People v Boothe

[*1] People v Boothe 2013 NY Slip Op 50136(U) Decided on January 28, 2013 Supreme Court, Nassau County St. George, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 28, 2013
Supreme Court, Nassau County

The People of the State of New York,

against

Rusheki Boothe, Neville Cameron, Oneil David, Orain Knight, Defendants.



1474N/12

Norman St. George, J.

The defendants are each charged with the following: two (2) counts of violating Penal Law §120.00(1), Assault in the Third Degree as a Class A misdemeanor; and one count of violating Penal Law §145.00(1), Criminal Mischief in the Fourth Degree as a Class A misdemeanor.

On January 4th , 5th , and 9th , 2013, upon stipulation by the parties, this Court conducted a Huntley, Mapp, Dunaway and Wade hearing. (See People v Huntley, 15 NY2d 72 [1965]; Mapp v Ohio, 367 US 643, 81 SCt 1684, 6 LEd2d 1081 [1961]; Dunaway v New York, 442 US 200, 99 SCt 2248, 60 LEd2d 824 [1979]; and US v Wade, 388 US 218, 87 SCt 1926, 18 LEd2d 1149 [1967]). The Huntley hearing pertained to: oral statements allegedly made by defendant Boothe; a written statement allegedly made by defendant Cameron; a written statement allegedly made by defendant Knight; and a written statement allegedly made by defendant David. The Mapp hearing was regarding clothing allegedly recovered from each defendant after they were arrested. The Wade hearing was regarding a showup identification procedure allegedly conducted with respect to each defendant.

The People called five witnesses at the hearing: Police Officer Brian Eidens, Police Officer Michael Popper, Police Officer Joseph Wiemann, Police Officer Patrick Yule, and Detective Michael Bulik, all of the Long Beach Police Department. The defendants did not call any witnesses. Based on the testimony of the Police Officers and the Detective, this Court makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

Officer Eidens is an eight year veteran of the Long Beach Police Department. Officer Popper is a three year veteran of the Long Beach Police Department. Officer Wiemann is an eight year veteran of the Long Beach Police Department. Officer Yule is a four and a half year veteran of the Long Beach Police Department. Detective Bulik is a twenty-four and a half year veteran of the Long Beach Police Department. This Court finds the testimony of the Police Officers and the Detective [*2]to be credible.

Officer Eidens testified that on August 3, 2012, he was working a 10 pm to 8 am tour of duty for the Long Beach Police Department. He was working alone, in uniform and operating a marked Long Beach Police Department patrol car. At approximately 5:16 am, he received a radio call to respond to a large fight occurring at the intersection of W. Broadway and Laurelton Avenue in Long Beach, Nassau County. Officer Eidens testified that upon arriving at that location, he observed a naked woman sitting on a curb, near the ramp for the boardwalk. Officer Eidens testified that the woman had scrapes on her knees and elbows. Officer Eidens testified that he also noticed four individuals (male blacks) who were on the boardwalk approximately 100 to 150 feet away. Officer Eidens testified that he approached the woman and asked her what happened. She responded that she was attacked and beat up by several male blacks in the area, and they ripped off all of her clothes. Officer Eidens saw clothing in the complainant's immediate vicinity which appeared to be ripped up. Officer Eidens testified that he conveyed the information which he received from the complainant, including the descriptions of the suspects, to the other officers responding to the area. Officer Eidens indicated that another Long Beach Police Officer arrived at the scene shortly thereafter, and he saw the four individuals run eastbound on the boardwalk. Officer Eidens placed the complainant into the rear of his Police car and interviewed her further. The complainant told Officer Eidens that one of the suspects was wearing black jeans and a purple headband, one was wearing blue shorts and no shirt, and one was wearing plaid shorts. Officer Eidens testified that the complainant's boyfriend was standing nearby, but was uncooperative. Officer Eidens received a radio call that three suspects were stopped at 230 W. Broadway in Long Beach. Officer Eidens testified that he headed over to the location where the suspects were stopped in order to conduct a showup. Officer Eidens testified that when he arrived at the location he saw three individuals sitting on a curb. He saw three to four Long Beach Police Officers standing near the suspects. Officer Eidens testified that none of the suspects were handcuffed. Officer Eidens recalled that the three suspects were the same individuals that he saw earlier on the boardwalk when he first came upon the complainant. Officer Eidens explained that each suspect was brought, one by one, to the front windshield of his Police car. As each suspect was brought up to the car, Officer Eidens asked the complainant if the person was one of the people that committed the crime against her. Officer Eidens testified that upon the complainant seeing each suspect, she immediately said that the person was involved in the attack. Officer Eidens testified that the first suspect was wearing blue shorts. Officer Eidens identified the first suspect, in Court, as defendant Boothe. Officer Eidens identified the second suspect, in Court, as defendant Knight. Officer Eidens identified the third suspect, in Court, first as defendant David and then corrected himself and identified him as defendant Cameron. Officer Eidens testified that after each suspect was identified, that suspect was immediately handcuffed and placed into the rear of a Police car. Officer Eidens returned, with the complainant, to the original location at W. Broadway and Laurelton Avenue, to await an the arrival of an ambulance. Officer Eidens testified that he received a radio communication that a fourth suspect was stopped. Officer Eidens took the complainant back to 230 W. Broadway to conduct a showup with respect to the fourth suspect. Officer Eidens testified that the suspect was brought up to the front windshield of his Police car and he asked the complainant if the person was involved in the attack. Officer Eidens testified that the complainant confirmed that [*3]the fourth suspect was involved in the attack. Officer Eidens identified the fourth suspect, in Court, as defendant David. Officer Eidens took the complainant back to the original location to await the arrival of an ambulance

