People v Kelly

[*1] People v Kelly 2005 NY Slip Op 50050(U) Decided on January 25, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 25, 2005
Supreme Court, Queens County

THE PEOPLE OF THE STATE OF NEW YORK

against

JOEL KELLY, Defendant.



1562 - 04

Seymour Rotker, J.

An indictment has been filed against the defendant accusing him inter alia of the crime of reckless endangerment in the first degree. The charge is that on February 10, 2004, defendant recklessly fired a pistol at Fabian Sullivan. By order of the Court deciding an omnibus motion it was held that "[t]he branch of the motion for suppression of identification evidence is granted to the extent that a Rodriguez hearing is ordered, to determine the nature of the relationship between the complainant and the defendant prior to the commission of the crime." In addition that Court determined that "[t]he portion of the motion that requests a hearing on the issue of probable cause is granted to the extent that the issue will be considered by the Court at the suppression hearing granted in this matter."

Defendant, claiming that improper identification testimony may be offered against him, has moved to exclude the pretrial identification as well as the prospective in-court identification testimony of Fabian Sullivan on the ground that they are inadmissible because the prior identification of the defendant by the prospective witness was improper. The People claim the complaining witness knew the defendant from the neighborhood and thus based upon a "prior relationship" between the complaining witness and the defendant, any prior identification, corporeal or otherwise, was merely confirmatory.

The People have the burden of going forward to show that there was a sufficient "long term" relationship between the complaining witness and the defendant to obviate the necessity of a constitutional hearing (Wade) as to the suggestibility of the prior identification or identifications.

If the Court determines that the parties knew each other prior to the incident, the question of probable cause would then probably become moot depending upon the factual determination to be made by the Court as to the cause of the defendant's arrest. If the Court finds the relationship did not exist, as opined by the People, then a Wade hearing and /or an independent source hearing would be ordered by the Court.

A pretrial suppression hearing was conducted before me on January 6, 2005. [*2]

Testifying at this hearing was Detective Jimmy Schmalenberger.

I find his testimony to be credible.

I make the following findings of fact:

Detective Jimmy Schmalenberger was assigned to investigate a shooting incident that had taken place on February 10, 2004. He spoke to Fabian Sullivan, the complaining witness, on the day of the incident at 5:00P.M. Sullivan told him he drove a "dollar van." He said he got a telephone call on his cell phone from a person he knew by the street name of "Tut." He had known Tut for over a two-year period of time but didn't know his real name. Tut used to ride in his van on an average of one time a week. Additionally, Sullivan told the detective that he and Tut had been dating the same woman. Sullivan received a telephone call and recognized Tut's voice during which Tut stated that when he saw Sullivan he was going to kill him. Sullivan described Tut as a dark-skinned male black in his thirties about five foot eight inches to five foot nine inches tall. The defendant was observed by the Court and meets this general description. On the day in question, Tut was wearing brown pants and a brown jacket. Sullivan also said Tut worked at a "stair and cabinet" makers place in the area, but didn't know the address.

Sullivan further stated that after he received the telephone call which was near the complainant's place of business, he saw the defendant walking toward his van with a gun in his hand. The defendant fired two times in the direction of the van and fled.

While at the precinct with the complaining witness, a call was received by Detective Schmalenberger to go to a stair and cabinet maker location in the 100th precinct because some officers had detained a person matching the general description given by Sullivan of the assailant. With Sullivan present, when they got there, Sullivan said that the person detained was not Tut but that the business location was where Tut worked.

Detective Schmalenberger spoke to an employee at the cabinet place and determined that an employee there matched the description given by Sullivan and his name was Joel Kelly.

On February 10, 2004, at the 101st precinct, Sullivan was shown one photograph of Joel Kelly and confirmed the fact that he was the shooter; that he knew that person from the neighborhood for a period of two years; and that was the person from whom he had received a threatening telephone call from prior to the shooting.

