People v Peterkin
Annotate this CaseDecided on June 17, 2005
Supreme Court, Bronx County
THE PEOPLE OF THE STATE OF NEW YORK
against
Tyroy Peterkin, Defendant.
3987/04
Joseph Fisch, J.
The defendant, indicted for Criminal Sexual Act in the First Degree (P.L. §130.50) and related charges, moves to suppress physical evidence, statement testimony, identification testimony and challenges the validity of his arrest. Based upon the testimony adduced at the pre-trial Mapp-Wade-Huntley-Dunaway hearing the motions to suppress are denied.
STATEMENT OF FACTSThe People called one witness, Police Officer Bryan Shea, whom the Court finds credible and reliable. The defense called no witnesses.
On August 24, 2004, shortly after 3 a.m., Officer Shea and his partner, assigned to the 46th precinct, responded to the vicinity of 175th Street and Morris Avenue based upon a "call for help" radio transmission. Upon arrival at the location, the officers requested and received additional information from the radio dispatcher. They were informed that the "call for help" was based upon a 911 call from a male who informed the 911 operator that he was on the phone with his wife while she was walking from the train station to their home at 1777 Grand Concourse when he suddenly heard her scream, following which the line went dead. The officers proceeded to 1777 Grand Concourse, an apartment building, exited their vehicle and approached the building. Through the window Shea observed a male standing and a female on the ground in the vestibule of the building, leading Shea to believe that a robbery was taking place. As the officers neared the entrance, the male opened the door and Shea heard the female shouting, in a distressed voice, "that's him, that's him." The male exited the building, passing the uniformed officers, who ordered him to stop. The male ignored the order to stop, and ran south toward the Concourse. Shea gave chase and apprehended the male approximately 40 to 50 feet from the vestibule. Within moments, the female complainant arrived at the location of her own accord, approached the male and the officers, and without any questions from the officers, again stated repeatedly, "that's him, that's him."
The male, later identified as the defendant, Tyroy Peterkin, was detained and Shea spoke to the female complainant seeking additional information. She informed Shea that the defendant, whom she had just positively identified, had followed her from the train station, grabbed her by the [*2]throat, dragged her into the vestibule, forced her to perform oral sex and then threatened to kill her. He took her cell phone and $25 US currency.
The defendant was then placed under arrest, following which Shea frisked him, recovering two cell phones and $25 US currency from his pocket, in the denominations indicated by the complainant. The property was shown to her and positively identified. When the defendant was placed in the patrol car he stated "but I gave her ten dollars." The defendant was not being questioned at the time he made this statement.
CONCLUSIONS OF LAW
The determination of probable cause must be based upon an examination of all of the credible evidence presented. The initial burden is on the People to put forth credible evidence to establish that the defendant's arrest was based upon probable cause. The People must establish the legality of the police conduct which led to the recovery of the property and the identification procedure. People v. Whitfield, 178 AD2d 334, 336, (1st Dept 1991) rev. on other grounds, 81 NY2d 904 (1993), People v. Chip, 75 NY2d 327, cert. denied 498 U.S. 833 (1990). The People have met their burden. The ultimate burden is then with the defense to show, by a preponderance of the evidence, that there existed insufficient information to demonstrate probable cause and as such the conduct of the police was illegal, requiring suppression of any physical evidence recovered from the defendant and that the identification procedures employed were so unnecessarily suggestive as to create a substantial likelihood of misidentification. People v. Berrios, 28 NY2d 361, (1971), People v. Duuvon, 77 NY2d 541, (1991). The defense has failed to meet this burden.
