People v Lewis

[*1] People v Lewis 2009 NY Slip Op 51661(U) [24 Misc 3d 1228(A)] Decided on May 26, 2009 Supreme Court, Monroe County Valentino, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 26, 2009
Supreme Court, Monroe County

The People of the State of New York

against

Omar Troy Lewis, Defendant.



2008-0875



For the People:

Michael C. Green

Monroe County District Attorney

Faye Vitagliano, A.D.A.

47 S Fitzhugh St, Ste 832

Rochester, NY 14614

For the Defendant:

Mary E. Aramini, Esq.

144 Exchange Blvd, Ste 400

Rochester, NY 14614

Joseph D. Valentino, J.

Defendant is charged with two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]; [3]) and one count of criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]). This Court considered the issues raised in defendant's motion and granted him a suppression hearing, which was held on January 30, February 13, March 18, and April 27, 2009.

FINDINGS OF FACT

At the hearing, the prosecution presented the testimony of Officers Mark Rohr, Paul Bushart, and Jason Leckinger, Sergeant Aaron Springer, and Investigator Mazzola, all employed by the Rochester Police Department. Defendant presented the testimony of Caroline Rivera. The Court [*2]received into evidence a Miranda rights card, a written statement attributed to defendant [People's Exhibit Nos. 1 and 2], and three photographs [Defendant's Exhibits A, D, and E].

The credible testimony established that on October 12, 2008 at approximately 10:00 p.m., Officer Bushart, a 13-year veteran of the police department, was dispatched to a "fight at Peck and North Goodman Streets" in the City of Rochester. When Bushart turned his patrol car onto Peck Street he heard what he believed to be a shot fired from a shotgun. Several females waived him down and one of them stated that "the person who just fired the shot [is] in the house" and "lived" there, pointing to 30 Peck Street. Bushart observed people on the porch and in the open front doorway of 30 Peck Street. He then saw them enter and shut the door. Bushart radioed the information and went to the rear of the house to see if anyone came out of the house.

At the rear corner of the house, he encountered Caroline Rivera, who upon Bushart's inquiry stated that "the person who fired the shot, or the man who she did not know, had run through her house and out the back of her house and through the back yards." She told Bushart that it was her house and that no one was in the house now. Bushart did not want Rivera to re-enter 30 Peck Street for her own safety and did not allow her reentry. Bushart testified that there "may [have] be[en] armed gunmen in her house that she [didn't] know about." He placed Rivera in his patrol car and arrested her for obstructing governmental administration when she refused to comply with his directive not to re-enter the house.

In the meantime, Officer Rohr, an officer since 2007, arrived on scene and the four females described the shooter to him as a black male, between the ages of 17 and 25 with a white T-shirt and red pants. Shortly thereafter, the females were separated and interviewed.

Officer Leckinger, an officer with four years experience, also arrived on the scene within a few minutes of the dispatch and he took up a perimeter position near the rear of 38 Peck Street, next door to 30 Peck Street. After about five to ten minutes, he heard and then observed defendant walking, "as if he was trying to be sneaky," toward him. Leckinger observed that defendant matched the radio broadcast description of the shooter, black male, 17 to 25 years of age, wearing a white T-shirt and red pants. Defendant was "breathing hard" and sweating. Leckinger asked him his name, address, and date of birth and secured defendant in his patrol car.

Sergeant Springer, a 13-year employee of Rochester Police Department, arrived on the scene and learned that a fight had occurred outside of 30 Peck Street involving 10 to 15 people and shots were possibly fired. He asked Rivera to "call anyone in the premises" and after she was observed talking on the phone, two men exited 30 Peck Street through the front door. They were taken into custody. Springer ordered a protective sweep of the house to look for suspects or victims. He testified that he could not be sure that no one in the house needed police or medical assistance and thus the protective sweep was necessary.

