People v Degout

[*1] People v Degout 2010 NY Slip Op 52067(U) [29 Misc 3d 1227(A)] Decided on November 23, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 23, 2010
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Charles Degout and Jonathan Walker, Defendant.



4530-2008



Susan E. Baumgartner, Esq.

Assistant District Attorney

Office of Robert T. Johnson, Esq.

198 East 161st Street

Bronx, New York 10451

Jason E. Foy, Esq.

Foy & Foy, LLC

105 Main Street

Hackensack, NJ 07601

Attorney for Defendant Degout

Carlos E. Cruz, Jr., Esq.

Zuckerman & Cruz

910 Sheridan Avenue

Bronx, New York 10451

Attorney for Defendant Walker

Colleen D. Duffy, J.

Defendants Charles Degout and Jonathan Walker are charged in a 26 count [*2]indictment with Attempted Murder in the Second Degree, PL 110/125.25(1); Assault in the First Degree, PL 120.10(1); Gang Assault in the First Degree, PL 120.07; Gang Assault in the Second Degree, PL 120.06; three counts of Assault in the Second Degree, PL 120.05(1), (2) and(6); Assault in the Third Degree, PL 120.00(1); two counts of Robbery in the First Degree, PL 160.15(1) and (3); two counts of Robbery in the Second Degree, PL 160.10(1) and (2)(a); two counts of Robbery in the Third Degree, PL 160.05; two counts of Grand Larceny in the Fourth Degree, PL 155.30(5); and numerous misdemeanors, in connection with an incident on November 12, 2008, in which a large group of teenagers boarded a Metropolitan Transit Authority bus in the Tremont section of The Bronx and allegedly robbed complainant Paulino Brito, attempted to rob complainant Sabrina Padilla, and beat and stabbed complainant Edgar Erans.

On April 15, 2009, Defendant Walker and, on April 24, 2009, Defendant Degout each separately 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 identification of the Defendant; and (3) prevent the People from introducing any previous criminal convictions or bad acts of the Defendant if he were to testify. Defendant Walker also sought to suppress any physical evidence seized from him.

The People filed oppositions to each of Defendants' omnibus motions on April 29, 2009.

On May 14, 2009, the Honorable John S. Moore, in separate decisions, granted, in part, and denied, in part, Defendants' motions. Judge Moore, after inspection of the Grand Jury minutes, denied Defendants' motions to dismiss or reduce the charges in the indictment and granted Defendants' motions, on consent, for a Wade hearing as to the admissibility of the identifications and a Dunaway hearing on the issues of suppression of the identifications. Judge Moore also ordered a Mapp hearing as to the admissibility of the physical evidence seized from Defendant Walker and granted Defendants' motions for a Sandoval hearing, to be conducted by the trial court immediately prior to jury selection.

On November 4, 2010, and continuing on November 5, 8 and 10, 2010, this Court held the Wade-Dunaway hearing as to both Defendants and the Mapp hearing as to Defendant Walker. At the hearing, Detective Robert Rogers, Shield Number 31873 of the 45th Precinct, and Lieutenant Manuel Vasquez, Tax Number 901060 of District 12 of the Transit Bureau of the NYPD, testified on behalf of the People. Neither Defendant called any witnesses.

Upon consideration of the credible testimony and evidence and for the reasons set forth below, the Court finds that Paulino Brito's identification of Defendants Walker and Degout, together with his statement, "That's them," in close proximity to the crime scene and within minutes of the crime, established probable cause for the police to arrest Defendants. Mr. Brito's identification of Defendants, as a victim of the crime, by pointing at the Defendants and stating, "That's them," also is a valid identification. In addition, the Court finds that the showup identification procedure employed by the police in this case was proper. For these reasons, Defendants' motions to suppress any in-court identification of the Defendants based upon either Mr. Brito's identification [*3]of each Defendant or complainants Sabrina Padilla and Edgar Erans' showup identifications are denied. Defendant Walker's motion to suppress the cellular telephone found by the police in his pocket when they were searching him also is denied as the search was a lawful search incident to arrest.

FINDINGS OF FACT

The Court finds the testimony of Police Officer Rogers to be credible. Officer Rogers testified that, at approximately 3:30 p.m. on November 12, 2008, he was working in plainclothes with two partners in an unmarked police vehicle when they received a radio report for a robbery in progress at the corner of Paulding Avenue and East Tremont Avenue. Officer Rogers testified that, when they arrived at the scene, he saw a bus pulled to the right with blue flashing lights and the bus driver and others standing outside. Officer Rogers testified that he asked the bus driver who was robbed and the driver pointed down East Tremont Avenue towards Castle Hill Avenue and stated, "The person who was robbed is already in the police car."

Officer Rogers testified that he then got back in his vehicle and drove toward Castle Hill Avenue and that, within thirty seconds, as his vehicle turned the corner onto Castle Hill Avenue, he could see a marked police car parked with a person in the back seat who was "frantically" pointing at three young men walking along Castle Hill Avenue. Officer Rogers identified the person in the police car as Paulino Brito. Officer Rogers further testified that Mr. Brito was pointing at Jonathan Walker and Charles Degout, both of whom Officer Rogers positively identified in court.[FN1]

Officer Rogers testified that when he saw complainant Brito pointing at the three young men, he jumped out of his vehicle and ran towards the men and that, as he did so, he saw that Mr. Brito had exited the police vehicle and heard him state, "That's them." He immediately placed the Defendants in handcuffs.

