People v Ortiz

[*1] People v Ortiz 2005 NY Slip Op 51561(U) [9 Misc 3d 1115(A)] Decided on September 30, 2005 Supreme Court, Bronx County Tallmer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 30, 2005
Supreme Court, Bronx County

The People of the State of New York,

against

Jose Ortiz, Defendant.



615778C/2004

Megan Tallmer, J.

Defendant is charged with attempted robbery, assault and related crimes. In their voluntary disclosure form, the People served notice that a witness identified defendant to Police Officer McDonaugh in a show up on November 22, 2004 at about 10:30 AM, in front of 2853 Webb Avenue, Bronx, New York.

Defendant made an omnibus motion to suppress statements made to the police and the identification on the grounds that they were the fruit of an unlawful arrest. Defendant further sought a Wade hearing as to the suggestiveness of the identification procedure. In their opposition to defendant's motion, the People asserted that defendant and the complainant were known to each another.

By decision dated April 7, 2005, Judge Webber granted a Huntley hearing. She denied a Wade hearing, however, on the grounds that the defendant and the witness were known to each other and that there was no identification procedure subject to suppression. Judge Webber also denied a Mapp hearing because defendant's moving papers did not contain facts to support his request. Defendant moved for reconsideration, alleging that the parties did not know each other. Judge Webber subsequently modified her order and granted a Dunaway hearing as well as a Rodriguez hearing.

When the case was sent to Part 22, the Court was advised that it was on for a Huntley/Dunaway hearing. At no time was a Rodriguez hearing requested on the record and the Court assumes that defendant abandoned his application for a Rodriguez hearing.

Police Officers Contreras and Hargrove testified for the People. I find Officer Hargrove credible. I also find Officer Contreras generally truthful, although his testimony at times was confusing and vague. To the extent that Officer Contreras' testimony was inconsistent with Officer Hargrove's testimony as to when defendant admitted to being a lookout (compare page 27, lines 2-4 to page 68, lines 5-13, page 74, lines 1-5 and page 75, lines 14-25), the Court credits Officer Hargrove's testimony that defendant did not make that statement until after he was handcuffed and placed in the police car. The Court makes the following findings of fact and conclusions of law.

At 9:50 AM on November 22, 2004, Officer Contreras and his partner, Officer McDonaugh, responded to a call of an assault in progress at 2853 Webb Avenue, Apartment B1. The superintendent of the building directed them to apartment B1 in the basement. Contreras and [*2]his fellow officers knocked on the door of that apartment but no one answered. There was a strong smell of mace coming from the apartment.

Officer Contreras went into the alleyway adjoining the apartment and saw someone peeking out of a bathroom window. Contreras yelled at the person looking out to open the door. He then returned to the apartment. From outside the door, Contreras heard the sound of people running around and glass breaking. He ran back out to the alleyway, towards a locked fence in the back. When Contreras got to the fence, he saw a black male dressed in black jump out of the window, followed by a hispanic male with braids, wearing blue jeans, and a white tee shirt. Contreras identified defendant as this second person. Contreras yelled to the individuals "you can run all you want, I'll be waiting right outside for you." He then ran back out of the alleyway, crossed the front of the building and entered the parallel alleyway on the other side of the building.

Officer Hargrove and her partner Officer King responded to the same call as Officer Contreras. Officer Hargrove observed defendant walking briskly through the back door and into the alleyway parallel to the alleyway where Officer Contreras originally saw defendant. Hargrove stopped defendant and asked where he was coming from; defendant replied that he was just standing in the back. Defendant was not holding anything in his hands and was cooperative. At the point when defendant was stopped by Hargrove, no one had identified him as the perpetrator of the assault nor was there any description of the perpetrators.

Approximately two to three minutes after defendant was stopped, Officer Contreras returned to the alleyway where defendant was being held. His fellow officers asked Contreras "is that him?" and he replied, "yes, that's him, that's the guy I saw jump out of the window." The officers then directed defendant to turn around and place his hands behind his back. After being handcuffed, defendant was placed in the passenger seat of the RMP, while Hargrove sat in the front.

While he was sitting in the RMP, defendant stated to Hargrove "He can't say I was in the apartment. I was just a lookout." Defendant further told Hargrove that he was paid $20 to serve as the lookout. He tried to give descriptions of the two other individuals involved and denied knowing what was going to happen inside the apartment. These statements were made spontaneously and not in response to any questioning by Hargrove. Hargrove advised defendant to save his statements for the arresting officer. While Hargrove was in charge of defendant, he was transferred from one RMP to another.

Contreras returned to the apartment, where he spoke with the complainant, Michael Hicks. He observed that Mr. Hicks had blood and cuts all over his face. The apartment was in disarray, with furniture overturned and glasses on the floor. Hicks described the perpetrators as including the black male who crawled out of the window and a male white, wearing blue jeans and a white shirt, whom Hicks knew as "Luis." He said that Luis had been in the apartment that morning and set him up to be robbed. He also said that Luis had a gun and kicked him in the back, although Luis did tell the other men to take it easy on Hicks.