Rivera testified that she refused to consent to a police search of the house and when she returned the next day she found glass-front cupboards open, dresser drawers open, heating vent covers removed, clothes strewn out of boxes in her closet and mattresses overturned. However, a photograph [Defendant's Exhibit E] showed boxes without clothing strewn. Rivera also testified that after the gunshot, she knew someone ran into her house because the door was closed and she recalled it being open. She testified that she did not see who ran into her house because she was focused on her son when the argument occurred outside and the shot was fired. She denied that defendant fired the shot. [*3]

Rivera also testified that she was romantically involved with defendant, that he lived with her and her son, and defendant slept in a room in the attic. Rivera testified that the gun belonged to Tyshawn Parker, a man to whom she rented a bedroom in the three bedroom house. Rivera never saw Parker put the gun in the attic but after overhearing Parker talk, she saw him go straight to the attic and the next day she found the gun in the storage area of the attic. She recovered the gun and put it in her bedroom closet. To the extent that Rivera's testimony conflicted with the credible police testimony, the Court finds those portions of Rivera's testimony not credible.

During the protective sweep, Rivera's bedroom closet was opened and a shotgun was located leaning against a wall. Leckinger saw the gun once the clothes were moved aside. After the house was cleared, the gun was secured by an evidence technician.

After the house was secured, Investigator Mazzola responded to 30 Peck Street, met with witnesses and conducted show-up procedures with four females identified as Lakeshia Franklin, Tanisha Green, Chantela Franklin and Katrina Dorsey. Mazzola instructed the four females that they were not to speak to one another until the conclusion of the show-up procedure. Mazzola conducted each show-up procedure with one person at a time at 46 Peck Street, while the other three females remained with Rohr. Mazzola had each female sit in the front seat of his patrol car and view defendant who was brought into view walking with uniformed Officer Pearson. Mazzola instructed each female that she would be looking at someone and to tell him if she recognized this person from anywhere. Mazzola testified that he believed defendant was handcuffed. The area was lit by street

lights and car headlights. The view was unobstructed and defendant was 10 to 15 feet away from the witness. Three of the four females identified defendant as the shooter. The fourth female stated defendant was at the scene but could not positively identify him as the shooter. The show-up procedures were conducted from 11:09 p.m. to 11:24 p.m.

Following the show-up procedures, at approximately 12:07 a.m., Mazzola interviewed defendant at the East Division Office in an interview room. No threats or promises were made to defendant to induce him to speak with Mazzola. Defendant did not appear under the influence of alcohol or drugs and did not appear ill or injured. Mazzola advised defendant of his Miranda rights by reading them verbatim from a rights card [People's Exhibit No. 2]. Defendant indicated that he understood his rights and agreed to speak to Mazzola. Thereafter, during a 20-minute interview, defendant made inculpatory verbal statements which were subsequently summarized in a written statement [People's Exhibit No. 3]. Mazzola read the written statement aloud to defendant and they both signed the statement. The interview concluded at 12:46 a.m. Defendant did not request an attorney or for the questioning to stop during the interview.

The above constitutes the relevant testimony and evidence presented during the hearing.

CONCLUSIONS OF LAW

I.Detention and Arrest of Defendant

Regarding defendant's motion to suppress evidence as a result of an unlawful arrest, the prosecution has the burden of going forward to show the legality of the police conduct in the first instance, but the ultimate burden is upon defendant to prove that the evidence should be suppressed by a preponderance of the evidence.

When evaluating the propriety of police conduct involving the search or seizure of an individual, the Court must determine whether the initial encounter was justified and whether any [*4]consequent intrusion was reasonably responsive to the circumstances presented under the four-tier analysis of People v DeBour, 40 NY2d 210, 222 (1976) (see, People v Hollman, 79 NY2d 181 [1992]). "Typically, no single factor will justify the police conduct under scrutiny; rather, it is the peculiar combination of factors known to the police at the time, and as circumstances evolve, that will determine the appropriate level of intrusive conduct" (People v Giles, 223 AD2d 39, 43 [2d Dept], lv denied 89 NY2d 964 [1996]). A police officer is entitled to draw upon the entirety of his or her experience and knowledge in determining whether probable cause for an arrest exists (see, People v Horsman, 152 AD2d 859 [1989]; People v Cummins, 108 AD2d 962 [1985]). At the fourth tier of DeBour, an arrest is proper where the police have probable cause to believe a person has committed a crime (see, People v Hollman, supra, at 185).

