People v Little
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People v Little 2015 NY Slip Op 32573(U) June 25, 2015 Supreme Court, Bronx County Docket Number: 0309/12 Judge: Denis J. Boyle Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: CRIMINAL TERM: PART H94 -- --------- ---- -- --------------- -- ------X t THE PEOPLE OF THE STATE OF NEW YORK t J Indictment Number: 0309/12 - against - ' \ I CHARLES LITTLE, Defendant. - - -- - - - - ~---- - - - - - - - - - - - - - - - - - - - - - - - - - - - Denis J. Boyle, J.: ~ FILED ~ I . " .\ JUN 2 8 2013 ~WUMl lllttl\'~OFFICE BRONXCOUNlY .} A Huntley/Wade!Dunaway hearing has been held before me pursuant to defendant's motion to suppress statements and identificatio~ testimony. 1 Detective Anthony Russo testified for the People. Upon the conclusion of the hearing, the defendant '·s motions to suppress and to preclude were each denied with the instant findings of fact and conclusions of law to follow. Findings of Fact: In making the following findings of fact , Ti10te preliminarily, that Tcred it the testimony of Detective Anthony Russo. 1 On the morning of September 18, 2011 Mr. Jonathan Lopez walked into the 40 h Precinct of the New York City Police Department for the purpose of reporting a robbery which had been committed against him approximately nine hours before. He spoke first, to someone on the ground floor of the precinct and was then referred upstairs to the 40 1" Precinct Detective Squad where he was interviewed by Police Officer Anthony Russo, in his capacity as an officer assigned As will be discussed infra. the defendant also moved, during the hearing, to preclude certain statements. 1 [* 2] ·' to the 401h Precinct Detective Squad.2 Officer Russo's interview with Mr. Lopez began at approximately l 0:30 a.m. that morning. Jn the course of this interview, Mr. Lopez informed Officer Russo, in substance, that he had been at Sin City, a social club located w ithin the confines of the 401h Precinct, the previous night and that after leav ing, while walking to his car, he had been approached by a male who had said to him, "[G]ive me everything." (Hearing Transcript pgs. 6-7). He reported further that he had then gotten into the front seat of his car and that the perpetrator and gotten into the back seat of the car, ';sitting directly behind him, [and had) pulled out a black firearm and said give me everything" at which point the complainant "was then forced to g ive over" his property (Hearing Transcript pg. 7). Mr. Lopez indicated that the property which had been taken from him included a ring, a cell phone, one hundred dollars in cash, his car keys and a Chase debit card. He indicated fu1ther that after the robbery the perpetrator had fl ed a nd that thereafter, he had fal len asleep inside his car (Hearing Transcript pgs. 43 and 46). Mr. Lopez also informed Officer Russo that he had found an identification card while cleaning out the back seat of his .c ar and he providedit to Officer Russo (Hearing Transcript pgs. 8 and 58). The document, a New York State Benefit Card (People's One in evidence), contained the defendant's name, his date of birth and inc.luded, as wel l, a photo of defendant herein (Hearing Transcript pgs. 8-9). Mr. Lopez stated to Officer Russo tha t the man depicted in the photo on the benefit card was the person who had robbed him. He added that the perpetrator was a male black, 5'7 or 5'8 in height (Hearing Transcript pgs. 6.0 and 79). Officer Russo then cook the information from the benefits card regarding defendant's name I 2 The· hearing record . reflects tlrnt now Detective Anthony Russo has been a member of the New York City Police Department for fifteen years. 2 [* 3] and date of birth and programmed it into the Precinct photo manager computer application, an "on-line mug shot bank" (Hearing Transcript pg. 9). By doing so, the officer was able to " pull up" a photo of the defendant from the data bank (Hearing Transcript pg. 9). Officer Russo then took the photo of the defendant and placed it in random order into an array of five other male individuals (People's Exhibit Two in evidence). 