People v Salina

[*1] People v Salina 2019 NY Slip Op 50847(U) Decided on May 16, 2019 Criminal Court Of The City Of New York, Queens County Gopee, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2019
Criminal Court of the City of New York, Queens County

The People of the State of New York

against

Brian Salina, Defendant.



CR-034730-18QN



Shannon Riordan and Amanda Dolan, Assistant District Attorneys, for the People

Gregory Coleman, The Legal Aid Society, for the Defendant
Karen Gopee, J.

Summary of the Court's Decision

The People and Defendant's request for a Mapp hearing is held in abeyance and oral arguments are ORDERED.

The defendant's unnoticed statements at the scene, contained on the Body Camera are PRECLUDED.

Suppression of the statement at the scene, "we got into a fight because my credit card was not working," is GRANTED

Suppression of the statement at the precinct, "we got into a fight because my credit card was not working," is GRANTED.

Suppression of the identification procedures is DENIED.

A Dunaway/Huntley/Wade hearing was held before this Court on March 28TH, 2019. Police Officer Gregory Trimarchi testified for the People. The People also introduced a body camera into evidence [*2]as People's Exhibit 1. The defense presented no witness testimony or other evidence.

Findings of Facts

This Court credits the testimonies of Officer Trimarchi and makes the following findings of fact.

On October 7TH, 2018, at approximately 5:25p.m., by Archer Avenue and 165TH Street in Queens County, Vijay Barroo and Kyle McDonald flagged down Police Officer Trimarchi and Officer Moore, and stated that they had just been robbed of a cell phone, showed the officer injuries to a hand and described the perpetrator as a male black, wearing red pants. The officers and both complainants canvassed the area for approximately thirty seconds when the complainants said, "that's him," and pointed to the defendant, who fit their description.

When Officer Trimarchi attempted to approach the defendant, the defendant ran. After a short chase, defendant was tackled to the ground and placed under arrest. Thereafter, the defendant stated, "he did not want to fight them so he left." The body camera also captured the defendant stating, "they mad cause they wanted to fight me so I left, they mad at me, they wanted to fight me after they fixed my phone." While at the 103RD precinct, the defendant also stated, "they got into a fight because his credit card was not working."

Conclusions of Law

Physical Property/Request for Mapp Hearing

While a Mapp hearing was initially ordered, prior to the commencement of this hearing, the People indicated that no Mapp was not necessary because they "don't intend to physically move in the cell phones that were recovered as they were vouchered for safekeeping, and [they] believe the defendant has picked them up already." Hearing p. 4, l 16-22. In their written argument, the People now argue that they intend to use observations of the recovery of the cell phones when the defendant was arrested as evidence at trial. Both parties agree that a Mapp hearing is necessary to determine the admissibility of the observations of the cell phones. It seems that the recovered cell phones belonged to the defendant and People wish to use the observations and recovery of the cell phones from the defendant's person at trial. The request for a Mapp hearing is held in abeyance, and this Court orders oral arguments on entitlement to a Mapp hearing, when the People initially waived the hearing.

Preclusion of the Defendant's Statement to Officer Trimarchi

The People served notice pursuant to C.P.L. § 710.30(1)(a) indicating that on October 7TH, 2018, at 5:34p.m., at Guy R Brewer Boulevard and Liberty Avenue, the defendant told Police Officer Trimarchi "we got into an argument because my card was declined." To date, no other notice pursuant to C.P.L. § 710.30(1)(a) was ever served.

The defendant was arraigned on October 8TH, 2018 and the body camera video, People's Exhibit 1, was provided to the defense on March 7TH, 2019. The statement notice does not include statements made at the scene, contained on the body camera [FN1] or any statements made at the precinct.

C.P.L. § 710.30(1)(a) requires the People to serve notice of any statement intended to be offered at trial made by a defendant to a public servant within fifteen days of arraignment. See People v. Chase, 85 NY2d 493, 500 (1995); People v. Barnette, 150 AD3d 1134, 1136 (2d Dept. 2017)(court "agreed with the defendant that the Supreme Court should have precluded the People from introducing into evidence statements he made to a detective on the ground that the People failed to provide notice of those statements in accordance with C.P.L. § 710.30"). Furthermore, the "defendant was entitled to notice under C.P.L. § 710.30(1)(a)" when the statement "was made to a law enforcement official" because "the defendant ha[s] the right to have a court review the circumstances under which the statement was given and to determine its voluntariness, including whether it was truly spontaneous or the functional equivalent of interrogation." People v. Chase, 85 NY2d 493, 500 (1995).