Officer Rogers testified that he then went back to his vehicle with his partners, and Mr. Brito, and drove to Sackett Avenue near Bronxdale Avenue, where his vehicle was approached by Edgar Erans, who was bruised and cut in the face and had a stab wound to his chest, and Sabrina Padilla, who was unhurt but appeared to Officer Rogers to be in shock. Officer Rogers testified that Mr. Erans told him that "guys" came on the bus and tried to rob Ms. Padilla and that, when he intervened on her behalf, he was stabbed.

Officer Rogers testified that he then took Mr. Erans and Ms. Padilla in the car and drove back toward the three young men on Castle Hill Avenue, just a half block away. Officer Rogers testified that he told Ms. Padilla and Mr. Erans to look around and see if they recognized anyone. Officer Rogers further testified that, as they were driving past the location where the three young men were being detained on Castle Hill Avenue, both Mr. Erans and Ms. Padilla said, virtuously simultaneously, "Those guys also robbed us," pointing at Defendants Walker and Degout. Officer Rogers testified that, at that point, he got out of the vehicle, searched the Defendants and put them into a marked patrol car. Officer Rogers testified that he had searched the Defendants to [*4]ensure the safety of the officers who would transport Defendants to the precinct house and that he found a cell phone in the right front jeans pocket of Jonathan Walker.

Lieutenant Manuel Vasquez, of the Transit Bureau of the NYPD, also testified credibly as to the events of November 12, 2008. Lieutenant Vasquez testified that he was working with a partner in a marked police car that day when they were flagged down by Mr. Brito, who was standing next to a city bus. Mr. Brito stated, "I was just robbed for my cell phone when I was on board for a city bus and the suspects ran towards Castle Hill Avenue from East Tremont Avenue." Lieutenant Vasquez testified that Mr. Brito then joined him in the police car and they drove South on Castle Hill Avenue, away from East Tremont Avenue, and that Mr. Brito, within no more than three minutes of entering the vehicle and within approximately 1000 feet of the bus, pointed to Defendants Walker and Degout on the sidewalk and stated, "That's them. Those are the guys." Lieutenant Vasquez further testified that, at the same time that he and his partner exited their vehicle to apprehend the three suspects, three other police officers from an Anti-Crime unit had arrived in an unmarked car and assisted in the arrest of the suspects.

CONCLUSIONS OF LAW

Upon consideration of the evidence and testimony presented, the Court finds that there was probable cause to stop, detain, secure and arrest Defendants.

Officer Rogers testified that he stopped Defendants when he observed Mr. Brito inside the police car frantically pointing at the Defendants less than 1000 feet from the crime scene and within a thirty second drive down the street. This gave Officers Rogers reasonable suspicion to stop and inquire of the Defendants. People v. Nash, 227 AD2d 125, 125 (1st Dept.)(sufficient predicate for a stop existed where officer knew assault had occurred and citizen witnesses pointed at defendant), app. den., 88 NY2d 1070 (1996); People v. Hallman, 237 AD2d 17, 20 (1st Dep't 1997)(ample reasonable suspicion, based on statements from several eyewitnesses that suspect had fled into apartment building, for police to ascend fire escape to canvass for armed defendant), app. denied, 92 NY2d 840 (1998). Officer Rogers also testified that, almost immediately, or simultaneously, with his stopping of Defendants, Mr. Brito stated, "That's them." Hearing Transcript ("Tr.") at p. 8 and p. 79. Mr. Brito's identification of Defendants, as a citizen informant whose accusation is based on personal knowledge, satisfies the reliability requirement of the Aguilar/Spinelli test and is sufficient to establish probable cause. People v. Hetrick, 80 NY2d 344, 348 (1992)(witness must be reliable and have a good basis of knowledge); People v. Taylor, 61 AD3d 537 (1st Dept. 2009); People v. Bingham, 176 AD2d 740, 740-41 (2nd Dept. 1991)(information provided by an identified citizen accusing another individual of a specific crime legally sufficient to establish probable cause).

Defendant Walker's argument that Officer Rogers could not have known what Mr. Brito was saying or why he was pointing as he sat in the police car, and that therefore, there was an insufficient basis to establish probable cause for an arrest, is unavailing. The sequence of events described by Officer Rogers included the bus driver stating that, "The person who was robbed is already in the police car," and pointing towards Castle Hill Avenue, Officer Rogers driving towards Castle Hill Avenue and, within thirty seconds, as his vehicle turned the corner onto Castle Hill Avenue, [*5]seeing a marked police car with a person in the back seat who was "frantically" pointing at three young men walking along Castle Hill Avenue. A reasonable person in Officer Roger's position would have concluded that the person in the car was pointing out the suspects in the crime. See, e.g., People v. Wright, 8 AD3d 304, 308 (2nd Dept. 2004)(court looks at totality of circumstances which would lead a reasonable person possessing the same expertise as the officer to conclusion that crime was committed); People v. Ramos, 60 AD3d 1317, 1317 (4th Dept. 2009)(totality of information known to police prior to entering parking lot and their observations upon doing so provided articulable reason for approaching vehicle). This set of facts formed the basis for reasonable suspicion. When Officer Rogers heard the witness say, "That's them," probable cause was established. Tr. at p. 8. People v. Bingham, 176 AD2d at 740-41; People v. Wiley, 32 AD3d 1352, 1353 (4th Dep't 2006)(once Defendant positively identified by the victim, probable cause existed).[FN2]

