People v Escobar

[*1] People v Escobar 2005 NY Slip Op 50587(U) Decided on April 13, 2005 County Court, Suffolk County Hinrichs, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 13, 2005
County Court, Suffolk County

The People of the State of New York,

against

Antonio Escobar, Defendant.



1578-04



Hon. Thomas J. SpotaChristopher J. Cassar, Esq.

Suffolk County District AttorneyAttorney for Defendant

Kate Wagner, Esq.13 East Carver Street

Assistant District AttorneyHuntington, New York 11743

Criminal Courts Building

200 Center Drive

Riverhead, New York 11901-3310

C. Randall Hinrichs, J.

The Court has conducted pretrial hearings on the instant matter regarding 1) probable cause to arrest the defendant on the morning of June 28, 2004; 2) admissibility of testimony regarding a show-up identification of the defendant in the driveway of his home by one of the alleged victims; 3) admissibility of testimony regarding a line-up identification of the defendant at the second precinct by another alleged victim; 4) admissibility of evidence seized from defendant's person following his arrest, and 5) admissibility of statements allegedly made by the defendant to law enforcement.

FACTS

Police Officer Dennis McKeefry testified that on June 28, 2004 he was working a 9pm to 7am tour of duty which commenced at 9pm on June 27, 2004. Officer McKeefry was in uniform, in a marked police unit without a partner. At 6:14am on June 28, 2004 Officer McKeefry received a radio call to respond to 6 D. Rd., Greenlawn regarding a sexual assault. (The names and street names of the alleged victims have been abbreviated, pursuant to Civil Rights Law § 50-b, to protect their privacy.) Upon arrival at the address the officer spoke to Ms. Jamie S. who told the officer that she had been raped. Ms. S. described her attacker as a five foot six inch (5' 6") to five foot eight inch (5' 8") tall Hispanic male with deformed teeth, wearing a white tank top and black shorts. Ms. S. stated that the man just left in a dark colored car. Officer McKeefry put this description of Ms. S.'s alleged attacker over the radio. Ms. S. then advised Officer McKeefry that she believed the person who attacked her was named Antonio because Antonio had recently been in her home doing work on her house. She then gave the officer a business card which she said was given to her by Antonio. The business card bore the name Antonio and had [*2]an address of 120 Little Plains Rd. The officer then put the name Antonio and address of 120 Little Plains Rd. out over the radio and continued to talk to Ms. S. Shortly thereafter Officer McKeefry received a radio call asking him to report to 120 Little Plains Rd. with Ms. S.

At 6:36am the officer and Ms. S. left her home and arrived at 120 Little Plains Rd. at 6:39am. As they pulled up to 120 Little Plains Rd., Officer McKeefry testified that Ms. S. stated, without prompting or inquiry by the officer "that's him, that's definitely him," identifying the defendant as her attacker. Officer McKeefry nodded in the affirmative to the two police officers standing on either side of the defendant signifying that Ms. S. had positively identified the defendant. The two other officers then placed the defendant in handcuffs. Officer McKeefry then transported Ms. S. to the second precinct so she could be interviewed by detectives.

Police Officer Anthony Cappa testified that on June 28, 2004 he was also working a 9pm to 7am tour of duty which commenced at 9pm on June 27, 2004. Officer Cappa was in uniform, in a marked police unit with a partner, Officer O'Neill. Shortly after 5am on June 28, 2004 Officer Cappa heard a radio call directing a different police unit to respond to a call of a Hispanic male intruder in a house with a box cutter which was a possible sexual assault at 4 T. Ct., Greenlawn. The officer reported to the area of 4 T. Ct. Subsequently, a second transmission from a fellow officer described the T. Ct. perpetrator as a Hispanic male, five foot five (5' 5") to five foot seven inches (5' 8") tall. Officer Cappa found no one in the area of 4 T. Ct. meeting the descriptions broadcast.

