People v Santana

[*1] People v Santana 2013 NY Slip Op 50897(U) Decided on May 30, 2013 Supreme Court, Kings County Dwyer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2013
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Ediberto Santana, DEFENDANT.



2613/11



For Defendant:

Andres M. Aranda, Esq.

930 Grand Concourse Suite 1A

Bronx, NY10451

(718) 590-1904

For the People:

Adriana Rodriguez, Esq.

Kings County District Attorney's Office

350 Jay Street

Brooklyn, NY 11201

Mark Dwyer, J.

Defendant Ediberto Santana is charged in 21 counts with robbery, assault,

and related offenses. The People's theory is that defendant and other members of a gang known as the Trinitarios attacked two men in a Brooklyn subway station on June 10, 2011. Defendant has moved to suppress statement and identification evidence. The motion will be granted in part.

A

The People have presented testimony that Randy Medina and Lester [*2]Ecchevaria reported an assault and robbery on June 10, 2011, at the 59th Street subway station on Fourth Avenue. The victims said that they were attacked by a group of 10 to 15 male Hispanics armed with knives and bats. They were forced onto the subway tracks, and the gang then ran from the station. Medina was hospitalized for treatment of his injuries.

Detective Wilfred Atkinson of the Brooklyn Robbery Squad located security videos from two stores that showed young men running from the 59th Street station at about the time of the crime. He also discovered that on the night of the crime, after arrests in a park a mile or two away from the crime scene, defendant and 10 other individuals had been given desk appearance tickets for Unlawful Assembly and Disorderly Conduct. On June 14, 2011, the detective showed the crime scene videos to the victims in separate viewingsMedina's at the hospital. Both men identified individuals on the videos as members of the gang of attackers. The People assert that one of these men was defendant, and that at least one victim knew him by his nickname, "Flaco." After those viewings, Detective Atkinson showed the victims the "prisoner movement slips" of the 11 men arrested late on June 10th. On each of those movement slips was the arrest photo of the particular defendant. Each victim picked out about eight men as members of the gang. Defendant was selected by both victims.

Detective Atkinson took defendant and five other men into custody at Brooklyn Criminal Court when they appeared on July 19, 2011. The detective then arranged six lineups, each viewed separately by both victims. Defendant was identified by both men; one other suspect was selected from another lineup.

Defendant appeared in his lineup with four fillers, among whom were police officers and civilians. Defendant was 21 years old, 6 feet 2 inches tall, and thin. The fillers were 27 to 29 years old. Their heights were 5 feet 6 inches, 5 feet 7 inches, 5 feet 10 inches, and 6 feet 2 inches; they were seated during the lineup. One had a skin tone similar to defendant's; the others were lighter. Defendant's hair was tied back, but he was the only participant with long hair. Defendant had very unusual facial hair. His beard was two inches long, coming down straight from the chin; it was reminiscent of a style that, if Brooklyn Museum artifacts speak true, was popular among Egyptian Pharaohs some four thousand years ago. The fillers either were clean shaven, or at most had relatively light and conventionally-styled facial hair.

Defendant was interviewed on the night of July 19-20, 2011, after receiving his Miranda warnings in Spanish and waiving them. Defendant conceded that he [*3]was present at the 59th Street subway station when the attacks took place.

B

As noted, defendant challenges the identification testimony of Medina and Ecchevaria. His first argument is that it was impermissibly suggestive to show the victims the surveillance videos depicting people leaving the 59th Street subway station, but that contention is frivolous. It is not suggestive to show a victim or a witness a video of a crime in progress, or of its immediate aftermath. Viewings of such videos "suggest" nothing. They do let the witnesses inform the police that particular people at the crime scene did or did not participate. But the videos "suggest" nothing about the identities of those who did participate. It may be that, at trial, the witnesses will even be able to recount their June 14, 2011, identifications of defendant on the videos. See People v. Edmunson, 75 NY2d 672 (1990); People v. Gee, 286 AD2d 62, 66-71 (4th Dep't 2001). This court will leave that question for the trial judge. It is clear, in any event, that the viewings of the video tainted no other evidence.

C

Next, defendant complains of the identifications from the photo on his prisoner movement slip on June 14th, and this objection has merit. The victims were shown 11 photos from movement slips, in what might be termed an unusual sequential photo array. The problem with the array is that it was made up wholly of suspects. Even without regard to the dramatic differences in the suspects' appearances, an array full of suspects is as impermissible as would be a lineup of 5 suspects. The fact that the witnesses would be seeing several people they might recognize would inevitably suggest that the others present were guilty as well.

One final word remains, as to the photo identifications. The People note that the witnesses had already picked defendant out on the videos. The People argue that the photo identifications were merely confirmatory, and as such not impermissibly suggestive. But this is not a case in which a witness spots a person on the street and points him out, and then confirms the identification when the [*4]person is arrested nearby a few minutes later. See, e.g., People v. Martindale, 202 AD2d 158 (1st Dep't 1994). Here, all the police had was a crime-scene video on which "Flaco" appeared. The identification that links that image of "Flaco" to the picture on the prisoner movement slip for Ediberto Santana was a first-time identification of defendant, not a confirmatory one. See People v. Gee, supra.