Officer Popper testified that on August 3, 2012, he was working a 10 pm to 8 am tour for the Long Beach Police Department. He was working alone, in uniform and operating a marked Long Beach Police Department patrol car. At approximately 5:16 am, he received a radio call to respond to a large fight at W. Broadway and Laurelton Avenue in Long Beach, Nassau County. Officer Popper testified that upon arriving at that location, he observed a naked woman sitting on a curb, and four individuals (male blacks) running East on the boardwalk. Officer Popper testified that he drove his patrol car to Magnolia Avenue and got out and chased the suspects. He observed one suspect enter a parking garage. Officer Popper testified that he heard a notification that one of the suspects was a male black wearing a white tank top and pink shorts. Officer Popper indicated that the suspect that he saw enter the garage was a male black wearing a white tank top and red shorts. Officer Popper testified that he pursued the suspect into the garage. Officer Popper caught up with the individual, ordered him to stop, and brought him out of the garage and over to the sidewalk. Officer Popper asked the suspect his name and the individual responded that his name was Neville Cameron. Officer Popper identified that individual, in Court, as defendant Cameron. Officer Popper testified that he observed two other individuals (male blacks) run into the garage. He then saw another Police Officer lead the two suspects out of the garage and over to the sidewalk. Officer Popper testified that a showup identification procedure was conducted with respect to the three individuals, wherein each suspect was brought, one by one, up to the windshield of Officer Eidens's Police car.

Officer Wiemann testified that on August 4, 2012, he was working a midnight tour for the Long Beach Police Department. He was working alone, in uniform and operating a marked Long Beach Police Department patrol car. At approximately 5:16 am, he received a radio call to respond to a large fight at W. Broadway and Laurelton Avenue in Long Beach, Nassau County. Officer Wiemann testified that upon arriving at that location, he observed a large group of male and female individuals on the boardwalk. He saw the group run East on the boardwalk. Officer Wiemann testified that he drove his patrol car to Magnolia Avenue to cut them off. He exited his car and ran up the ramp to the boardwalk. He observed one suspect jump down from the boardwalk. Officer Wiemann testified that the individual was wearing a white shirt and blue pants. Officer Wiemann pursued the individual off the boardwalk. Officer Wiemann testified that he heard a notification that one suspect had been stopped. Officer Wiemann testified that he entered a parking garage and found two individuals hiding behind a car. He directed both individuals out of the garage and ordered them to sit on the curb. Officer Wiemann testified that a showup identification procedure was conducted, wherein each suspect was brought, one by one, up to the windshield of Officer Eidens's Police car. Officer Wiemann indicated that one of the individuals was wearing blue shorts. Officer Wiemann identified that individual, in Court, as defendant Boothe. Officer Wiemann identified the second individual, in Court, as defendant Knight.