The positive identification of a defendant as the person who committed a crime ultimately bestows the requisite probable cause to arrest a defendant (see, People v Warren, 276 AD2d 505 [2d Dept, 2000], lv denied 96 NY2d 764 [2001]; People v Everson, 262 AD2d 1059 [4th Dept 1999], lv denied 94 NY2d 903 [2000]).

Leckinger had, at the very least, a founded suspicion of criminal activity (see, People v DeBour, supra) based upon his observation of (1) defendant within several minutes of the reported incident who matched the description in the radio call, (2) defendant appearing like he was sneaking around in the vicinity of where a shot was fired, and (3) defendant's statement that he lived at 30 Peck Street and heard about the shooting. Leckinger properly detained defendant in his patrol car until the show-up identification was conducted (see, People v DeBour, supra). Upon the positive identification, reasonable suspicion ripened to probable cause to arrest (id.)

II.Warrantless Entry of 30 Peck Street

Defendant moved to suppress evidence obtained and derived as a result of the warrantless entry by police into 30 Peck Street. The People opposed the motion.

Exigent circumstances may permit the police to enter a residence without a warrant in cases where there is a heightened level of danger to officers or the public, or when there is an increased likelihood of destruction of evidence (see, People v Molnar, 98 NY2d 328, 331-332 [2002]; People v Hodge, 44 NY2d 553 [1978]). "The People's burden of demonstrating the existence of the exigent circumstances necessary to justify the warrantless search is heavy" (People v Davis, 195 Misc 2d 858 [Rochester City Ct, 2003]). In this case, the Court finds that the warrantless entry for a protective sweep was justified by exigent circumstances and the police did not exceed the scope of a protective sweep.

The four females reported to police that a man who lived at 30 Peck Street fired a shot and went in the house. Approximately 10 to 15 people were involved in the argument. Bushart saw at least two people on the porch and they shut the door. Rivera reported that the shooter ran through her house and out the back door. She claimed no one was in the house but later two men exited out the front door. Although defendant who matched the description of the shooter was taken into custody outside the house, he had not been identified by witnesses when the police entered 30 Peck Street to look for suspects or victims. The Court concludes that the police acted reasonably in conducting a sweep of the premises to ascertain whether there were any armed or injured persons therein and that the police, who were lawfully in the premises, properly seized the gun that was discovered in Rivera's bedroom closet (see, People v Jackson, 41 NY2d 146, 149-150 [1976]; see, People v Robinson, 225 AD2d 399, 400 [1st Dept], lv denied 88 NY2d 884 [1996]; People v Love, [*5]204 AD2d 97, affd 84 NY2d 917 [1994]). The police reasonably possessed articulable facts which taken together with the rational inferences from those facts would warrant a reasonably prudent officer in believing that the area to be swept harbored an individual posing danger to those on the arrest scene (see, Maryland v Buie, 494 US 325, 334 [1990]).

Concluding that the warrantless entry by police was lawful, the evidence obtained from the protective sweep is not subject to suppression and defendant's motion is denied.

III.Identification

Defendant moved to suppress the out-of-court and potential in-court identification evidence, contending that such evidence was tainted by unduly suggestive pre-trial identification procedures.

On this issue, the prosecution has the burden of going forward to establish lack of suggestivity in the first instance and that the pre-trial identification procedures were not constitutionally impermissible. Defendant, however, has the ultimate burden of establishing by a preponderance of the evidence that the procedures were impermissible (see, People v Chipp, 75 NY2d 327, cert denied 498 US 833 [1990]; People v Berrios, 28 NY2d 361, 367 [1971]).

