People v Rogers
Annotate this CaseDecided on October 28, 2008
Criminal Court of the City of New York, New York County
The People of the State of New York, Plaintiff,
against
Lucian Rogers, Defendant.
2008NY029846
The Defendant was represented by
Jake Harper, Esq.
30 Vesey Street
Suite 1803
New York, New York 10038
The People were represented by
Gregory LeDonne, Esq.
Assistant District Attorney
New York County District Attorney's Office
One Hogan Place
New York, New York 10013
Anthony J. Ferrara, J.
The defendant is charged with criminal sale of marijuana in the fourth degree
(PL § 221.40). By Notice of Motion, served and filed on August 22, 2008, he moved to suppress
evidence, additional discovery and various other relief. The People served and filed their
Response and Voluntary Disclosure Form ("VDF") on September 23, 2008. By Decision and
Order, dated October 10, 2008, this Court denied defendant's motions.[FN1] On October 23, 2008, the defendant filed a
Motion to Re-argue this Court's denial of pretrial hearing.
The complaint alleges that on April 16, 2008, at about 3:15 p.m. in front of Saint Nicholas Avenue a police officer observed the defendant exchange a small object for United States currency with a separately charged defendant. The People filed a positive field test for one [*2]bag of marijuana recovered from the separately charged defendant. The Court Action sheet indicates that the People did not give either statement or identification notice at defendant's arraignment. The VDF lists two bags of marijuana that the People intend to introduce against the defendant at trial.
In their response to Defendant's motion, the People assert that they do not intend to offer any
statement or identification testimony against the defendant at trial. The defendant alleges that he
was merely on the street and not engaged in any criminal activity when he was approached by a
police officer and asked for identification. The Defendant alleges that he was ordered to "go
inside the house'" and then arrested. The Defendant believes that he was arrested without
probable cause and was then mistakenly identified as a person who had been observed selling
marijuana.
It is settled law that pre-trial hearings are granted to explore law enforcement actions
and evidence obtained as the result of an illegal arrest should be suppressed (see Dunaway v.
New York, 442 U.S. 200 [1979] [defendant's confession suppressed]; Mapp v Ohio,
367 U.S. 643 [1961] [physical evidence suppressed]). Additionally, identification testimony
arising from undue suggestion during police arranged identifications between a defendant and an
eyewitness should be suppressed (see United States v Wade, 388 U.S. 218 [1967];
People v Dixon, 85 NY2d 218 [1995]; People v Chipp, 75 NY2d 327 [1990]).
Generally, the fruits of an illegal search or arrest should be suppressed when they bear a
sufficiently close relationship to the underlying illegality (see Wong Sun v. United States,
371 U.S. 471 [1963]). However, an illegal arrest is neither a bar to subsequent prosecution nor is
it a defense to a valid conviction (see United States v. Crews, 445 U.S. 463, 474 [1980];
People v. Young, 55 NY2d 419 [1982]). Furthermore, a defendant "cannot suppress his
presence at trial for the reason that his arrest was illegal." (see Young, 55 NY2d at 426).
The People's Response and VDF assert that they do not intend to offer any evidence that is the
fruit of defendant's arrest, be it supported by probable cause or not. The remedy created by
Dunaway and its progeny is intended to encompass suppression of evidence obtained as a
result of an illegal arrest. That evidence may include: a) physical evidence (taken from the
defendant's person or a place where the defendant had a valid expectation of privacy); b) a
defendant's post-arrest statement; or 3) the defendant's police arranged identification even if it is
merely "confirmatory." Because none of these remedies would be available in this case, even if
the trial court held a hearing and determined the police lacked probable cause to arrest the
Defendant, his request for a Dunaway hearing is denied.
In this case, the Court notes that Defendant correctly points out that he is entitled to a hearing where there is a post-arrest identification even when the People label the identification "confirmatory" (see People v. Hayes, 162 AD2d 410 [1st Dept 1990] [sentence held in abeyance and remanded for a Wade hearing to determine whether the post-arrest station house identification by the undercover officer that occurred six days after the officer allegedly had last seen the defendant was suggestive]; People v. Acevedo, 176 AD2d 631 [1st Dept 1991] [holding that defendant was entitled to hearing on the admissibility of undercover police officer's identification testimony because defendant sufficiently alleged facts challenging constitutionality of his arrest and alleged that the identification was the fruit of that illegality]; People v. Face, 247 AD2d 336 [1st Dept 1998]; [where the People's brief on appeal conceded that the identification by the undercover officer occurred about forty-five minutes after the alleged sale and after a [*3]chase during which the officers lost sight of the drug seller]). Additionally, Criminal Procedure Law § 710.40[4] provides: "If after a pre-trial determination and denial of the motion the court is satisfied, upon a showing by the defendant, that additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion, it may permit him to renew the motion before trial or, if such was not possible owing to the time of the discovery of the alleged new facts, during trial." (see People v. Villanova, 179 AD2d 381 [1st Dept 1992] [holding that trial court's refusal to re-open Wade hearing when defendant raised a sufficient factual issue regarding the show-up identification was harmless error due to the overwhelming evidence of defendant's guilt]; People v. Veal, 158 AD2d 633 [2nd Dept 1990] [judgment reversed and a new trial ordered based, in part, on trial court's error refusing to re-open the Wade hearing in order that the complainant testify concerning the circumstances surrounding his presence in the parking lot across the street from the police precinct when the defendant was brought into the precinct in handcuffs for the lineup and whether the complainant saw the defendant at that time]; People v. Martin, 35 AD2d 786 [1st Dept 1970] [remand to reopen Wade where trial testimony suggested that the victim apparently made an identification after he had previously observed defendant in police custody]; People v. Andriani, 67 AD2d 20 [1st Dept 1979] cert denied sub nom. Boutureira v New York, 444 U.S. 866 [1979] [remand to reopen Wade hearing where there was secrecy surrounding the lineup]). In this case, considering the People's and the Defendant's factual allegations, there is no evidence that any post-arrest identification of the defendant occurred. Defendant's motions for pre-trial hearings is denied.
The case is scheduled in Part SA on November 20, 2008. A copy of this decision is being mailed to the parties.
This opinion constitutes the decision and order of the court.
Dated:New York, New York
October 28, 2008
____________________________
ANTHONY J. FERRARA
Judge of the Criminal Court
Footnotes
Footnote 1: The Court noted that the
People's response and VDF indicated that one bag of marijuana was recovered from the
separately charged defendant but that the VDF indicates that the People intend to offer two bags
of marijuana against the defendant at trial. The Court denied defendant's motion to suppress the
bag of marijuana recovered from the separately charged defendant but stated: "If the People's
response to the Court ordered discovery shows that the second bag of marijuana was recovered
from defendant's person, the Court hereby grants a Mapp/Dunaway as to that second bag of
marijuana."
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