Defendants' motions to suppress any in-court identifications of Defendants based on the identifications made by Mr. Brito also are denied. Lieutenant Vasquez testified that, after Mr. Brito entered his police car, within three minutes and within 1000 feet of the bus where he had been picked up, Mr. Brito spontaneously pointed out three suspects and said, "That's them. Those are the guys." Under these facts, the People have met their burden of showing the reasonableness of the identification procedure and the lack of undue suggestiveness. In re Kassan D., 282 AD2d 747, 747-48 (2nd Dept. 2001)(canvass of area in police vehicle in close spatial and temporal proximity to the offense, and spontaneous identification by witness established reasonableness and lack of undue suggestivity); Matter of Jamel G., 51 AD3d 918, 919 (2nd Dept. 2008).

Defendants' motions to suppress the showup identifications made by Ms. Padilla and Mr. Erans also are denied. Although Defendants were in handcuffs and many police were on the scene, the police conduct in holding a prompt on-the-scene showup identification procedure was reasonable. Prompt showup identifications by witnesses following a defendant's arrest at or near the crime scene are admissible. People v. Duuvon, 77 NY2d 541, 544, 571 N.E.2d 654, 656 (1991). Here, where, as part of an unbroken chain of fast-paced events, Defendants were apprehended and handcuffed in close proximity to where the crime occurred, and where, within minutes, Mr. Erans and Ms. Padilla were located and driven past the Defendants, the showup identification is proper. Duuvon, 77 NY2d at 544, 571 N.E.2d 654; People v. Wilburn, 40 AD2d 508, 509 (1st Dep't 2007).

In light of the short time that had elapsed between the incident and the identifications, there is no evidence of undue suggestiveness in this showup identification procedure. Each complainant's identification of Defendants was shown to be individual and spontaneous. People v. Delances, 262 AD2d 249, 250 (1st Dept. 1999). The fact that Ms. Padilla and Mr. Erans were together when they individually each identified the Defendants does not make the identification procedure unduly suggestive. People v. Barnes, 219 AD2d 527, 527 (1st Dept. 1995). Although [*6]Defendants already were handcuffed and uniformed police officers stood nearby, such factors, without more, do not establish that the showup was unduly suggestive. People v. Love, 57 NY2d 1023, 1024 (1982); Delances, 262 AD2d at 250 (showup not unduly suggestive when conducted before a group of victims with Defendant in handcuffs and surrounded by uniformed officers).

For these reasons, Defendants' motions to suppress any in-court identification of Defendants based upon the identifications by Mr. Erans and Ms. Padilla also are denied.

Defendant Walker's motion to suppress the cell phone recovered from his pocket also is denied. As Officer Rogers had probable cause to arrest Defendant, a warrantless search of Defendant Walker's person incident to the arrest thereafter was appropriate. People v. Johnson, 1 NY3d 252, 255 (2003); People v. Wigfall, 234 N.Y.L.J 74, 2005 N.Y.Misc. LEXIS 3493 (Sup. Ct., Bronx Co., 2005).

Since the methods used to stop, detain and identify the Defendants were proper, and there was probable cause to arrest Defendants, Defendants' motions to suppress the identifications of the Defendants and Defendant Walker's motion to suppress the physical evidence are denied.

The following papers also were considered by the Court in deciding the motion: Notice of Motion, filed on or about April 15, 2009, and Affirmation of Carlos E. Cruz, Esq., attorney for Defendant Jonathan Walker, in Support of Motion; Affirmation in Opposition by Susan E. Baumgartner, Esq., Assistant District Attorney, filed on April 29 2, 2009; Notice of Motion, filed on or about April 24, 2009, and Affirmation of Jason E. Foy, Esq., attorney for Defendant Charles Degout, in Support of Motion; and Affirmation in Opposition by Susan E. Baumgartner, Esq., Assistant District Attorney, filed on April 29 2, 2009.

This constitutes the Decision and Order of this Court.

Dated: Bronx, New York

November 23, 2010

E N T E R:

_________________________

HON. COLLEEN D. DUFFY

Supreme Court Justice Footnotes

Footnote 1: The third person identified by Mr. Brito is Jerrell Johnson, who has pleaded guilty to Robbery in the First Degree and is scheduled to appear for sentencing on December 17, 2010.

Footnote 2: While Officer Rogers testified that he did not arrest Defendants until after they were identified by Ms. Padilla and Mr. Erans, the Court finds that probable cause existed prior to those identifications.