The People, Respondent,v.Malik Howard, Appellant.BriefN.Y.October 10, 2013To be argued by: REBEKAH J. PAZMIÑO, ESQ. (Counsel requests 20 minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- MALIK HOWARD, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant EUNICE C. LEE, ESQ. Supervising Attorney By: REBEKAH J. PAZMIÑO, ESQ. Staff Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 (212) 402-4100 December 21, 2012 - i - TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Complainant Reports a Late-Night, Fast-Paced Robbery . . . . . . . . . . . 2 The Stop, Search and Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Police Conduct a Show-Up Identification After Mr. Howard’s Arrest, Five Miles from the Scene of the Robbery and Two Hours After Its Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Repeated Emphasis on Mr. Howard’s Alleged Display of a B.B. Gun Made Before the Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Defense Counsel Moves to Dismiss Several Counts, But Neglects to Challenge the Most Serious Charge Against Mr. Howard . . . . . . . . . . . . . . . . . . . . . 12 The Court’s Final Jury Instructions Do Not Limit the Jury’s Consideration of the Display of a Firearm Element to a Single Theory . . . . . . . . . . . . . . . . 13 The Verdict and Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Three Appellate Division Justices Vote to Affirm Mr. Howard’s Conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Two Appellate Division Justices Dissent . . . . . . . . . . . . . . . . . . . . . . . . . . 18 - ii - ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 POINT I MALIK HOWARD’S TRIAL ATTORNEY WAS INEFFECTIVE FOR FAILING: (A) TO CHALLENGE THE FIRST DEGREE ROBBERY CHARGE ON LEGAL INSUFFICIENCY GROUNDS, WHERE THE PROSECUTION’S EVIDENCE WAS THAT MR. HOWARD DISPLAYED ONLY A B.B. GUN, WHICH DOES NOT SATISFY THE DISPLAY OF A FIREARM ELEMENT; AND (B) TO ALERT THE COURT TO THE FACT THAT ITS FINAL INSTRUCTIONS COULD RESULT IN AN IMPROPER VERDICT AS THEY DID NOT INDICATE THAT THE JURY HAD TO BE UNANIMOUS WITH RESPECT TO ITS CHOICE OF THE TWO POTENTIAL DISPLAY THEORIES AT ISSUE, OR THAT SHOWING ONLY A B.B. GUN COULD NOT SATISFY THE DISPLAY ELEMENT. . . . . . . . . . . . . . . . 20 A. Malik Howard’s Attorney Was Ineffective for Failing to Move to Dismiss the First Degree Robbery Charge, Despite the Prosecution’s Evidence Indicating That Mr. Howard Displayed Only a B.B. Gun, Which Does Not Qualify as a Firearm, and Thus Could Not Support the Required Element of Displaying a Firearm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 B. Defense Counsel Was Likewise Ineffective for Failing to Alert the Court to the Fact that Its Final Jury Instructions Could Result in an Improper Verdict Because They Did Not Indicate That the Decision Had to be Unanimous With Respect to the Potential Theory of Display at Issue, Or That the B.B. Gun Display Was a Legally Insufficient Theory. . . . . . . . . . . . . . . . . . . . . . . . . . . 31 - iii - POINT II THE COURT BELOW ERRED IN DENYING MALIK HOWARD’S MOTION TO SUPPRESS A SHOW-UP IDENTIFICATION WHICH WAS FAR TOO ATTENUATED, BOTH SPATIALLY AND TEMPORALLY, FROM THE CRIME ITSELF, IT WAS NOT PROMPTED BY EITHER EXIGENCY OR AN UNBROKEN CHAIN OF EVENTS, AND IT INVOLVED PROCEDURES THAT WERE UNDULY SUGGESTIVE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 A. The Show-Up Here Was So Remote, Both in Space and Time, From the Crime Itself That Such Extreme Dual Attenuation Has Never Before Been Upheld By a Court of This State. . . . . . . 39 B. The Show-Up Here Was Also Unnecessary Given the Absence of Either Exigent Circumstances or an Ongoing Investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 C. Lastly, the Show-Up Was Tainted By an Overwhelming Number of Suggestive Factors, Rendering the Resulting Identification Improper. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 - iv - TABLE OF AUTHORITIES CASES Griffin v. United States, 502 U.S. 46 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 People v. Andrews, 255 A.D.2d 328 (2d Dep’t 1998) . . . . . . . . . . . . . . . . . . . . . 