People v LaPorte
Annotate this CaseDecided on March 7, 2006
Supreme Court, Erie County
The People of the State of New York,
against
Antwan LaPorte, KH, a Juvenile Offender and AH, a Juvenile Offender, Defendants.
018XX-2005
Frank J. Clark, Esq.
Erie County District Attorney
BY:Jeffrey P. DiPalma, Esq.
Assistant District Attorney
Attorney for the People
Daniel P. Grasso, Esq.
Attorney for the Defendant LaPorte
Lawrence J. Desiderio, Esq.
Attorney for the Defendant KH
Cornelius F. Collins, Esq.
Attorney for the Defendant AH
Russell P. Buscaglia, J.
The defendants are charged by this Indictment with Robbery in the First Degree, Penal Law § 160.15(4), two counts of Robbery in the Second Degree, Penal Law § 160.10(1)(3), Unauthorized Use of a Motor Vehicle in the First Degree, Penal Law § 165.08 and Grand Larceny in the Fourth Degree, Penal Law § 155.30(8). All three (3) defendants move to suppress the identifications made of them, the defendant KH moves to suppress the physical evidence seized and the defendant AH moves to suppress the statements allegedly made by him pursuant to Section 710.20 of the Criminal Procedure Law. A hearing was conducted pursuant to United States v. Wade, 388 U.S. 218 (1967), Mapp v. Ohio, 367 U.S. 643 (1961), Dunaway v. New York, 442 U.S. 200 (1979) and People v. Huntley, 15 NY2d 72 (1965). Lieutenant David Stabler and Officers James Hosking, Greg O'Shei and Lavonne Handsor of the City of Buffalo, [*2]New York Police Department testified at the hearing.
The credible testimony at the hearing revealed that on August 9, 2005 at approximately 11:30 p.m., Officer O'Shei was alone in uniform driving a marked patrol car when he received a radio call of a van crashed into a pole on Sumner Street in the City of Buffalo. Five (5) black males had exited from the van and one was wearing a white t-shirt with a handgun tucked into his waistband. Officer O'Shei arrived on Sumner Street within one minute of the call. Several officers were already there near the van. Officer O'Shei did not stop but proceeded to Brinkman Street where he observed the three (3) defendants, who are black males, and a fourth black male walking, at least two of whom were wearing a white t-shirt. He pulled his car diagonally across their path and ordered them at gunpoint to stop and put their hands on his car. The four (4) males complied as Officer Handsor arrived on the scene to assist. Officer O'Shei frisked the defendants LaPorte and AH, while Officer Handsor frisked the defendant KH and the fourth male. Officer Handsor felt a hard object in the defendant KH's right front pants pocket that in her experience felt like a gun. She alerted Officer O'Shei who retrieved what was later determined to be a pellet gun from the defendant KH's pants pocket. While the four (4) males were being detained, the officers received a radio call of an armed robbery of a pizza delivery man and the theft of his van just minutes earlier on Forman Street. The scene of the armed robbery was from the direction the three (3) defendants and the fourth male were walking from. No inquiry concerning this call was conducted of any of the defendants by either officer.
Within 15 minutes of the stop and approximately one half hour of the robbery, the victim of it was brought to the location where officers O'Shei and Handsor had detained the three (3) defendants and the fourth male. Officer O'Shei explained to the victim that he would be shown four (4) individuals. He should look at each person's face carefully to see if he recognized any of them. He should indicate he recognized them only if he was sure and there was no need to make an identification if he was not sure. Clothing alone was not good enough, he had to recognize faces. The area was lit by street lights and the officers shined their car spotlights and flashlights on the four (4) individuals as they were shown to the victim separately, without handcuffs and without officers holding onto them. The victim positively identified the three (3) defendants and did not recognize the fourth male. It should be noted that while Officer Hosking and the victim were en route from Forman Street to the location of the show-up, the police car radio was on and car-to- car transmissions, as well as dispatch bulletins, were audible to them. Officer O'Shei used the word suspects when he radioed to dispatch that he had detained the three (3) defendants and the fourth male.
The defendants were arrested and brought to City of Buffalo Police Headquarters for processing. Since the defendants KH and AH were juveniles, they were brought to a juvenile interview room. They protested their innocence to Officer Paul Mullen and Lt. Stabler. Lt. Stabler told them they were arrested because they had been identified by the victim. The defendant AH then told the defendant KH that he had seen the person who identified them in the car. Lt. Stabler overheard this statement. No questioning of either juvenile defendant was conducted by any officers in connection with the crimes under investigation.
