Opinion
IND#: 2013-6708 IND#: 2013-0508
01-14-2014
PEOPLE OF THE STATE OF NEW YORK, v. SAMUEL SMITH Defendant
For the People: SANDRA DOORLEY, District Attorney By: Kelly Wolford, Esq., Assistant District Attorney For the Defendant: Michael Schiano, Esq.
PRESENT: HONORABLE ALEX R. RENZI Supreme Court Justice For the People: SANDRA DOORLEY, District Attorney
By: Kelly Wolford, Esq., Assistant District Attorney For the Defendant: Michael Schiano, Esq.
DECISION AND ORDER
ALEX R. RENZI, J.
A Wade and Huntley hearing having been held on November 13, 2013 with the following persons present: Kelly Wolford, Esq. on behalf of the People; Michael Schiano, Esq. representing the defendant Samuel Smith; and the defendant, the Court makes the following:
FINDINGS OF FACT
On May 27, 2013 Investigator David Simpson of the Rochester Police Department went to Strong Memorial Hospital to conduct an identification procedure with the victim of a shooting which happened on May 20, 2013 at 195 Danforth Street, Rochester. Investigator Simpson went to the hospital room equipped with an RPD-issued laptop to conduct the identification procedure. The victim's name was Paris Bullock. Prior to showing her anything Simpson read instructions to the woman verbatim from "Form 1287," which was introduced into evidence as People's Exhibit #3. He read these instructions to her directly off the form and modified the form only when he substituted the word "video" for "photo array."
Investigator Simpson then proceeded to show Ms. Bullock the contents of People's Exhibit #1. People's Exhibit #1 is a security video from a store located at 685 Maple Street, which was collected on May 20, 2013 between 3:00 and 4:00 p.m., just after the shooting occurred on Danforth Street. Simpson had taken that video and requested that it be edited down to a shorter time period, depicting the individuals in the store. He took several stills of the individuals and a cropped video on People's Exhibit #1 to be shown to Ms. Bullock. There were three people in the video: one was a store clerk and the other two were male blacks, both wearing jeans and white tank tops, with one of the men wearing a baseball cap. After showing Ms. Bullock a copy of the video, she was then asked if she recognized anyone in the video. She replied "yes." When asked where she recognized the person from she stated "that's the boy who shot me." The person she identified was the one wearing the baseball hat, that being the defendant, Samuel Smith.
On May 29, 2013 Investigator Simpson showed People's Exhibit #1 to probation officer Robert Montesano. Mr. Montesano is the probation officer for the defendant, Samuel Smith. He viewed the video and stills, and identified the defendant on both the video and the stills. This identification was confirmatory insofar as Officer Montesano had met the defendant on a number of occasions and was familiar with him.
On May 30, 2013 Rochester Police established a detail at Frost and Genesee Streets for purposes of arresting the defendant. Investigator Simpson spotted the defendant in this area and had a uniform officer stop him. The defendant was transported the fourth floor of the Public Safety Building and placed in interview room #454-3. A video and audio recording was made of the interview and entered into evidence as People's Exhibit #2.
The defendant was read his Miranda warnings as contained in People's Exhibit #4. The defendant indicated he understood those rights and agreed to talk to the investigator. No threats or promises were made to get the defendant to talk and, in the investigator's opinion, the defendant was not intoxicated or under the influence of drugs. Several times during the interview the defendant stated he wanted to "go down," which Investigator Simpson interpreted as the defendant wishing to be taken to booking. Investigator Simpson did not take that to mean, however, that the defendant no longer wanted to talk. He was not unequivocal in stating that he did not want to talk to the investigator.
CONCLUSIONS OF LAW
The Court credits the testimony of Investigator Simpson, finding his testimony to be reasonable and believable, and finding him to be in a position to testify about the events in question. Additionally, the Court has reviewed People's Exhibits #1 (security video and still frames); Exhibit #2 (videotaped interview); and Exhibit #4 (Miranda rights card).
