People v Grant

[*1] People v Grant 2007 NY Slip Op 51153(U) [15 Misc 3d 1145(A)] Decided on June 8, 2007 Supreme Court, Bronx County Dawson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 8, 2007
Supreme Court, Bronx County

THE PEOPLE OF THE STATE OF NEW YORK,

against

MARK GRANT and EDWARD DAPHNEY, Defendants.



62720C-2005

Joseph J. Dawson, J.

Defendants are charged with Robbery in the First Degree, Attempted Robbery in the First Degree and other charges arising out of two incidents involving different complainants that occurred nearly simultaneously on December 2, 2005. Both defendants moved to suppress the complainants' identifications, and defendant Edward Daphney ("Daphney") moved to suppress a video statement he gave on December 3, 2005. Pursuant to the Decisions and Orders of the Honorable William Mogulescu dated July 10, 2006, defendant Daphney was granted a Wade/Huntley/Dunaway hearing and defendant Mark Grant ("Grant") was granted a Wade hearing. The hearings were conducted jointly on May 18, May 21, and May 22, 2006.[FN1] For the reasons set forth below, defendants' motions are denied.

The People called three witnesses: Police Officer John Krivinsky ("Krivinsky"), Police Officer Van Horn ("Van Horn"), and Police Officer Patrick Callahan ("Callahan"). The Court finds these witnesses to be credible and credits their testimony in all material respects. In addition, defendant Daphney testified in support of his motion to suppress the video statement, but not in support of the Wade/Dunaway aspects of his motion pursuant to People v. Huntley, 46 Misc 2d 209 (Sup. Ct. NY Co. 1965), aff'd, 27 AD2d 904 (1st Dept.), aff'd, 21 NY2d 659 (1967). The Court credits much of Daphney's testimony, except for the inconsistencies noted below.

FINDINGS OF FACT

Krivinsky has been a police officer with the New York City Police Department for approximately four and one-half years and is currently assigned to the 44th Precinct. See, Minutes, at 13. On December 2, 2005 at approximately 7:40 P.M., Krivinsky was on patrol in a marked police car. Id. at 14-15. He received a radio transmission from other police officers that they needed help in the area of West 172nd Street and Nelson Avenue. Id. at 45. At West 172nd [*2]Street and Jesup Avenue, Krivinsky was flagged down by a Mr. Norris Rainey ("Rainey"). Id. at 15-17, 25-29. Rainey told the officer that he had just been approached by several black men, one of whom had displayed a handgun, and that they had demanded his property, but that he had managed to escape. Id.

Rainey got in the police car to look for his assailants. Id. at 46. While Rainey was in the car, Krivinsky heard police radio transmissions to the central radio operator that two individuals were being detained near Shakespeare Avenue and West 172nd Street in connection with another incident. Id. at 18-19, 37-39, 46-51. Rainey may have overheard some of these transmissions. Id. at 38. Thinking that these two individuals also might have attacked Rainey, Krivinsky proceeded to that location. Id. at 53. Before arriving, Krivinsky told Rainey to point out anyone he recognized. Id. at 19, 40-41. Near West 172nd Street and Shakespeare Avenue, Rainey identified the defendants, who were in handcuffs and being guarded by other police officers. Id. at 19-21, 106. About two minutes elapsed from the time that Rainey got into the police car until the time he identified the defendants. Id. at 46, 52-53.

Callahan has been a police officer with the New York City Police Department for approximately 19 years and assigned to the 44th Precinct for two years. Id. at 93. On December 2, 2005, at approximately 7:45 P.M., Callahan was driving a marked patrol car with two other officers near West 172nd Street and Plimpton Avenue. Id. at 93-95. As he proceeded northbound on Plimpton Avenue, Callahan observed a "group of people beating on somebody" on West 172nd Street between Plimpton Avenue and Nelson Avenue. Id. at 95. The group consisted of at least four or five males who fled when the patrol car turned onto West 172nd Street. Id. at96.

At Callahan's urging, the two officers riding with him gave chase by foot, and Callahan pursued some of the group down Nelson Avenue in the patrol car. Id. at97-98. Callahan did not apprehend anybody, and went back to help the other officers, who had caught the defendants. Id. at 98-99. When Callahan arrived, defendant Grant was wrestling and struggling with the police, and eventually was handcuffed. Id. at 132-35. Callahan then attended to the victim, a Chinese man named Xin Shao ("Shao"), who was struggling to get to his feet. Id. at 99-101. Shao was bleeding, disheveled and groaning in pain. Id. at 101.

