People v Winter

[*1] People v Winter 2009 NY Slip Op 52744(U) [26 Misc 3d 1224(A)] Decided on October 1, 2009 Supreme Court, Kings County Mangano, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 1, 2009
Supreme Court, Kings County

People of the State of New York

against

Jamal Winter, Defendant.



5037/2008



James Pepe, Esq.

For the Defendant

Timothy Gough, Esq.

Asst. District Attorney

For the People

Guy J. Mangano, J.

The defendant is charged with one count of Murder in the First Degree and two counts of Murder in the Second Degree.A Dunaway/Mapp/Wade/Huntley hearing was ordered and held. The People called two witnesses: New York City Police Detectives Timothy O'Brien and Elson Winchester. The defendant testified on his own behalf.

FINDINGS OF FACT

This Court finds the People's witnesses to be credible.

On May 15, 2008, Detective Timothy O'Brien was assigned to assist in the investigation of the death of Kyungsoo Woo, which occurred at 1623 10th Avenue, Kings County. Detective O'Brien arrived at the scene, a dry cleaning establishment, and found the victim in the rear of the location. The detective interviewed several witnesses who observed a black male, in his early 20's, medium build, and approximately 5 foot 7 inches, standing in front of the dry cleaning store on the afternoon of May 14, 2008. The witnesses also described the man as wearing either a do-rag and/or a baseball cap, and some described him as wearing a knapsack around his shoulders.

Besides the body of the deceased, the detective recovered a black knapsack from behind the front counter, similar to the bag described by some witnesses. Also recovered was a plastic bottle of ammonia and cleaning gloves. All items recovered were vouchered and sent for police testing. It was also learned that a white Honda Accord, which belonged to the deceased, was missing, and that one of the witnesses observed the person fitting the description leave the store and get into a white Honda.

Approximately one day later, Detective O'Brien received results from the police laboratory that a fingerprint on the plastic bottle matched the fingerprint of a Jamal Winter, an individual on the fingerprint database. With the fingerprint match, the detective was able to recover all information known to the police about Jamal Winter, including a physical description which was close to the description provided by the witnesses who gave statements to police. The police also learned Mr. [*2]Winter's address as being twelve to fifteen blocks from the site of the murder.

With this information, the detective and other police canvassed the area of Jamal Winter's last known address. On May 18, 2008, Detective O'Brien was driving on 15th Street, between 5th and 6th Avenues, and observed the deceased's white Honda. While the license plates did not match the vehicle's registration, the Vehicle Identification Number matched. Jamal Winter's address known to the police was on 14th Street, between 5th and 6th Avenues, approximately one block away. Another police vehicle was canvassing the area and observed an individual who matched Jamal Winter's photograph walking towards the parked white Honda Accord. Detective O'Brien's vehicle pulled up on Jamal Winter and stopped him. Jamal Winter identified himself when asked by Detective O'Brien. The detective recovered an automobile key that matched the parked white Honda and defendant was arrested and transported to the 72nd Precinct.

Once at the police station, Detective O'Brien prepared a lineup with defendant and five fillers. The detective also contacted five witnesses to come to the 72nd Precinct. The witnesses arrived at the precinct and were taken to the detective's offices without coming into contact with each other or any of the lineup participants. The defendant was in a closed interview room and could not be scene by any of the witnesses, and the fillers remained in the rear of the precinct until all the witnesses arrived. Detective O'Brien informed each of the witnesses separately that they would be viewing a lineup and whether they recognize any of the members of the lineup. Defendant chose position four. All lineup participants wore a hat and glasses. Beginning at 4:00 p.m., the witnesses began viewing the lineup. Four of the five witnesses picked Jamal Winter as the individual they observed in and around the dry cleaning establishment on May 14, 2008. Four photographs of the lineup were taken and admitted into evidence.

Earlier that day, at approximately noon, Detective Elson Winchester read defendant his Miranda rights from a pre-printed sheet of paper containing six questions. Defendant responded that he understood each question and memorialized his affirmative answer by writing the word "yes" and his initials at the end of each question. Defendant also signed the Miranda Sheet. After some questioning, defendant told the detective that he and a friend went to the dry cleaning establishment "to get this money." According to defendant's statement, the friend committed the murder and defendant only took money. The friend initially took the white Honda but parked it near defendant's house because the friend was going away for a while. The statement ended at approximately 1:00 p.m.