Thereafter, at approximately 6:15am, Officer Cappa heard a radio broadcast of a rape at 6 D. Rd., Greenlawn. This broadcast contained a description of the attacker as a Hispanic male, five foot six (5' 6") to five foot eight inches (5' 8") tall with "messed up" teeth, wearing a wristwatch and shorts. The perpetrator was seen leaving the scene in a dark colored car. Shortly thereafter, another broadcast provided information that the perpetrator's name was Antonio and he lived at 120 Little Plains Rd. Officer Cappa and his partner responded to 120 Little Plains Rd. Upon arrival at 120 Little Plains Rd., the officer noticed a back Monte Carlo in the driveway. Officer Cappa felt the hood of the car and discovered it to be warm to the touch. Officer Cappa testified that Officer O'Neill observed a box cutter on the passenger seat of the Monte Carlo.

Officer Cappa knocked on the door of 120 Little Plains Rd. whereupon a woman answered the door. The officer inquired if Antonio was home and the woman informed him that Antonio had just arrived home from work. At that point a male appeared behind the woman. On redirect examination, Officer Cappa testified that this male was "an exact match" of the descriptions broadcast earlier. Officer Cappa, waved the male subject to come outside. The male told the officer he needed to get his boots. The officer responded that wouldn't be necessary and to come outside. The male came outside and stood in the driveway with Officer Cappa and Officer O'Neill. The officers were positioned on either side of Antonio, each approximately two to three feet away. At 6:39am Officer McKeefry pulled up in his police unit with Ms. S. in the rear seat. Officer McKeefry nodded affirmatively to Officer Cappa signifying that Ms. S. had positively identified Antonio as her attacker. At that point Officer Cappa placed Antonio under arrest. Officer Cappa identified the defendant in open court for the record as the Antonio whom the officer arrested in the driveway of 120 Little Plains Rd. on June 28, 2004. Officer Cappa testified that at all times during this encounter both the officer and the defendant spoke English and defendant understood what was happening at all times. [*3]

Officer Cappa and his partner transported defendant to the second precinct where the officer inventoried certain physical property of the defendant on a property receipt. Detectives then had defendant remove his clothing over wax paper and defendant was provided temporary clothing.

Detective Daniel McCarthy testified that on June 28, 2004 he was working at the second precinct when he was assigned as lead detective to the instant case. At 3:25pm on June 28, 2004

Detective McCarthy commenced an interview with the defendant. Detective McCarthy began this interview with a recitation of defendant's Miranda rights and execution of waiver of defendant's rights thereunder. The detective thereafter took a written statement from the defendant regarding defendant's version of events involving Ms. S. This statement, including the Miranda rights and waivers executed by the defendant, has been received in evidence as People's Exhibit No. 1 for the purposes of the hearing.

Detective McCarthy testified that he and the defendant both spoke in English during their entire time together and the defendant never expressed any desire for an interpreter, nor did he ever state that he did not understand anything the detective was saying. The detective asked that a Spanish-speaking police officer read the entire written statement, including Miranda rights and waivers, to the defendant in Spanish.

Detective McCarthy called Ms. Ashley St., the complainant on the 4 T. Ct. incident, and asked Ms. St. to come to the precinct to view a line up. Detective McCarthy together with Detective Robert Bautz had Ms. St. view defendant twice in a line-up with four other participants. The defendant picked his location in the line-up for both viewings by Ms. St. The four fillers were given different seats for each line-up after defendant selected his own position. Ms. St. identified the defendant both times. Photographs of the two line-up arrangements, taken by detectives immediately before Ms. St. viewed each line-up, were received in evidence as People's exhibits numbers 4 and 5 respectively for the purposes of the hearing. The Court granted the defense application to retain these two photographs in the Court file for potential future appellate review and the photographs were given Court exhibit numbers 3 and 4 for this purpose.