Callahan helped Shao rise and took him to see if he could identify the defendants. Id. at 101. Although Shao does not speak English, he indicated to Callahan that he could understand some of what he said. Id. at 102, 138. Callahan walked Shao over to where the defendants had been detained, and Shao identified them by nodding and pointing. Id. at 105-07, 153-154. After that, Callahan took Shao to West 170th Street and Jesup Avenue where Callahan learned by radio from another officer that a potential suspect was being detained. Id. at 102-03. Shao shook his head from side-to-side to indicate that this person was not involved in the attack. Id. at 102-03, 158. No gun was recovered. Id. at 108, 155-56.

On December 3, 2005 at 7:00 P.M. (approximately 23 hours and fifteen minutes after the arrests), defendant Daphney gave a video statement (People's Exhibit 1 in evidence) in which he acknowledged being at the scene with Grant but denied participation in either incident. The statement was made to an Assistant District Attorney ("ADA") and to Police Officer Van Horn in the video statement room of the Bronx District Attorney's Office. Id. at 65-68. Van Horn, a police officer of nearly three years who is assigned to the 52nd Precinct, was not involved in the arrest or investigation of the defendants. Id. at 65-68. Rather, Van Horn was present at the [*3]District Attorney's Office on an unrelated arrest and provided security for the defendant's video statement as a courtesy to the District Attorney's Office. Id. at 90-91. The video statement shows that defendant Daphney was read his Miranda warnings prior to giving his statement, and that he understood those warnings. Id. at 68-69, 216-17; People's Exhibit 1.

Daphney testified about the conditions he faced in police custody prior to giving his video statement, which he made when he was 16 years old. Id. at 171-93. Although he was tired and hungry, Daphney confirmed that he was given food, milk and water. Id. at 174-80. Defendant was also permitted to call his father when he asked. Id. at 191-93. Notably, Daphney did not testify that he was ever questioned about the incidents until he gave the video statement. Id. at 171-93. Further, on direct examination, Daphney initially testified that he did not ever ask for an attorney, but then claimed that he did. Id. at 181-82. On cross-examination, however, the defendant stated that his actual question to the police was, "[a]m I going to be getting a lawyer?" Id. at 209-210. This query by the defendant was made to Van Horn, who did not recall if the defendant had asked him for an attorney. Id. at 90.

CONCLUSIONS OF LAW

For the Huntley portion of the hearing, the People had the burden of proving beyond a reasonable doubt that defendant Daphney's statement was voluntary. People v. Huntley, 15 NY2d 72, 78 (1965). As to the Wade/Dunaway portion of the hearing, the People had the burden of going forward with credible evidence tending to show that the police officers acted lawfully, and the defendants had the burden of proving by a preponderance of the evidence that the officers acted illegally. People v. Chipp, 75 NY2d 327, 335 (1990). The People have met both their burden of proof on the Huntley issue and their burden of going forward on the Wade/Dunaway issue. Defendants have not met their ultimate burden of proof on the Wade or Dunaway issues.

First, the People presented ample evidence to meet their burden of going forward on the Dunaway issue. Callahan testified that he observed the defendants punching and kicking the complainant Shao, and told the officers who were riding with him to arrest the assailants, including the defendants. Although no evidence was adduced at the hearing that the officers riding with Callahan had observed the defendants, pursuant to the "fellow-officer" rule, these officers were entitled to rely upon what Callahan had told them and to act upon it, provided that this information, either standing alone or coupled with their own observations, established probable cause. See People v. Dickerson, 20 AD3d 359, 359-60 (1st Dept.), appeal denied, 5 NY3d 852 (2005). The defendants' assault against Shao and flight therefrom - - which was witnessed by Callahan - - provided reasonable suspicion for the police to pursue and detain the defendants pending identification by the complainants. People v. Smoot, 13 AD3d 144 (1st Dept. 2004), appeal denied, 4 NY3d 857 (2005). Hence, the People have met their burden of going forward with evidence tending to show that the arrest was lawful.

