People v Davis

[*1] People v Davis 2010 NY Slip Op 50908(U) [27 Misc 3d 1226(A)] Decided on May 13, 2010 Supreme Court, Bronx County Duffy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 13, 2010
Supreme Court, Bronx County

The People of the State of New York,

against

Alfredo Davis, Defendant.



3610-07



Distribution:

Felicity Lung, Esq.

Assistant District Attorney

Office of Robert T. Johnson, Esq.

198 East 161st Street

Bronx, New York 10451

Michael Fraggetta, Esq.

Assistant District Attorney

Office of Robert T. Johnson, Esq.

198 East 161st Street

Bronx, New York 10451

Mark S. DeMarco, Esq.

2027 Williamsbridge Road

Bronx, New York 10461

Attorney for Defendant

Colleen Duffy, J.

Defendant Alfredo Davis was charged in a three count indictment with Murder in the Second Degree (P.L. §125.25), Manslaughter in the First Degree (P.L. §125.20(0), and Criminal Possession of a Weapon in the Second Degree (P.L. §265.03), in connection with the fatal shooting of Marcus Adams on Burnside Avenue in The Bronx on August 23, 2006.

On or about April 16, 2008,[FN1] Defendant filed an omnibus motion seeking, among other things, to have the Court: (1) inspect the Grand Jury minutes and dismiss the indictment or reduce the charges; (2) suppress any statements of the Defendant; (3)

suppress any identification of the Defendant; and (4) prevent the People from introducing any previous criminal convictions or bad acts of the Defendant if he were to testify.

People submitted an opposition, filed February 2, 2009, to Defendant's motion.

On May 5, 2009, the Honorable Troy K. Webber granted, in part, and denied, in part, Defendant's motion. Judge Webber, after inspection of the Grand Jury minutes, [*2]denied Defendant's motion to dismiss or reduce the charges in the indictment, but granted Defendant's motion to preclude unnoticed statements, noting that the People failed to respond to that portion of Defendant's motion, and that there were no noticed statements pursuant to C.P.L. 710.30(1)(b). Judge Webber also granted Defendant's motion to suppress identification testimony to the extent of granting Defendant's request that a Wade hearing be conducted prior to trial. Judge Webber reserved the Sandoval issue to the trial court.

On April 22, 2010, this Court held the Wade hearing. At the hearing, Detective Dwayne Farmer, Shield Number 7758, of the 46th Precinct, testified on behalf of the People. Defendant called no witnesses.

Upon consideration of the credible testimony and evidence and for the reasons set forth below, the Court finds that the identification procedures employed by the police in this case, namely, a sequential photograph array, a simultaneous photograph array, and a lineup, were proper. Defendant's motion to suppress any in-court identification of the Defendant based upon these identification procedures is denied.

FINDINGS OF FACT

The Court finds the testimony of Det. Farmer credible. Det. Farmer testified that he was assigned to investigate the homicide of Marcus Adams, which occurred at or around midnight on August 23, 2006, at 150 Burnside Avenue in The Bronx. According to Det. Farmer, Marcus Adams had been shot once in the back. Det. Farmer also testified that, the next day, August 24, 2006, he had received a call from the victim's mother, who told him that she was contacted by a young woman who claimed to be a friend of both the victim and the alleged perpetrator, and that this woman had sent a photograph of the alleged perpetrator to the mother's cell phone. Det. Farmer testified that he went to see the victim's mother and, at that time, he transferred the photograph on the mother's cell phone to his own cell phone. He testified that he then downloaded the photograph to a computer and printed it out. Det. Farmer testified that Defendant is the person in the photograph. The photograph was admitted into evidence at the hearing as People's exhibit 1 (hereinafter "People's Ex. 1").

Det. Farmer also testified that, on August 24, 2006, he showed People's Ex. 1 to a suspect who had been arrested on an unrelated charge in the neighborhood where Marcus Adams had been shot, and that he had asked that suspect as to whether he had any information about the shooting. Det. Farmer testified that that individual provided no information about the shooting, but told him that the person in the photograph was called "Fredo."

Det. Farmer also testified that, on that same date, August 24, 2010, he had received an anonymous tip from a caller who said that the person who had shot Marcus Adams lived at 1820 Loring Place in The Bronx. Det Farmer testified that he perused arrest records for that address to see if anyone who previously had been arrested at that location matched the person in People's Ex. 1.

Det. Farmer testified that, as a result of this search, on that same day, he located Defendant's name and arrest photograph on the police computer system. Det. Farmer also testified that, using the information he had obtained, he then conducted two [*3]photographic arrays ("photo array") using Defendant's photograph, among others.

Det. Farmer testified that he conducted the first photographic array procedure on the morning of August 28, 2006 with an individual named Tion Ramey who was a friend of the victim and who had told Det. Farmer that he was a witness to the shooting.

With respect to the selection of photographs for this first photo array, Det. Farmer testified that he was responsible for the photograph selection process. He testified that, in addition to using Defendant's photograph for the photo array, he selected five photographs of other individuals who were similar in appearance to Defendant. Det. Farmer also testified that he showed Mr. Ramey the six photographs, in sequential order, one at a time, and that none of the photographs had any visible name or identifying information. Det. Farmer testified that, out of the photo array, Mr. Ramey identified Defendant as the shooter.