Detective Robert Bautz testified that on June 28, 2004 he was working at the second precinct when he was assigned to assist Detective McCarthy in conducting the lineups involving the defendant. Detective Bautz described the line-up procedures in much the same way as Detective McCarthy.

FINDINGS OF FACT AND CONCLUSIONS OF LAW:

Initially, the Court finds that the police testimony offered at the instant hearing was credible and forthcoming and the Court fully credits the testimony in this decision.

PAYTON

Defendant first moves to suppress his statements as the product of an illegal arrest in violation of the Payton rule. In Payton v New York, 445 US 573 (1980), the United States Supreme Court held that, absent exigent circumstances, a person may not be arrested within his own home without a warrant. The police are permitted to direct a subject to come outside his home for the purposes of affecting an arrest, provided there is "no indication that defendant was [*4]in any way threatened." People v Anderson, 146 AD2d 638, 640, 536 NYS2d 543 (2nd Dept. 1989) quoting People v Minley, 68 NY2d 952, 953 (1986.) The police may use misinformation or a ruse to get a suspect to leave his home as long as the police conduct is not coercive. People v Williams, 222 AD2d 721, 636 NYS2d 347 (2nd Dept. 1995) and People v Hines, 9 AD3d 507, 510, 780 NYS2d 419 (3rd Dept. 2004.) Further, "the doorway to a private house is a public place for purposes of Fourth Amendment analysis, since a defendant has no legitimate expectation of privacy while standing there, exposed to public view." People v Reynoso, 309 AD2d 769, 770, 765 NYS2d 54 (2nd Dept. 2003) aff'd 2 NY3d 820 (2004), citing People v Anderson, 146 AD2d

638, 639, 536 NYS2d 543 (2nd Dept. 1989) and People v Schiavo, 212 AD2d 816, 623 NYS2d 273 (2nd Dept. 1995.) The police did not resort to ruse or misinformation in the instant case, however, nor did they arrest defendant in the doorway of his home. Rather, relying on the information provided by the broadcast of Officer McKeefry, Officer Cappa responded to defendant's home and upon determining that defendant was "an exact match" of the perpetrator, waved for the defendant to come outside. Contrary to defendant's contention, defendant came out of his home voluntarily once directed to do so by Officer Cappa. Although the defendant requested to get his boots and was told by Officer Cappa not to worry about his boots, the Court finds that Officer Cappa did not threaten defendant in any way. Accordingly, the Court finds that the actions of the police in obtaining the presence of the defendant outside his home did not violate the Payton rule.

SHOW UP IDENTIFICATION

Defendant first asserts that he was improperly taken into custody, without probable cause, upon exiting his home. Defendant argues that, since he was in custody without probable cause, everything which follows, i.e., the show up identification, written confession, seized property and lineup identifications, must all be suppressed as fruits of the poisonous tree. Contrary to defendant's contention, defendant was not in custody upon exiting his home. Rather, defendant was not in custody until after the show up identification by Ms. S. A person is deemed to be in custody when a reasonable person in defendant's position, innocent of any crime, would have thought he or she was in custody. People v Yukl, 25 NY2d 585, 589 (1969.) The determination is an objective one and not based on the subjective beliefs of either the defendant or investigating officers. Stansbury v California, 511 US 318, 323 (1994.) While surprisingly little binding authority is available on where and on whom the burden of proof lies to establish custody, this Court holds that the burden of proof is on the defendant to show, by a preponderance of the evidence, that he was in custody. At least two other recent trial level decisions have also held the burden in establishing custody to be on the defendant. People v Payne, 1 Misc 3d 909A, 781 NYS2d 627 (Sup.Ct., Kings County 2004) and People v Colon, 5 Misc 3d 365, 784 NYS2d 316 (Sup. Ct., NY County 2004.) The Court finds that a reasonable person in defendant's position, innocent of any crime, standing in his driveway without handcuffs and without being directed into a police car, would not have thought they were in custody. Here, rather than being taken into custody, defendant was temporarily detained for the purpose of conducting the show up identification. The police are authorized to temporarily detain a subject for the purposes of conducting a show up identification, provided the police have "reasonable suspicion" to believe the subject is the perpetrator. People v Hicks, 68 NY2d 234 (1986) and People v Morgan, 309 [*5]AD2d 768, 765 NYS2d 261 (2nd Dept. 2003.) "Reasonable suspicion represents that 'quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe criminal activity is at hand'" People v Martinez, 80 NY2d 444, 448 (1992) quoting People v Cantor, 36 NY2d 106, 112-113 (1975.) Also, reasonable suspicion to detain a subject for the purposes of a show up identification may be based on police radio transmissions. People v Martinez, 301 AD2d 615, 753 NYS2d 851 (2nd Dept. 2003.) Here, the information provided to Officer McKeefry by Ms. S. containing details of the crime allegedly committed against her, as well as, a detailed description of her attacker including a first name and address from a business card provided to her by the defendant, clearly provided Officer McKeefry with "reasonable suspicion"to believe the defendant was the