Police citizen encounters are analyzed on many different levels, each requiring different degrees of information to justify the encounter. These encounters range from a minimal intrusion of a right to request information to probable cause to make an arrest. In order for a police officer to approach a citizen, he must have an objective credible reason for his actions, which is not necessarily indicative of criminality. The officer must be able to give a specific articulable reason for his approach. An analysis must then be made of the knowledge possessed at that moment of approach and any reasonable inferences that may be drawn, based upon that knowledge. People v. DuBour, 40 NY2d 210, 215 (1976). A greater intrusion is permissible when there is a founded suspicion that criminal activity is a foot. People v. Cantor, 36 NY2d 106, 111, (19750, People v. Rosemond, 26 N.Y. 101 (1970). Both forcible stops and pursuits require the same degree of information to justify the police conduct. People v. Martinez, 80 NY2d 444 (1992). The Court of Appeals has held that " the police may forcibly stop or pursue and individual if they have information which, although not yielding the probable cause necessary to justify an arrest, provides them with a reasonable suspicion that a crime has been, is being, or is about to be committed." Martinez 80 NY2d at 447, citing People v. Leung, 68 NY2d 734, 736 (1986), People v. DeBour, 40 NY at 223, People v. May, 81 NY2d 725 (1992). Reasonable suspicion has been defined by the court of appeals as "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand. To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion. Vague or unparticularized hunches will not suffice." Martinez, 80 NY2d at 448 (1992), citing People v. Cantor, 36 NY2d at 112-113. In order to determine if the police action was justified a court will analyze the surrounding circumstances in which the action takes place. It is the totality of the circumstances surrounding the encounter that will ultimately determine whether or not it was [*3]justified.
Our analysis must begin with the initial police encounter between the Officers and the defendant, to determine if the police action was justified at its inception. In the instant case, the Officers were responding to a "call for help" which was predicated upon a 911 call from a male caller who had lost phone contact with her wife after hearing her scream. The uniformed officers arrived at the location to which the wife had been heading and observed the defendant standing over a female who was on the ground, leading the officers to believe that a robbery was taking place. The defendant then fled the building as the complainant repeatedly yelled to them in a distressed voice "that's him, that's him." The officers' order to stop was ignored by the defendant as he ran past them towards the Concourse. These factors clearly indicate the Officers had a reasonable suspicion to pursue and forcibly detain the defendant. Within moments of stopping the defendant, the complainant arrived at the scene and once again positively identified the defendant. Officer Shea placed the defendant under arrest after the complainant informed him that the defendant had sexually assaulted and robbed her in the vestibule of her building. The defendant's arrest was based upon probable cause and as such was lawful.
The identification at issue was not police arranged. The complainant immediately identified her assailant to the approaching police officers as he fled the location and within moments of his apprehension the complainant once again approached the officers and identified the defendant. This identification of the defendant, shortly after the police arrived was not the product of any suggestive police procedure, but rather a spontaneous point out by the victim. People v. Dixon, 85 NY2d 218 (1985); People v. Burgos, 219 AD2d 504 (1st Dept. 1995); People v. Gillman, 219 AD2d 505 (1st Dept. 1995). The absence of any prompting by the police, in conjunction with the temporal and spatial proximity of the identification to the crime, i.e., both identifications within moments of the crime, first at the crime scene and the second within 40 to 50 feet of the crime scene, clearly demonstrate that the complainant's identifications of the defendant were not the product of police suggestiveness. People v. Duuvon, 77 NY2d 541 (1991); People v. Spruill, 232 AD2d 278 (1st Dept. 1996), lv. denied 89 NY2d 946 (1997); People v. James, 192 AD2d 496 (1st Dept. 1993). Based upon the positive identification of the defendant, the officers possessed the requisite probable cause to make the arrest.
It is well settled that custodial interrogation requires Miranda warnings be administered and so waived, prior to police questioning. Absent advising a person in custody of the requisite pre-interrogation warnings, any statement made in response to police questioning or its functional equivalent must be suppressed. Miranda v. Arizona, 383 U.S. 436, (1966); People v. DeTore, 34 NY2d 199 (1974), cert denied, 419 U.S. 1025 (1974).
In the instant case, defendant made a statement while he was seated in the patrol car and about to be transported to the precinct for arrest processing. Such statement was not the result of any police interrogation or in response to anything said by the police, but rather a spontaneous statement volunteered to the officer, and as such no Miranda warnings were required. The statement was not made in violation of defendant's constitutional rights, and therefore is admissible.
Inasmuch as the police possessed probable cause to arrest the defendant, the physical evidence retrieved from the defendant's person, i.e., $25 US currency and a cell phone, were recovered pursuant to a search incident to a lawful arrest, and thus, is itself lawful. People v. Lane, 10 NY2d 347, (1961); People v. Brown, 24 NY2d 421 (1969). [*4]
Accordingly, the motion to suppress identification testimony, statement evidence and physical evidence is DENIED.
The foregoing shall constitute the decision and order of the Court.
Dated:
Honorable Joseph Fisch
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