41 People v. Baskerville, 60 N.Y.2d 374 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27 People v. Beacoats, 17 N.Y.3d 643 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 People v. Benevento, 91 N.Y.2d 708 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 People v Booker, 63 A.D.3d 750 (2d Dep’t 2009) . . . . . . . . . . . . . . . . . . . . . . . . 34 People v. Brisco, 99 N.Y.2d 596 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 41 People v. Cortez, 185 A.D.2d 113 (1st Dep’t 1992) . . . . . . . . . . . . . . . . . . . . . . . 44 People v. Davis, 232 A.D.2d 154 (1st Dep’t 1996) . . . . . . . . . . . . . . . . . . . . . . . 44 People v. Duuvon, 77 N.Y.2d 541 (1991) . . . . . . . . . . . . . . . 39, 41 , 44, 45, 46, 48 People v. Gatling, 38 A.D.3d 239 (1st Dep’t 2007) . . . . . . . . . . . . . . . . . . . . 45-46 People v. Gilford, 16 N.Y.3d 864 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix, 40 People v. Green, 256 A.D.2d 85 (1st Dep’t 1998) . . . . . . . . . . . . . . . . . . . . . . . . 42 People v. Greene, 39 A.D.3d 268 (1st Dep’t 2007) . . . . . . . . . . . . . . . . . . . . . . . 18 People v. Groves, 282 A.D.2d 278 (1st Dep’t 2001) . . . . . . . . . . . . . . . . . . . . . . 27 People v. Howard, 92 A.D.3d 176 (1st Dep’t 2012) . . . . . . . . . . . . . . . . . . . passim People v Jackson, 174 A.D.2d 444 (1st Dep’t 1991) . . . . . . . . . . . . . . . . . . . . . . 34 - v - People v. James, 218 A.D.2d 709 (2d Dep’t 1995) . . . . . . . . . . . . . . . . . . . . . . . 42 People v. Johnson, 81 N.Y.2d 828 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 48 People v Jones, 233 A.D.2d 342 (2d Dep’t 1996) . . . . . . . . . . . . . . . . . . . . . 34-35 People v. Jones, 54 A.D.2d 740 (2d Dep’t 1976) . . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Kinchen, 60 N.Y.2d 772 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii People v. LeGrand, 8 N.Y.3d 449 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 People v. Lopez, 73 N.Y.2d 222 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26-27 People v. Martinez, 83 N.Y.2d 26 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 People v. Maybell, 198 A.D.2d 108 (1st Dep’t 1993) . . . . . . . . . . . . . . . . . . . . . 41 People v. McBride, 242 A.D.2d 482 (1st Dep’t 1997) . . . . . . . . . . . . . . . . . . . . . 41 People v. Muhammad, 17 N.Y.3d 532 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 People v. Ortiz, 90 N.Y.2d 533 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 People v. Riley, 70 N.Y.2d 523 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 45, 47 People v. Santiago, 17 N.Y.3d 661 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 People v. Serrano, 219 A.D.2d 508 (1st Dep’t 1995) . . . . . . . . . . . . . . . . . . . 44-45 People v. Simmons, 186 A.D.2d 95 (1st Dep’t 1992) . . . . . . . . . . . . . . . . . . . . . 27 People v. Stanley, 19 N.Y.3d 867 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 People v. Turner, 5 N.Y.3d 476 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 28, 29 People v. Walker, 198 A.D.2d 826 (4th Dep’t 1993) . . . . . . . . . . . . . . . . . . . . . . 42 - vi - People v. Wall, 38 A.D.3d 1341 (4th Dep’t 2007) . . . . . . . . . . . . . . . . . . . . . . . . 41 People v. Washington, 229 A.D.2d 601 (2d Dep’t 1996) . . . . . . . . . . . . . . . . . . . 27 People v. Wells, 221 A.D.2d 281 (1st Dep’t 1995) . . . . . . . . . . . . . . . . . . . . 40, 41 People v. Wilson, 283 A.D.2d 339 (1st Dep’t 2001) . . . . . . . . . . . . . . . . . . . . . . 22 Strickland v. Washington, 466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 23 CONSTITUTIONAL PROVISIONS U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 U.S. Const. amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 37 U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 37, 39 N.Y. Const. art. I, § 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 37, 39 STATUTES N.Y. Crim. Proc. Law § 450.90 (McKinney 2005) . . . . . . . . . . . . . . . . . . . . . . . viii N.Y. Crim. Proc. Law § 470.05 (McKinney 2009) . . . . . . . . . . . . . . . . . . . . . . . . ix N.Y. Penal Law § 160.15 (McKinney 2010) . . . . . . . . . . . . . . . . . . . . . . . . passim N.Y. Penal Law § 265.00 (McKinney 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 