People v Ananaba

[*1] People v Ananaba 2009 NY Slip Op 52546(U) [25 Misc 3d 1242(A)] Decided on July 15, 2009 Supreme Court, Queens County Knopf, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 15, 2009
Supreme Court, Queens County

The People of the State of New York

against

Naamdi Ananaba, Defendant.



539/2009



The defendant is represented by Arnold J. Levine, Esq. The People are represented by Assistant District Attorney Heather Nicoletti of the Queens District Attorney's Office.

Stephen A. Knopf, J.

The defendant, Naamdi Ananaba, moves to suppress identification testimony and physical evidence in connection with this case. The defendant is charged in a ten (10)count indictment with the crimes of robbery in the first degree (2 counts), robbery in the second degree (3 counts), grand larceny in the fourth degree (2 counts), criminal possession of stolen property in the fourth degree (1 count) and criminal possession of a weapon in the fourth degree (2 counts). A suppression hearing was held before this Court on July 15, 2009, July 30, 2009 and October 5, 2009.

At the outset of this hearing, the People advised this Court that they were withdrawing CPL §710.30 (1)(a) notice as to this defendant.

The People presented two witnesses at this hearing: Police Officer Wilkania Columna and Police Officer Neil Porter. The defendant presented two witnesses at this hearing: Ms. Marie Poulard and Police Officer Douglas Roske. Very significant credibility issues were raised by the police testimony herein that directly bear on the suppression issues to be determined by this Court. This Court has also considered non-testimonial evidence including: police communications, photographs, police reports, and the felony complaint associated with this case. The initial call made by the complainant to police ("911" call) was not offered as evidence at this hearing.

FINDINGS OF FACT

On September 26, 2007 at approximately 3am, in the vicinity of 10-53 115th Street in College Point, Queens, Mr. Rodriguez, a male Hispanic was the victim of a robbery. Shortly after 3:00am, a radio transmission ("run") was broadcast of a robbery in progress. Police Officer Wilkania Columna, Police Officer Neil Porter and Police Officer Douglas Roske claimed to have heard this communication, each initially stating they heard a broadcast describing a robbery that had been committed by four male Blacks that fled in: a beige vehicle (according to Columna), a [*2]brown or tannish or beige Mercedes Benz (according to Porter), a beige or tan Mercedes Benz, four-door vehicle (according to Roske) [hearing minutes (hereinafter h)16,52,64,81,192]. Police Officer Porter later revised his statement after reviewing a Sprint report, subsequently admitted in evidence, to reflect that this radio broadcast described two perpetrators; not four. (Police Officer Porter stated that the radio communication did not indicate how many doors the vehicle had. [h 86]). Police Officers Columna and Roske maintained that they heard "four male Blacks" in this initial transmission. Police Officer Roske subsequently stated that he received additional information that there were four Black or Hispanic perpetrators, by radio from a different, unknown, source [h 232-236].

The initial radio transmissions, a recording of which was admitted in evidence at this hearing, included the following information: that there had been a 10-30 (robbery) at gun point at the location 1053 115th Street, five minutes in the past, and that the perpetrators were described as"two male Blacks, one mask over face, (who) fled in a beige Mercedes Benz, unknown license plate, unknown direction of flight". Such radio transmissions did not specify a more detailed physical description of the perpetrators or their clothing, the license plate of the fleeing vehicle, the model, the number of doors, the age or condition of the vehicle, or as noted, its direction of flight.

Shortly after receiving such radio transmissions, approximately three to four miles from the scene of the robbery, Police Officer Porter and his partner, who were in an unmarked police car, and Police Officer Roske and Sergeant Comskey who were directly behind them also in an unmarked car, were proceeding northbound on Parsons Boulevard by 14th Avenue [h at 64]. Police Officer Porter observed a gray Mercedes Benz traveling southbound on Parsons Boulevard by 14th Avenue [h at 64]. (When asked by this Court if this vehicle had any beige on it, Police Officer Porter responded; "[I]t was gray with faded paint on it... It was like peeling on certain areas of the car. It may have appeared to be beige... Some of the paint was peeling on it. It may have appeared to be a beige color... a little bit...because of the way the paint was, maybe the lighting") [h 86,87].

