People v Monk
Annotate this CaseDecided on September 8, 2005
Rockland County Court
The People of the State of New York,
against
Terrance Monk, Defendant.
05-31
Michael E. Bongiorno, Esq.,
District Attorney of Rockland County, for plaintiff.
Gary Eisenberg, Esq.
Attorney for defendant.
William A. Kelly, J.
A combined Wade/Huntley hearing was held pursuant to a prior order of this Court. The relevant findings of fact and conclusions of law are as follows:
On March 22, 2004, Detectives Youngman and Burbridge of the Ramapo Police Department were assigned to investigate a home burglary that had occurred earlier that day at 2 Esther Lane in Monsey. Det. Youngman spoke with the victim, Elinor Nahmani. Ms. Nahmani told the detective that three or four black men forcibly entered her home and stole property, including a safe and video games. Ms. Nahmani watched the men leave the home in a red Toyota Camry.
On March 26, 2004, Det. Youngman learned that a red Toyota matching the description given by Ms. Nahmani was recovered in the Bronx. Proceeds from the burglary of the Nahmani house were recovered inside the car. Additionally, items taken from a March 21, 2004 burglary in Harrison were found in the vehicle.
After arriving in the Bronx on March 26, 2004, the Ramapo detectives spoke to Hermanio Reyes. Mr. Reyes told the detectives that he saw four men pull up and park the vehicle on March 22, 2004. Mr. Reyes directed the men to a nearby sporting goods store. About 45 minutes later, the men returned to the car and removed plastic bags containing video games.
The detectives next spoke to Richard Saffer, the owner of a nearby sporting goods store. Mr. Saffer reported seeing four suspicious men enter his store on March 22, 2004. They also spoke to Alex Minteh, a store employee. Mr. Minteh stated that four men that entered the store on March 22nd drew his attention. After conducting the interviews, the detectives had a mug book delivered to them.
The mug book contained one subject per page. Each page contained a frontal and profile head shot. The mug book had forty to fifty pages containing photos of black males in their twenties.
The detectives first showed the mug book to Mr. Saffer. The detectives showed him a single page at a time. As the detective turned the page, he covered the name on the back of the preceding photograph. Mr. Saffer selected two individuals that he identified as having entered his store on March 22nd. Neither photograph was that of the defendant. Alex Minteh was shown the mug book in the same manner. He selected four photographs, including the defendant's. The detectives then returned to Mr. Reyes and showed him the photo book. Mr. Reyes appeared distracted and failed to identify any photograph. [*2]
The detectives then returned to 2 Esther Lane to show the photo book to Ms. Nahmani. After viewing the mug book, Ms. Nahmani failed to recognize any of the individuals pictured.
The Harrison police were investigating the robbery that occurred on March 21, 2004. On that date, the victim, Margaret San Marco was followed in her car by a red Toyota Camry. When she pulled into her driveway, two men approached her car. One man broke the passenger side window of her car and robbed her at knifepoint.
Believing that the incidents may be related, detectives from the two departments coordinated their efforts. On March 25, 2004, Det. Byrnes of Ramapo and Det. Marino of Harrison showed Ms. San Marco a photo array. The array did not contain the defendant's photograph. Ms. San Marco did not make an identification. Det. Byrnes then showed her the mug book that contained the defendant's photograph. After viewing the book, Ms. San Marco did not make an identification.
On March 27, 2004 the Ramapo detectives traveled to the Harrison Police Department. The Ramapo detectives brought photographs with them to be used in a photo identification procedure. Together, the detectives selected six color photographs, including a different and clearer photo of the defendant, and made black and white photocopies of them. Ms. San Marco was shown the photocopies one at a time. When she viewed the defendant's photograph she tapped it, but did not verbalize anything. The detectives then left Ms. San Marco alone for a few minutes. When they returned, she asked to see the photographs again. After again being shown the photographs one at a time, she selected the defendant's photograph, stating that he had entered her car and robbed her.
Later that same day, the defendant called the Ramapo Police Department and was connected to Det. Youngman. The defendant told Det. Youngman that he was upstate at college at the time of the incidents. Later that day, Det. Youngman and the defendant had a second conversation in which the defendant again told Det. Youngman that he was upstate at college at the time of the incidents.