Det. Farmer testified that he then conducted the second photo array identification procedure on the afternoon of that same day — approximately five hours later with a witness named Keron Thomas. With respect to this second photo array, Det. Farmer testified that he had used a different photograph of Defendant than the one he had used in the first photo array; he testified that he used an updated photograph of Defendant that he had located from police files, as well as five photographs each containing the likeness of a person who met Defendant's general age and physical description — a black male. Det. Farmer testified that the photo array displayed all of the photographs on one page, each in a square "frame." Defendant's photograph was in position 2. Det. Farmer testified that, during this second photo array identification procedure, Mr. Thomas picked Defendant as the person who shot Marcus Adams.

Det. Farmer testified that, based upon these two identifications of Defendant, he had prepared a "Wanted" poster, which was posted, among other locations, in the vicinity of 150 Burnside Avenue.

On September 18, 2007, Defendant was arrested, and, on September 19, 2007, Det. Farmer conducted a lineup identification procedure at the Detective Bureau, Bronx Homicide Unit on Simpson Street, which included the Defendant. Det. Farmer testified that when the witness, Mr. Ramey, arrived to the location, Mr. Ramey was placed in an enclosed waiting room, not visible to other areas of the Detective Bureau.

With respect to the line up procedure, Det. Farmer testified that four "fillers" — that is, four persons resembling Defendant's general physical attributes — were found for the other lineup positions, three of whom were located in the street and one of whom was a police officer. Det. Farmer testified that all of the "fillers" were black males, with medium to dark complexions, similar to Defendant's complexion. Det. Farmer testified that Defendant and the other participants wore hats, so that baldness or hair style would not be a factor, as well as a black covering, so that only each face was visible. Det. Farmer testified that Mr. Ramey picked out Defendant as the perpetrator from the lineup.

Both of the photographic arrays and Polaroid photographs of the lineup were admitted into evidence at the hearing.

CONCLUSIONS OF LAW

Defendant contends that the identification procedures used by the police in this [*4]case, to wit, the two different photo arrays and a lineup, were improper and thus, any in-court identification(s) of Defendant based on such identification procedures should be suppressed by this Court. For the reasons set forth below, this Court denies Defendant's motion to suppress, finding that none of the identification procedures was unduly suggestive.

Defendant's contention that the first photo array identification — sequential display of photographs to the witness - was "per se" suggestive is without merit. Indeed, courts have noted that a sequential photographic array actually produces a greater possibility of reliable identification than a traditional photographic array in which all of the photographs are exhibited together. People v. Blue, 165 Misc 2d 1000, 1002-03, 631 NYS2d 232, 233-34 (Sup. Ct., Kings Co., 1995). See People v. Wager, 19 AD3d 263, 264, 796 NYS2d 615, 616 (1st Dep't 2005); People v. Monk, 9 Misc 3d 1121A, 862 NYS2d 810 (Sup. Ct., Rockland Co. 2005).[FN2]

There is no evidence that Mr. Ramey's identification of the Defendant from the sequential photographic array was tainted by any undue suggestion. Here, the first photo array could not be found to be suggestive when the Defendant and the other participants were reasonably similar in appearance, and any difference was not sufficient to create a substantial likelihood that Defendant would be singled out for identification. People v. Drayton, 70 AD3d 595, 596, 896 NYS2d 320, 321 (1st Dep't 2010); People v. Chipp, 75 NY2d 327, 336, 552 NE2d 608, 613 (1990), cert. denied, 498 U.S. 833 (1990). The photographs used in the array show no significant differences that would draw the viewer's attention to any particular photograph. All the photographs were of black males approximately 20 to 30 years of age, with medium to dark complexions. People v. Lee, 96 NY2d 157, 163, 750 NE2d 63, 67 (2001). There also is no evidence that there was anything unduly suggestive about the circumstances surrounding Mr. Ramey's viewing of the photographs.

The Court finds credible Det. Farmer's testimony that he used different photographs and a different procedure in the first photo array than the ones he later used in the second photo array because of time constraints. Det. Farmer credibly testified that, due to his work and time off schedule, he did not have sufficient time before conducting the photo array procedure with Mr. Ramey to create a simultaneous photo array, which required cutting out photographs and fitting them — in comparable size and display with each other — in the small boxes in the photographic array form used by the NYPD.

Det. Farmer credibly testified that he had sufficient time before he conducted the second photo array procedure later that day with Mr. Thomas to create the simultaneous photo array using the standard form used by the NYPD. He thus was [*5]able to show Mr. Thomas the six photographs — a more recent photograph of Defendant from police files than the one he had previously used and five persons with the same general physical characteristics as Defendant simultaneously. There is no evidence that the manner in which this array was conducted was unduly suggestive. The photographs in that photo array are all the same size, all depict black men of approximately the same age, and none bears any distinct feature that would draw attention to that particular photograph. People v. Drayton, 70 AD3d at 596; People v. Lee, 96 NY2d at 163, 750 NE2d at 67.