Of note, Mrs. Marie Poulard, owner of this vehicle and mother of a former co-defendant, provided a copy of the vehicle's registration that indicated the color of the car was gray. This Court credits her testimony that she never had the car re-painted or refinished. In addition, the property invoice described the vehicle as a 1992 four door gray Mercedes-Benz. Photographs of the vehicle were offered in evidence by the defendant, showing the vehicle was silver/gray in color, in good condition and from this Court's inspection of such photographs it is clear that while a small portion of the rear bumper appears to have a slight amount of peeling paint, in no way can the color be described as beige. or gray.

After sighting the Mercedes-Benz, Police Officer Porter observed four (4) individuals inside the car. Prior to stopping the vehicle, he was unable to identify their race or gender [h 66-67]. It was not until he exited the vehicle that he admitted that he observed their race and gender.

Police Officer Porter turned the car around, and followed the defendants' vehicle for a short distance. So did the second police vehicle. The defendant's vehicle stopped at a red light at 20th Avenue, by the Whitestone Expressway. Both police vehicles activated their lights. Police Officer Porter sounded his siren briefly.

All four officers exited their vehicles, and approached the Mercedes-Benz with their [*3]guns drawn [h 88, 165]. Police Officer Roske, indicated that as he approached the vehicle, he could see that these individuals, inside the car, were dark-skinned but could not tell what gender they were. [h 192-193]. Police Officer Roske told the occupants "to show their hands" [h 172]. Suddenly, a male Hispanic (described as a Male Black or dark-skinned Hispanic by Police Officer Roske [h 172-173], exited the rear passenger side of this vehicle. He engaged Police Officer Roske in a physical altercation. They were about ten feet from the car. A gun popped out of the male Hispanic's waistband [h at 68, 91-92, 172-3]. Police Officer Roske and Sergeant Comskey proceeded to chase him [h 174-176].

The three remaining occupants of the vehicle were then removed from the vehicle. (h 69, 92-93]. As to this defendant, who had been seated in the front passenger seat, Police Officer Porter placed him on the ground, handcuffed him, searched him and recovered money from his right front jeans pocket ($355) and left front jean pocket ($154). $35 was recovered from the floorboard of the vehicle.

Police Officer Columna, after hearing the initial radio transmission, proceeded to the site of the robbery. When she arrived at the location, she observed a male Hispanic holding his head. She saw that his head was bleeding. An ambulance was already on the scene, attending to the male Hispanic, Mr. Rodriguez.

Officer Columna approached Mr. Rodriguez and asked him if he was "ok". He advised her that he had "just got robbed with a gun, and got hit in the head" [h 15]. Mr. Rodriguez told her that they took money from him and that the incident happened right in front of his house. She did not ask him how many perpetrators there were, what any of the perpetrators looked like e.g. physical characteristics or clothing description nor did she ask where the perpetrators went [h 34].

At about 3:50am, Police Officer Columna received a radio transmission. She asked Mr. Rodriguez to accompany her and her fellow officer (Police Officer Dadioala) in an marked radio patrol car. She proceeded to the vicinity of 20th Street and the Whitestone Expressway, the arrest location. Mr. Rodriguez was seated in the back seat; Police Officer Columna was seated in the front passenger seat.

They arrived at that location within 5-7 minutes. Three male blacks were standing by a Mercedes-Benz. (While Police Officer Columna did not remember if the male blacks were handcuffed; other officers indicated they were.) At that point, Mr. Rodriguez, approximately ten to fifteen feet away, blurted out "...that's the car and that's them [h 21]. The officer turned to Mr. Rodriguez and told him to make sure of what he was telling her. He repeated: "that's the car, that's them, and that's the guy that hit me". [h 22]. Police Officer Columna indicated that Mr. Rodriguez was pointing to a particular individual who he [*4]referred to as "the tall, skinny one". This individual was the defendant. Immediately thereafter, the defendant was placed under arrest.

CONCLUSIONS OF LAW

The first issue that this Court must address is the lawfulness of the stop of the Mercedes Benz, in which the defendant was a passenger. "The police are authorized to stop a vehicle and make inquiry upon a reasonable suspicion that its occupants had been, are then, or are about to be, engaged in conduct in violation of law'". People v Flanagan, 224 AD2d 633 (2d Dept 1996), citing People v Sobotker, 43 NY2d 559, 563 (1978).