The fact that the People turned over the body camera footage pursuant to their discovery obligations is of no moment. It is well settled that C.P.L. § 710.30(1)(a) notice violations cannot be cured by discovery. See, e.g., People v. Lopez, 84 NY2d 425, 428 (1994); People v. Phillips, 183 AD2d 856 (2d Dept. 1992). Even though the People correctly state that a complete verbatim transcript of the defendant's statement is not required, the noticed statements here are never included in People's Exhibit 1.

The People's reliance on People v. Schnugg, 257 AD2d 669 (2d Dept. 1999) and People v. Serrano is misplaced. In Schnugg, both the prosecution and the defense counsel asked questions about the unnoticed statement and the defense counsel moved for suppression, rather than preclusion. 257 AD2d at 670. Similarly, the defense counsel waived preclusion in Serrano when he moved for suppression on the unnoticed statement and received a full hearing on their admissibility. 60 Misc 3d 1230(A) at *3. Here, the defendant did not ask any questions about any purported statements on the body camera footage and the defendant properly moved for preclusion, rather than suppression. Accordingly, the defendant's motion to preclude the statements captured on People's Exhibit 1, the body camera, is GRANTED.[FN2]

Probable Cause

In a suppression hearing, while a defendant has the ultimate burden of proving illegality, the People have the initial burden of "going forward," i.e., to introduce evidence that credibly establishes either a lawful rationale for the conduct of the police, or some other basis for averting suppression. See, e.g., People v. Furrs, 149 AD3d 1098, 1099 (2d Dept. 2017) (citing People v. Berrios, 28 NY2d 361, 367 (1971)); People v. Eastman, 32 AD3d 965, 966 (2d Dept. 2006).

Here, such a lawful rationale exists. Two identified and known witnesses flagged down the officers, indicated they were robbed, described the perpetrator and then pointed out someone fitting the description approximately thirty seconds thereafter. As such, the officer had the necessary reasonable cause to approach the defendant. These observations coupled with the defendant's flight after the officers approached gave the officers reasonable cause to detain the defendant.

The defendant correctly states that the veracity prong of the Aguilar/Spinelli test may be established through corroboration where the police have verified noncriminal details of activity referred to in the informant's statement. People v. DiFalco, 80 NY2d 693 (1993). The defendant argues that the People failed to establish the legality of the defendant's arrest because the veracity prong of the Aguilar/Spinelli test was not met due to the lack of information regarding the alleged robbery. However, the complainants are identified citizen informants and not unnamed informants; thus, there is a "built-in basis for crediting [their] reliability." People v. Hetrick, 80 NY2d 344 (1992). Furthermore, the complainants provided a description of the assailant, albeit minimally, that matched that of the defendant and the complainants pointed at the defendant [FN3] . While the defendant is correct in stating that flight alone cannot be the basis of establishing probable cause, the defendant matched the description of the alleged assailant and the complainants identified the defendant.

Therefore, the defendant's motion to suppress on probable cause grounds is DENIED.

Suppression of Statements

The defendant seeks suppression of two statements—both the noticed statement at the scene and the statement made at the precinct [FN4] —"we got into a fight because his credit card was not working".

The People have the burden of proving the voluntariness of a statement beyond a reasonable doubt. People v. Huntley, 15 NY2d 72 (1965); see also People v. Holland, 48 NY2d 861 (1979). The defendant asserts that the People have failed to meet their burden in showing the voluntariness of these statements and that the statements were involuntary and made in response to police questioning while he was in custody. There was no testimony at the hearing to support defendant's allegations that his statements were involuntary. The question then turns to whether the defendant was in custody and subject to interrogation or to the functional equivalent of interrogation, requiring Miranda warnings. Miranda v. Arizona, 384 U.S. 436 (1966). The test to determine if the defendant was in custody, is whether a reasonable person, innocent of any crime, would have thought he was free to go had he been in the defendant's position. People v. Yukl, 25 NY2d 585, 589 (1969). Interrogation consists of express questioning or questions reasonably likely to elicit incriminating responses. People v. Huffman, 41 NY2d 29, 33 (1976); see also Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980). A defendant is deemed to be in custody when a police chase occurs. People v. Harris, 48 NY2d 208 (1979).