I make the following conclusions of law:

Where a complainant and defendant are known to one another, an identification is confirmatory and there is no issue that a misleading or suggestive identification occurred within the purview of Criminal Procedure Law Section 710.30. See People v. Rodriguez, 79 NY2d 445, 583 N.Y.S.2d 814 (1992); People v. Gissendanner, 48 NY2d 543, 423 N.Y.S.2d 893 (1979); see also People v. Archie, 200 AD2d 676, 607 N.Y.S.2d 55 (2d Dept. 1994)(where victim told police immediately after robbery that he knew defendant from neighborhood, provided closely matching description of defendant and advised police that he and defendant had mutual acquaintance, People met burden to establish identification was merely confirmatory). [*3]

The People bear the burden to establish that an identification procedure by a person is "merely confirmatory." Id. The People's present assertion, that the single photo display to the complainant was confirmatory, was therefore the subject of a Rodriguez hearing. At the hearing, the nature of the relationship between the complainant and the defendant prior to the commission of the crime was explored.

Notably, showing a single photograph to a witness is proper when the identification is confirmatory. See People v. Wiggins, 189 AD2d 908, 593 N.Y.S.2d 62 (2d Dept. 1993)(viewing of a single arrest photo by two witnesses held confirmatory where one witness told police defendant's first name and accurately described defendant's residence and other witness also knew defendant's first name and stated that the participants in the crime knew him and he knew them). The present case is similar to the Wiggins case since the complainant in this case knew defendant's name as Tut, accurately described his work place, recognized his voice, had seen defendant approximately once a week for two years prior to the commission of the crime, had an acquaintance in common since they were both seeing the same woman, and provided a description to the police which matched defendant's appearance. Therefore, the identification of defendant by the single photo viewing was proper and there was no suggestiveness because it was established that the parties were known to one another.

The factors which are examined to make the determination as to whether an identification is confirmatory are: the number of times the complainant saw the defendant before the crime; the duration and nature of such encounters; the setting; the time period over which the observations occurred; the time which elapsed between the previous viewings and the crime; whether any conversations took place and whether the complainant or witness told the police that he or she recognized the perpetrator. Rodriguez, supra at 451. This Court has considered these factors in rendering its decision. Here, defendant had actually been a passenger in Sullivan's dollar van once a week for two years. Moreover, the two had spoken since Sullivan recognized defendant's voice. Furthermore, Sullivan told the police he recognized defendant prior to his apprehension. Additionally, the complainant provided a description to law enforcement which generally matched defendant's description. Defendant was also found working at a location accurately described by the complainant. Thus, the People have satisfied their burden to establish the confirmatory nature of the identification and no Wade hearing is necessary. See also People v. Lima, 2 AD3d 754, 768 N.Y.S.2d 647 (2d Dept. 2003); People v. Livotti, 293 AD2d 490, 739 N.Y.S.2d 637 (2d Dept. 2002)(witness who purchased jewelry from defendant on several occasions sufficiently familiar with defendant to identify from a photograph).

Addressing defendant's claim that probable cause did not exist is without merit. See People v. Carrasquillo, 54 NY2d 248, 445 N.Y.S.2d 97 (1981)(probable cause that a crime has been committed and the individual to be arrested committed the crime must exist to support an arrest). Criminal Procedure Law section 70.10(2) provides that "reasonable cause to believe that a person has committed an offense exists when evidence or information [*4]which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it."[FN1] Here, the police possessed probable cause to arrest defendant after the complainant confirmed his identity as the shooter by viewing the photograph.

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

Kew Gardens, New York

Dated: January 25, 2005

SEYMOUR ROTKER

JUSTICE SUPREME COURT Footnotes

Footnote 1:Probable cause is established when the totality of the information known to the officers, together with the reasonable inferences to be drawn therefrom, is such as to warrant a prudent person to believe that a crime had been committed and that the defendant committed it. See Brinegar v. United States, 338 U.S. 160, 69 S. Ct. 1302 (1949); People v. Bigelow, 66 NY2d 417, 497 N.Y.S.2d 630 (1985). It must appear to be more probable than not that an offense occurred or was occurring and that the person arrested was the perpetrator. Carrasquillo, 54 NY2d at 254. Thus, "probable cause exists if the facts and circumstances known to the arresting officer warrant a prudent man in believing that the offense has been committed and that the person arrested is the perpetrator." See People v. Parris, 136 AD2d 882, 883, 525 N.Y.S.2d 445 (4th Dept. 1988); see also People v. Youngblood, 294 AD2d 954, 742 N.Y.S.2d 762 (4th Dept. 2002).