3 Prior to showing the array to Mr. Lopez, Officer Russo read certai n instructions to him from a checkl ist concerning "what [was) about to happen and what the complainant could expect" (Hearing Transcript pg. 12). The officer also read to Mr. Lopez. instructions w hich were printed on the photo array itse lf. Officer Ru sso then showed the photo array to Jonathan Lopez. Mr. Lopez proceeded to identi ry the person depicted in photo number four, defendant herein, as the person who had robbed him the night before. Present also for this procedure was Detective Rodriguez. App~oxirnately twenty minutes had · passed between the time when Mr. Lopez had first shown Officer Russo the New York State benefits card and his identification of the defendant in the photo array (Hearing Transcript pgs. 57-58). Following the positive photo array identification of the defenda nt, Officer Russo generated an i-cardfor the defendant and "sent it out to all commands" informing them that the defendant was the subject of a n arrest warrant (Hearing Transcript pgs. 13- 14; see, pg. 71 ). As part of his continuing inves tigation in the months that followed; Office r Russq also prepared a Wanted poster through an on-line system wich the defendant's name, last lqiown addresses and photo on it and distributed it in various locati ons and precincts in the vicinity (Hearing Transcript 3 . Reference to People's Two, the photo array in evidence at the hearing, reveals that it consists o f six black males; each individual depic ted possesses s ubstantially similar physical characteristics including skin tone, age range, build and hair style. 3 .._........................_........_......___.......... [* 4] pgs. 42, 48-49). On January 3, 2012 Officer Wade, assigned to the PSA 8 Housing C rime Unit observed the defendant in a corner bodega and, based upon the officer's recognilion of the defendant from a Wanted poster at the 43'd Precinct Housing Command, he placed the defendant under arrest (Hearing Transcript p g. 15). Officer Ward then tra nsported the defendant to th e PSA 8 Command and notified Officer Russo. Upon being contacted by Officer Ward with this information, Officer Russo proceeded to the PSA 8 Command in the company of a detective. When Officer Russo and his colleague arri ved at PSA 8, Officer Russo introduced himself to the defendant and proceeded to verify through defendant's name, date of birth and a NYS ID number check that the defendant was, " in fact, the gentleman that we were looking for" (Hearing Transcript pg. 16). After Officer Russo verified the .defendant 's ident~ ty he informed the ........ defendant that he was under arrest. He p laced the defendant in handcuffs and then Officer Russo and the detective drove the defendant to the 40' 11 Precinct. While en route, the defendanl inquired, in substance, as to "what is goi ng on," arid Officer Russo to ld him they "will talk about it when we get upstairs" (Hearing Transcript pgs. 67-68). Subsequent to their arri va l at the 40 11' Precinct Detective Sq uad. the defendant was escorted to an interv ie w roo m.~ The ti me was approximately 2:30 p.m. that afternoon (Hearing Transcript pgs. 3 1-32). In the presence of Detective Parks, Officer Russo then read to the defendant each of his Miranda rights from a Miranda car·d (People's Exhibit Four in evidence). 4 The hearing transcript refl ects that the dimensions of the room are approximately twel ve feet by twelve feet a nd that it has a bench in it as well as two or three seats (Hearing Transcript pg. 30). The record fw1hcr re fl ects that prior to the defendant's interrogation, he was offered food, drink and the opportunity to use the bathroom (Hearing Trans.cript pg. 29). 4 lj l [* 5] The defendant responded yes verbally to each respecti ve Miranda warning. Officer Russo then had the defendant initial each printed reply on the card. He placed his signature at the bottom of the card as well (Hearing Transcript pg 33; see, pgs. 32-35 and 68-69). The defendant appeared calm throughout this process (Hearing Transcript pg. 35). After the Miranda warnings had been read to the defendant and his waiver of those rights obtained, the defendant gave a verbal statement to Officer Russo. In substance, he told Officer Russo that on the night of September 18, 2011 "he was trying to get into the club, Sin City, but he was talking t6 the girls that were on the line. He was showing them money because he was trying to get one of the girls to leave with him instead of going inside. He told [Officer Russo] he was going to blow money