Defendant's contention that the photo array identifications could be tainted because the two witnesses may have viewed the photograph of Defendant on the victim's mother's cellphone prior to participating in the photo array procedures is unsupported by any evidence. Defendant's conjecture is not grounds to support a motion for suppression. People v. Douglas, 137 AD2d 706, 706, 524 NYS2d 372, 373 (2d Dep't 1988).

Even if any such evidence existed that these witnesses had viewed Defendant's photograph on the cellphone, which it does not, any such viewing was not a police-arranged procedure and, as such, does not implicate Defendant's due process rights. People v. Marte, 12 NY3d 583, 589, 912 NE2d 37, 41 (2009)(declining to extend a per se constitutional rule of exclusion where an identification results from a suggestive communication by a private citizen). Nor is there evidence that either witness saw any "wanted" posters, and if they did, such accidental viewing would not require suppression of the identifications. People v. Curry, 287 AD2d 252, 253, 731 NYS2d 1 (1st Dep't 2001)(accidental viewing of photograph of defendant was unavoidable and did not require suppression of identification); People v. Powell, 269 AD2d 178, 178, 703 NYS2d 710, 710 (1st Dep't 2000)(lineup not tainted by complainant's accidental viewing of defendant shortly prior to lineup).

With respect to the lineup procedure, the Court also finds credible Det. Farmer's testimony regarding the conduct of the lineup and finds nothing unduly suggestive about the composition of the lineup or the manner in which it was conducted. There is no requirement that lineup "fillers" have identical physical attributes to the Defendant. People v. Chipp, 75 NY2d at 336; People v. Garner, 2010 NY Slip Op 1897, 2010 NY App. Div. LEXIS 1846 (1st Dep't 2010). There was a general resemblance between Defendant and the fillers; moreover, all were black males of approximately 20 to 30 years of age. People v. Robinson, 287 AD2d 398, 731 NYS2d 709 (1st Dep't 2001). There was no feature or identifying mark that would call attention to Defendant. Chipp, 75 NY2d at 335.

There is no merit to Defendant's claim that the lineup was tainted by the wanted posters seeking Defendant which were posted in the vicinity where Mr. Ramey, the person who identified Defendant in the lineup identification procedure, lived. There simply is no evidence in the record that Mr. Ramey ever saw any such wanted poster. Accordingly, this claim is insufficient to suppress any identification based upon such a lineup procedure. People v. Douglas, 137 AD2d at 706, 524 NYS2d at 373 (lack of evidence that wanted posters issued a month before lineup were still posted or that witnesses saw them supports denial of suppression motion). [*6]

Defendant's other contentions that the identifications should be suppressed also lack merit. There is no evidence that Det. Farmer's memory of events is "foggy" and insufficient; Det. Farmer recalled all the salient facts related to the identification procedure. Any failure by Det. Farmer to recall minute details of the procedures is consistent with the 2-1/2 years that have elapsed since the photograph identification procedures were done and the 3-1/2 years that have elapsed since the lineup. The Court also is unpersuaded that Det. Farmer's inability to recall whether Defendant requested a lawyer prior to the lineup on September 19, 2007, warrants that the lineup be suppressed. There is no evidence that Defendant made such a request. Moreover, Det. Farmer's testimony that he does not recall Defendant asking for an attorney and that he wouldn't have conducted the lineup procedure if he had done so was credible.

For the reasons set forth above, the Court denies Defendant's motion to suppress any in-court identification based upon the photographic arrays and lineup identifications of Defendant.

The following papers also were considered by the Court in deciding the motion: Notice of Motion, filed on or about April 16, 2008, and Affirmation of Mark S. DeMarco, attorney for Defendant, in Support of Motion; Affirmation in Opposition by Felicity Lung, Assistant District Attorney, filed on February 2, 2009.

This constitutes the Decision and Order of this Court.

Dated: Bronx, New York

May 13, 2010

E N T E R:

_________________________

HON. COLLEEN D. DUFFY

Supreme Court Justice

Distribution:

Felicity Lung, Esq.

Assistant District Attorney

Office of Robert T. Johnson, Esq.

198 East 161st Street [*7]

Bronx, New York 10451

Michael Fraggetta, Esq.

Assistant District Attorney

Office of Robert T. Johnson, Esq.

198 East 161st Street

Bronx, New York 10451

Mark S. DeMarco, Esq.

2027 Williamsbridge Road

Bronx, New York 10461

Attorney for Defendant Footnotes

Footnote 1: Defendant's omnibus motion does not bear a file stamp, but is dated February 16, 2008; a cover sheet from the Clerk's Office attached to Defendant's motion in the Court's file bears a date-stamp of April 16, 2008.

Footnote 2: See also People v. Woolcock, 7 Misc 3d 203, 792 NYS2d 804 (Sup. Ct., Kings Co. 2005). In this case, the court discusses the merits of sequential photographic arrays versus simultaneous viewing of photographs, recent social science research in the area of identifications and proposed changes to improve identifications, including the use of sequential photograph arrays rather than simultaneous viewing of pictures.