On April 8, 2004, the detectives spoke to Howard Malenka, a cab driver. Mr. Malenka told the detectives that on March 19, 2004, he picked the defendant up at an airport in Queens and drove him to Spring Valley. Mr. Malenka then picked the defendant out of a photo array.
During the investigation, the detectives learned that the defendant was attending Buffalo State College. On April 13, 2004, Detectives from Ramapo and Harrison traveled to Buffalo State College. On April 14, 2004 the detectives met with John Lombardo, an investigator with the New York State University Police. Inv. Lombardo confirmed that the defendant was a student at the University, living in Room 720-D of the North Wing Dormitory on the campus. Inv. Lombardo then escorted the detectives to Suite 720 in the North Wing Dormitory.
The defendant's suite consisted of a "common area" off of which there were four student bedrooms. According to Mr. Lombardo, the doors to the common areas or suite rooms are commonly left open, although some of the doors may be able to be locked. Students living in the suites typically do not leave personal property in the common area.
Mr. Lombardo testified that campus police, residence life staff and the janitorial staff can enter the suite area unannounced at any time. Further, students living in the dormitories, including the defendant, must execute contracts pertaining to their residency. According to the contract, the campus police may enter a student's bedroom in the event of a health, welfare or [*3]security risk.
When the officers arrived at Suite 720, the door to the suite was open. Inside the suite was a couch and table. The detectives knocked on the defendant's door, but nobody responded. The detectives returned twice more that day to the open suite, but each time nobody answered the door to the defendant's bedroom.
On April 15, 2004, at approximately 7:30 a.m., the detectives again went to suite 720 to try and locate the defendant. When they arrived, the suite door was open. When the detectives knocked on the defendant's bedroom door, the defendant opened the door. According to the witnesses, the defendant stepped outside his bedroom door. At that time, the detectives grabbed him and placed him in custody. According to Det. Marino, the detectives never entered the defendant's room prior to placing the defendant in custody.
As the detectives were removing the defendant from the suite, the defendant requested that they retrieve his sneakers and cell phone from inside his room. The detectives retrieved the items from the room. They gave the defendant his sneakers, but kept the cell phone.
Upon the defendant's opening the door, Inv. Lombardo noticed loose marijuana on the floor of the defendant's room. He also noted a replica handgun hanging from the defendant's door. Inv. Lombardo then entered the room to investigate the female who was lying on the bed.
After the college was notified of what transpired, the defendant was expelled from the college immediately. After the expulsion, Inv. Lombardo and members of the residence life staff entered the defendant's room to inventory the contents, as the defendant was no longer permitted to stay there. During the inventory, the room was photographed and marijuana, money and coins were recovered.
The defendant was removed from the suite and placed in a holding cell on the campus. He was told he was being arrested for the Harrison robbery. Det. Marino read him his Miranda rights off a pre-printed Miranda card. The defendant stated that he understood his rights. Prior to leaving the campus, Det. Marino again read the defendant his rights. At 8:19 a.m., the defendant acknowledged the rights and signed the Miranda card.
During the ride back to Harrison, the defendant rode in the backseat with Det. Marino. Detectives Youngman and Burbridge rode in the front. The defendant was initially quiet, then belligerent. The majority of his conversation in the car was with the Ramapo detectives. The defendant repeatedly denied being downstate at the time of the incidents. Following the defendant's suggestions, the detectives attempted to confirm the defendant's presence at the college at the times of the incidents. Each source indicated the defendant was not on campus.
During the seven hour ride, the car made four stops. The defendant declined offers of food, but accepted water. The defendant used the bathroom twice. When the defendant arrived at the Harrison Police Department, he was taken to an interview room where he spoke to Detective Oliva of the Harrison Police Department and Det. Lynch of the Ramapo Police Department. The defendant was confronted with evidence against him and thereafter made an incriminating statement. Additionally, an earring that matched a description given by Ms. Nahmani was taken from the defendant.