N.Y. Penal Law § 70.04 (McKinney 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 1 For convenience, all of the documents included in Mr. Howard’s Appendix will be referenced by citations denoted by “A. __.” In addition, the minutes of the pre-trial suppression hearing held on March 24, 2008, will include parallel citations denoted by “H. __.” The trial court’s written decision on the pre-trial suppression hearing, dated April 7, 2008, will also include parallel citations denoted by “Decision at __.” The minutes of the trial proceedings, which occurred between April 3 and April 9 of 2008, will include parallel citations denoted by “T. __.” Lastly, the brief Respondent submitted in the Appellate Divisions will include parallel citations denoted by “Resp. AD Br.” - vii - COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x : THE PEOPLE OF THE STATE OF NEW YORK, : : Respondent, : : Ind. No. 1873/06 -against- : (Bronx County) : MALIK HOWARD, : : Defendant-Appellant. : : ---------------------------------------------------------------------x PRELIMINARY STATEMENT By permission of the Honorable Helen E. Freedman, Justice of the Supreme Court of the State of New York, Appellate Division, First Department, entered on April 26, 2012, see A. 1,1 an appeal is taken from an order of the Appellate Division, First Department, entered on January 12, 2012, People v. Howard, 92 A.D.3d 176 (1st Dep’t 2012) (A. 2-13), which confirmed a judgment entered on November 25, 2009, by the Supreme Court, Bronx County (Torres, J.), convicting Malik Howard, after a - viii - jury trial, of one count of robbery in the first degree, N.Y. Penal Law § 160.15(4) (McKinney 2010), and sentencing him to a determinate term of fourteen years in prison and five years of post-release supervision. A motion to this Court to assign Richard M. Greenberg, Esq., as counsel on appeal was granted on April 26, 2012. Pursuant to a letter from this Court dated April 10, 2012, counsel for Mr. Howard filed a brief on May 18, 2012, under the alternative procedures set forth in Rule 500.11 of its Rules of Practice. By letter dated September 14, 2012, this Court terminated its review of this appeal by the aforementioned alternative procedure, and the appeal is now scheduled to proceed in the normal course of briefing and oral argument. This Court has jurisdiction to entertain this appeal and to review the questions raised, pursuant to N.Y. Crim. Proc. Law § 450.90(1) (McKinney 2005). This case presents two preserved questions of law. As to the first question, raised in Point I of this brief, which concerns the ineffective assistance of counsel, no preservation is needed. See People v. Kinchen, 60 N.Y.2d 772, 773 (1983). With respect to the second question presented concerning the improper admission of the complainant’s show-up identification, raised in Point II of this brief, by personally arguing, or joining in arguments made by co-counsel at the suppression hearing, that there was a lack of both temporal and spatial proximity between the - ix - crime and the show-up, there was no exigency or ongoing investigation to justify its occurrence, and the procedures used at the actual show-up were unduly suggestive, this issue is preserved for review. See generally A. 151-58 (H. 126-33) (arguments made by co-defendant’s attorney, in which Mr. Howard’s attorney joined); A. 159-66 (H. 134-41) (arguments specifically made by counsel for Mr. Howard). Furthermore, the hearing court expressly decided the matter. See A. 187-88 (Decision at 4-5). See also N.Y. Crim. Proc. Law § 470.05(2) (McKinney 2009). This Court is also not impeded from reviewing the issue because there was no evidence to support the decisions made by either the First Department or the hearing court, which found that the show-up identification here was proper; thus, there is no mixed question of law and fact barring this Court’s review. See People v. Gilford, 16 N.Y.3d 864, 868 (2011) (show-up inquiry is a mixed question of law and fact beyond review by the Court of Appeals, unless there is no support in the record for the lower court’s determination). No stay of execution of sentence has been sought. Mr. Howard is currently serving his sentence. - 1 - QUESTIONS PRESENTED 1) Was trial counsel for Malik Howard ineffective for failing: a) to move to dismiss the first degree robbery charge on legal insufficiency grounds, where the prosecution’s own evidence was that what Mr. Howard displayed was only a B.B. gun, which cannot satisfy the display of a firearm element because it is not considered a firearm under the statutory scheme; and b) to alert the court to the fact that its final jury charge could result in an improper or split verdict because it did not instruct the jury that its choice of the two potential theories of display had to be unanimous, or that a B.B. gun was not legally sufficient evidence of the display of a firearm element? 2) Did the court below err in failing to suppress a show-up identification which was too spatially and temporally attenuated from the commission of the crime, was not justified by either exigent circumstances or an ongoing investigation, and involved inherently suggestive procedures which fatally tainted the reliability of the identification? - 2 - STATEMENT OF FACTS The Complainant Reports a Late-Night, Fast-Paced Robbery While walking home to his apartment on 195th Street and Claflin Avenue in the Bronx at 3:00 a.m. on April 21, 2006, following a long shift waiting tables that had begun ten hours earlier, Domingo Lopez was robbed. A. 389-91 (T. 201-03). Mr. Lopez recalled that “[a] gray car approached me running at a slow speed. I did not pay attention because I thought they were looking for parking. Suddenly, I hear that they are running behind me. When I try to turn around, two people come towards me, one with a gun in his hand.” A. 391 (T. 203). Mr. Lopez noticed that the two men who robbed him exited the front of the car, while two others remained in the backseat. A. 392 (T. 204). Mr. Lopez claimed that the two men who approached and robbed him were Malik Howard and Hilbert Stanley. See A. 392-93 (T. 204-05). Mr. Lopez testified that, during the robbery, the “the skinnier one” of the two men had a gun in his hand. A. 393 (T. 205). Mr. Lopez described how the man with the gun “was taking out my belongings from my pockets. At the same time [he] was telling me to close my eyes and was touching my face.” Id. Mr. Lopez confirmed that it was “the skinnier one” who “had the gun out.” A. 394 (T. 206). Mr. Lopez then reiterated that, at the same time that this individual was taking things out of his pockets, he was also “putting the gun at my head and on my neck. And was telling - 3 - me to close my eyes.” Id. Mr. Lopez further testified that he was looking at the gun as the man was moving it near his face. See A. 432 (T. 244). According to Mr. Lopez, the individual with the gun was Mr. Howard. A. 412 (T. 224). While the man with the gun was holding it to his face, Mr. Lopez “felt the other person was touching me with something else on the back. I don’t know. I cannot say if it was a gun or something else.” A. 393-94 (T. 205-06) (emphasis added). Mr. Lopez provided no further details concerning his perception of the unknown object held to his back by this other man, whom he claimed was Hilbert Stanley. See A. 395 (T. 207). Mr. Lopez was clear in his testimony that, during the robbery, this second individual was behind him. A. 431 (T. 243). When asked specifically by the prosecution what this second man was doing behind his back, Mr. Lopez said only: “I think that he is the one that tore my pocket.” A. 395 (T. 207). Mr. Lopez testified that the entire incident happened “very fast,” and, after the perpetrators took his property, they got back into the gray car and drove away. A. 402-03, 491 (T. 214-15, 303). Upon returning to his apartment, Mr. Lopez asked his stepdaughter to call 911 because he did not speak English well, which she did ten to fifteen minutes later. A. 403-04 (T. 215-16). Following the 911 call, two officers met Mr. Lopez and his stepdaughter outside of their apartment building, and proceeded to canvas the area, with no results. A. 404, 406 (T. 216, 218). It was not until over - 4 - an hour later that police stopped the car Mr. Howard and Mr. Stanley were in, five miles from the scene of the crime. A. 226, 234 (T. 38, 46). The Stop, Search and Arrest At