Officer Yule testified that on August 3, 2012, he was working a 10 pm to 8 am tour for the Long Beach Police Department. He was working alone, in uniform and operating a marked Long [*4]Beach Police Department patrol car. At approximately 5:16 am, he received a radio call to respond to a large fight at W. Broadway and Laurelton Avenue in Long Beach, Nassau County. Officer Yule testified that upon arriving at that location, he heard a radio notification that the suspects were running East on the boardwalk. He received a second notification that one suspect had been stopped. Officer Yule drove his patrol car to 230 W. Broadway. He testified that he entered a parking garage and found two suspects hiding behind a car. Officer Yule testified that he brought the two individuals out of the parking garage and ordered them to sit on the sidewalk. Officer Yule testified that he returned to the original location at W. Broadway and Laurelton Avenue. Upon returning to the location, Officer Yule spotted an individual hiding in the bushes. Officer Yule asked the individual his name and the individual responded Oneil David. Officer Yule testified that he asked the individual what he was doing and the individual responded that he was looking for his friends. Officer Yule brought the individual out of the bushes and had him wait at that location for a showup to be conducted. Officer Yule identified the individual, in Court, as defendant David. After the showup was conducted, Officer Yule testified that defendant David was arrested and put into a Police car.

Detective Bulik testified that on August 4, 2012, he was called into work. He was assigned to investigate the Long Beach assault case. Detective Bulik testified that he first spoke with an individual who he identified, in Court, as defendant Orain Knight. Defendant Knight was in the interview room of the Long Beach Police Department. Detective Bulik had the outer clothing and footwear of defendant Knight collected. Detective Bulik stated that he introduced himself to defendant Knight. Detective Bulik testified that he read to defendant Knight "Miranda Warnings" using a "Miranda" card, which was admitted into evidence as People's Exhibit 4. Detective Bulik testified that defendant Knight indicated that he understood his rights, signed and dated the "Miranda" card, and agreed to answer questions. Detective Bulik testified that defendant Knight made various oral statements. Detective Bulik typed defendant Knight's oral statements and printed out a written statement. Detective Bulik testified that he read the written statement to defendant Knight, gave it to defendant Knight to read, and then asked him to sign the written statement. Detective Bulik testified that defendant Knight signed the written statement which was admitted into evidence as People's Exhibit 5.

Detective Bulik testified that he next spoke with an individual who he identified, in Court, as defendant Oneil David. Defendant David was in the interview room of the Long Beach Police Department. Detective Bulik had the outer clothing and footwear of defendant David collected. Detective Bulik testified that he introduced himself to defendant David. Detective Bulik testified that he read to defendant David "Miranda Warnings" using a "Miranda" card, which was admitted into evidence as People's Exhibit 2. Detective Bulik testified that defendant David indicated that he understood his rights, signed and dated the "Miranda" card, and agreed to answer questions. Detective Bulik testified that defendant David made various oral statements. Detective Bulik typed defendant David's oral statements and printed out a written statement. Detective Bulik testified that he read the written statement to defendant David, gave it to defendant David to read, and then asked him to sign the written statement. Detective Bulik testified that defendant David signed the written statement which was admitted into evidence as People's Exhibit 6. [*5]

Detective Bulik testified that he next spoke with an individual who he identified, in Court, as defendant Neville Cameron. Defendant Cameron was in the interview room of the Long Beach Police Department. Detective Bulik had the outer clothing and footwear of defendant Cameron collected. Detective Bulik testified that he introduced himself to defendant Cameron. Detective Bulik testified that he read to defendant Cameron "Miranda Warnings" using a "Miranda" card, which was admitted into evidence as People's Exhibit 1. Detective Bulik testified that defendant Cameron indicated that he understood his rights, signed and dated the "Miranda" card, and agreed to answer questions. Detective Bulik testified that defendant Cameron made various oral statements. Detective Bulik typed defendant Cameron's oral statements and printed out a written statement. Detective Bulik testified that he read the written statement to defendant Cameron, gave it to defendant Cameron to read, and then asked him to sign the written statement. Detective Bulik testified that defendant Cameron signed the written statement which was admitted into evidence as People's Exhibit 7.

