detective Dennis Murphy, Shield Number 4578, has been a detective investigator for fifteen years, and a member of the New York City Police Department for twenty years. On June 16, 2002, he was assigned to investigate the shooting death of Kemar McCormock. During the course of interviewing several witnesses, Detective Murphy learned that the shooter was a male black with light skin, possibly of Panamanian descent, with braids in his hair, who lived in the vicinity of Linden Boulevard in Brooklyn. The witnesses also said the shooter's first name was Alvin.

On June 17, 2002, Detective Murphy showed a photo array to Witness Number 1.[FN1] The array included a picture of the defendant, who was seated in Position Number 2. Before showing the array, Detective Murphy told the witness to look at the array and tell him if he/she recognized any one and where he/she knew him from. After viewing the array for approximately one minute, Witness Number 1 identified the person seated in Position Number 2, the defendant.

On June 20, 2002, Detective Murphy showed the same array to Confidential Witness [*2]Number 5. After receiving the same instructions, Witness Number 5 immediately selected Photo Number 2, saying "That's Alvin. He's the one I saw crossing the street before I went inside the building." The witness gave the police Alvin's full name and address.

On January 11, 2003, Detective John Burns, Shield Number 1369, spoke to Confidential Witness Number 4. Prior to being shown the same photo array, the witness was instructed to tell the detective if the witness recognized anyone, and if so, who and why. After viewing the array, the witness identified the defendant. The witness told Detective Burns that the defendant and Witness Number 4 had an argument about McCormock in the home of defendant's ex-girlfriend. This witness also gave Detective Burns the defendant's full name.

On March 12, 2004, Detective Charles Platt, Shield Number 1404, an investigator for twenty years, apprehended the defendant in the hallway of a Starrett City apartment building. On the way back to the precinct, just as the police RMP approached the entrance to the Belt Parkway, the defendant asked Detective Platt what he was being charged with. Before answering, Detective Platt gave the defendant the Miranda warnings from memory. He told the defendant that he had the right to remain silent; that he did not have to say anything; that anything he said could be held against him; that if he has no attorney one can we appointed; and that he can remain silent until he speaks with an attorney.

After administering the warnings, Detective Burns told the defendant that he was being charged with shooting McCormock in 2002. The defendant said he moved from Flatbush in March 2002; that he was going to school and playing ball, and that he did not know that anybody was looking for him. "Guys on the block are jealous that I go to college and play ball. You know how the streets are; people make up rumors about people."

At the precinct, after being logged in, the defendant was taken to a cell. While in the cell, at about 12:30 a.m., the defendant called out to Detective Platt and asked "You looked for me for two years, what did you do?" Detective Platt told the defendant that he had spoken to his sister and his mother, that he had obtained defendant's picture, and that he had told people that the defendant was wanted for shooting someone with a gun.

At 3 p.m., the defendant asked the detective for permission to make phone calls. This request was granted. The defendant made several calls seeking his mother so she might come to the precinct. Eventually he found her and asked her to come to the precinct.

The defendant and the detective spoke for about two hours about the law. During their conversation, the defendant asked questions, and the detective answered them. Detective Platt did not ask any questions about the facts of the case.

At one point, the defendant was asked if he wanted to eat. He said he wanted McDonald's. When the food arrived around 6:30 p.m., the defendant was returned to the cell to eat.

At approximately 7:45 p.m., the defendant's mother arrived at the precinct and Detective Platt allowed the defendant and his mother to speak together alone for about fifteen [*3]minutes. Defendant's mother then invited the detective into the room. The defendant was not handcuffed. The defendant and his mother asked Detective Platt about the different degrees of homicide and plea bargaining. Detective Platt answered these questions and also described a case that was similar to the facts in the defendant's case and what the outcome of the earlier case had been. No promises were made by the detective, but Detective Platt did tell the defendant that it would benefit the defendant to make a statement. The defendant said repeatedly that he could not take the case to trial. The defendant also said he could not afford a lawyer. The defendant never said that he wanted an attorney.

