People v Velez

[*1] People v Velez 2007 NY Slip Op 52384(U) [18 Misc 3d 1102(A)] Decided on October 30, 2007 Westchester County Ct Bellantoni, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 30, 2007
Westchester County Ct

The People of the State of New York,

against

Julio Velez, Defendants.



03-1735



ADA Christine O'Connor

Westchester County District Attorney's Office

111 Dr. Martin Luther King Jr., Blvd.

White Plains, New York 10601

Paul W. Pickelle, Esq.

175 Main Street

White Plains, New York 10601

Rory J. Bellantoni, J.

On December 9, 2004, the Defendant, Julio Velez, was convicted of two counts of Burglary in the Second Degree and Criminal Possession of Stolen Property in the Third Degree after a jury trial. Defendant appealed the trial court's denial of those branches of Defendant's Omnibus Motion which were to suppress physical evidence and identification evidence.

By opinion and order of the Appellate Division, Second Department, dated February 6, 2007, Defendant's appeal was held in abeyance and the matter was remitted to this Court for a de novo suppression hearing with respect to those branches of Defendant's Omnibus motion to suppress physical evidence and identification testimony; this Court was directed to file a report at the conclusion of said hearing.

The issue presented on appeal that warranted the Appellate Division's remittal for a hearing de novo stems from apparent contradictory testimony presented at trial which raised the issue of when the police officers obtained probable cause to arrest Defendant and the issue of witness' credibility as framed by the hearing court. On June 18 and 19, 2007, this Court conducted a suppression hearing, de novo, to determine the admissibility of the physical evidence obtained from Defendant and the identification procedure conducted by police. It is worth noting that the findings made herein are limited to the record made at the aforementioned hearing, consistent with the Appellate Division's directive to have the matter remitted before a new judge. Thus, even though defense counsel submitted the transcript of the prior proceedings, this Court did not review any of the portions of that transcript, but only those portions used or introduced into evidence at the hearing de novo.

At the hearing, five (5) police officers and two (2) civilian witnesses testified. This Court finds that all witnesses testified credibly at the de novo hearing. [*2]

On November 21, 2003, at approximately 9:45 a.m., a civilian resident living at 174 Tibbetts Road, Mr. James Nolan, heard his doorbell ring. When he answered the door, he observed a male Hispanic, approximately five (5) feet nine (9) inches tall, wearing a blue jacket and yellow hood, who asked him if he had a room available. When Mr. Nolan stated he did not, the Hispanic male apologized and walked away. Mr. Nolan observed the Hispanic male cross the street towards 175 Tibbetts Road and saw him ring that doorbell; no one answered the door and the Hispanic male crossed the street again and walked toward 178 Tibbetts Road. When the Hispanic male arrived at 178 Tibbetts Road, he rang that doorbell as well, and Mr. Michael McGee opened the door. Mr. McGee testified that there was a male Hispanic at his door inquiring if he had a room available. When Mr. McGee responded that he did not have a room available, the male Hispanic thanked him and walked away. Mr. Nolan, Mr. McGee's next door neighbor, observed the exchange and continued to observe the male Hispanic continue walking northbound towards another house. When Mr. Nolan was unable to see the male Hispanic from his home, he went outside to his front porch and observed a yellow moped at the side of a hedge within his property of 174 Tibbetts Road. Within minutes, Mr. Nolan observed the Hispanic male come back to his property, pick up the yellow moped and walk northbound. Mr. Nolan lost sight of the male Hispanic and got in his pick up truck, which was parked across the street, to see if he could locate and observe the male Hispanic. When Mr. Nolan crossed the street he discovered that the yellow moped he had previously seen in his property was behind a bush at186 Tibbetts Road. Mr. Nolan was in his truck approximately seven (7) to eight (8) minutes, when he saw the male Hispanic run down the side of 184 Tibbetts Road. Mr. Nolan called 911; as he was reporting the incident, he observed the male Hispanic pick up the yellow moped and drive toward McLean Avenue. Mr. McGee also testified that he observed the male Hispanic drive the yellow moped toward McLean Avenue.