the suppression hearing, Officer Frank Burns testified that around 3:00 a.m. on April 21, 2006, he, his partner and their supervisor, Sergeant Edward Murphy, responded to a radio run about a robbery at gunpoint near 195th Street and Claflin Avenue in the Bronx. A. 35-36 (H. 12-13). The description provided was of “a new or silver vehicle, possibly a Honda Accord occupied by 4 male blacks armed with a firearm.” A. 36 (H. 13). The officers proceeded to canvas the area surrounding the crime scene for about 20 minutes, but saw no one matching this description. A. 35-37 (H. 12-14). They then returned to their precinct. A. 37 (H. 14). While back out on patrol around 4:00 or 4:15 a.m. – well over an hour after the robbery had occurred – the officers stopped the car in which Mr. Howard was a passenger for a traffic violation. A. 38-39 (H. 15-16). Upon questioning the car’s occupants, Officer Burns claimed that Mr. Howard admitted to having a small amount of marijuana on him – a nickel bag “for personal use.” A. 39-40 (H. 16-17). Burns said that, after Sergeant Murphy searched the interior of the car, Murphy informed him of the alleged discovery of a wallet insert - 5 - between the driver’s seat and center console, containing identification with Mr. Lopez’s name and address. A. 42-43 (H. 19-20). Recognizing that the address was in the same area as the radio run about an armed robbery to which he had earlier responded, Murphy called the nearby precinct to locate Mr. Lopez and determine whether he was available to come to the scene where the car had been stopped. A. 43-44 (H. 20-21). In the meantime, another officer, Brandon Owens, opened and searched the trunk of the car, discovering a B.B. gun and additional marijuana inside of a backpack therein. A. 45 (H. 22). Upon discovering the contents of the trunk, the police arrested Mr. Howard and Mr. Stanley. A. 66 (H. 43). Officer Burns confirmed that the arrest occurred prior to the show-up identification by the complainant, Mr. Lopez. A. 67 (H. 44). The Police Conduct a Show-Up Identification After Mr. Howard’s Arrest, Five Miles from the Scene of the Robbery and Two Hours After Its Commission Pursuant to Sergeant Murphy’s inquiries, the police called Mr. Lopez around 4:15 a.m. A. 44, 114 (H. 21, 90). According to Mr. Lopez, the officer with whom he spoke informed him that “he had a person with the characteristics that I had given him with the description. And whether I could go there to identify him.” A. 114 (H. 90). When asked what he thought during this phone conversation with the officer, Mr. 2 Respondent did not dispute the facts related to the attenuation of both the geographic and temporal factors in its Appellate Division brief. See A. 663-64, 667-68 (Resp. AD Br. at 19-20, 23-24). - 6 - Lopez replied: “Well, I thought it was them [the perpetrators], yes.” A. 114-15 (H. 90-91). Other officers then drove Mr. Lopez and his stepdaughter to the arrest location. A. 115 (H. 91). Although en route Mr. Lopez did not converse with the officer who was driving, id., Mr. Lopez was not asked at the suppression hearing whether he heard anything concerning the robbery or the arrest of Mr. Howard and Mr. Stanley over the police radio. The show-up Mr. Lopez participated in at the arrest location was five miles from where the robbery took place, A. 65-66 (H. 42-43), as judicially noted. A. 188 (Decision at 5). Officer Burns approximated the time that elapsed between the crime and the show-up as two hours, based on the fact that he received a radio run about the robbery at approximately 3:00 a.m and the identification by Mr. Lopez occurred around 5:00 a.m. A. 35, 69 (H. 12, 46).2 Burns also confirmed that there was “no emergency” after Mr. Howard and Mr. Stanley were arrested and handcuffed following the discovery of the contents of the trunk, which occurred before the show- up. A. 67, 94-95 (H. 44, 70-71). Prior to Mr. Lopez’s arrival, Mr. Howard was handcuffed and positioned next to two police officers. A. 47 (H. 24). These officers were not black, however both Mr. Howard and Mr. Stanley were, as were the robbery suspects described by Mr. 3 Given Officer Burns’ testimony that he received a radio run about the robbery at 2:55 