On January 13, 2005, a Court Ordered line-up was conducted at the Rockland County Sheriff's Office. Ms. Nahmani, Mr. Minteh and Mr. Reyes, as well as a witness on an unrelated case viewed the lineup. The defendant was represented by counsel at the line-up. The [*4]defendant assumed position number one in the six person line-up. Ms. Nahmani and Mr. Reyes identified the defendant. Mr. Minteh and the other witness selected a line-up filler.
The defendant's first claim is that the police lacked probable cause to arrest him. However, the police had probable cause to arrest the defendant for the robbery of Ms. San Marco based upon her photographic identification of the defendant on March 27, 2004.
The law is clear that the identification of a suspect from a photo array is sufficient to provide probable cause to arrest the suspect. People v. Walton, 309 AD2d 956 (2nd Dep't 2003); People v. Medina, 293 AD2d 553 (2nd Dep't 2002); People v. Soberanis, 289 AD2d 343 (2nd Dep't 2001); People v. Nixon, 240 AD2d 764 (2nd Dep't 1997); People v. Hayes, 191 AD2d 644 (2nd Dep't 1993). Probable cause is determined based upon the quantum of evidence possessed by the police at the time of arrest. The fact that the witness' identification may later be suppressed does not invalidate the probable cause. People Nelson, 79 AD2d 171 (4th Dep't 1981).
In any event, Ms. San Marco's identification of the defendant from the sequential photographic line-up on March 27, 2004 was not tainted by undue suggestion. A photo array "is suggestive where some characteristic of one picture draw's the viewer's attention to it, indicating that the police have made a particular selection." People v. Boria, 279 AD2d 585 (2nd Dep't 2001.) There were no significant differences in the photographs that would improperly draw attention to the defendant's photograph. People v. Lee, 96 NY2d 157 (2001); People v. Chipp, 75 NY2d 327 (1990); People v. Boria, 279 AD2d 585 (2nd Dep't 2001); People v. Wells, 272 AD2d 562 (2nd Dep't 2000). Additionally, there was nothing unduly suggestive about the circumstances surrounding the witnesses' viewing of the array.
The fact that the defendant's photograph appeared in the mug book previously viewed by Ms. San Marco does not render the array impermissibly suggestive. See People v. Dunlap, 9 AD3d 434 (2nd Dep't 2004); People v. Gilbert, 295 AD2d 275 (1st Dep't 2002). The mug book and the photo array shown to Ms. San Marco contained different photographs of the defendant. Id. Further, Ms. San Marco failed to identify the defendant from the mug book. Finally, there was nothing suggestive about the viewing of the mug book in that it contained approximately sixty photographs. See People v. Jones, 302 AD2d 476 (2nd Dep't 2003); People v. Hunte, 276 AD2d 717 (2nd Dep't 2000).
Accordingly, Ms. San Marco's photographic identification of the defendant provided the police with probable cause to arrest the defendant.
The defendant next contends that he was unjustifiably arrested in his home without a warrant.
Inv. Lombardo clearly had both the apparent and actual authority to permit the police to enter the North Wing Dormitory. Further, the defendant could hold no reasonable expectation of privacy in the in the halls or common area of the dormitory. See People v. Powell, 54 NY2d 524 (1981); Mauceri v. County of Suffolk, 234 AD2d 350, 351 (2nd Dep't 1996).
The suite area is a common area for which a resident could not have a reasonable expectation of privacy. Id. The suite area is clearly accessed by the tenants of the four bedrooms and any guests or visitors they might have. Further, the door to the suite is typically left opened. Mr. Lombardo testified that campus police, residence life staff and the janitorial staff can enter [*5]the suite area unannounced at any time. Students living in the suites evidence the lessened expectation of privacy by typically not leaving personal property in the common area. Accordingly, the police reached the door to the defendant's bedroom without intruding into an area over which the defendant had a reasonable expectation of privacy. People v. Kozlowski, 69 NY2d 761 (1987).
Once at the defendant's door, the police could arrest the defendant once he opened the door and appeared in the doorway. People v. Reynoso, 309 AD2d 769 (2nd Dep't 2003); People v. Shiavo, 212 AD2d 816 (2nd Dep't 1995); People v. Francis, 209 AD2d 539 (2nd Dep't 1994); People v. Anderson, 146 AD2d 638 (2nd Dep't 1989). Additionally, although an arrest in the doorway would have been permissible, the credible evidence establishes that the defendant stepped outside his doorway. People v. Lewis, 172 AD2d 775 (2nd Dep't 1991).