On Contreras' direct examination, when the prosecutor asked him to describe the condition of the complainant's apartment, the Court interjected and asked "Is this relevant to either the Huntley or Dunaway issues?" The assistant district attorney responded "I believe its somewhat relevant to the Dunaway issue." [*3]

After Contreras spoke with the complainant, the police took 15-20 minutes to insure that there were no other suspects in the area. Defendant then was transported to the precinct by Contreras. On the way to the precinct, defendant asked Contreras whether Hicks said that he was inside the apartment. Contreras replied that Hicks said that he knew defendant and had identified defendant as one of the robbers.

About an hour and a half to two hours after returning to the precinct, Contreras took defendant's pedigree. Without having administered defendant his Miranda rights, Contreras asked defendant if he knew the name of the other perpetrator. Defendant told Contreras he knew Hicks from walking his dog and was in Hicks' apartment earlier that day to buy cigarettes. Defendant further told Contreras that a person known as "Bad Boy" gave him $20 to be a lookout while Bad Boy took care of business inside the building. Contreras asked defendant why he would participate in a crime against Hicks when he knew Hicks from the neighborhood. With the exception of defendant's reiteration to Contreras that he was just the lookout, the People did not serve notice of defendant's statements to Contreras at the precinct. Following a bench conference, the People agreed not to introduce the unnoticed statements on their direct case.

In the course of Contreras's cross-examination, defense counsel asked what Hicks told Contreras when he returned to the apartment. The People objected. The Court originally sustained the objection, but then stated "People, are you conceding that he was already arrested at this point that counsel is referring to or does this conversation serve as some type of predicate for police action?" The prosecutor responded "It serves as some type of predicate, your Honor, however, it goes beyond the scope of direct examination." The Court then overruled the People's objection.

On direct, Officer Hargrove originally testified that when defendant first was stopped by the police, he stated that he was just a lookout (page 67, line 12). In her subsequent testimony on both direct and cross-examination, however, Hargrove acknowledged that defendant admitted to being a lookout only after he was handcuffed and placed in the RMP (see page 68, lines 5-13, page 74, lines 1-5 and page 75, lines 14-25). The majority of defense counsel's cross-examination of Hargrove was devoted to clarifying what statements defendant made before and after he was handcuffed and placed in the RMP

After the People and defense rested, the Court heard oral argument. The Court observed that under all the circumstances, the police had reasonable suspicion to stop and detain defendant in the alleyway. Defense urged, however, that defendant was arrested once he was handcuffed and placed in the RMP and that there was no probable cause for defendant's arrest before he was identified by the complainant. In response, People argued that no Wade hearing was granted as to an identification. When the Court noted that the issue of identification is relevant to the Dunaway determination, the People contended that defendant was not arrested until the complainant identified him as one of the perpetrators.

After the Court noted that there was no evidence to support the People's contention that defendant merely was detained pending an identification, the People asked to recall Officer Contreras. Counsel objected and the Court indicated its reluctance to reopen a hearing after the People were made aware of deficiencies in their case. The Court pointed out that Hargrove's cross-examination alerted the People to the significance of defendant's admissions prior and subsequent to his being placed in the RMP. [*4]

The Court granted the parties an opportunity to brief both the issue of reopening the hearing and the merits of the Huntley/Dunaway. In their brief, the People reiterated their position that defendant merely was detained pending Hicks' identification of defendant as one of the robbers. The People rely upon their CPL 710.30(1)(b) notice as proof that a showup identification of defendant to the complainant took place within a half hour of defendant's being placed in the RMP.

The Court rejects the People's application to reopen the hearing. In People v. Havelka, 45 NY2d 636, 643 (1978) (citations omitted), the Court of Appeals set out the rule governing applications to reopen suppression hearings: [T]he People should not be deprived of one full opportunity to present evidence of the dispositive issues involved at the suppression hearing. If an error of law is committed by the hearing court which directly causes the People to fail to offer potentially critical evidence a rehearing should be ordered... But having established this procedure for a sound reason, it would be wrong to assume that the People's right to a rehearing is without limitation. The practice should not be followed when its underlying principle is not served. Generally, where "no contention is made that the People had not had [a] full opportunity to present evidence *** [t]here [is] no justification *** to afford the People a second chance to succeed where once they had tried and failed." Denial of a rehearing under these circumstances accords with a system that offers a single opportunity for the presentation and resolution of factual questions. If such a practice were not followed, the defendant, having prevailed at the hearing, would be haunted by the specter of renewed proceedings. Success at a suppression hearing would be nearly meaningless, for a second and perhaps a third hearing, could later be ordered.

Applying this rule, it is clear that the People should not be afforded a second opportunity to sustain their burden of going forward. The Court did not commit any error of law that inhibited the People from presenting their case. In fact, it was the People who objected that cross examination of Contreras as to the condition of the apartment was beyond the scope of direct. In overruling this objection, the Court expressly asked whether the People were conceding that defendant was already under arrest when Contreras spoke with Hicks or were maintaining that the information received from Hicks served as a predicate for police action. This placed the People on notice that an issue existed whether defendant already was arrested when Contreras spoke with Hicks. The Court's earlier exchange with the People as to the relevance of evidence known to the police after Contreras returned to the apartment similarly alerted the People to the existence of this issue.