inside, he [would] much rather take a girl and blow money on her without going in" (Hearing Ttanscript pg.36). At that point, Officer Russo showed the defendant the benefit card which the complainant had given to the officer, whereupon the defendant stated that" he [had] lost it and that ... it wasn't in the back seat of a car" (Hearing Transcript pg. 39). After seeing the benefits card the defendant's demeanor changed; he "becnrne nervous, visibly disheveled" and "he didn't want to talk [to Officer Russo] anymore" (Hearing Transcript pg. 40). The interview had taken approximately .ten minutes (Hearing transcript pg. 69). Later lhat afternoon Officer Russo made arrangemen[S for a lineup to be conducted at I 086 Simpson Street. He contacted Jonathan Lopez and thereafter, Detective Rabukis met Mr. Lopez and brought him to I 086 Simpson Street. Upon arrival, Mr. Lopez was placed in a room "(O]n the other side of the floor" from where the fillers were to be kept (Hearing Transcript pg. 19; see, pg. 25). Officer Russo arrived at I 086 Simpson Street with the defendant after the complainant. The officer placed the defendnnt is a cell and then spoke to the complainant to inquire if he 5 [* 6] "needed a drink or a bathroom run" and assured him that "this will be over in a little bit [and that Officer Russo would) be back to get [him) when we' re ready"(Hearing Transcript pg. 66). 5 In further preparation for the Iineup, fillers fo r the lineup were contacted and upon their arri val at 1086 Simpson Street, they were placed in a separate room from the com plainant and from the defendant (Hearing Transcript pg. 19). The defendant was then given his choice of where to sit ! t l .j, amongst seats one through six. He chose seat number four. The fillers were then seated in their respective seats in the lineup room by the security officer, Officer Rodriguez, and when that was accomplished, the defendant was escorted inio the room and he took his seat in seat number four. The pa11icipants in the lineup were then given a plastic bag which they held up to their necks so as to hide their clothing (Hearing Transcript pg. 28). Each of the lineup part icipants was also issued "the same black wool hat" which they pl aced on their heads (Hearing Transcript pg. 28). A photog·raph was then taken of the lineup (People' s Ex hibit Three in evidence). When the lineup was ready to be viewed, Officer Russo spoke to Mr~ 6 Lopez to "expl ain to him what is going on" (Hearing Transcript pg. 20). In doing so, the officer read a checkl ist of instructions to Jonathan Lopez and, in substance, informed Mr. Lopez "that h~ was going to view a lineup and [the officer] wanted hi m to identify anybody that was farni liar to him [and) if he does so, he [was] to tell [Officer Russo] vvhere he remembers him from .. (Hearing T nmscript 5 The hearing record reflects that Officer Russo made his inqui ries of the complainant as to whether he needed a drink or access to the faci lities because "everybody has to be supervised with them there"(Heari ng Transcript pg. 66). 6 A review of People's Three, a photograph of the lineup here in issue, reveals that it consists of six black males. They are each seated and each participant has a plastic bag pulled up to their necks, covering their torsos. Each seated participant 'is wearing a similar black woolen cap on their head and al l six lineup participants share sim ilar physica l characteristics including age range, facial hair and build. 6 ·; [* 7] / pg. 27). Officer Russo then escorted Jonathan Lopez into the lineup viewing room. Once inside the room, Offi cer Russo repeated hi s instructions to Mr. Lo pez again regarding the impending lineup procedure. Offi cer Russo then pulled up a screen to a two- way window revealing the seated lineup participants in the adjo in ing room. Upon viewi ng the lineup, Jonathan Lopez identified the defendant, seated in seat number fou r, and informed Officer Lopez that he recognized him as the person who had robbed him the night that he was leaving Sin City (Hearing Transcript pg. 27). The ri me was approx imately 5:00 p.m. Officer Russo then removed Mr. Lopez from the lineup viewi ng room and brought him back to the room he had prev iously been wa iting in. The officer then brought the photo of the lineup to Mr. Lopez and had him circle and initial the porti on