perpetrator of the crimes alleged. Further, "show up procedures are permissible when, as here, they are conducted in close spatial and temporal proximity to the commission of the crime for the purpose of securing a prompt and reliable identification." People v Pierre, 2 AD3d 461, 462, 767 NYS2d 822 (2nd Dept. 2003) citing People v Duuvon, 77 NY2d 541, 543-544 (1991); People v Jackson, 180 AD2d 756, 757, 580 NYS2d 392 (2nd Dept. 1992); People v Holder, 178 AD2d 436, 437, 576 NYS2d 810 (2nd Dept. 1991); and People v Adams, 163 AD2d 318, 319, 557 NYS2d 445 (2nd Dept. 1991.)

Defendant also urges that evidence of the show up identification by Ms. S. must be suppressed as suggestive. However, case law makes clear that, although often "inherently suggestive"show up identifications have been upheld, provided they occur within close geographic and temporal proximity to the crime, unless they are "unduly" suggestive. People v Martinez, 9 AD3d 679, 681, 779 NYS2d 821 (3rd Dept. 2004.) Accordingly, for example, in People v Pierre, 2 AD3d 461, 767 NYS2d 822 (2nd Dept. 2003), it was held that "contrary to the defendant's contention, his show up identification was not unduly suggestive because he was handcuffed and in the presence of uniformed police officers during the show up procedure" Pierre, supra at 462, citing People v Grassia, 195 AD2d 607, 601 NYS2d 124 (2nd Dept. 1993); People v Whitney, 158 AD2d 734, 552 NYS2d 178 (2nd Dept. 1992); People v Carehart, 151 AD2d 592, 592-593, 543 NYS2d 921 (2nd Dept. 1989); and People v Dennis, 125 AD2d 325, 326, 509 NYS2d 58 (2nd Dept. 1986.)

Here, the close proximity in both time, (approximately twenty-five minutes from time victim relayed description of attacker to police [6:14 am] to the time of the show up [6:39 am]) and location (Officer McKeefry testified that the drive from the victim's home to defendant's home took approximately three minutes) make clear that the show up identification of the defendant occurred within close spatial and temporal proximity to the alleged commission of the crime. Also, although police officers were standing on either side of defendant, he was not in handcuffs or in a police vehicle at the time of the identification by Ms. S. The Court finds that the show up identification under these circumstances was not unduly suggestive.

PROBABLE CAUSE

The Court finds that the police had probable cause to arrest defendant in the driveway of 120 Little Plains Rd. on June 28, 2004. The police are authorized to arrest a person for a crime, without a warrant, when the police officer "has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise." Criminal Procedure Law (CPL) § [*6]140.10(b.) Case law provides "information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest." People v Griffin, 2005 Slip Op 01217 (2nd Dept. 2005) citing People v Soto, 279 AD2d 592, 719 NYS2d 603 (2nd Dept. 2001) and People v Burton, 194 AD2d 683, 599 NYS2d 108 (2nd Dept. 1993.) Further, "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 (1996) at 113; People v Maldonado, 86 NY2d 631 (1995) at 635-636; People v Landy, 59 NY2d 369 (1983) at 375). Information received from another

police officer is presumptively reliable (People v Landy, 59 NY2d, at 375, supra ).