Although show-up identification procedures are considered inherently suggestive, they are permitted if held promptly after the commission of a crime, since a show-up allows the wrong suspect to quickly proceed freely (see, People v Duuvon, 77 NY2d 541 [1991], People v Hicks, 68 NY2d 234 [1986], People v Love, 57 NY2d 1023 [1982]; People v Brnja, 50 NY2d 366 [1980]). Furthermore, such identifications, while disfavored, are permissible if exigent circumstances require immediate identification or if the suspects are captured at or near the crime scene and can be viewed by the witness immediately (see, People v Ortiz, 90 NY2d 533 [1997]; People v Riley, 70 NY2d 523

[1987]; People v Hendrick, 192 AD2d 1100 [4th Dept], lv denied 82 NY2d 755 [1993]), with emphasis placed upon the "prompt and immediate nature of an identification after the crime has been committed, not, . . . after the defendant has been arrested" (People v Johnson, 81 NY2d 828, 831 [1993]). In the absence of exigent circumstances, show-up identifications have been allowed where the show-up was reasonable under the circumstances, when conducted in close geographic and temporal proximity to the crime, and the procedure used is not unduly suggestive (see, People v Brisco, 99 NY2d 596, 597 [2003]).

The show-up procedures occurred in the vicinity of 46 Peck Street between 11:09 p.m. and 11:24 p.m., beginning approximately 69 minutes after the shot was fired. They were conducted in close spatial and temporal proximity to the commission of the crime, following the reporting of the incident and initial interviews of witnesses. "The fact that defendant was [viewed while] in the presence of a police officer does not by itself render the show-up unduly suggestive" (People v Horne, 2 AD3d 1399 [4th Dept, 2003], lv denied 1 NY3d 629 [2004]). Therefore, the Court concludes that the show-up procedures were reasonable under the circumstances (see, People v Ponder, 42 AD3d 880 [4th Dept], lv denied 9 NY3d 925 [2007]) and not unduly suggestive (see, People v Brisco, supra). As such, defendant's motion to suppress is denied.

IV.Defendant's Statements

Regarding defendant's oral and written statements, in New York, a confession or admission is admissible at trial only if its voluntariness is established by the People beyond a reasonable doubt (see, People v Valerius, 31 NY2d 51 [1972]). The issue presented is whether, under the totality of the circumstances, defendant's statements were obtained in violation of his constitutional rights [*6]against self-incrimination and/or his constitutional right to counsel. The prosecution has the burden to negate the issue and to establish voluntariness beyond a reasonable doubt.

"Miranda v Arizona (384 US 436 [1966]) requires that at the time a person is taken into custody or otherwise deprived of his freedom, he must be advised of his constitutional rights" (People v Yukl, 25 NY2d 585, 588 [1969], cert denied 400 US 851 [1970]). Upon the totality of the evidence and circumstances presented (see, People v Anderson, 42 NY2d 35, 38 [1977]), this Court concludes that the prosecution has sustained its burden of proof by establishing that defendant knowingly and intelligently waived his Miranda rights prior to speaking to Mazzola (see, People v Sirno, 76 NY2d 967 [1990]; People v Williams, 62 NY2d 285 [1984]; People v Wright, 171 AD2d 905 [3d Dept], lv denied 77 NY2d 1003 [1991]), and that his oral and written statements were voluntary (see, People v Reyes, 190 AD2d 693 [2d Dept], lv denied 81 NY2d 975 [1993]; People v Bilbrew, 177 AD2d 582 [2d Dept 1991], lv denied 79 NY2d 918 [1992]). Defendant's statements were not the product of coercion, pressure, or any other improper form of inducement (see, People v Guthrie, 222 AD2d 1084 [4th Dept, 1995], lv denied 87 NY2d 973 [1996]; People v Williams, 222 AD2d 468 [2d Dept, 1995], lv denied 88 NY2d 887 [1996]).

Regarding the failure to record defendant's statements, there is no state or federal requirement mandating electronic recording of a defendant's interrogation or confession to the police (see, People v De Micco, 39 AD3d 1262 [4th Dept], lv denied 9 NY3d 864 [2007]).

Consequently, defendant's motion to suppress his statements is denied in its entirety.

The above constitutes the Decision and Order of this Court.

Dated:Rochester, New York

May 26, 2009

____________________________________

Hon. Joseph D. Valentino

Justice Supreme Court