People v Umoja

[*1] People v Umoja 2005 NY Slip Op 52034(U) [10 Misc 3d 1059(A)] Decided on November 10, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 10, 2005
Supreme Court, Kings County

PEOPLE OF THE STATE OF NEW YORK, Plantiff

-against-

PIRU UMOJA, Defendant



107/2005



Frederick Spiegel, Esq.

For the Defendant

Bari Altberg, Esq.

Joseph Alexis, Esq.

For the People

Guy J. Mangano, J.

The defendant is charged with multiple counts of Robbery in the First Degree (Penal Law § 160.15) and numerous related charges. A Dunaway/Mapp/Wade hearing was ordered and held. The People called 11 witnesses: New York City Police Lieutenant Emilio Melendez, Police Officer Douglas Carr, Detective Albert Arrendondo, Detective Ivan Smelley, Detective Frank Agostini, Detective Dawn Beljack, Police Officer Ronald Liautaud, Police Officer Jeremy Berson, Detective Alfredo Carmoa, Detective Michael Devecchis and Detective Arwin Ramos.[FN1]

FINDINGS OF FACT

This Court finds the witnesses to be credible.

In July and August 2004, the 77th Precinct Detective Squad was investigating several commercial robberies which occurred within the confines of Brooklyn North Precincts. During the investigations of robberies which occurred at Monica's Beauty Salon on July 24, 2004, and "Gimme Food" restaurant on August 17, 2004, Police Officers Ronald Liautaud and Jeremy Benson separately obtained descriptions of two male black perpetrators using a tan or gold Toyota Corolla with Connecticut license plate 926RMJ during the crimes. On August 23, 2004, Detective Albert Arrendondo prepared a wanted flyer with the perpetrators and vehicle descriptions and circulated it to the Brooklyn North Precincts.

On September 3, 2004, Lieutenant Emelio Melendez was driving a marked police vehicle with the executive officer of the 77th Precinct, Captain Crystal Johnson, as his passenger. Lt. Melendez was the special project investigator for the 77th Precinct and was very familiar with the [*2]subject robbery investigations. He reviewed all of the complaint reports from the robberies within the precinct and had copied and distributed the flyer prepared by Detective Arrendondo to the Brooklyn North Precincts. As Lt. Melendez was driving north on Rogers Avenue from Lincoln Place with Captain Johnson, he observed a gold Toyota Corolla bearing Connecticut license plate 926RMJ make a right turn from St. Johns Place onto Rogers Avenue. Recognizing the Toyota as matching the description in the flyer, Lt. Melendez input the license plate number into a mobile digital computer terminal in the police vehicle. When Lt. Melendez learned that the vehicle had been reported stolen, he transmitted over the police radio that he was following the stolen vehicle and gave the location. Lt. Melendez followed the subject Toyota Corolla onto St. Marks Avenue where it stopped at a red light at the intersection of Nostrand Avenue. Coincidently, an unmarked police vehicle being driven by Captain Moriello, the second executive officer in the 77th Precinct, was behind Lt. Melendez's vehicle. Lt. Melendez engaged the turret lights and stopped the Toyota, observing five male blacks in the vehicle. Several members of the NYPD were present at the scene with guns drawn and all five men were arrested and transported to the 77th Precinct.[FN2] The vehicle was taken by Police Officer Douglas Carr to the 77th Precinct garage for an inventory search which revealed clothing, latex gloves, duct tape, two knives, a wallet containing a Social Security Card and a cellular telephone.