of the photo dep icting the defendant (Hearing Transcript pg. 28). Thereafter. the defendant was taken back to the precinct and fro m there, he was transported to Central Book ing. Conclusions of Law: I wil l address first, that branch of defendant's motion to suppress which seeks suppression of ident ification testimony. In support of defendant's motion to suppress identificati on testimony, defendant contends, in substance. th at the photographic identi fica tion in thi s case was suggestive given that the complainan t hnd enlcred the precincc in possessio n of a photograph of defendant and , under the circumstance, the People did not go forwa rd at the hearing with sufficient evidence regarding the com pl ainant's abil ity to make an identification (Hearing _ Transcri pt pgs. 96-98). The defendant argues, in fu1i her support of this contention, the fai lure to adduce evidence regarding the complainant' s mental state at the time of the incident as well as an absence of evidence at the hearing regardi ng the light ing conditions inside the vehic le in which 7 [* 8] / . / the robbery occurred and more generally, a failure in the hearing record to introduce evidence concerning the complainant' s opportunity to observe the perpctrator. 7 In consideration of defendant's arguments, I would note initi ally that the photograph ic array from which the complainant made his identification of the defendant was fairly corn prised ( People v. Lee, 96 NY2d 157; People v. Drayton, 70 ADJd 595 [First Dept. 20 I 0), Iv.denied 15 NYJd 749; see, J l .1 I People v. Thomas, I 04 ADJd 7 1O(Second Dept. 20 I 3]). In this regard, I would add that any arguable difference between defendant's age and skin tone from that of the other males in the photo array was so sligh t as to be "barely noticeable" and diu not render the composition of the photo array suggestive (People v. Reyes, 60 ADJd 873 at pg. 874 [Second Dept. 2009]. Iv. denied 12 NY3d 920; see, Peop le v. Garris, 9.9 ADJd I0 18 [Second Dept. 2012], app. denied 21 NYJd 91 2; People v. Sm ith, 140 AD2d 647 (Second Dept. 1988], app. denied 72 NY2d 961). It bears adding that the image of the defendant in the photo array is a different image than that depicted in his New York State benefits identifi cation card. Mo reover, the record satisfies me that the photo array identificat ion procedure was fa irly conducted. Clearly. there was no police involvement in the viewing by Mr. Lopez of the benefits card which he fou nd in the backseat of his vehicle (See, People v. Marte, 12 NY3d 583; see also, People v. Liebert, 71 AD3d 513 [First Dept. 201 OJ, Iv. denied 15 NYJd 752; People v. Stevens, 44 AD3d 882 [Second Dept. 2007);cf. People v. Racine, 28 Misc3d 1223(.A.) ,Suprernc Court Kings County (20 1O]). I find nothing in 7 lt should be noted as well, "(W]hether or not an actual misidentification has occurred is not the issue at a Wade hearing. At a Wade hearing, the Court is not required to make such a finding; the thresho ld is on ly whether the po lice procedures employed in this case were so flawed that the Peop le are unab le to meet their initial burden of go ing forward to demonstrate the legality of the police conduct and the lack of suggestiveness in the identification procedures used (People v. Berri os, 28 NY2d 36 1 (1974J)(People v.Lewis, 20 Misc3 d I J 36(A), Supreme Court Kings County [2008]). 8 - - .___ -- i i [* 9] / / the photo identification procedure conducted by Officer Russo to have been unduly suggestive (See, People v. Mathis, 94 ADJd 428 [First Dep t. 20 12], Iv. denied 19 NY3d 975). 8 T any event, "[B)ecause evidence of a pre-trial photographic identification, even if found n not to be suggestive or not t.o have been ta inted by prior sugges tive ident ificat ion procedures, is not adm issible at trial (People v. Caserta, 19 NY2d 18,20 [ 1966J). the issue to be dec ided in this case is not whether testimony concerning the photographic identification should be 'suppressed' but, rather, whether testimony concerning the subsequent lineup identification and prospective in-court identi fication should be suppressed as a result of a finding that the [photo) identification procedure was unnecessarily suggestive ... and tainted by the prior identification procedure" (Peopl e v. Racine, supra). Here, the record makes clear that the passage of approx