A person must allege standing to suppress evidence by establishing a reasonable expectation of privacy in the place or items searched, People v. Ramirez-Portoreal, 88 NY2d 99 (1996). The defendant KH has an expectation of privacy in the clothing he wears and the personal effects contained in it that society deems reasonable and, therefore, he has standing to [*3]challenge the seizure of the pellet gun. Furthermore, the defendants AH and LaPorte have the right to challenge the legality of the forcible stop of them by Officer O'Shei since it led to their identification and arrest. When Officer O'Shei ordered the three (3) defendants and the fourth male to stop at gunpoint and put their hands on his car, it was a significant limitation of their freedom, People v. Bora, 83 NY2d 531 (1994) and People v. Boodle, 47 NY2d 398 (1979), cert. denied 444 U.S. 969 (1979). The temporal and geographical proximity to the scene of a crashed van, coupled with Officer O'Shei's independent corroboration of the 911 call and the direction of the three (3) defendants and the fourth male away from it provided a founded suspicion that criminal activity was afoot, People v. DeBour, 40 NY2d 210 (1976). Since the defendants matched the general description in number, race and clothing, it was reasonable for Officer O'Shei to draw his gun to control the encounter for his safety, since at least one of the persons seen leaving the crashed van possessed a gun, People v. Williams, 305 AD2d 804 (3rd Dept. 2003) and People v. Camber, 187 Misc 2d 153 (County Court, Broome Cty. 2001). Once the defendants stopped and placed their hands on the car, it was reasonable for Officers O'Shei and Handsor to frisk them in order to conduct their common law inquiry safely, People v. Hauser, 80 AD2d 460 (4th Dept. 1981). It was during this frisk that a gun was recovered from defendant KH and all four (4) individuals were detained. That no inquiry regarding the crashed van was conducted is of no moment because during this time, an additional report of a robbery of a pizza delivery man was received by the officers and the details matched the details of the investigation they had begun. Therefore, their further detention for identification purposes was not unlawful, People v. Hicks, 68 NY2d 234 (1986) and People v. Johnson, 102 AD2d 616 (4th Dept. 1984), app'l. denied, 63 NY2d 776 (1984).
The People have the initial burden of going forward to establish that the identification procedure was not unduly suggestive and that burden is minimal, People v. Ortiz, 90 NY2d 533 (1997). If the People meet their burden, the defendant has the burden of persuasion by a preponderance of the evidence to establish a basis for suppression, People v. Berrios, 28 NY2d 361 (1971). The show-up was conducted in close temporal and geographical proximity to the crimes being investigated under adequate lighting conditions. While show-ups are inherently suggestive, they are desirable in order to ensure that an innocent person is not detained, People v. Duuvon, 77 NY2d 541 (1991). The mere possibility that the victim could have heard the word suspects while en route to the show-up does not by itself vitiate the identifications, People v. Rodriguez, 64 NY2d 738 (1984) and People v. Anderson, 118 AD2d 716 (1986). The defendants were not handcuffed and not flanked by officers when the victim identified them. The use of the spotlights enhanced their reliability and did not render them unduly and unnecessarily suggestive, People v. Dubinsky, 289 AD2d 415 (2nd Dept. 2001). The instructions given by Officer O'Shei were reasonable and further ensured that an irreparable misidentification was not made. Further indicative of the fairness and reliability of the show-up identifications made by the victim is the negative identification of the fourth male, who was released when he was not identified, People v. Wilder, 93 NY2d 352 (1999). Therefore, under the totality of the circumstances, the identification procedure was not unduly suggestive.
The People have the burden of establishing the voluntariness of a person's statement beyond a reasonable doubt, People v. Witherspoon, 66 NY2d 973 (1985). Miranda warnings are an absolute prerequisite to custodial interrogation, Miranda v. Arizona, 384 U.S. 436 (1966). The test to determine custody is what a reasonable person innocent of any crime would have [*4]thought had he been in the defendant's position, People v. Yukl, 25 NY2d 585 (1969). The defendants KH and AH may have been read the appropriate Miranda warnings, but there was no proof as to what warnings, if any, were actually given and under what circumstances. However, the defendant AH was not interrogated while in custody. He protested his innocence to Lt. Stabler and Officer Mullen and was told the reason he was arrested was because he was identified by the victim. The defendant AH's statement to the defendant KH that he saw the person who identified them in the car was not in response to any questioning. Since advising the defendant that he had been identified was not custodial interrogation or its functional equivalent, the statements made by the defendant AH are voluntary, People v. Maerling, 46 NY2d 289 (1978), People v. Borcsok, 107 AD2d 42 (2nd Dept. 1985), app'l. denied, 65 NY2d 692 (1985) and People v. Ferro, 63 NY2d 316 (1984).
Accordingly, all the defendants' motions to suppress the identifications made of them, the defendant KH's motion to suppress the physical evidence seized and the defendant AH's motion to suppress statements allegedly made by him are DENIED. This decision constitutes the Order of this Court.
DATED:Buffalo, New York
March 7, 2006
RUSSELL P. BUSCAGLIA
Supreme Court Justice
GRANTED:
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