At approximately 10:13 to 10:16 a.m., several Yonkers police officers heard a radio transmission reporting a suspicious person in the vicinity of Tibbetts Road; the description transmitted was that of a male Hispanic, wearing a blue jacket, yellow collar and driving a yellow scooter. It was further transmitted that he was observed ringing doorbells in that vicinity. Several units responded to this radio transmission as the police investigation was swiftly developing; officers transmitted, through the radio, that the description of this suspect fit the description of a repetitive burglar who had been burglarizing the area for the past several weeks and that the burglary suspect also drove a yellow scooter. Sergeant Kreso, one of the responding officers, drove to 174 Tibbetts Road where he encountered Mr. Nolan and Mr. McGee. At the scene, both Nolan and McGee described the individual to Sgt. Kreso. Another officer who also responded to Mr. Nolan's 911 call, searched 184 Tibbetts Road and that officer discovered that there was an open window at that location; the description of the suspect was again transmitted over the radio as well as the fact that an open window was observed by police officers at 184 Tibbetts Road.

Detective Benash was on duty the morning of November 21, 2003 and had been listening to the various radio transmissions describing a suspected repetitive burglar driving a yellow moped in the vicinity. Detective Benash was on an observation spot on the west side of the [*3]McLean Avenue bridge [FN1] when he observed a male on a yellow scooter, with no license plates, wearing a blue jacket, yellow collar, driving on the wrong side of the McLean Avenue bridge. As the suspect drove by on the yellow scooter, Det. Benash exited his unmarked police vehicle and grabbed a hold of the yellow scooter's handlebars; other officers arrived at the scene simultaneously and assisted Detective Benash. When the suspect came to a stop, Det. Benash informed the individual that he was investigating an incident and directed the suspect to sit by the street curb. One of the officers at the scene transmitted over the radio that an individual fitting the description of the burglary suspect had been detained in the area of McLean Avenue.

Almost immediately after hearing over the radio that a suspect had been detained, Sgt. Kreso asked Mr. McGee and Mr. Nolan if they would accompany him to the McLean Avenue bridge area for possible identification of the suspect. Sgt. Kreso drove Mr. McGee and Mr. Nolan to McLean Avenue where police had apprehended the suspect; Mr. McGee was seated in the front passenger side of the vehicle and Mr. Nolan was seated in the back seat. A brief struggle ensued between the suspect and police as Sgt. Kreso and the witnesses drove by the suspect, the suspect was taken to the ground, placed on his stomach, and surrounded by police. Mr. McGee identified the suspect as the male Hispanic he had seen ringing doorbells in his neighborhood. Mr. Nolan also identified the suspect. Sgt. Kreso nodded to Det. Benash confirming that the witnesses had positively identified the Defendant; the positive identification was transmitted over the radio. Sgt. Kreso parked his police car at a gas station, which was located across the street from where the suspect had been detained, and Mr. McGee exited the vehicle and again confirmed that the suspect was the man he saw ringing doorbells in his neighborhood; McGee's second identification was also transmitted over the radio. Defendant was handcuffed while on the ground and searched. The police recovered two boxes, one had a large amount of jewelry, the other had coins and World War II medals and an envelope with US currency. Defendant and the yellow scooter were transported to the police precinct.

At a Mapp hearing, the People have the burden of going forward to establish the legality of the police conduct. Once established, the defendant has the ultimate burden of proving the illegality of the police conduct by a preponderance of the evidence. People v. Berrios, 28 NY2d 361 (1971). While the People must present credible testimony to satisfy their burden, they need not produce every officer who can supply information about the search and seizure of defendant.

In order for a court to find that police had probable cause to arrest, the evidence must establish that the police possessed information which would lead a reasonable person to conclude that it is more probable than not that a crime has been committed and that the person being arrested is the person who committed it. People v. Marte, N.Y.L.J., December 13, 1999, p. 31, col. 2, affirmed by, People v. Marte, 295 AD2d 102, 747 NYS2d 74 (1st Dep't 2002). Moreover, probable cause does not mandate that there be an awareness of a specific crime, but only an awareness that some crime has been committed that would justify an arrest. Id. A lawful arrest does not require proof to a mathematical certainty, or beyond a reasonable doubt. In this [*4]regard, probable cause is not based on the subjective beliefs of the arresting officers, but rather, it is a judicial determination based upon a review of all the relevant objective information known to the officers at the time of arrest, with due consideration given to the expertise of the officers involved and to the reasonable inferences to be drawn from the totality of the circumstances. Id.; see also, People v. Cooper, 38 AD3d 678, 833 NYS2d 118 (2nd Dep't 2007); People v. Bandera, 204 AD2d 340, 611 NYS2d 290 (2nd Dep't 1994). A synoptic evaluation of all information available to police is essential because viewed singly, such information may not be persuasive, yet when viewed together the puzzle may fit and probable cause found. People v. Shulman, 6 NY3d 1 at 26, 843 NE2d 125 at 133, 809 NYS2d 485 at 493 (2005); Marrero, et al., v. City of New York, 33 AD3d 556, 824 NYS2d 228 (1st Dep't 2006); see also, People v. Rosa, 199 AD2d 433, 605 NYS2d 337 (2nd Dep't 1993).