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 (People v Mims, 88 NY2d, at 113-114, supra )."

People v. Ketcham, 93 NY2d 416 (1999) at 419. See also People v Soviero, 5 AD3d 404, 772 NYS2d 710 (2nd Dept. 2004.)

The People have the initial burden of 'production' at a suppression hearing of providing evidence that the police conduct was legal. People v Malinsky, 15 NY2d 86 (1965.) The defendant, however, bears the ultimate burden of proof, by a preponderance of the evidence, to establish that the police conduct was illegal, if they are to succeed at a suppression hearing. People v Sidhom, 204 AD2d 150, 612 NYS2d 12 (1st Dept. 1994.) Additionally, once a police officer testifies as to the information upon which he relied in making an arrest, it is incumbent on the Court to determine whether the two prongs under Aguilar-Spinelli have been met. That is, the People must show that the person relaying the information is reliable and has a basis of knowledge for providing such information. The two prongs under Aguilar-Spinelli have been met in the instant case since the victim, the person providing the information to Officer McKeefry, is a named citizen whose basis of information was her personal observation of the crime being reported. "An identified citizen informant is presumed to be personally reliable." People v Parris, 83 NY2d 342, 350 (1994) citing People v Hetric, 80 NY2d 344, 349 (1992.) The People have met their initial burden of proof in establishing that Officer Cappa had probable cause to arrest defendant, through the testimony of both Officer Cappa and Officer McKeefry. In addition to the descriptions by both alleged victims which closely matched the defendant, the positive show up identification by one of the alleged victims provided the police with more than ample probable cause to arrest defendant. The defendant has failed to meet his burden of establishing, by a preponderance of the evidence, that the police conduct in the instant case was illegal. Indeed, the Court finds that the police conduct leading up to defendant's arrest was entirely proper.

LINEUP IDENTIFICATION

"Identification testimony based on pretrial lineups is properly admitted unless it is shown [*7]that the procedure was unduly suggestive (see People v Chipp, 75 NY2d 327, 335 [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." People v Jackson, 98 NY2d 555, 558-559 (2003.) Also, "while lineup participants should have the same general characteristics as those of the suspect, there is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance. " People v Ravenell, 307 AD2d 977, 977-978, 762 NYS2d 919 (2nd Dept. 2003), citing Chipp, supra and People v Shaw, 251 AD2d 686, 677 NYS2d 796 (2nd Dept. 1998.) The Ravenell decision, also holds "since the lineup participants in this case were similar in age, skin tone, and attire, any minor variations in their appearance did not render the lineup impermissibly suggestive or conducive to irreparable mistaken identification." Ravenell, supra , at 978 citing People v Folk, 233 AD2d 462, 650 NYS2d 272 (2nd Dept. 1996.) Defendant's challenge to minor differences in the hairstyle and facial hair among the various participants does not render the lineup unduly suggestive. The Court finds that the fillers used in the instant lineup were similar in appearance to the defendant.

Similarly unavailing is defendant's claim that, since you cannot tell the eye color of each lineup participant in the lineup photographs entered into evidence at the hearing (as People's exhibits 4 and 5 for the purposes of the hearing, also marked as Court exhibits 3 and 4 in the event they are needed for review upon appeal), then the lineup must be held to be suggestive. "The photograph taken of the lineup reflects that the fillers resembled the defendant, even though all of the physical characteristics of the participants were not clearly visible. Lineup photographs need not be in the best condition to support a determination that the lineup was fair." People v Briggs, 285 AD2d 514, 728 NYS2d 486 (2nd Dept. 2001) citing People v Brown, 269 AD2d 539, 704 NYS2d 486 (2nd Dept. 2000.) Here, although the eye color of each participant may not be ascertainable, the photographs are of sufficient quality to reveal that all participants are of similar appearance. Defendant's application to suppress lineup testimony based on the lineup being unduly suggestive is denied.