At around 8:55 p.m., the defendant's mother left the precinct, and the defendant was returned to the cell where he rested for a while.

Meanwhile, Detective Platt began setting up a lineup. He contacted three witnesses and asked them to come to the precinct to view the lineup. When the witnesses arrived, all three of them were kept in the squad supervisor's office. A detective sat with the witnesses the entire time they were in the precinct. When the defendant was brought to the lineup room, the detective, who was supervising the witnesses, was alerted to stand by the door, and to insure that it was closed, so that the witnesses would not see the defendant before the lineup.

In the lineup room, the defendant was given an opportunity to choose a number and a position. The defendant selected Number 3 and the third position. Detective Platt arranged the fillers around the defendant. All participants in the lineup were seated and held their numbers at chest level. A photo was taken of the lineup.

The witnesses were brought individually to view the lineup. Each was told to look at the lineup and was asked if they recognized anybody, and if so, what number and what the person did. Witness Number 3 viewed the lineup first at 11:50 p.m. and identified Number 3, the defendant as "Alvin." After Witness Number 3 was taken to the back office, Witness Number 1 was brought into the viewing room. At 11:51 p.m., Witness Number 1 immediately identified Number 3, the defendant, saying "He shot Kemar." Witness Number 2 was then taken back to the office, where Witness 3 was seated in a chair nearby. Next, Witness Number 2 viewed the lineup and immediately selected Number 3, the defendant, as Alvin.

At 12:20 a.m. the defendant was informed that he had been identified by the witnesses. Detective Platt again gave the defendant the Miranda warnings this time from a card. The defendant answered each question in the affirmative and then signed the card.

The defendant then told the detective about the events surrounding the shooting. In sum and substance, he said when he heard McCormock say "187," which means "kill," he drew his weapon and shot McCormock.

Thereafter, Detective Platt asked if the defendant wanted to speak to the Assistant District Attorney, and if so that statement would be videotaped. The defendant consented, and the District Attorney's Office was notified. An interview, lasting forty-two minutes, was [*4]conducted by Assistant District Attorney Javier Solano. Prior to speaking to the defendant, Solano again gave defendant the Miranda warnings. The interview lasted from 2:20 a.m. to 3:02 a.m. The defendant decided what questions he wanted to answer and refused to answer those he did not want to answer. Most of the interview was a narrative by the defendant. Indeed, for the first fifteen minutes, the defendant delivered an uninterrupted monologue.

CONCLUSIONS OF LAW There was Probable Cause for Defendant's Arrest.

In a motion to suppress, the People have the burden of establishing that there was probable cause for the defendant's arrest. Dunaway v. New York, 442 U.S. 200. Probable cause is based on an objective standard of knowledge that a reasonable person would believe that a crime has been or is being committed and that the defendant is the person who committed it. People v. Wilmer, 90 AD2d 918. Absent a showing of probable cause, the police may nevertheless, forcibly detain someone if they have information, which, while not amounting to probable cause to justify an arrest, provides them with reasonable suspicion that a crime has been committed. People v. Martinez, 80 NY2d 444.

Here, the facts elicited by Detective Murphy during his interview of the confidential witnesses, gave rise to probable cause to arrest the defendant. See People v. Reid, 141 AD2d 774 (probable cause can stem from information received from civilian witnesses). In addition to identifying the defendant in a photo array as the shooter, the witnesses knew the defendant's full name and address, had observed the defendant crossing the street before he went inside the building and reported that the defendant had had an argument with the victim. Collectively, the witnesses' statements to the police provided sufficient probable cause for defendant's arrest. Even if, as the defendant argues, the witnesses' statements were insufficient to rise to the level of probable cause to arrest the defendant for the crime of murder, there was sufficient evidence to detain the defendant for further questioning about that crime. The Identification Procedures Were Not Unduly Suggestive. Therefore, the Motion to Suppress the Identifications is Denied.