Defendant cites People v. Leibert, 71 AD3d 513 (1st Dep't 2010), but his argument is unpersuasive. In Leibert the witness viewed a crime scene video and pointed out the defendant. Later, he chanced to come up behind detectives holding photos of defendant and his brother, and the witness identified defendant from his photo. The Court noted that the identification was not police-arranged, and doubted that suggestivity rules were applicable. In any event, a subsequent lineup was fairly conducted six weeks later, and the court concluded that any suggestiveness was attenuated by then. Here the photo "array" was police arranged, and the lineup (as will soon be seen) was problematic.

This court can understand why it would have been hard for Detective Atkinson to create 11 fair arrays with many, many more prisoner movement slips. But logistical difficulties cannot undo the complaint of a particular defendant that his own identification was quite possibly the product of undue suggestion. See People v. Woolcock, 7 Misc 3d 203, 211-12 (Sup Ct Kings Co 2005) (Reichbach, J.) The photo ID of June 14th plainly would itself be inadmissible in any event, under the relevant rule of New York evidence.People v. Caserta, 19 NY2d 18 (1966). But this court concludes that the photo procedures on June 14, 2011, were suggestive, and will take that into account when assessing the admissibility of later identifications.

D

Defendant argues that the lineups in which he was placed on July 10, 2011, were unduly suggestive, and once again this court agrees. It is well settled that due process forbids conducting a lineup procedure which unfairly suggests which participant the police believe to be the criminal. The fillers in a lineup need not match the suspect's appearance perfectly. Still, their features must be such that the defendant is not singled out. People v. Chipp, 75 NY2d 327 (1990); People v. Woolcock, 7 Misc 3d at 213-14, supra.

In this court's view, the lineup in which defendant was placed was not up to standard. Essentially, defendant was younger, taller, thinner, and darker than the fillers. One filler was defendant's height, and in skin tone one was about as dark as defendant, but defendant did not blend in. Most importantly, his long hair singled him out, even though it was tied back, and so too did his very unusual chin hair. And all of this followed identifications from a suggestive [*5]photo array in which defendant appeared with his long hair tied back, and with his very unusual chin hair.

Once again, this court does not mean to be unfair to the detective. He was obliged to set up six separate lineups, each to be separately viewed by two witnesses. His assignment was a most trying one, and the fact that only two suspects were selected suggests that he for the most part created fair lineups. But this defendant deserved a fair lineup, without regard to logistical difficulties or whether other lineups were fair. People v. Woolcock, 7 Misc 3d at 211-12, supra. Defendant has met his burden of showing by a preponderance of the evidence that his lineup identifications should be suppressed. See, e.g., People v. Breitenbach, 260 AD2d 389 (2d Dep't 1999); People v. Woolcock, 7 Misc 3d at 212-13, supra.[FN1]

E

The suppression of pre-trial identification evidence does not necessarily require that in-court identification testimony be precluded as well. If the People can show that a witness has a "source" for an in-court identification that is independent of the tainted procedures, the witness can still be asked whether he sees the defendant in the trial court.

In this case the People asked that the suppression hearing be "bifurcated"that any exploration of independent source be reserved until after the court's determinations as to suggestiveness. See e.g., People v. Jones, 215 AD2d 244

(1st Dep't 1995). The court agreed, and so the next step in this case will be to conduct a hearing as to independent source. In that regard, there is already evidence in the record that at least one witness knew defendant "from the neighborhood" as a person nicknamed "Flaco."

F

Finally, the court will briefly address the admissions made by defendant after his arrest. This court has already advised the parties of its conclusions that the People's witnesses were credible; that defendant's Miranda rights were honored; and that defendant's statements were voluntary.

The determination to suppress identification evidence raises an additional question: are defendant's admissions, made after an arrest that followed the tainted identifications, suppressible as the fruit of the flawed identification procedures? This court concludes that they are not. The crime scene videos and the identification of "Flaco" as one of the gang members supplied [*6]untainted probable cause to arrest defendant but for one thing: the police did not yet know defendant's name. His identity was learned by means of the photo identification involving the prisoner movement slip. But a defendant's identity is not evidence subject to suppression, even if illegally obtained; only the suggestive identification testimony will be suppressed. People v. Tolentino, 14 NY3d 382 (2010). app. dism'd, 131 S Ct 1387 (2011); People v. Pleasant, 54 NY2d 972 (1981). When defendant's name is added to what the police already knew, the police had untainted probable cause to hold defendant when they questioned him. The admissions are not subject to suppression as fruit of the suppressed identifications.

SO ORDERED :

E N T E R:

____________________________________MARK DWYER

Justice of the Supreme Court Footnotes

Footnote 1: Readily distinguishable is People v. Callace, 143 AD2d 1027 (2d Dep't 1988). In that case the defendant was the only individual in a photo array with a goatee, but the Court emphasized that the goatee was small, the fillers all had mustaches, and the defendant did not stand out. That cannot be said of defendant in his lineup.