Defendant Piro Umoja, along with co-defendants Kevin Williams and Fernando Livingston were placed in a holding cell on the second floor of the 77th Precinct. On September 4, 2004, Detective Arrendondo and Detective Ivan Smelley assisted in the preparation of three lineups for the three men in custody to be viewed by six complainants of three separate robberies.[FN3] The six complainants arrived at the 77th Precinct and were directed to the Robbery Apprehension Module (RAM) office located on the second floor. The defendants were being held in a cell inside another area of the precinct on the first floor and did not come into contact with the complainants. The detectives obtained a total of 15 fillers from the Bedford Men's Shelter for three separate lineups and escorted them to the back entrance of the precinct. Defendant Umoja was escorted to the lineup room and put on a white tee shirt so the basketball jersey he was wearing would not single him out from the fillers. Mr. Umoja chose to sit in the third position in the lineup and Detective Arrendondo took each of his four complainants one by one from the RAM office and explained that they would be viewing a lineup and to state whether they recognized any participant. The first, second and fourth complainants identified defendant Umoja as one of the perpetrators of two robberies, while the third complainant could not identify any participant in the lineup. Detective Smelley conducted his lineups with two complainants from a robbery which occurred on July 24, 2004. The same lineup procedure as that employed by Detective Arrendondo was used by Detective Smelley and both complainants identified defendant Umoja as one of the perpetrators. Each of the six complainants then signed a lineup report memorializing the identification or non identification. [*3]

On September 13, 2004, Detective Alfredo Carmoa, along with a retired Detective Nick D'Amico, went to a beauty salon where a robbery had occurred on August 13, 2004. Two complainants were asked to separately view the array and both identified defendant Umoja. Both complainants signed underneath defendant's photograph to memorialize the identification. Similarly, on September 29, 2004, Detectives Carmoa and D'Amico went to a beauty salon where a robbery occurred on August 31, 2004. Three complainants of that robbery were asked to separately view the array and all three identified defendant Umoja. All three complainants signed their names underneath defendant's photograph to memorialize the identification. On September 30, 2004, the detectives went to the home of another robbery victim where the same array was shown. That complainant identified defendant Umoja and signed under his photograph to memorialize the identification.

Thereafter, on December 9, 2004, Detective Frank Agostini conducted ten double blind lineups at the Brooklyn Robbery Squad with defendant Umoja as the subject. Along with Detective Agostini, defendant Umoja's defense attorney, Fredrick Spiegel, and Lt. Conway were present. To ensure that the witnesses did not come into contact with fillers or defendant, Detective Dawn Beljack placed a telephone call to the Robbery Squad prior to arriving with the witnesses to clear the area before entering the precinct. The fillers were again obtained from the Bedford Men's Shelter and defendant chose the second position. The ten complainants from various robberies were kept in a lounge located in the third floor of the building and one by one, each complainant was shuttled down a flight of stairs to the viewing room with several detectives along the route guiding each person and ensuring proper procedure. Detective Agostini either spoke in English or Spanish to the complainants and asked whether they recognized anyone and if so, where from. The first, fifth, sixth, seventh, eighth, and ninth complainants identified defendant Umoja as a perpetrator of a robbery. The second and fourth complainant misidentified the third filler as a perpetrator, while the third and tenth complainants could not identify anyone on the lineup. Each complainant then signed a lineup report memorializing the identification or non identification.

CONCLUSIONS OF LAW

DUNAWAY and MAPP ISSUES

In enforcing the constitutionally protected right to be left alone, the level of permissible intrusion by law enforcement officers during street encounters with private citizens is governed by the four-tier analysis as set forth in

People v De Bour (40 NY2d 210). The lowest level of intrusion in approaching an individual to request information is permitted where there exists some objective credible reason for the interference not necessarily indicative of criminality (see People v De Bour, supra; see also People v Hollman, 79 NY2d 181; People v Wells, 226 AD2d 406, appeal denied 88 NY2d 997). The next level of intrusion, the common law right to inquire, is allowable when the police have a "founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure" (People v De Bour, supra at 223). Third, a police officer may pursue, stop and detain a person when a reasonable suspicion exists that such person has committed, is committing or is about to commit a crime (see People v De Bour, supra; see also CPL 140.50; People v Martinez, 80 NY2d 444; People v Hollman, supra; People v Leung, 68 NY2d 734). Finally, the fourth level of intrusion permits the arrest and custody of a person where the police have probable cause to [*4]believe that the person has committed a crime (see People v De Bour, supra; People v Hollman, supra; see also CPL 140.10; People v Brown, 256 AD2d 414).