The Court also rejects defendant's claim that the lineup identification by Ms. St. must be suppressed because probable cause is lacking as to that complainant. Defendant argues that even if probable cause were found to exist as to the charges involving Ms. S. (the complainant who identified the defendant in the driveway show up procedure) the police did not have probable cause to put defendant in a lineup as to Ms. St. The Court finds that since the police had probable cause to detain defendant in connection with the Ms. S. matter, that the Ms. St. lineup was proper. "Once the defendant was lawfully arrested, 'it was proper for the police to place him in a lineup for a separate, unrelated crime.'" People v Crawford, 221 AD2d 462, 633 NYS2d 556 (2nd Dept. 1995) citing People v Griffin, 161 AD2d 799, 556 NYS2d 131 (2nd Dept. 1990) and People v Whitaker, 64 NY2d 347 (1985.) See also People v King, 270 AD2d 360, 705 NYS2d 232 (2nd Dept. 2000.) Moreover, the similarity in descriptions by the two women of their attacker and the close proximity in time and location of the alleged attacks, coupled with the observation by Officer Cappa that defendant was an exact match of those descriptions and the positive show up identification of the other alleged victim, provided ample probable cause as to the Ms. St. incident.

[*8]HUNTLEY

Defendant also moves to suppress the confession made to police as not having been voluntarily made. Specifically, defendant claims that his primary language is Spanish and, since his Miranda rights, warnings and waivers were administered in English, they cannot be considered a knowing, voluntary and intelligent waiver of the rights thereunder.

The People bear the burden of proving the voluntariness of a statement beyond a reasonable doubt before it may be admitted at trial. People v Witherspoon, 66 NY2d 973 (1983) and People v Lewis, 138 AD2d 632, 526 NYS2d 214 (2nd Dept. 1988.) The Court finds that the testimony of Detective McCarthy establishes, beyond a reasonable doubt, that defendant was informed of his Miranda rights, warnings and waivers and understood them and that he made a knowing, voluntary and intelligent waiver of those rights prior to his giving the statement to the detective.

Once the People meet their burden, as they have here, of establishing the voluntariness of defendant's waiver of Miranda rights, the burden of persuasion shifts to the defendant to prove that he did not understand those rights. People v Tineo, 144 AD2d 507, 533 NYS2d 979 (2nd Dept. 1988.) The Court finds that the defendant has not offered evidence sufficient to support his contention that a language barrier prevented a comprehension of his rights. To the contrary, Detective McCarthy credibly testified that defendant appeared to understand all of the detective's questions and advisements. The detective testified that defendant himself spoke in English throughout their time together and defendant never requested the assistance of an interpreter. The fact that Detective McCarthy took the additional, although unnecessary, step of having a Spanish-speaking police officer read the entire written statement, including Miranda rights and waivers, to the defendant in Spanish, does not alter the finding that defendant fully understood his rights in English.

MAPP

A suspect in custody may be searched incident to a lawful arrest. This is so whether or not the police believe the suspect is armed. People v Weintraub, 35 NY2d 351, 353-354 (1974.) Obviously, this principal assumes that the arrest is lawful. Inasmuch as the Court has already determined that defendant's arrest was proper, having been based upon probable cause (as discussed further above), the Court finds that defendant's personal effects were properly seized pursuant to a lawful arrest. Accordingly, defendant's application to suppress property seized at the time of his arrest is denied.

This memorandum, for the reasons stated herein, constitutes the decision and order of the Court.

______________________________

J.C.C.

[*9]