People v Williams

[*1] People v Williams 2004 NY Slip Op 51794(U) Decided on November 3, 2004 Supreme Court, Queens County Rotker, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 3, 2004
Supreme Court, Queens County

THE PEOPLE OF THE STATE OF NEW YORK

against

ERIC WILLIAMS, Defendant.



QN10279 - 04

Seymour Rotker, J.

An indictment has been filed against the defendant accusing him of the crime of criminal sale of controlled substance in the third degree. The charge is that on February 14, 2004, defendant sold a quantity of cocaine in Queens County.

Defendant, claiming that improper identification testimony may be offered against him, has moved to exclude the pretrial identification as well as the prospective identification testimony of Undercover Police Officer 7402 on the ground that they are inadmissible because the prior identification of the defendant by the prospective witness was improper.

Specifically, defendant argues that his stop by the arresting officer was not based upon reasonable suspicion because the radio transmission describing him as the suspect was too general.

In opposition, the People argue that defendant, who matched the description transmitted and was detained where the undercover stated he would be found, provided the necessary requirements to establish probable cause.

The People have the burden of going forward to show that the pretrial identification procedure was not constitutionally impermissible. The defendant, however, bears the burden of establishing, by a preponderance of the evidence, that the procedure was impermissible. If the procedure is shown to be improper, the People then have the burden of proving by clear and convincing evidence that the prospective in-court identification testimony, rather then stemming from the unfair pretrial confrontation, has an independent source.

A pretrial suppression hearing was conducted before me on October 5, 2004.

Testifying at this hearing was Detective Duane Shepherd.

I find his testimony to be mostly credible.

I make the following findings of fact:

Detective Duane Shepherd, a twelve-year veteran of the New York City Police [*2]Department and a member of the "Narcotics Borough Queens" since 1996, was working with his team and designated to be the "arresting officer" on February 14, 2004. Included in his team were Undercover Police Officers 7402 and 10416.

On this date, Detective Shepherd started his shift at 3:00 P.M. At approximately 7:40

P.M., he was in the vicinity of Guy R. Brewer Boulevard and 109th Avenue. He received a radio transmission from Undercover Officer 10416 indicating that "it was going to be a positive transaction."[FN1] Detective Shepherd had worked with this undercover throughout his tour that day and had spoken to the undercover in person before leaving the command. He had spoken to this undercover approximately 10 to 15 times that day by radio before the incident.[FN2] Pursuant to the first radio transmission from Undercover 10416 related to this case, Shepherd was told to move into South Road and 160th Street. At that point Shepherd and his partners went to the location and arrested an individual by the name of Sampson.

Shortly thereafter, Shepherd received an additional radio transmission, this time from Undercover 7402, the undercover who was directly involved in the hand to hand transaction.[FN3] Pursuant to this second transmission and approximately fifteen minutes after the sale, Detective Shepherd arrived at a corner store located at 107th and 160th, where he was directed to go because a second individual who was involved in the drug sale was observed and present. In this second radio transmission, that person, later identified as defendant, was described as a male black with a dark complexion, who was wearing a brown hat, dark jacket and blue jeans.

When Shepherd arrived, he got out of his car and observed a person who "somewhat" matched the description given. Shepherd observed that the defendant was a black male with a dark complexion wearing a brown ski hat and a dark jacket. Although he saw other individuals with jackets on, he did not recall seeing anyone else with a brown hat besides defendant. Shepherd also detained another person who also "somewhat" matched the description given by Undercover 7402. At approximately 8:00 P.M., within a minute of his detention by Detective Shepherd, defendant was identified by Undercover Police Officer 7402 as having been involved in the previous transaction.

[*3]I make the following conclusions of law:

Reasonable suspicion, "represents that quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand." See Martinez, 80 NY2d 444, 591 N.Y.S.2d 823 (1992), quoting People v. Cantor, 36 NY2d 106, 365 N.Y.S.2d 509 (1975)(internal quotations omitted). The police are permitted to detain and pursue an individual who is fleeing when they possess "reasonable suspicion" that the individual has committed or is about to commit a crime. See People v. Holmes, 81 NY2d 1056, 601 N.Y.S.2d 459 (1993). Thus, this standard is less than what is required to rise to the level of "probable cause."

Reasonable suspicion exists based upon the totality of circumstances. See People v. Lynch, 285 AD2d 518, 728 N.Y.S.2d 489 (2d Dept. 2001). Where the contents of a radio transmission provides a general description of the suspect which matches the description of the defendant and when the defendant is in close proximity to the crime location and time when he is observed, reasonable suspicion exists. See People v. Green, __ AD3d __, 781 N.Y.S.2d 700, 2004 NY App. Div. LEXIS 10748 (Sept. 13, 2004); People v. Holland, 4 AD3d 375, 770 N.Y.S.2d 872 (2d Dept. 2004); People v. Thomas, 294 AD2d 607, 743 N.Y.S.2d 280 (2d Dept. 2002); see also People v. Hunt, 306 AD2d 497, 762 N.Y.S.2d 416 (2d Dept. 2003)(police had reasonable suspicion to stop defendant where he matched general description provided by victim and was found in close proximity to the scene shortly after crime took place). Here, only about fifteen to twenty minutes had elapsed from the time of the undercover's purchase of narcotics from defendant and he was in close proximity to the crime scene. Thus, under the totality of circumstances, reasonable suspicion existed to detain defendant.