With respect to the viewing of a videotape and stills from that tape by the victim, our Courts have maintained that under certain circumstances the viewing of a security video by a victim or witness to a crime is not an identification procedure per se. Where, as here, the video and stills are being utilized as an investigative tool by police to identify a heretofore unidentified perpetrator of an assault, the viewing by the victim is not an identification procedure. See, People v. Gee, 286 A.D.2d 62 (Fourth Dept., 2001).
In People v. Edmonson, 75 N.Y.2d 672 (1990), detectives shot videotape of pedestrian traffic in front of a location, and later showed that tape to the victim of an assault. When the defendant's image appeared, she promptly and unequivocally identified him as her assailant. There the Court of Appeals held the viewing admissible, stating "that such evidence may be admitted as proof of identity provided there is nothing suggestive in the videotape or the manner in which it was presented to the witness . . . [and] 'that the videotape procedure employed by the police officers and the subsequent viewing by the victim were neither suggestive nor prejudicial.'" Edmonson, at 674.
Similarly here, the manner in which Investigator Simpson displayed the video and stills to Ms. Bullock was not done so in a suggestive or prejudicial fashion designed to cause the victim to identify any one particular individual. See also, People v. Santana, 39 Misc.3d 1236(A) (Sup. Ct., Kings Co., May 30, 2013).
Accordingly, the Court holds that the victim's identification of the defendant from the video and stills is admissible.
In addressing the defendant's statements to Investigator Simpson, the defendant maintains that his request to be taken to booking was tantamount to invoking his right to remain silent or requesting an attorney, and that as such any statements made thereafter are subject to suppression.
The assertion by a defendant of his right to remain silent must be unequivocal and unqualified. People v. Morton, 231 A.D.2d 927 (Fourth Dept., 1996); People v. Zacher, 97 A.D.3d 1101 (Fourth Dept., 2012); and People v. Jandreau, 277 A.D.2d 998 (Fourth Dept., 2000). Even in instances where a defendant seemingly invokes his right to remain silent by indicating he does not wish to answer any more questions on a particular area of inquiry, such does not constitute an unequivocal invocation of his right to remain silent (People v. Rodriguez, 49 A.D.3d 431 [First Dept., 2008]); sitting silent for some questions while answering other questions is not an unequivocal invocation of rights (People v. Sprague, 267 A.D.2d 875 [Third Dept., 1999]); declining to answer a single question is not invocation of silence (People v. Lewis, 152 A.D.2d 600 [Second Dept., 1989]); and a defendant telling detectives he would pick and choose which questions to answer is not an unequivocal invocation of rights (People v. Madison, 135 A.D.2d 655 [Second Dept., 1987]).
In this case the defendant, on several occasions, stated that he wished to be "taken downstairs" but that he would speak with Simpson "tomorrow." In one instance the defendant stated "I'm done talking, sorry . . . talk to you tomorrow." After each assertion the defendant continued to speak with the investigator and answer questions. At no time did the defendant make an unequivocal statement that he was invoking his right to remain silent.
Therefore, based on review of the interview and the controlling authority, the Court finds the defendant did not invoke his constitutional right to remain silent.
Moreover, the Court finds that the statements contained within People's Exhibit #2 were made after the defendant made a knowing, voluntary and intelligent waiver of the his Miranda rights. At no time did the Investigator exert any force or make any threats or promises to the defendant to get him talk to him. The defendant was provided food, drink, and use of the restroom facilities. Under the totality of circumstances his statements were voluntary. People v. Anderson, 42 N.Y.2d 35 (1977); and People v. Leftenant, 22 A.D.3d 603 (Second Dept., 2005). The defendant was not under the influence of drugs or alcohol, did not request an attorney, and as noted above was not threatened or coerced by any officer. People v. Liles, 243 A.D.2d 729, (Second Dept., 1997).
Accordingly, the defendant's motion to suppress the use of his statement on the People's direct case is hereby denied in all respects. Dated: January 14, 2014
Rochester, New York
/s/_________
HON. ALEX R. RENZI
Supreme Court Justice