imately three and a half months between the photo graphic identifi cation procedure and the lineup identifi cation by Mr. Lopez "attenuated any possibl e taint of suggestiveness" (Peop le v. Nedd, 79 A03d 1150 at pgs. 11 50-1151 [Second Dept. 20 1OJ ; see, People v. Mathis. supra: Peop le v. Li ebert. supra; People v. Thompson, 17 AD3d 138 [First Dept. 2005 ], Iv. denied 5 NY3d 795; People v. Hamilton, 27 1 AD2d:6 l 8 [Second Dept. 2000), Iv. deni ed 95 NY2d 797). With reference to the lineup procedure itself, the hearing record establishes that the lineup was fairly comprised. Review of People's Three, the photograph of the lineup in. issue, reveals that any "minor variations in height ... did not render the lineup impermiss ibly suggestive or conducive to mistaken id entification (citations omitted)" (People v. Cox, 54 ADJd 684 at pg. 685 The photo array identification of the defendant by the comp lainant, Mr. Lope~. provided Test for the robbery committed upon Mr. Lopez (People v. probable cause for defendant's a1 Higgins, 178 AD2d 199 [First Dept. 199 1), app. denied 80 NY2d 832; People v. Woolcock, 7 Misc3d 203, Supreme Court Kings County [2005]). 8 9 [* 10] [Second Dept. 2008], Iv. denied 11 NY3d 896; People v. Grant, 43 AD3d 800 [First Dept. 2007], Iv. denied 9 NY3d 990). Indeed, in this case, "any discrepancy in height between the defendant and the fillers was minimized by the fact that the witnessf es] viewed the lineup participants while the participants were seated (citations omitted)"' (People v. Solis, 43AD3dI190 at pg. 1191 [Second Dept. 2007), Iv. den ied 9 NYJd 1009; see, People v. .Jackson, 61 AD3d 620 [First Dept. 2009), Iv. denied 13 NY3d 745, Habeas Corpus Denied 2012 WL 2512015 [EDNY 20 12); People v. Grant, supra). Further, "all of the lineup participants appear[ed] to be roughly the same age" (People v. Reyes, supra). Similarly, any "variation in ski n tone among the various members of the lineup was not sign ificant" (Peop le v. Stephens, 254 AD2d I 05 [First Dept. I 998], Iv. denied 93 NY2d 879; see, People v. Lind, 20 ADJd 705 (Third Dept. 2005], Iv. den ied 5 NY3d 830; People v. Fewell,:4 3 AD3d 1293 [Fourth Dept. 2007], Iv. denied 10 .NY3d 862; People v. Villacreses, 12 AD3d 62 11 [Second Dept. 2004], Iv. denied 485 F. Supp. 2d 239; Affrl. 327 Fed. Appx. 303: People v. 4 NY.3d 768, Habeas Corpus Den ied Stevens. supra). I would add tl1at the placing of woolen caps on the head of each lineup participant and the draping of their torsos operated to further minimize potential for an unduly suggestive element in the composit ion of the lineup (People v. Farrell, 28 ADJd 244 [First Dept. 2006], lv. denied 6 NYJd 894; People v. Brown, 47 ADJd 826 [Second Dept. 2008], Iv. deni ed 10 NYJd 838). [1; shon, the lineup was . fairly composed and surely not unduly suggestive(Pcople; v. Chipp. 75 NY2d 327 (1990], ce1 t denied 498 US 833). The hearing record also makes clear that the lineup identification procedure in question was fairly conducted. for the foregoing reasons, l find that "the li neup was lawful since he was already in lawful custody when .he was placed in the lineup (ci tati ons omilted)" and further, that the instant record presents no basis for suppression of iden tification testimony. 10 [* 11] (People v. Stevens, supra at pg. 883; see foot note 8, supra). The defeQdant's motion to suppress identification testimony is, therefore, in all respects, denied. I will address next, the defendant's dual motions to suppress a portion of the statement he gave to Officer Russo on January 3, 2012 and to preclude a portion of that statement which defendant contends was not properly noticed pursuant to CPL section 710.30( l )(a). I would I J I t begin this analysis by noting that the statcn1en t in issue was constitutionally obtained. The i defendant was, as indicated supra, lawfully ai-rcsted and thus, legally in custody at the time he 'J ( l gave this statement to Officer Russo. Moreover, the hearing record establishes that while in custody he was properly issued a full set of Miranda warnings prior to his interrogation and his waiver of those rights was clearly a knowing, intelligent and vo luntary one. The exculpatory thrust of his statement reinforces this conclusion (People v. Harris, 167 AD2d 220 [First Dept. 1990), app. denied 77 NY2d 878 ). To the extent that defendant