As to the legality of the police actions herein, "...the People must carry the burden, in the first instance, of going forward with credible evidence establishing the legality of the police conduct in question...". In the Matter of Carl W., 174 AD2d 678, 680 (2d Dept. 1991). The testimony of the witnesses must be found to be worthy of belief. See, People v Rumph, 199 AD2d 434 (2d Dept 1993).

It is well-settled that testimony may not be credited which "...has all appearances of having been patently tailored to nullify constitutional objections. In evaluating testimony we should not discard common sense and common knowledge. ... The rule is that testimony which is incredible and unbelievable, that is, impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory, is to be disregarded as being without evidentiary value, even though it is not contradicted by other testimony or evidence introduced in the case". People v Miret-Gonzalez, 159 AD2d 647, 649 (2d Dept 1990). See, also People v Garafolo, 44 AD2d 86 (2d Dept 1974). Testimony cannot be credited where it has been patently tailored to overcome or nullify constitutional objections. See, People v Rutledge, 21 AD3d (2d Dept. 2005; People v Parmiter, 55 AD2d 938 (2d Dept 1977).

It has been held that "...Where the arresting officer concededly made several false statements to his supervisors about the material facts of his encounter with the defendant, and where other parts of an officer's testimony were so improbable as to be inherently unworthy of belief, the officer's claims as to probable cause to arrest the defendant cannot fairly be credited". People v Lebron, 184 AD2d 784, 785 (2d Dept 1992).

In People v Nunez, 126 AD2d 576 (2d Dept. 1987), it was found that where an officer's initial testimony concerning a radio run reporting a past robbery upon which he stopped a defendant and his companion was contradicted, in substantial part, by a Sprint report of three radio transmissions which were purportedly broadcast concerning the robbery, and the explanation [*5]of the discrepancies was that the officer's original testimony was an error, a finding of reasonable suspicion could not be supported. In evaluating the police conduct herein, "...the officers' actions must be judged against the actual content of the radio run, not on the basis of their claimed mistaken impression of it". People v Miller, 121 AD2d 335, 337 (1st Dept 1986).

In discerning whether there has been tainted testimony at this hearing, this Court has considered the testimony adduced at this hearing, as well as the police paperwork, photographs and audio recordings of radio transmissions connected with this case.Focusing on the initial radio broadcast as to the perpetrators and their vehicle, each testifying officer heard a different version of the broadcast. Police Officer Porter admitted he may have heard "two" male Blacks, only after being confronted with a police report (Sprint report). Police Officer Roske claimed another radio call (heard only by him from some unknown source) stated there were "four" perpetrators.

In reviewing the testimony offered about the color of the defendant's vehicle, there appears to be confusion in differentiating between the color beige and gray, and determining the actual color of the defendant's vehicle on the day of the stop. As previously noted, Police Officer Porter described the vehicle as: gray with faded paint on it-peeling on certain areas- it may have appeared to be beige a little bit because of the way the paint was, maybe the lighting. Such testimony is contradicted by the testimony of the car's owner, Ms. Poulard, who described the vehicle as gray. Police Officer Porter's testimony is further contradicted by the vehicle registration, and even the property invoice in this case which listed the vehicle as gray. Additionally, Police Officer Porter's testimony is contradicted by photographs in evidence which show the vehicle as silver/gray in color.

Only Police Officer Roske states that he heard a radio transmission that the Mercedes Benz was a four-door vehicle. This part of his testimony is particularly incredible based upon his further statement that he would have to say he received such transmission before the stop of defendant's vehicle because: "That would give us reason to stop the car" [H 240]. Police Officer Roske's testimony that the description of the perpetrator were Blacks or Hispanics appears particularly tailored to his observation of a male Hispanic exiting the vehicle.

This Court finds that the testimony of the police witnesses, primarily Police Officer Porter and Roske, was incredible and tailored to overcome constitutional objections. See, Miret-Gonzalez, supra and Garafolo, supra. This determination bears heavily on this Court's determination of whether the police had reasonable suspicion to lawfully stop this vehicle, and the [*6]admissibility of the evidence that flowed from the stop.

CPL §140.50 describes in relevant part, the standard in which a person may be questioned by a police officer in a public place,

(1) ...[A] police officer may stop a person in a public place located within the geographical area of such officer's employment when he reasonably suspects that such person is committing, has committed or is about to commit (a) a felony... defined in the penal law, and may demand of him his name, address and an explanation of his conduct.

"Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment...". People v Cantor, 36 NY2d 106,111 (1975). "The greater the level of police interference, the greater the quantum of information necessary to justify it". People v Martinez, 80 NY2d 444, 447 (1992).

When the police order a vehicle to pull over, a defendant is effectively "seized". A stop of a vehicle is lawful "...only if the officers had a reasonable suspicion of criminal activity". People v May, 81 NY2d 725, 727 (1992). Reasonable suspicion has been repeatedly defined as "...the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand". Cantor, supra at 112-113. "The requisite knowledge must be more than subjective; it should have at least some demonstrable roots. Mere hunch' or gut reaction' will not do". People v Sobotker, supra at 564. Even good faith on the part of the police officer will never be enough to validate an illegal interference with an individual's person. See, Cantor, generally at 113.

A seizure of an individual's person must be justified when it occurs; not as a result of information acquired at or after a stop. See, People v De Bour, 40 NY2d 210 (1976) generally. See also, People v Moore, 6 NY3d 496 (2006) "Defendant's later conduct cannot validate an encounter that was not justified at its inception". Moore at 498. See, De Bour, generally.

In reaching the issue of whether the stop of the Mercedes Benz was justified, this Court must consider the specificity of the information possessed by the police prior to the stop. This Court has already reviewed the discrepancies as to the descriptions of the perpetrators and the color of their vehicle as well as the lack of detail in such descriptions.

The lawfulness of a vehicle stop is contingent upon a finding that a properly described defendant in a properly described vehicle was detained by police. In People v Bianchi, 208 AD2d 551 (2d Dept 1994), the court found that the police had [*7]reasonable suspicion to stop a car based on a radio transmission that indicated that a car which matched the "stopped" vehicle with regard to make, model, color, and passengers, was involved in a robbery which occurred in sufficient proximity of time and location.

In People v Bond, 227 AD2d 412 (2d Dept 1996), the court found that police officers had reasonable suspicion to stop a vehicle because the vehicle and its occupants clearly matched the descriptions set forth in a radio transmission regarding the suspects and the officers observed the vehicle in fairly close physical and temporal proximity to the crime.

In People v Henry, 150 AD2d 797 (2d Dept 1989), the court upheld the stop, even through it was three days after the robbery. Here, the police were provided with a detailed description of the perpetrators as well as the license plate number of the vehicle that the defendant had used to leave the scene of the robbery.

In People v Adams, 123 AD2d 769 (2d Dept 1986), a stop' was upheld because of a description of the vehicle of similar make and color which had been observed minutes before near the scene of an armed robbery. It is noted that in People v Sanchez, 216 AD2d 207 (1st Dept. 1995), even where there was a distinction in the color of the getaway' vehicle (the van was described as white or silver, but was actually light blue), because one of the identified perpetrators matched the description broadcast in a radio transmission, the court determined that the stop was lawful.

However, in People v Brooks, 266 AD2d 864 (4th Dept 1999), the court found a stop unlawful where a police officer, with gun drawn, stopped the defendant's vehicle and its occupants based on information that a robbery had been committed by three (3) black males in a green automobile. Here, the court held that "Such sparse and general information does not support a reasonable suspicion that defendant and his companions committed the robbery... Nor does the officer's observation of the vehicle close to the [site of the robbery] within approximately half an hour of the robbery justify the police intrusion". Brooks at 864-5.

In People v Crump, 217 AD2d 902 (4th Dept 1995), the court found that where a police officer received a radio transmission that shots had been fired and that a dark-colored vehicle, possibly a Cadillac, was seen speeding from a specified area, and where eight minutes later, the same officer observed a brown Cadillac parked on the street about one to two minutes away from that area, the officer's action in following the car and stopping it was ruled unlawful insofar as the court determined that: "Those circumstances were insufficient to provide the officer with reasonable suspicion that defendant had committed or was [*8]about to commit a crime...". Crump at 903..

In People v Tindal, 231 AD2d 404 (1st Dept 1996), the court held that the bare descriptive information of the driver of a vehicle, to wit: a young male Black with a commonly worn haircut plus the make and color of the vehicle involved in the alleged crime, fell short of that required to justify a stop of defendant's vehicle 24 hours after receipt of such general limited information from the complainant.