Defense counsel's cross-examination of Hargrove also was a red flag to the People that defendant intended to argue that he was arrested on less than probable cause prior to his identification by Hicks. Counsel repeatedly pressed Hargrove concerning the timing of defendant's admissions and was able to establish that defendant did not admit that he was the lookout until after he was handcuffed and placed in the RMP.

Although given every opportunity, the People failed to adduce evidence to support their [*5]contention that defendant was not arrested until after Hicks identified him. The People apparently misunderstood the import of Justice Webber's decision denying the Wade hearing. The Court, however, did not create or foster that misunderstanding. The Court not only did not prevent the People from making their case, but actually identified the legal issue presented by the testimony, as did counsel in his cross-examination of Hargrove. Under these circumstances, it would be unfair to allow the People to cure what should have been an obvious gap in the evidence.

Based on the evidence that was offered at the hearing, the Court concludes that the police clearly had reasonable suspicion to detain defendant in the alley, given his proximity to the scene and the suspicious nature of his exit and flight from Hicks' apartment. The police at that point, however, did not have the predicate to arrest defendant and the People do not maintain that they did. The People rather argue that defendant was only detained when he was handcuffed and placed in the RMP and not arrested until after he was identified by the complainant.

In determining whether a person is in custody, the law looks to whether a reasonable person, innocent of any crime, would have believed he was arrested if he was in defendant's position. People v. Hicks, 68 NY2d 234, 239-240 (1986). Although there are no fixed factors to assess when a detention is transformed into an arrest, the courts have recognized that handcuffing a suspect and placing him in a police car constitutes an arrest, barring some exigency. See People v. Robinson, 282 AD2d 75, 79-80 (1st Dept. 2001) and cases cited therein. As the First Department observed in People v. Acevedo, 179 AD2d 465 (1st Dept. 1992): Although the application of handcuffs is not always dispositive of whether detention of a suspect on reasonable suspicion has been elevated into a full blown arrest (People v Allen, 73 NY2d 378), there is no question that the use of handcuffs is a drastic limitation on the liberty of the detainee and, in the absence of probable cause, may only be resorted to where strongly justified by the circumstances.

Cf. People v. Allen, 73 NY2d 378, 379-380 (1989) (distinguishing appropriate use of handcuffs from situations in which the initial use of handcuffs was gratuitous or where there was unnecessary, prolonged handcuffing of a suspect after the threat justifying the use of handcuffs was neutralized).

The courts have recognized an exception to this general rule where handcuffing a defendant and placing him in a patrol car is necessary to insure the police officers' safety or is for the purpose of briefly detaining a suspect pending a confirmatory identification. All of the cases relied upon by the People fall within one of these two fact patterns. See People v Allen, 73 NY2d 378, 380 (1989) (armed robbery suspect apprehended in poorly lit alley, attempting to scale a wall); People v. Barnes, 4 AD3d 433 (2d Dept. 2004) (detention of robbery suspect to conduct prompt showup identification); People v.Williams, 305 AD2d 804 (3rd Dept. 2003) (handcuffs warranted where police had reason to believe defendant and two codefendants were armed); People v.Wright, 257 AD2d 365 (1st Dept. 1999) (brief use of handcuffs permitted pending complainants' immediate arrival at scene); People v. Johnson, 253 AD2d 677 (1st Dept. 1998) (defendants handcuffed while police completed search of car for a weapon).

Neither of these exigencies was present in this case. Defendant was cooperative and [*6]nonthreatening. He was not holding anything in his hands, no weapons were found on him and the police had no reason to believe that the alleged assault involved a weapon. Defendant's apprehension took place in broad daylight and there was no testimony that any officer believed it was necessary to their safety to handcuff defendant and place him in a patrol car. Nor was there any evidence that defendant was being held for a brief period pending an identification procedure.[FN1] Absent either of these justifications, the direction to defendant to turn around and place his hands behind his back, followed by defendant's being handcuffed and placed in the RMP, would have led a reasonable person to believe he was under arrest.

The Court accordingly finds that the police conduct amounted to an arrest without probable cause. Defendant's motion to suppress his statements to the police as the fruit of an unlawful arrest therefore is granted as to all statements made after defendant was handcuffed.[FN2]

This constitutes the decision and order of this Court.

________________________

Megan Tallmer, J.S.C.

Dated: September 30, 2005



[*7] Footnotes

Footnote 1:Assertions made by the People in a notice served pursuant to CPL 710.30(1)(b) cannot substitute for evidence at a suppression hearing.

Footnote 2:If there was no violation of the Fourth Amendment, the Court would find that defendant's statements to Hargrove in the alleyway and when defendant was in the RMP were made spontaneously. With respect to defendant's statements to Contreras at the precinct, however, the Court would find that these should be suppressed as the product of what amounted to custodial interrogation without benefit of Miranda warnings. See Rhode Island v. Innis, 446 US 291, 301 (1980); People v. Ferro, 63 NY2d 316, 322 (1984). In any event, the People have agreed not to offer any statements to Contreras at the precinct that were not included in their CPL 710.30(1)(a) notice.