The court cannot discard common sense and common knowledge when assessing an officer's testimony, however, only when such testimony appears to be "manifestly untrue, physically impossible, contrary to experience, or self-contradictory" must it be rejected. People v. Lebron, 184 AD2d 784 at 785, 585 NYS2d 498 (2nd Dep't 1992).

In the instant case, this Court finds that all witnesses testified credibly. While Defendant attempts to characterize police officers' testimony as "lies" or "perjurious", this Court finds that none of the witnesses, civilian and police, testified in a manner unworthy of belief. Nor does this Court find that the testimony was a recent fabrication tailored to nullify constitutional objections.

Defendant would have us believe that the only way police would have had probable cause to arrest defendant is with a positive identification from home owners to confirm that a crime had been committed. This assertion is unpersuasive. To expect or require such from law enforcement would undermine the investigatory powers of the police, compromise our citizens safety and would be tantamount to requiring police to hold a "trial on the sidewalk" by having crime victims, witnesses, the suspect and police converge on the scene of a crime and prove that a crime has been committed beyond a reasonable doubt. Probable cause is not proof beyond a reasonable doubt.

CPL §70.10(2) states that reasonable cause' exists when evidence or information 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 an offense was committed and that the suspect committed it. When, as here, probable cause is not based solely on the officer's own observations but, in part, on information supplied by another individual it must be determined that the informant is (1) reliable and (2) that he has a sufficient basis for his knowledge of the suspect's criminal activity. People v. Brown, 2003 WL 21788067 (N.Y.Sup.), 2003 NY Slip Op. 51145(U) (Queens County 2003), citing, Aguilar v. Texas, 278 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).

A witness who supplies information to the police about an individual's involvement in a crime, is presumed to be reliable since he could be prosecuted if his report were a fabrication. [*5]People v. Robbins, 198 AD2d 451, 604 NYS2d 155 (2nd Dep't 1993); see, 32 Carmody-Wait 2d § 172:696. Corroborative verification is not required for the witness' statement to the police if the information about criminal activity was personally observed. People v. Robbins, (supra ).

In the instant case, police officers responded to a radio transmission that was initiated by a civilian who called the police after observing an individual ringing door bells and running out of the yard, approximately two houses down from his own. The civilian complainant, James Nolan, credibly testified that he had first encountered this individual when, in the morning of November 21, 2003, someone rang his door bell and knocked on his door simultaneously. When Mr. Nolan answered the door, a Hispanic man with a blue jacket and a yellow hood, was at his door asking if he had a room to rent. When Mr. Nolan stated that he did not, the individual went to several houses in the immediate vicinity. Mr. Nolan also observed the yellow scooter in the hedges of his property and near some bushes by 186 Tibbetts Road. Mr. Nolan then observed the individual run from the side of 184 Tibbetts Road at which time he called 911 to report what he had observed. Police arrived at the scene and spoke with Mr. Nolan.

When a police officer receives a radio transmission, the officer is entitled, and in fact is duty bound, to take action on said radio call. See, People v. Benjamin, 51 NY2d 267 at 269, 414 NE2d 645 at 647, 434 NYS2d 144 at 146 (1980). "A police officer directed to a location by a general radio call cannot reasonably be instructed to close his eyes to realityneither the officer nor justice should be that blind." Id., at 271. An officer cannot "ignore possible indications of criminality, nor is there any logical reason for him to reject the natural mental connection between newly encountered facts and the substance of the radio message." Id.

Defendant invites this Court to consider the police officers' testimony "standing alone"; Defendant contends that when contrasting the testimony of the police with that of the civilian witness' the People have failed to meet their burden and the motion to suppress the physical evidence must be granted. See, Defendant's Memorandum of Law, p. 28. Such assertion is without merit. Even if this Court were to consider the police officers' testimony "standing alone", it is this Court's opinion that at the very least, the police had reasonable suspicion to stop Defendant with the information they received about a suspicious individual that was ringing doorbells. However, the police had more information than this; upon review of the credible testimony and the audio tape of the radio transmissions, it is clear to this Court that the police obtained sufficient information regarding Defendant and his actions to believe that a crime was committed and that the Defendant was the person who committed it. An individual observed to be ringing doorbells may be engaged in behavior that can be said to be innocent and innocuous; however, the information that the police obtained during the swift development of their investigation regarding the suspect went beyond mere innocent behavior. The police obtained, through the excited chatter of the radio transmission, a detailed physical description that included the suspect's gender, race, as well as the fact that he was wearing a blue jacket and yellow collar. It also included the distinctive detail that the suspect was driving a yellow scooter. As the police investigation swiftly developed, the description of the suspect transmitted became even more specific: he was described as a light skinned Hispanic male, approximately 5'8", weighing about 170 pounds, mid-thirties, wearing a blue jacket, yellow collar and driving a [*6]yellow scooter [FN2]. The radio transmission further included information that fellow officers had a seen a picture of an individual matching the description transmitted who was suspected of committing burglaries around the Rumsey Road area. A subsequent transmission indicated that witnesses observed Defendant running out of a yard from a home located at 184 Tibbetts Road where, subsequently, police discovered an open window. Clearly, when pursuing a suspect armed with all of this information, the police had probable cause to arrest.

