Opinion
1498/04.
Decided January 10, 2007.
The defendant, indicted for Robbery in the First degree and related charges, moves to suppress physical evidence and identification testimony. Upon the evidence adduced at the Mapp-Wade hearings the motion to suppress is denied.
FINDINGS OF FACT
The People called one witness, Detective William Niece, whom the Court finds credible and reliable. The defense called the defendant, whose sole testimony was his assertion, not credited by the Court, that he had requested an attorney prior to being placed in the lineup.
On December 25, 2003, Detective Niece of the Bronx Robbery Squad was assigned to investigate a robbery that had taken place earlier that day at approximately 5:00 p.m., in apartment 4F at 1132 Clay Avenue, Bronx County, New York. In the course of the investigation, Niece responded to the location where he interviewed the three apartment occupants who informed him that a sum of US currency and a leather jacket had been taken during the robbery. While in the apartment, Niece observed members of the Bronx Evidence Collection team dusting for fingerprints and collecting evidence.
On March 3, 2004, Police Officer Kenny from the Bronx Evidence Collection team informed Niece that a fingerprint retrieved from the location was positively identified with an individual by the name of Carlos Santos.
In an effort to locate Santos, Niece ran a recent arrest history, based upon the name and the New York State Identification Number (NYSID) provided by Kenny. He obtained a photo of Carlos Santos, prepared a photographic array and returned to the location where he met with two of the witnesses. The witnesses each viewed the array separately, without an opportunity to discuss the procedure with each other prior to their viewing. Both witnesses positively identified the photograph of Carlos Santos which was in position number Six.
On March 11, 2004, Niece observed the defendant whom he recognized to be Carlos Santos, the individual positively identified in the photo array, exiting a car in the vicinity of 4138 Bronxwood Avenue. Niece approached the defendant who was wearing a leather jacket and informed him of the investigation. The defendant then accompanied Niece to the Bronx Robbery Office where a lineup was conducted. Niece testified that at no time had defendant ever requested that an attorney be present during this investigative lineup.
On March 11, 2004, in preparation for the line-up, Niece spoke with one of the complainants and arranged for transportation to the precinct by Detective Puskis. Arrangements were also made for the two other witnesses to view the lineup, and upon arrival at the precinct, the three witnesses were separated from the defendant and the fillers. The defendant selected his own seat, seat #3, in which he chose to remain for the three lineups. The fillers were males similar in age and appearance to the defendant. Each witness viewed the line-up separately. Two of the three witnesses, without any prompting, positively identified the defendant while the third witness did not make an identification. The defendant was then placed under arrest. The phot array and photographs of the lineup were introduced into evidence by the People.
Upon completion of the lineup, the leather jacket worn by the defendant was displayed to the witnesses and positively identified as the jacket taken during the robbery.
CONCLUSIONS OF LAW
The burden is initially on the prosecution to produce some evidence to demonstrate that the identification procedure at issue was reasonable under the circumstances and not unduly suggestive. People v. Chipp, 75 NY2d 327, 335 (1990); People v. Ortiz, 90 NY2d 533, 537 (1997). Once the People have brought forth such evidence, the burden shifts to the defendant to prove that the identification procedure was, in fact, unduly suggestive, so as to warrant suppression. People v. Chipp, supra at 335; People v Ortiz, supra at 537; People v. Faust, 178 AD2d 352 (1st Dept. 1991).
There is no requirement that the participants in a photo array or line-up be identical in appearance to the suspect. A photo array or line-up is considered fair where the fillers are of such reasonable similar appearance that there is no substantial likelihood that the defendant would be singled out for identification. People v. Chipp, 75 NY2d at 336; People v. Figueroa, 204 AD2d 103 (1st Dept. 1994); People v. Wooley, 249 AD2d 46 (1st Dept. 1998).
The photo array containing the defendant's photo and the circumstances under which it was shown to the witnesses were not unduly suggestive. The men in the photographs reasonably resembled the defendant in age and appearance, and the witnesses without influence selected the defendant. Similarly, the line-up and circumstances under which the defendant was identified were not unduly suggestive. The witnesses identified the defendant without influence, during the line-up, where the fillers reasonably resembled the defendant.
Defendant contends the lineup should be suppressed because he was not represented by counsel, although defendant claims to have requested that his attorney be present. Defendant further argues that Niece must have known he had an open case on which he was represented since Niece ran his arrest history during the investigation in order to ascertain the defendant's whereabouts. In support of his contention the defendant relies on People v. Coates, 74 NY2d 244 (1989), where the line-up identifications were found to have been obtained in violation of the defendant's right to counsel. The facts in Coates are distinguishable from those in the instant matter.
In Coates, the defendant was in custody on another matter and was brought to the precinct pursuant to a court order for removal on a pending investigation. After the court ordered lineup was completed, the defendant was placed in a subsequent lineup on an unrelated investigation. The Court order for removal was the distinguishing factor which was found to have established defendant's right to counsel during the investigatory lineup. The Court held "this right attached to all subsequent lineups to which he was subjected at the police precinct." Id at 248.
The police do not have a constitutional obligation to provide counsel for a suspect in an investigatory lineup even when the suspect requests counsel or they are aware that defendant is represented on an open criminal case. People v. Hawkins, 55 NY2d 474 (1982). A defendant is not automatically entitled to counsel at a lineup which is conducted prior to the filing of an accusatory instrument and the commencement of formal criminal proceedings. People v. Romero, 281 AD2d 367 (2001); People v. LeClere, 76 NY2d (1990); Hawkins at 487.
In the instant matter, defendant was not in custody nor produced pursuant to a Court order when he was placed in the investigatory lineup which was conducted prior to the filing of an accusatory instrument. Contrary to the defendant's testimony, Niece testified that defendant did not request an attorney and that he was not aware defendant had an open case on which he was represented. The credible evidence established defendant did not request an attorney, nor were the police aware he was represented on an open case.
There is no evidence of suggestivity with regard to the photo array or line-up. The defendant has failed to demonstrate that the photo array or line-up were unduly suggestive, or that defendant was deprived of his right to counsel.
As the police possessed probable cause to arrest the defendant, the physical evidence recovered from the defendant's person, i.e., leather jacket, was recovered pursuant to a lawful arrest, and thus, its recovery is lawful. People v. Lane, 10 NY2d 347, (1961); People v. Brown, 24 NY2d 421 (1969).
Accordingly, the motion to suppress physical evidence and identification testimony is DENIED.
The foregoing shall constitute the decision and order of the Court.