Accordingly, there was no Payton violation.
The sneakers and telephone recovered from the defendant's room are admissible as the defendant clearly voluntarily consented to the police entering his room and recovering them. People v. Foss, 267 AD2d 505 (3rd Dep't 1999); People v. Grajales, 136 AD2d 564 (2nd Dep't 1988). Once retrieved, the police are permitted to retain the items even though the defendant consented to their retrieval for his personal convenience. People v. Foss, 267 AD2d 505 (3rd Dep't 1999).
The subsequent search of the room by Inv. Lombardo and the residence life staff is also permissible. Under the terms of the contract entered into between the school and the defendant, the campus police may enter a student's bedroom in the event of a health, welfare or security risk. Here, the circumstances clearly permit the entry into the room under those terms. Through Inv. Lombardo, the college learned that the defendant had concealed the fact that he was a felon. Further, they learned of the defendant's arrest for the violent felony, and learned of the marijuana on the floor of his room. Accordingly, the college authorities had sufficient cause to enter the room. Further, the defendant was expelled from the school prior to the search. Therefore, his expectation of privacy was diminished further.
The defendant was twice adequately apprised of his Miranda rights prior to making any statements or being questioned. See generally, People v. Hutchinson, 59 NY2d 923 (1983); People v. Burton, 191 AD2d 703 (2nd Dep't 1993). The fact that the defendant was advised orally does not invalidate the administration of the warnings, as the oral warnings, read from a form, adequately conveyed the defendant's rights. People v. Vega, 225 AD2d 890 (3rd Dep't 1996); People v. Anderson, 146 AD2d 638 (2nd Dep't 1989); People v. Jordan, 110 AD2d 855 (2nd Dep't 1985). See also People v. Bugman, 254 AD2d 796 (4th Dep't 1998).
The evidence further demonstrates that the defendant knowingly and voluntarily waived his rights. People v. Sirno, 76 NY2d 967 (1990); People v. Davis, 55 NY2d 731 (1981). The fact that the defendant spoke to police after having been informed of his rights and admitting understanding the rights is sufficient evidence that the defendant tacitly waived his rights. Id.
The fact that the defendant was last advised of his Miranda rights at 8:19 a.m., does not invalidate the statements taken later in the day. The law is clear that when a defendant is in continuous custody, it is not necessary to re-administer Miranda warning provided the statement is obtained within a reasonable time after the last administration of the warnings. See People v. Santalis, 302 AD2d 614 (2nd Dep't 2003); People v. Holland, 268 AD2d 536 (2nd Dep't 2000). [*6]In this case, the questioning at the Harrison Police Department began at 4:30 p.m., approximately eight hours after the last administration of Miranda warnings. The eight hour gap is reasonable and Miranda warnings did not have to be re-administered. See People v. Santiago, 289 AD2d 421 (2nd Dep't 2001)(Miranda administered the previous day); People v. Chatman, 281 AD2d 964 (4th Dep't 2001)(nine and a half hour gap); People v. Tobias, 273 AD2d 925 (4th Dep't 2000)(eight hour gap); People v. Thomas, 233 AD2d 347 (2nd Dep't 1996)(seven hour gap); People v. Baker, 208 AD2d 758 (2nd Dep't 1994)(eight hour gap).
Further, even assuming arguendo that the arrest was found to be illegal, the defendant's subsequent statements would nonetheless be admissible as they were sufficiently attenuated from the alleged illegal arrest. See People v. Jones, 2 NY3d 235 (2004). Undeniably, the mere passage of time alone will not serve to dissipate the taint of an illegal arrest. People v. Harris, 77 NY2d 434 (1991). Likewise, the mere reading of Miranda warnings will not purge the taint of an illegal arrest. People v. Gundersen, 255 AD2d 454 (2nd Dep't 1998). There must be an intervening event sufficient to separate the statement from the prior impropriety. Id.