The People have the burden of going forward to show the legality of the police conduct, and to establish that the pre-trial identification procedures were not constitutionally impermissible. People v. Chipp, 75 NY2d 327. If the People meet their burden, the burden shifts to the defendant to prove that the identification procedure was unduly suggestive. United States v. Wade, 388 U.S. 218. [*5]

Generally, there is no requirement that the participants in a photo array or a line-up be identical in appearance. All that is required is that they resemble each other sufficiently so as not to single out the defendant for identification. People v. Chipp, 75 NY2d 327.

In this case, each of the Confidential Witnesses was shown the same photo array. Prior to being shown the array, the witnesses were instructed to tell the officer whether they recognized anyone, and if so, to state where and how the witness knew the person. After viewing the array, each witness identified the defendant, who was seated in Position Number 2 as the shooter.

This court has examined the photo array, which was introduced into evidence as People's Exhibit Number 1 and finds that it was not impermissibly or unduly suggestive.

The array contains pictures of six light skinned men who are approximately the same age as the defendant, with reasonably similar features and skin color. There is nothing about the array that makes the defendant stand out, and the record is devoid of any evidence that the police in any way influenced the witnesses' identification. This court concludes that the defendant's allegation that the photo array is unduly suggestive is without merit, and the motion to suppress the identification is therefore denied. This court reaches the same determination with respect to the lineup.

A photograph of the lineup was examined by this court, and introduced into evidence as People's Exhibit Number 2. The record establishes that the men seated next to the defendant were approximately the same age as the defendant. They each have similar complexions and skin tones. Here, the record further establishes that when the witnesses arrived at the precinct, they were kept in the squad supervisor's office. A detective sat with the witnesses the entire time they were in the precinct, and stood by the door and insured that it was closed, so that the witnesses could not see the defendant before the lineup. The evidence further reflects that the witnesses each viewed the lineup separately, and that each one independently identified the defendant. First, at 11:51 p.m., Witness Number 3 viewed the lineup and identified the defendant as the person who shot Kemar. Before the next witness was brought in to view the lineup, Witness Number 3 was taken to the back office. After viewing the lineup, Witness Number 2 also selected the defendant, saying "That's Alvin."

For all the foregoing reasons, defendant's motion to suppress the lineup is denied. Defendant's Statements are Admissible.

A confession or admission is admissible at trial in this State, only if its voluntariness is established by the People beyond a reasonable doubt. See C.P.L. § 60.45; People v. Anderson, 42 NY2d 35; People v. Witherspoon, 66 NY2d 973.

To determine whether the People have met this burden, the court must consider two questions: (1) was the defendant in custody at the time the statement was made, and (2) was the statement in response to an inquiry by law enforcement officers. Miranda v. Arizona, 384 [*6]U.S. 436.

The officers testified that the defendant was apprehended in the hallway of a Starrett City apartment building and transported to the precinct. This court finds that the defendant was in custody at the time of the statement. From the testimony adduced at the hearing, it is also clear to this court that defendant's statements were voluntarily made, and were not the result of police interrogation.

Defendant's Statement While in the Police Vehicle En Route to the Precinct

While seated in the RMP, the defendant asked Detective Platt what he was being charged with. Before answering, Detective Platt advised defendant of his rights and then informed the defendant that he was being charged with the shooting death of Kemar McCormock.[FN2] Without any prompting by the police, the defendant voluntarily stated that he had moved from Flatbush in March 2002; that he was going to school and playing ball, and that he did not know anybody was looking for him. Defendant went on to state that "Guys on the block are jealous that [he] goes to college and play [sic] ball. You know how the streets are; people make up rumors about people."

Based on the testimony adduced at the hearing, this court concludes that the statements made by the defendant while in the RMP en route to the precinct, are admissible. Defendant's motion to suppress these statements is therefore denied. Defendant's Statements Made to Detective Platt at the Precinct Were Voluntary and Admissible.