After the lineup procedure, Detective Winchester had another occasion to speak with defendant at approximately 8:00 p.m. Defendant was reminded of his Miranda rights once again and was asked to write the oral statement previously given. Defendant asked that the detective write the statement and defendant proceeded to dictate the statement and the detective wrote it down word for word. When asked to sign the statement, defendant refused.

Defendant then took the stand and refuted everything stated by the two police detectives.

CONCLUSIONS OF LAW

DUNAWAY/MAPP ISSUE

Regarding the propriety of the warrantless arrest, the police had probable cause to arrest defendant based upon the fact that his fingerprints were found on a bottle of ammonia found at the scene of the murder (see People v Catti, 19 AD3d 703, lv denied 5 NY3d 827; see also People v [*3]Snipes, 289 Ad2d 116, lv denied 98 NY2d 655). As for the recovery of physical evidence, the keys to the victim's vehicle obtained from defendant's person were the products of a search incident to a lawful arrest (see People v Phillips, 260 AD2d 582, lv denied 93 NY2d 1025; People v Williams, 236 AD2d 642, appeal denied 90 NY2d 866; People v Decayette, 217 AD2d 557, appeal denied 86 NY2d 841).

HUNTLEY ISSUE

As for the admissibility of defendant's statements made at the precinct, the record is clear that defendant answered in the affirmative as to whether he understood the Miranda Warnings read from a pre-printed document detailing the rights of a defendant in custody. Further, defendant initialed each of the six sentences and also signed his name on the page. Thus, under the totality of the circumstances, this Court finds that defendant knowingly, intelligently and voluntarily waived his Miranda rights before making the statement (see People v Washington, 155 AD2d 635, appeal denied 75 NY2d 925; see also People v Davis, 55 NY2d 731). The statements will therefore be admissible at trial.

WADE ISSUES

It is well settled that the People have the burden of going forward to establish the reasonableness of the police conduct and the lack of suggestiveness of the pretrial identification procedure while defendant bears the ultimate burden of proof to establish that a pretrial identification procedure was unduly suggestive (see, People v Berrios, 28 NY2d 361; People v Jackson, 108 AD2d 757).

With regard to the lineup, "corporal lineups, properly conducted, generally provide a reliable pretrial identification procedure and are properly admitted unless it is shown that some undue suggestiveness attached to the procedure" (People v Chipp, 75 NY2d 327, 335, cert denied 498 US 833). To evaluate the fairness of the lineup, some of the factors to be considered by the Court are the "physical characteristics of the subject such as skin color, height, weight, clothing, hairstyle, age, and whether the subject is clean-shaven or has facial hair" (People v Gonzalez, 173 AD2d 48, 56, appeal denied 79 NY2d 1001). Further, while the fillers must be sufficiently similar to the defendant in appearance so as not to single out defendant, there is no requirement that all the members of the lineup be nearly identical in appearance (see People v Chipp, supra; see also People v Poey, 260 AD2d 411, lv denied 93 NY2d 928; People v Longshore, 249 AD2d 565, lv denied 92 NY2d 900; People v Veeney, 215 AD2d 605, appeal denied 86 NY2d 875).

An inspection of a photograph of the lineup confirms the fact that the lineup participants were sufficiently similar to the defendant in appearance so that he was not singled out for identification (see People v Miranda, 265 AD2d 507, lv denied 94 NY2d 923; People v Lopez, 209 AD2d 442, appeal denied 85 NY2d 911; People v Baptiste, 201 AD2d 659). Moreover, this Court finds that the witnesses was summoned to the police precinct by the detective investigating the case and taken to an office while defendant and the five fillers were placed in separate areas of the building. Since the evidence established that the witnesses did not come into contact with or see the lineup participants prior to the viewing, there is nothing to suggest that the lineup was tainted in any manner (see People v Bradley, 268 AD2d 591, lv denied 95 NY2d 832; People v Gelzer, 224 AD2d 443, appeal denied 88 NY2d 847).

This shall constitute the Decision and Order of the Court. [*4]

__________________________________

HON. GUY J. MANGANO, JR.

JUSTICE OF THE SUPREME COURT