Upon review, probable cause supported the arrest of Defendant, even prior to the identification of the witnesses at the scene. Coupled with the highly specific physical description of the suspect, officers observed the suspect to be in the immediate vicinity of 184 Tibbetts Road and traveling down McLean Avenue, the direction which witnesses had told the police that they observed the suspect leaving the scene on the yellow scooter. It bears adding that there were no other individuals matching that description in the vicinity. Under the totality of the circumstances, the combination of the particularized description of Defendant and the very close temporal and spatial proximity between the time the witnesses observed the suspect on Tibbetts Road and the time police apprehended him on McLean Avenue, sufficient information existed and was known by police to provide police officers probable cause to effectuate Defendant's arrest. People v. Johnson, 174 AD2d 694, 571 NYS2d 550 (2nd Dep't 1991). Therefore, police officers had probable cause to arrest Defendant. Further, merely because police officers did not immediately handcuff and search Defendant, did not render his arrest infirm or lacking probable cause. Armed with probable cause to arrest, police officers had the right/ability to search Defendant. Thus, that portion of Defendant's motion seeking suppression of evidence is denied as probable cause to arrest and search Defendant existed.

With respect to that branch of Defendant's Omnibus motion seeking to suppress the out-of-court identification made by the two civilian witnesses on November 21, 2003, such request is denied. Defendant argues that the identification procedure utilized by police was unduly suggestive. The People oppose Defendant's motion.

The test for suppression of identification testimony is whether the identification procedure has been tainted such that the suggestiveness creates a substantial likelihood of misidentification. People v. Dixon, 85 NY2d 218, 647 NE2d 1321, 623 NYS2d 813 (1995); People v. Gee, 286 AD2d 62, 730 NYS2d 810 (4th Dep't 2001). The focus is on the reliability of in-court identifications where there have been prior police-arranged procedures between a defendant and an eyewitness for the purpose of establishing the identity of the suspect. See, People v. Gissendanner, 48 NY2d 543, 399 NE2d 924, 423 NYS2d 893 (1979).

In seeking to elicit an in-court identification, the People bear the burden of establishing the propriety of the police-arranged out-of-court identification by clear and convincing evidence. [*7]In the instant case, there was a showup identification conducted by the Yonkers police officers. In showup identification procedures, the People bear the burden to establish the admissibility of such showup identification evidence and once the People establish the propriety of the showup procedure, the defendant then has the burden of proving that the showup identification procedure was unduly suggestive. See, People v. Ortiz, 90 NY2d 533, 686 NE2d 1337, 664 NYS2d 243 (1997). The People must present evidence that the showup procedure occurred in close spatial and temporal proximity to the crime to pass constitutional muster. See, People v. Duuvon, 77 NY2d 541, 571 NE2d 654, 569 NYS2d 346 (1991) Showups "which occur in close spatial and temporal proximity to the crime are indicative of good police work aimed at apprehending the perpetrator and releasing innocent suspects as soon as possible, as the witness' memory is most fresh at that time." People v. Mitchell, 185 AD2d 249 at 250, 585 NYS2d 783 at 785 (2nd Dep't 1992)(cites omitted). Further, the Appellate Division, Second Department, has held that showup identification procedures are not necessarily rendered unduly suggestive merely because the defendant was handcuffed and in the presence of police officers when the defendant was shown to the witnesses. People v. Crumble, 43 AD3d 953, 842 NYS2d 35 (2nd Dep't 2007); People v. Jay, 41 AD3d 615, 838 NYS2d 596 (2nd Dep't 2007). When the evidence presented demonstrates one unbroken chain of events - - crime, escape, pursuit, apprehension and identification - - occurring in rapid sequence and in geographic proximity of the crime, such showup procedure is permissible. People v. Mitchell, (supra ).