It is the standard in this state that in order to establish there was reasonable suspicion to justify a stop of a vehicle; detailed information about the perpetrators, or at least the vehicle, must be shown. Such specific details were lacking here. Furthermore, it is insufficient for the police Officer to corroborate the race and gender of the occupants of the vehicle after the stop of such vehicle. This needed to have been done prior to the stop in order to support reasonable suspicion for such stop. As such, even if the police testimony had not been tailored and self-contradictory, this Court finds that the police officers herein did not have reasonable suspicion to justify the stop of the Mercedes Benz in which the defendant was a passenger. Without more, the stop of the Mercedes Benz and the detention of the defendant was unlawful.

The defendant submits that as a result of a lack of reasonable suspicion to stop the vehicle and the resulting unlawful arrest, all evidence flowing from that arrest must be suppressed.

Turning to the identification procedure conducted herein, to wit: the showup, this Court finds that but for the constitutional infirmity in the stop of the vehicle, the showup, which was not unduly suggestive, would have been admissible. Even through the defendant was handcuffed, the stop took place less than one hour after the robbery, within a short distance of the crime. The conversation between the police officer and the complainant was not one that would have compelled the complainant to identify the defendant. In fact, it was the complainant, Mr. Rodriguez, who initiated the identification [h 21-22]. See, eg People v Duuvon, 77 NY2d 541 (1991); People v Berry, 50 AD3d 1047 (2d Dept. 2008).

It is well-settled that: "...(t)he [exclusionary] rule prohibits the use of evidence obtained in violation of an accused's Fourth Amendment rights in a criminal proceeding against him... and this prohibition applies to any tainted fruits, whether tangible or verbal, of illegally seized evidence...". People v Young, 55 NY2d 419, 424 (1982).

Therefore, the finding that this identification procedure was not unduly suggestive is not determinative of the suppression issue as to such evidence. Under these circumstances, the fact that this identification procedure occurred as the result of an unlawful stop, renders it inadmissable as the product of an [*9]unlawful arrest. Accordingly, evidence of such showup identification must be suppressed.

As to any prospective in-court identification testimony to be offered by the complainant, where there is evidence supported by an independent source not related to the illegal arrest, the independent evidence may be admitted. See, People v Lane, 102 AD2d 829 (2d Dept 1984). As such, any in-court identification of the defendant shall not be presumptively precluded as a result of an antecedent unlawful seizure, as long as the in-court identification proceeds from a independent recollection of a witness. See, People v Pleasant, 54 NY2d 972 (1981). As long as in-court testimony of the witness is based on an independent recollection such "independent source" testimony would be admissible. Accordingly, an "independent source" hearing is ordered as to any prospective in-court identification testimony to be offered by the complainant.

Turning to the physical evidence recovered from the defendant, to wit: the money from his pockets and the money recovered from the floor of the vehicle, this Court finds that this evidence, like the showup, directly flows from the unlawful stop. See, eg People v Lindsay, 13 AD3d 651 (2d Dept 2004). (cocaine in defendant's jacket pockets inadmissible). As such, the physical evidence seized from the defendant and from the floor of the vehicle is suppressed.

As to the weapon discarded by the unapprehended other individual, the defendant does not assert standing with regard to this evidence. [h 279-281]. See, People v Ponder, 54 NY2d 160 (1981), generally.Therefore, there is no basis for suppression of such item.

In sum, based upon the tainted testimony of the police witnesses, most specifically, that of Police Officers Porter and Roske, and the lack of reasonable suspicion this Court concludes that there was insufficient legal basis for the stop of the defendant's vehicle. Accordingly, the defendant's motion to suppress physical evidence recovered from the defendant's person at the time of his arrest and from the floor of the vehicle is granted. As previously stated, there is no basis for suppression of the weapon discarded by the unapprehended other. The defendant's motion to suppress identification testimony is granted to the extent that the evidence of the showup identification is suppressed. This Court will conduct an "independent source" identification hearing with respect to any prospective in-court identification testimony to be offered by Mr. Rodriguez, prior to the commencement of the trial.

The foregoing constitutes the order, opinion and decision of this court.

_________________________

STEPHEN A. KNOPF, J.S.C.