People v Osbourne

[*1] People v Osbourne 2006 NY Slip Op 50732(U) [11 Misc 3d 1087(A)] Decided on April 27, 2006 Suffolk County Court 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2006
Suffolk County Court

The People of the State of New York, Plaintiff,

against

Stanley Osbourne, Defendant.



00-057846/SPD

C. Randall Hinrichs, J.

The People have brought an Order to Show Cause seeking an order authorizing them to have defendant appear in a lineup in connection with an alleged sexual assault in January of 2000, unrelated to the charges in an indictment also pending before this Court. Defendant opposes the application.

Case law makes clear that a suspect may be ordered to appear in a line-up, provided probable cause is established. This authority is separate from the statutory authority provided in Criminal Procedure Law (CPL) § 240.40(2)(b)(i) when an indictment is pending. See, for example, People v Pasturius, 272 AD2d 944, 709 NYS2d 722 (4th Dept., 2000) and People v Shields, 155 AD2d 978, 547 NYS2d 783 (4th Dept., 1989.) The Court of Appeals, in Matter of Abe A., 56 NY2d 288, 291 (1982), set forth the guidelines for this type of application, as follows:

"(1) probable cause to believe that the suspect has committed the crime, (2) a "clear" indication that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable."

Although the Matter of Abe A. involved the taking of a blood sample, the case outlines the same standard applied to applications seeking to require a defendant to appear in a lineup. See, for example People v Hammonds, 1 Misc 3d 880, 768 NYS2d 166 (2003.)

The Court finds that People have met their burden. The People submit a complaint was filed on February 1, 2000 alleging that a sexual assault took place in Patchogue, Suffolk County, New York on January 30, 2000. The matter remained open and under investigation according to the People. The People further submit that on March 31, 2006, the complainant who filed the February 1, 2000 complaint contacted the Suffolk County Police Department and reported that she believed a photograph she viewed of the defendant printed in Newsday newspaper on or about April 14, 2006 was a photograph of her assailant.

On April 25, 2006 the Court heard oral argument from both sides in support of their respective positions. The People offered, as part of their argument, additional documentation which they submit supports their position that probable cause exists to order defendant to appear in a line-up in connection with the 2000 sexual assault allegations. This additional [*2]documentation includes the newspaper article from which the alleged victim claims to have identified the defendant and two statements from the alleged sexual assault victim (with information identifying the victim redacted.) The first statement was provided within two days of the alleged attack and contains reference to the alleged victim's opportunity to view her attacker. The second statement was made by the alleged victim after publication of the 2006 article from which the alleged victim claims to have identified the defendant.

The Court finds, based upon: 1) the Affidavit submitted with People's Order to Show Cause; 2) the additional documentation provided by the Court on April 25, 2006 and 3) the statements made by the People on the record on April 25, 2006, that probable cause exists to believe that defendant has committed the crimes charged and there is a clear indication that relevant material evidence will be found by requiring defendant to appear in a lineup.

Defendant's additional arguments, regarding claims of violations of the statute of limitations and the extradition agreement signed by the defendant are denied as premature. It should be noted that the People made a preliminary showing that the action is not barred by the statute of limitations. The People submit that defendant's whereabouts were unknown and unascertainable as evidenced by an outstanding warrant issued on January 25, 2002 on Indictment # 244-2002, upon which defendant was extradited from Canada in 2006. See CPL § 30.10(4)(a)(ii.) The Court will entertain and rule on these and any other appropriate applications if and when a prosecution in regards to the subject of the line-up is commenced.

Accordingly, the People's application for an order directing that the defendant appear in a lineup is granted. The Court directs that the defendant be produced, in accordance with the attached ORDER, to appear in a lineup at 11:00 am on Thursday, May 4, 2006 at the Fifth Precinct, Waverly Ave., Patchogue, NY, and that defendant's counsel be allowed to attend the lineup.

This memorandum shall constitute the decision and order of the Court.

________________________________

J.C.C. [*3]

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