In the instant case, there was a rapid and unbroken chain of events that swiftly developed: civilian witnesses observed Defendant ringing doorbells and an open window at a private residence in the vicinity of Tibbetts Road, they also observed Defendant traveling on a yellow moped away from the scene, police officers immediately pursued and apprehended Defendant and the civilian identification occurred within two blocks of the initial sighting of Defendant at Tibbetts Road and witnesses identified Defendant within minutes of his apprehension. Therefore, the showup identification of Defendant was permissible.

However, even if the showup police-arranged out-of-court identification was deemed suggestive, the court must then determine if there would be an independent basis for a witness to make an in-court identification of the defendant. The fundamental purpose of the independent source phase of a Wade hearing is to determine, in a case in which there have been impermissibly suggestive police identification procedures, whether there nevertheless exists a sufficiently reliable basis for a witness's inculpatory identification of the defendant at trial. People v. Foster, 200 AD2d 196, 613 NYS2d 616 (1st Dep't 1994).

When considering whether an in-court identification has a basis independent of a suggestive or tainted pretrial identification, the court must consider the following factors:

(i) the opportunity of the witness to observe the perpetrator during the commission of the offense; (ii) the degree of the witness' attention at the time of the observation; (iii) the accuracy of the victim's initial description of the perpetrator to police; (iv) the certainty with which the witness first identified the defendant and (v) the lapse of time between the crime and the identification procedure. 33 NY Jur. 2d Criminal Law § 1894. [*8]

In the instant case, the Court finds that the pre-trial out-of-court identification procedure was the product of a suggestive police arranged identification procedure. As a result, the Court considered the existence of an independent source for the in-court identification made by the People's witnesses.

The civilian witnesses testified at the de novo hearing. The witnesses identified Defendant when he was on the ground, on his stomach and surrounded by police [FN3]. However, even though the Court has determined that this pretrial out of court identification was suggestive, it is clear that the People established that the witness' identification was based on independent observation of Defendant. Mr. McGee had an unobstructed view of the Defendant and was able to observe him during daylight hours, from approximately one (1) to two (2) feet away and had a brief conversation, face to face, with the Defendant. Mr. Nolan was also able to observe Defendant from a short distance, had a conversation and continued observing the Defendant while ringing doorbells on at least three (3) other nearby residences. Both witness had the opportunity to speak with police shortly after observing Defendant, described his physical appearance with specific details, and within minutes of observing the suspect act suspiciously in their neighborhood, both witnesses identified Defendant when brought to the McLean Avenue bridge, which was the location the witnesses had told police they had last seen Defendant traveling towards. Although the witnesses observed Defendant on the ground and surrounded by police, this Court finds that the People established by clear and convincing evidence that the witnesses had an independent basis, untainted, for their in court identification such that suppression of the identification is not required. People v. Mitchell, 42 AD3d 758, 839 NYS2d 339 (3rd Dep't 2007); People v. Rockwell, 18 AD3d 969, 794 NYS2d 726 (3rd Dep't 2005). Accordingly, the People have established by clear and convincing evidence that Mr. Nolan and Mr. McGee possessed an independent basis for identifying Defendant.

This constitutes the findings and report of this Court.

October 30, 2007________________________________

White Plains, New YorkHon. Rory J. Bellantoni, A.J.S.C.

ADA Christine O'Connor

Westchester County District Attorney's Office [*9]

111 Dr. Martin Luther King Jr., Blvd.

White Plains, New York 10601

Paul W. Pickelle, Esq.

175 Main Street

White Plains, New York 10601 Footnotes

Footnote 1: Detective Benash explained that this "bridge" is an overpass on McLean Avenue that runs over the Saw Mill River Parkway, but officers refer to it as the McLean Avenue bridge.

Footnote 2: At one point during the investigation, one of the officers asked if the witness described that the suspect was wearing eye glasses. While Defendant was not wearing eye glasses, and the suspect's description never included that he was wearing eye glasses, this radio exchange demonstrates that police were being diligent in their search efforts and did not stop Defendant on a mere whim.

Footnote 3: While Defendant attempts to discredit the witnesses' version of the particular details of the out-of-court identification, the Court finds that the witnesses testified credibly. Mr. McGee sat in the front passenger seat of the police vehicle, while Mr. Nolan sat in the back seat; thus both witnesses had different vantage of Defendant when they identified him, thus rendering their statements credible and not inconsistent or perjured. Further, the identifications or the viewing of Defendant by Mr. Nolan and Mr. McGee were not simultaneous, thus, explaining the differing details between the witnesses.