Second, the People presented ample evidence to meet their burden of going forward on the Wade issue. Although show-up identifications are disfavored, these were made by both complainants within close geographic and temporal proximity to the crimes and were part of an unbroken chain of events. People v. Duuvon, 77 NY2d 541, 544-45 (1991); People v. Ramos, 261 AD2d 149 (1st Dept.), appeal denied, 93 NY2d 1025 (1999). That there were multiple identifications of the defendants does not render them unduly suggestive. People v. Brown, 288 AD2d 152, 153 (1st Dept. 2001), appeal denied, 97 NY2d 727 (2002). Complainant Shao's [*4]difficulty with the English language did not per se render his identification unduly suggestive, as he identified the defendants through gestures and also managed to advise the police that another person detained by them was not involved in the attack. Cf. People v. Saenz, 27 AD3d 379, 380-81 (1st Dept.) (holding valid a show-up identification by non-English speaking person made through gestures to police with assistance of another), appeal denied, 7 NY3d 762 (2006). In addition, although complainant Rainey may have overheard radio transmissions that the defendants had been detained prior to identifying them, there was no information transmitted about the defendants' appearances in those transmissions. Minutes, at 38-40. As such, these transmissions did not render the identification unduly suggestive. People v. Gatling, 38 AD3d 239 (1st Dept. 2007). Although the defendants were in handcuffs and being guarded when the identifications were made, this was appropriate as the defendants had fled and one had struggled with the officers. Id. Lastly, as the pre-trial identifications were not unduly suggestive, there is no need to conduct an independent source hearing. People v. Jones, 215 AD2d 244 (1st Dept.), appeal denied, 86 NY2d 796 (1995).

Third, as to the Huntley portion of the hearing, the People have shown beyond a reasonable doubt that defendant Daphney voluntarily made the video statement. Because he was 16 years old at the time he made the statement, Daphney was not entitled to the additional protections afforded juveniles facing custodial interrogation, such as having a family member present. People v. Delgado, 269 AD2d 604, 605 (2nd Dept. 2000), appeal denied, 96 NY2d 917 (2001). Moreover, although Daphney was in custody for approximately 23 hours before making the video statement, the length of a defendant's time in custody is but one factor to consider in evaluating the voluntariness of a statement. Compare People v. Holland, 48 NY2d 861, 862-63 (1979) (finding confession obtained from "periods of prolonged and vigorous interrogation" during 48 prearraignment delay involuntarily made) with People v. Lang, 226 AD2d 245 (1st Dept.) (finding confession obtained after 12 hours of periodic questioning voluntarily made), appeal denied, 88 NY2d 967 (1996). Daphney was not questioned by the police at all prior to making the video statement, Minutes, at 171-93, had opportunities to sleep and eat which he voluntarily declined, and was permitted to call his father upon request. Id. at 189-94, 205-07. Under the totality of the circumstances, the Court finds that the mere delay in questioning Daphney did not affect the voluntariness of the statement. See People v. Lee, 30 AD3d 760, 762 (3rd Dept.), appeal denied, 7 NY3d 850 (2006).

Finally, the video statement unequivocally shows that defendant was warned of his Miranda rights, understood them, and thereafter made a statement. People's Exhibit 1. As such, the Court finds defendant knowingly and voluntarily waived his Miranda rights prior to making the video statement. See People v. Tarelton, 184 AD2d 463, 464 (1st Dept.), appeal denied, 80 NY2d 910 (1992). Further, the statement was not taken in violation of defendant's right to counsel. Defendant never requested an attorney or informed the police of his intention to retain one prior to making the video statement. Rather, defendant merely asked whether he would be getting an attorney. That did not amount to an unequivocal request for an attorney or an invocation of the right to counsel. See People v. Rowell, 59 NY2d 727, 729 (1983). Ultimately, defendant's video statement is admissible as it was voluntarily made and not taken in violation of his right to counsel.

The motions to suppress are denied in all respects. [*5]

The foregoing constitutes the Decision and Order of the Court.

Dated:June 8, 2007

Bronx, New York________________________

Joseph J. Dawson, A.S.C.J. Footnotes

Footnote 1:The transcripts of the three days of testimony are paginated consecutively throughout and are cited in the form "Minutes, at___."