Detective Bulik testified that he next spoke with an individual who he identified, in Court, as defendant Rusheki Boothe. Defendant Boothe was in the interview room of the Long Beach Police Department. Detective Bulik had the outer clothing and footwear of defendant Boothe collected. Detective Bulik testified that he introduced himself to defendant Boothe. Detective Bulik testified that he read to defendant Boothe "Miranda Warnings" using a "Miranda" card, which was admitted into evidence as People's Exhibit 3. Detective Bulik testified that defendant Boothe indicated that he understood his rights, signed and dated the "Miranda" card, and agreed to answer questions. Detective Bulik testified that defendant Boothe made various oral statements. Defendant Bulik testified that defendant Boothe stated that: "He came to Long Beach, there was a fight, and that he didn't hit anyone." Detective Bulik typed defendant Boothe's oral statements and printed out a written statement. Detective Bulik testified that he read the written statement to defendant Boothe, gave it to defendant Boothe to read, and then asked him to sign the written statement. Detective Bulik testified that defendant Boothe refused to sign the written statement.

CONCLUSIONS OF LAW

Counsel for each defendant argues that there was no reason or basis for the stop of their clients. Counsel for defendant Knight contends that there was an innocent explanation for his client being found hiding behind a car in a parking garage. They each argue that the showup identification procedure was unduly suggestive and, therefore, the Police did not have probable cause to arrest the defendants. Each counsel notes that the complainant was told that she was being brought to see the guys that were stopped/apprehended. In addition, counsel for each defendant highlights the fact that after each defendant was identified by the complainant, each defendant was handcuffed in front of the complainant. Counsel for each defendant contends that the statements made by their clients were not voluntarily made. Counsel for defendant Cameron states that his client had a broken hand, during the questioning by the Detectives, and was not give medical treatment until after he made a statement.

The People respond that based on the facts and circumstances known to the Police upon their [*6]arrival at the scene, they had a basis to stop the defendants. The People argue that the showups were not unduly suggestive and the fact that each defendant was handcuffed after being identified by the complainant does not make the identification procedure unduly suggestive. The People contend that the defendants were each advised of their "Miranda Warnings" and gave their statements voluntarily.

REASONABLE SUSPICION:

The 4th Amendment to the United States Constitution guarantees that Citizens shall be free of unreasonable searches and seizures, of individual liberty and privacy, and the right to be left alone. The landmark Court of Appeals decision in the case of People v. De Bour, 40 NY2d 210, 352 NE2d 562 [1976], firmly established that "Before the police may stop a person pursuant to the common-law right to inquire there must exist at that moment a founded suspicion that criminal activity is present," and "the police may not justify a stop by a subsequently acquired suspicion resulting from the stop."

In this case, Officer Eidens received a radio assignment at 5 am for a large fight at the Long Beach boardwalk. Upon his arrival at the scene, he encountered a woman who was stark naked and inexplicably sitting on a curb. Officer Eidens testified that the woman appeared to have been beaten up. When he asked her what happened, she responded that she was beaten up by several male blacks in the area and that they ripped off her clothes. Officer Eidens then observed four individuals (male blacks) standing approximately 100 to150 feet away on the boardwalk. He communicated this information to the other Police Officers. Given these circumstances, this Court finds that the Police had reasonable suspicion to stop and detain each of the four individuals who were in the immediate vicinity of the alleged attack, and who began running away from the scene when the second Police car arrived. Counsel's argument that there could be an innocent explanation for his client fleeing the scene and hiding behind a parked car in a parking garage at 5 am, is untenable.

PROBABLE CAUSE FOR THE ARREST OF THE DEFENDANTS:

The testimony adduced at the hearing established that the defendants were each detained by the Police until a showup procedure was conducted. It is clear that the defendants were not free to leave the scene at that time. Although the defendants were not free to leave the scene, this Court finds that the defendants were not under arrest at that time, but were merely being briefly detained during the investigation. After the showup identification procedure was concluded, each defendant was placed in handcuffs and held in the back of Police cars. At that time, each defendant was obviously under arrest. This Court finds that the Police had probable cause to arrest each defendant based on the statements of the complainant, the flight of each defendant from the scene, and the positive results from the showup identification procedure.

SEIZURE OF DEFENDANT S' CLOTHING:

During the arrest processing of each defendant, their clothing was retained as evidence. The [*7]retention of the clothing of each defendant after they were arrested was legally sufficient since it was incident to a lawful arrest. Moreover, the Police had probable cause to believe that the clothing was evidence in light of the complainant's original description of the clothes worn by each defendant during the alleged attack. (See US v Edwards, 415 US 800, 94 SCt 1234, 39 LEd2d 771 [1974]; People v Woods, 93 AD3d 1287, 940 NYS2d 747 [4th Dept 2012] leave denied 19 NY3d 969, 950 NYS2d 121 [2012]). Therefore, the each defendant's motion to suppress the clothing is denied.