Here, the location of both statements differs. The first statement (the noticed statement) occurred on the scene. That statement is not contained within People's Exhibit 1. Similarly, there was no other testimony regarding the substance and content of the statement at the scene. There was no testimony regarding the administration of Miranda warnings or that the defendant knowingly and voluntarily waiving them. As such, the defendant's motion to suppress noticed statement at the scene is GRANTED.

The second statement (similar in nature) allegedly occurred at the precinct. The defendant seeks suppression of this statement because the People likewise failed to meet their burden in showing that the voluntariness of the statement. There was no testimony from any other officer [*3]present at the precinct. The officer indicated that he did not ask the defendant any questions at the precinct and that the defendant stated "there was a fight because his credit cards were declined." However, the officer admits that he did not read the defendant his Miranda rights but does not know if any of the other officers read him his Miranda rights. The officer does not know when the statement was made or where in the precinct it was made. He was unsure of who transported the defendant to the precinct and was unaware of any conversation between other officers and the defendant.

Although the People presumably argue that the statement was spontaneously made and not the subject of custodial interrogation, the People have once again fallen short of meeting their burden. See People v. Tuthill, 49 Misc 3d 132(A) (App. Term, 2d Dept. 2015). Therefore, the statement at the precinct is also SUPPRESSED.

Suppression of the Identification Procedure

The defendant also seeks suppression of the identification procedures conducted at the scene by both complainants. Here, as stated above, the defendant was pointed out by both complainants approximately one block away from where they flagged down Officer Trimarchi. The complainants described the perpetrator as a black male with red pants.

The defendant has the burden of proving undue suggestiveness. See People v. Chipp, 75 NY2d 327, 335 (1990). Under New York law, showup identifications, like that performed in this case, are "strongly disfavored" but are permissible where exigent circumstances require prompt identification or where "even in the absence of exigent circumstances, . . . they are spatially and temporally proximate to the commission of the crime and not unduly suggestive." People v. Huerta, 141 AD3d 602 (2d Dept. 2016) (citations and quotation omitted). In analyzing whether a showup procedure is reasonable and free of suggestiveness, lower courts have been admonished to engage in "probing, even skeptical fact finding." People v. Duuvan, 77 NY2d 541, 546 (1991). To satisfy their burden in the first instance of validating the admission of this identification evidence, the People must "demonstrate that the showup was reasonable," i.e., "was conducted in close geographic and temporal proximity to the crime," and "demonstrate that the procedure was not unduly suggestive." In re Heydi M., 154 AD3d 759, 760 (2d Dept. 2017).

Here, considering the totality of the circumstance, this Court finds that the People have met their burden of demonstrating that the showup identification was reasonable and nonsuggestive and the defendant has not met his burden of demonstrating that the showup identification was unduly suggestive. Although disfavored, given the proximity of the defendant to the location of the crime and the similar description of the defendant to the one provided by the complainants, this Court finds that the showup was reasonable. Thus, the defendant's motion to suppress the identification procedure is DENIED.

This constitutes the decision and order of this Court.

Dated: May 16TH, 2019

______________________________

Kew Gardens, New York

Karen Gopee, J.C.C. Footnotes

Footnote 1: The body camera footage contains statements—namely "I didn't do anything. What did I do wrong? Officer what did I do wrong? That is my phone. That is my Iphone. Look it's broken and they fixed it. I didn't do nothing wrong. They tried to beat me up and I left. Like I didn't do anything, I didn't steal anything. It's my phone. I didn't do anything wrong. These two niggas tried to beat me up and I left. What am I getting arrested for? They have to identify me. Did you pick up my stuff?. They mad cuz they wanted to fight me that's they fault I left. I didn't want to fight. I left. They wanted to fight me and they called the cops. Are they serious right now? That's fucked up. They really called the cops for this. Like come on bro. They being extra right now bro. Nobody got cut no nothing. Like come on. I got my phone fixed and they mad at me. I was running from them I'm out of breath. They are gonna identify me bro. I already know they are. Its my cell phone. They know that. I didn't touch nobody or nothing. They wanted to fight me after they took my phone. How can I get arrested? I didn't steal nothing I didn't do nothing. They wanted to fight and I left. You guys got my cell phones and stuff?"

Footnote 2:The People may use Exhibit 1 at trial but must make the necessary redactions to eliminate the precluded statements.

Footnote 3:This Court notes that there was no description about a sweatshirt, durag, facial hair, age, height or weight of the perpetrator.

Footnote 4:This Court notes that the statement at the precinct was unnoticed, but the defendant waived preclusion of the statement made at the precinct by moving for suppression.