While in custody at the precinct, the defendant called out to Detective Platt and asked "You looked for me for two years, what did you do? Detective Platt told the defendant that he had spoken to his mother and sister, had obtained defendant's picture and told people that the defendant was wanted for shooting someone with a gun. The record reflects that the officer only responded to defendant's question, and did not further engage defendant in any conversation.

To the extent that the People seek to introduce this statement at trial, it is admissible.

The larger issue however, is whether the statements later made by the defendant to Detective Platt about the shooting and then to the District Attorney are admissible.

At 12:20 a.m, Detective Platt informed the defendant that he had been identified by the witnesses. Detective Platt read the defendant the Miranda warnings from a card, and the defendant answered "yes" after each question and then signed the card. The card was [*7]introduced into evidence as People's Exhibit 3. The defendant then told the detective about the events surrounding the shooting. In sum and substance, he told the detective that he heard McCormock, who he knew, say "187," which means "kill," so he drew his weapon and shot McCormock.

The admissibility of this statement is determined by the totality of the circumstances,

which overwhelmingly support this court's finding that defendant's statement was knowingly, voluntarily and intelligently made and is therefore admissible.

This court gives great weight to the fact that earlier that day, at approximately 3 p.m., the defendant was permitted to use the phone and call his mother. After the defendant contacted his mother, the defendant and the detective spoke for about two hours about the law. The defendant asked questions and the detective answered them. The detective did not ask any questions about the facts of the case and the case was not discussed at all with the defendant. At approximately 6:30 p.m., the defendant was asked whether he wanted something to eat, and at his request, he was given McDonald's. Even more compelling, is testimony that when defendant's mother arrived at the precinct, the defendant was given an opportunity to speak with her alone for about fifteen minutes, during which time, the defendant remained uncuffed. At no time did the defendant say that he wanted an attorney. Instead, he and his mother asked the detective about the different degrees of homicide and about plea bargaining, and the defendant repeatedly stated that he could not take the case to trial. In light of the defendant's interaction with Detective Platt, with whom he had freely engaged in conversation and from whom he had earlier received the Miranda warnings, it does not appear that at the time of the statement, defendant's will was overborne, or that the defendant was somehow incapable of understanding the implications of the waiver. Rather, the evidence reflects that the defendant was properly administered the Miranda warnings and that he knowingly, voluntarily and intelligently waived them and agreed to make a statement.

Accordingly, the defendant' s motion to suppress the statement is denied.

Defendant's Statements to the Assistant District Attorney.

After making a statement to the Detective, the defendant subsequently agreed to speak with an Assistant District Attorney. Prior to speaking with the Assistant, the defendant was given the Miranda warnings for the third time.

During the interview, which lasted for forty-two minutes, the defendant was entirely at ease. He reclined in his chair, moved freely about, and got up whenever he desired, to make a point. Throughout the videotaped interview, the defendant appeared alert, coherent, intelligent, relaxed and forthcoming. His statement was self-serving, vociferous and entirely voluntary. The defendant decided what questions he wanted to answer and refused to answer those questions he did not. In fact, most of the interview was a narrative by the defendant. Indeed, for the first fifteen minutes, the defendant delivered an uninterrupted monologue. There was no sense of being pressured. He was facile, descriptive and seemingly in control of himself and of the interview. At one point, the defendant gave the Assistant District [*8]Attorney permission to ask a question and corrected the Assistant when he believed he was factually in error. After having observed the tape, this court concludes that the defendant's statements were voluntary.

Defendant's motion to suppress the videotaped statement is therefore denied.

For all the aforementioned reasons, defendant's motion is denied in its entirety.

This constitutes the decision, order and opinion of this court.

____________________

J.S.C. Footnotes

Footnote 1: The names of the witnesses are being withheld as confidential.

Footnote 2: As a preliminary matter, this court notes that under these conditions, Miranda warnings were not required, since the defendant was not subject to interrogation. In any event, the warnings were administered, perhaps as a precautionary measure, and the defendant proceeded to make a statement.