The credible evidence adduced at the hearing indicates that the police had credible information from several robbery victims that two male blacks males committed multiple robberies of commercial establishments between July and August 2004 and used a tan or gold Toyota Corolla bearing Connecticut license plate number 926RMJ. The descriptions were memorialized in a police flyer which was disseminated to the Brooklyn North Precincts. Once Lt. Melendez observed a vehicle matching the description in the wanted flyer, bearing Connecticut license plate 926RMJ and which he learned was reported stolen, probable cause existed to arrest all the occupants (see People v Lypka, 36 NY2d 210 ["A police officer is entitled to act on the strength of a radio bulletin or a telephone or teletype alert from a fellow officer or department and to assume its reliability."]; see also People v Henriquez, 162 AD2d 206; People v Muriell, 128 AD2d 554, appeal denied 70 NY2d 652).

As for the subsequent inventory search performed by the police pusrusant to establihsed procedure (see People v Galak, 80 NY2d 715), defendant has no standing to challenge same since there is no legitimate expectation of privacy in the stolen vehicle (see People v Hawkins, 262 AD2d 423, lv denied 94 NY2d 824; People v Brown, 244 AD2d 348, appeal denied 91 NY2d 870; People v Strunkey, 202 AD2d 610; People v Cherena, 177 AD2d 638, appeal denied 79 NY2d 1047).

WADE ISSUES

It is axiomatic 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 defendants bear 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).

Concerning the propriety of the photographic arrays shown to several complainants, the mere fact that defendant's photograph appears to be taken at closer range than the other five does not render it unduly suggestive (see People v Ivey, 272 AD2d 883, lv denied 96 NY2d 902; People v Brown, 169 AD2d 934, appeal denied 77 NY2d 958). Defendant's appearance and pose did not differ greatly from those of the men in the other photographs. Each man, including the defendant, appeared close in age, had a similar skin tone, facial characteristics and hair style "so that there was little likelihood that the defendant would be singled out for identification by particular characteristics" (People v Burke, 251 AD2d 424, lv denied 92 NY2d 894; People v Watson, 209 AD2d 461).

With regard to the lineups, "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 [*5]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, 75 NY2d 327, 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 the photographs of the lineups conducted on September 4 and December 9, 2004, confirms that the 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, although defendant was the youngest participant in the lineups, his age was not reflected in his appearance so as to draw the viewer's attention to him (see People v Peterson, 183 AD2d 450, lv denied 81 NY2d 765). Further, this Court finds that for both sets of lineups the complaining witnesses were summoned to the police precinct by the detectives investigating the case and sequestered while defendant and the fillers waited in separate areas of the building. Since the evidence established that the complainants did not come into contact with or see the lineup participants prior to the viewing, and did not see each other after the viewing, there is nothing to suggest that the lineup was tainted in any manner (see e.g. People v Bradley, 268 AD2d 591, lv denied 95 NY2d 832; People v Gelzer, 224 AD2d 443, appeal denied 88 NY2d 847). Finally, the record clearly establishes that during each identification procedure, an investigating detective was present who understood and spoke Spanish in order to properly instruct the Spanish-speaking complainants as to the procedures. The defendant's mere speculation that the witness was not properly instructed is insufficient to establish that the identification process was unduly suggestive (see People v Celestin, 231 AD2d 736, appeal denied 89 NY2d 920; People v Flowers, 150 AD2d 721, appeal denied 74 NY2d 809; People v Morales, 134 AD2d 292, appeal denied 70 NY2d 935).

Accordingly, defendant's motion to suppress is denied in all respects.

This shall constitute the Decision and Order of the Court.

______________________________

HON. GUY J. MANGANO, JR.

JUSTICE OF THE SUPREME COURT Footnotes

Footnote 1: Detectives Devecchis and Ramos offered testimony as to lineups concerning co-defendant Kevin Williams who pled guilty at the conclusion of the hearing. A third defendant, Fernando Livingston, arrested in connection with the string of robberies, is being tried under separate indictments.

Footnote 2: Because two of the five men were too young to match the description of the alleged perpetrators of the robberies, they were released from custody.

Footnote 3: Although the decision makes reference to the lineups for co-defendants Kevin Williams and Fernando Livingston, only the propriety of the police action during the identification procedures for defendant Piru Umoja will be addressed.