Furthermore, the arresting officer acted upon the radio transmission that he received from the undercover officer who had personal knowledge of the transmitted facts and the reliability of the information was properly presumed. See People v. Rodriguez, 208 AD2d 570, 616 N.Y.S.2d 792 (2d Dept. 1994). Moreover, the arresting detective testified to the contents of the radio transmission, not just its basis or source. See People v. Castro, 206 AD2d 333, 615 N.Y.S.2d 18 (1st Dept. 1994).

Defendant's relies upon a number of cases to support his position which are distinguishable. First, in People v. Dawkins, 163 AD2d 322, 557 N.Y.S.2d 447 (2d Dept. 1990), the defendant, acting in concert with others, robbed the complainant while he was at a gas station. At the pretrial hearing, the arresting officer testified that the victim had indicated that the assailants were black males in late teens or early twenties, medium height and build, and were traveling in blue Chevy with a license number provided. The officer found out that the defendant was the registered owner of vehicle and left him a telephone message. The defendant came to the precinct next day and was arrested.

The Dawkins Court held that there was no probable cause to arrest defendant. The police had reasonable suspicion that the defendant's vehicle was involved in the robbery, but [*4]the only indication that the arresting officer had that defendant was involved was that he "apparently fit the very vague description of one of the perpetrator" that officer had from the victim. This general description was not sufficient to constitute reasonable suspicion.

In Dawkins, it was the next day when the defendant came to the precinct voluntarily. This behavior, in addition to the fact that the apprehension of defendant was not close in space and time to crime or crime scene is distinguishable from the present facts. Moreover, the general combined description of the suspects was more vague than the description provided by the undercover here which focused only upon defendant as opposed to a group. In addition, there was no identification by the victim in Dawkins before the defendant was arrested.

Another case relied upon by defendant is People v. Hargroves, 296 AD2d 581, 745 N.Y.S.2d 579 (2d Dept. 2002). No reasonable suspicion existed in this case where the complainant said he was beaten and robbed by a "group of male blacks" and one individual, a co-defendant, was wearing and orange coat or jacket. It was held that even if the coat was orange, as opposed to red and blue, the general description was insufficient to permit the police to detain and exhibit the defendant to the complainant. Additionally, the group was walking toward the crime scene and did not flee. Thus, the only description of the defendant was of a black male, clearly a vague description distinguishable from the description that the arresting officer had here.

People v. Dubinsky, 289 AD2d 415, 734 N.Y.S.2d 245 (2d Dept. 2001) in which the robbers were described as two white males, 15 to 16 years old, wearing dark jackets that might be black or blue was insufficient to establish reasonable suspicion. The defendant was stopped alone, six blocks from the scene and was walking toward the crime scene. Moreover, the crime had occurred 15 minutes earlier. Furthermore, the officer admitted that he arrested the defendant because he recognized him as someone who was arrested in the past. Additionally, the arresting officer testified he probably saw other white males who were 15, 16 or 17 years old in the busy commercial area and did not remember if they were wearing dark jackets. Here, this Court finds that the description of just this one defendant was more detailed and defendant was not going back toward the crime scene shortly after it occurred. Moreover, the officer stated that he did not observe any other males wearing brown hats. Thus, this matter, also relied upon by defendant is distinguishable.

Defendant also relies upon People v. Choy, 173 AD2d 883, 571 N.Y.S.2d 83(2d Dept. 1991), to support his contentions. In Choy, a radio transmission stated that "four young male Orientals, dressed in dark clothing," beat and robbed the victim. Two hours later the officers went to a deli located three-quarters of a mile from the crime scene to purchase food, and upon arriving saw four male Oriental youths in dark clothing. Two of them were outside the deli talking to others, but were wearing light clothing. The officers engaged their flashing lights and the four youths separated, two going one way and two the other. They did not stop when the officers asked them "to talk." Thus, in Choy, the general description provided of the group of suspects coupled with the fact that these individuals were observed more than [*5]two hours after the crime had occurred and the fact that two of four of the suspects had on light as opposed to dark clothing and therefore did not fit even the general description provided, is distinguishable from the description provided of this defendant and the facts as they existed when Detective Shepherd stopped defendant.

Thus, the totality of circumstances in this matter provided the police with reasonable suspicion to detain defendant and his subsequent confirmatory identification within fifteen to twenty minutes of the crime and within a minute of defendant's apprehension by the arresting officer as well as defendant's close proximity to the crime scene shortly after its occurrence provided the arresting officer with the necessary requisite reasonable suspicion and suppression is therefore not warranted.

Accordingly, the defendant's motion to suppress the identification is denied.

Kew Gardens, New York

Dated: November 3, 2004

SEYMOUR ROTKER

JUSTICE SUPREME COURT

Footnotes

Footnote 1:The terminology that it was going to be a positive buy means that a buy had actually occurred. This terminology is commonly used in the field to indicate that the buy had taken place. Detective Shepherd testified that "[an] Undercover officer wouldn't expect a purchase to happen, he would get a sign that it did happen" and the undercover would not transmit that a buy was going to be positive unless he had received a signal from the purchasing undercover that the transaction had already occurred.

Footnote 2:This was the first day that Detective Shepherd had worked with this undercover officer.

Footnote 3:Detective Shepherd had worked with Undercover 7402 over fifty times prior to this case.