seeks suppression of that pmt of the statement for which he does not seek preclusion. that rnotion is denied. A determination of that branch of defendant 's motion which seeks preclusion of a portion of defendant's statement to Officer Russo requ ires reference to the statement included in the People's 710.30(1 )(a) notice and a comparison of it to the statement attributed to the defendant by Officer Russo as testified to at the hearing before me. The statement notice in this case by the People reads," I remember being around Sin City on September 18, 20 l l when I was t1ying to get women to come with me instead of go ing inside the club. I •vas going to blow the money inside, so I might as well blow the money outside. I called a cab, called DAT cab to get there. l was alone. l was showing off to the girls on line. I had my LD. \Ni th me. Yeah. that's my benefit card. Yeah, that's me. l didn 't leave it in 11 i [* 12] I l ·1 t .i • anyone's car" (Hearing Transcript pgs. 38-39). The statement testified to at the hearing is discussed and quoted, supra. The defendant's morion to preclude a portion of his statement turns ,• unlike the statement testified to at the hearing itself. did not include reference to defendan t's I denial that he had left the identification card in the "backseat'·lof a car (See.. Hearing Transcript 1 on the argument that the pretrial 710.30( I )(a) notice provided by the People to the defendant, pgs. 88- 91). In support of this argument, defense counsel rnajntains. in substance, that the omission ofa specific reference to the backseat of the car in the People's 710.30(1)(a) notice renders the statement testifi ed to at the hearing substantial ly n1ore incriminating than the i i statement reflected in the People's statement notice, requiring~. in turn, preclusion of the mo.re ! incriminating portion of defendant 's statement (People v. Gre~r, 42 NY2d 170). In People v. Greer, supra, relied upon by the defendant, the unnoti ced portion of defendant's statement was highly incriminating and operated to change ent irely the tenor of the statement wh ich was the subject of the CPL 710.30 notice in that case. There. the stateme nt in .i1s ent irety manifestly changed the statement in issue from an exculpatory statement to an i11culpatory one. Here, by contrast, while the statement testified to at the bearing before me varies somewhat from that set forth in the People's notice pursuant to CPL 710.30, it is a variation of minor import. As he ld in People v. Coleman (256 AD2d 473, Iv. denied 93 NY2d 872 [Second Dept. 1998]). "[J\]lthough the statement identified in the notice, provided pursuant to CPt 710.30 differed somewhat from the statement provided by the pol ice officer al the;: pretrial hearing, suppression of.the statement was not warranted because the CPL 710.30 notice notified the defendant of the sum and substance of the statement (see, People v. Reid. 215 AD2d 507: People v. Martinez, 203 AD2d 212 ). Moreover, to the ex t<:nt that the CPL 71O.JO notice did not include the entire statement, 12 '! [* 13] / the remaining part of the statement was made to the same pol ice offi cer during the same conversation, in the same location as the statement identified in the CPL 710.30 notice. Therefore, the defendant was given sufficient notice of the statement as to enable him to tim~ly move to suppress it (see, Peo ple v. Martinez. supra; see also, People v. Rodney, 85 NY2d 289; People v. Lopez, 84 NY2d 425)" (People v. Coleman. supra at pg. 474). Accordingly, the defendant's motion to preclude that porti on of the defe ndant's stntement \V hich defendant claims was insufficiently noticed pursuant tu CP L 710.30 is denied (People v. Coleman, supra; People v. ' 'i Cabrera, 63 AD3d 11 76 [Second Dept. 2009], Iv. denied 13 NY3d 834; People v. Carter, 44 ! ' I i ADJ d 677 [Second Dept. 2007), Iv. denied 9 NYJd I 031 ). '! For the foregoi ng reasons, the defendant's respective motions to suppress evidence of his statement to Officer Russo and separately, to preclude a portion or his statement to Officer Russo on the ground of insufficient CPL 7 J 0.30 notice are each, in all respects, den ied. Thi s opinion constitutes the decision and order of the Courl. Date: J J)J8 ~),J; J..tJf3 -----·~ · Dc111s J. Boyle, A..l.S .C. 13 ,.
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