STATEMENTS BY THE DEFENDANTS:

Regarding defendant Knight, he allegedly made various oral statements to Detective Bulik which were reduced to writing. This Court finds that the oral statements, which were reduced to a written statement, were made after defendant Knight was in custody and under arrest. The defendant was being interrogated by the Police when he made the statements; consequently, "Miranda" warnings were required. Detective Bulik gave defendant Knight the appropriate "Miranda" warnings. Defendant Knight indicated that he understood his rights, and he knowingly, intelligently and voluntarily waived his right to remain silent. This Court holds that the oral statements, which were reduced to writing, were voluntarily given by defendant Knight. Therefore, defendant Knight's motion to suppress the oral statements and the written statement is denied.

Regarding defendant David, he allegedly made various oral statements to Detective Bulik which were reduced to writing. This Court finds that the oral statements, which were reduced to a written statement, were made after defendant David was in custody and under arrest. The defendant was being interrogated by the Police when he made the statements; consequently, "Miranda" warnings were required. Detective Bulik gave defendant David the appropriate "Miranda" warnings. Defendant David indicated that he understood his rights, and he knowingly, intelligently and voluntarily waived his right to remain silent. This Court holds that the oral statements, which were reduced to writing, were voluntarily given by defendant David. Therefore, defendant David's motion to suppress the oral statements and the written statement is denied.

Regarding defendant Cameron, he allegedly made various oral statements to Detective Bulik which were reduced to writing. This Court finds that the oral statements, which were reduced to a written statement, were made after defendant Cameron was in custody and under arrest. The defendant was being interrogated by the Police when he made the statements; consequently, "Miranda" warnings were required. Detective Bulik gave defendant Cameron the appropriate "Miranda" warnings. Defendant Cameron indicated that he understood his rights, and he knowingly, intelligently and voluntarily waived his right to remain silent. This Court holds that the oral statements, which were reduced to writing, were voluntarily given by defendant Cameron. Contrary to defense counsel's argument, there is no evidence in the record that the defendant's alleged broken hand caused his statements to be involuntarily made. Therefore, defendant Cameron's motion to suppress the oral statements and the written statement is denied.

Regarding defendant Boothe, he allegedly made various oral statements to Detective Bulik. [*8]This Court finds that the oral statements were made after defendant Boothe was in custody and under arrest. The defendant was being interrogated by the Police when he made the statements; consequently, "Miranda" warnings were required. Detective Bulik gave defendant Boothe the appropriate "Miranda" warnings. Defendant Boothe indicated that he understood his rights, and he knowingly, intelligently and voluntarily waived his right to remain silent. This Court holds that the oral statements were voluntarily given by defendant Boothe. Therefore, defendant Boothe's motion to suppress the oral statements is denied.

SHOWUP IDENTIFICATION PROCEDURE:

Showup identification procedures are permissible when employed in close spatial and temporal proximity to the commission of the crime for the purpose of securing a prompt and reliable identification. (See People v Ortiz, 90 NY2d 553, 664 NYS2d 243 [1997]). In this case, the showup procedure was performed immediately after the alleged incident and a few blocks away from the location of the alleged incident. This Court finds nothing unduly suggestive about the showup procedure or the manner in which it was conducted regarding each defendant. The Police Officer's statement to the complainant, that she was being taken to look at someone that was stopped does not taint the subsequent showup identification procedure. (See People v Guitierres, 82 AD3d 1116, 919 NYS2d 211 [2nd Dept 2011]). Further, the fact that each defendant was handcuffed after being identified does not make the identification of that defendant unduly suggestive. (See People v Gonzalez, 229 AD2d 594, 646 NYS2d 42 [2nd Dept 1996] appeal denied 89 NY2d 923, 654 NYS2d 725 [1996]); People v Carney, 212 AD2d 721, 622 NYS2d 803 [2nd Dept 1995]). Therefore, each defendants' motion to suppress the showup identification procedure is denied.

This constitutes the Opinion, Decision and Order of this Court.

Dated: January 28, 2013

ENTER:

____________________________________

Hon. Norman St. George

Acting Supreme Court Justice