Nevertheless, the passage of time is a factor to be considered in assessing attenuation. People v. Wilkinson, 5 AD3d 512 (2nd Dep't 2004); People v. Maharaj, 308 AD2d 551 (2nd Dep't 2003); People v. Doyle, 295 AD2d 446 (2nd Dep't 2002); People v. Jackson, 178 AD2d 438 (2nd Dep't 1991); People v. Williams, 141 AD2d 786 (2nd Dep't 1988). Here hours passed from the time of the defendant's arrest until his statements to detectives.
Similarly, the advisement of Miranda warnings is a factor. Id. In the instant case, the defendant was Mirandized two times prior to making any statement.
Most importantly, there were significant intervening events that occurred after the arrest and before the interviews. See People v. Rogers, 52 NY2d 527 (1981)(defendant confronted with subsequently obtained evidence) See also People v. Wilkinson, 5 AD3d 512 (2nd Dep't 512)(identification made by a witness). In this case, the police attempted to verify the defendant's unsuccessful alibi. Further, the defendant was confronted with the evidence against him. The defendant was also removed from the scene of his arrest and transported downstate.
When, as in the instant case, the basis of the illegal arrest is unrelated to the subject matter of the statement and the ultimate charges, the finding of attenuation is more likely. "Where, as here, a person who was arrested without probable cause on one charge is confronted with evidence relating to a different charge which is not the product of the illegal arrest and thereafter confesses to the second charge, the intervening event is sufficient to remove the taint of the illegal initial detention and render his confession admissible." People v. Marinelli, 238 AD2d 525, 526 (2nd Dep't 1997).
Based on the passage of time, the administration of Miranda warnings and the discovery of significant independent evidence, the Court finds that the defendant's subsequent statements are sufficiently attenuated from any taint from his arrest such that the statements are admissible.
The defendant's motion to suppress the identification evidence is also denied.
There was nothing suggestive about the witnesses viewing of the mug book in that it contained approximately sixty photographs of black males in their twenties. See People v. Jones, 302 AD2d 476 (2nd Dep't 2003); People v. Hunte, 276 AD2d 717 (2nd Dep't 2000). The number of photographs strongly militates against any suggestivity. There were no significant differences [*7]in the photographs that would improperly draw attention to the defendant's photograph. People v. Lee, 96 NY2d 157 (2001); People v. Chipp, 75 NY2d 327 (1990); People v. Boria, 279 AD2d 585 (2nd Dep't 2001); People v. Wells, 272 AD2d 562 (2nd Dep't 2000). Additionally, there was nothing unduly suggestive about the circumstances surrounding the witnesses' viewing of the book.
The Court has considered the testimony regarding the conduct of the lineup and has examined a photograph of the lineup. The Court has found nothing unduly suggestive in the conduct or composition of the lineup.
It is well settled that there is no requirement that fillers possess identical physical attributes. People v. Chipp, 75 NY2d 327 (1990); People v. Briggs, 728 NYS2d 486 (2nd Dep't 2001); People v. Odom, 278 AD2d 344 (2nd Dep't 2000); People v. Nolan, 277 AD2d 400 (2nd Dep't 2000); People v. Foster, 272 AD2d 410 (2nd Dep't 2000). In this case, there were no differences in the appearances of the fillers from the defendant that would create a substantial likelihood that the defendant would be singled out. Id. Additionally, there were no irregularities in the conduct of the lineup that would cause a risk of creating an unduly suggestive procedure.
The fact that the witnesses were previously shown a photograph of the defendant in the mug book does not taint the line-up. People v. Carroll, 200 AD2d 630 (2nd Dep't 1994); People v. Denny, 177 AD2d 589 (2nd Dep't 1991). Additionally, the line-up was conducted several months after the photographic identification procedures. Accordingly, any taint in the photo identification procedure was dissipated. People v. Torres, 137 AD2d 734 (2nd Dep't 1988).
Finally, the viewing of the defendant's earring did not constitute an identification procedure. See People v. Davis, 232 AD2d 227 (1st Dep't 1996). The earrings were properly seized based upon probable cause.
This Decision shall constitute the Order of the Court.
E N T E R
Dated:New City, New York
September 8, 2005_________________________________
William A. Kelly
County Court, Rockland County
TO:
[*8]
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