or 3:00 a.m., H. 12, and he conducted the show-up identification at approximately 5:00 a.m., H. 46, the record indicates that the time that elapsed was, in actuality, closer to two hours – which Respondent conceded. See A. 667-68 (Resp. AD Br. at 23-24). - 7 - Lopez. A. 36, 58-59, 101 (H. 13, 35-36, 77). Mr. Lopez testified that he also knew the two men standing next to Mr. Howard were police officers “because what other people could be next to [him].” A. 134 (H. 110). In addition, Mr. Lopez noticed that Mr. Howard was standing near a vehicle matching his description of the getaway car. A. 60, 130-31 (H. 37, 106-07). Mr. Howard was also positioned close to a police car. A. 73 (H. 50). Upon viewing Mr. Howard and Mr. Lopez under these circumstances, Mr. Lopez identified both men as his assailants. See A. 46 (H. 23). The hearing court subsequently denied Mr. Howard’s motion to suppress this suggestive identification. See A. 187-88 (Decision at 4-5). In its decision, the court found that the show-up took place an hour and a half after the robbery,3 and five miles away, asserting that the “rules regarding temporal proximity have been met,” and that the spatial distance was not “indicative of any suggestivity.” A. 188 (Decision at 5). The court also asserted that neither Mr. Lopez’s knowledge that“he was going to view possible suspects,” nor the possibility that he saw two handcuffed men when he arrived at the arrest location rendered the show-up suggestive. Id. 4 This subsection of the first degree robbery statute provides that a person is guilty “when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . . [d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged.” N.Y. Penal Law § 160.15(4) (McKinney 2010). - 8 - The Repeated Emphasis on Mr. Howard’s Alleged Display of a B.B. Gun Made Before the Jury Throughout the course of the trial, there was no mention by any party that, as a matter of law, the showing of a B.B. gun did not establish the display of a firearm element under subsection (4) of Penal Law § 160.15.4 Instead, all of the parties repeatedly emphasized Mr. Howard’s alleged display of a B.B. gun. First, in its opening statement, the prosecution alleged that Mr. Howard acted as the “gunman of the [robbery] crew.” A. 190 (T. 2). The prosecution further asserted that Mr. Howard and Mr. Stanley “acted in concert to rob Mr. Lopez . . . . by displaying what appeared to be a weapon.” A. 191 (T. 3) (emphasis added). Lastly, the prosecution contended that Mr. Lopez would testify that he saw “Mr. Howard approaching him with a gun in his hand, and was pointing that gun at his head.” A.191-92 (T. 3-4). During its direct examination of Officer Burns, the prosecution admitted into evidence the B.B. gun, a “black imitation pistol.” A. 220-21, 222-23 (T. 32-33, 34- 35). Burns verified that this B.B. gun was the same one recovered from the trunk of 5 In contrast, Mr. Lopez made only a single reference to the object allegedly held to his back by the other individual (Mr. Stanley). See A. 393-94 (T. 205-06) (while the man with the gun was holding it to his face, Mr. Lopez “felt the other person was touching me with something else on the back. I don’t know. I cannot say if it was a gun or something else.”) (emphasis added). Mr. Lopez claimed that this other man, who did not have a gun, was Hilbert Stanley. See A. 393-95 (T. 205-07). - 9 - the car in which Mr. Howard had been a passenger, recognizing the “unique serial number on it,” which was identical to the one listed on the voucher form he personally completed. A. 221, 280-81 (T. 33, 92-93). Burns further asserted that he knew this was a B.B. gun, as opposed to a real handgun. A. 223 (T. 35). When shown People’s Exhibit #5, the previously admitted B.B. gun, Mr. Lopez confirmed that it looked like the object with which he was threatened during the robbery. A. 412 (T. 224). Mr. Lopez testified that only one of the two assailants had a gun, and claimed that this individual was Mr. Howard. A. 291, 293-94, 412 (T. 203, 205-06, 224).5 During Mr. Lopez’s trial testimony, the discussion by the prosecution and both defense attorneys made reference to only one man with a gun: Mr. Howard. See A. 394, 412, 431-32, 480-81, 495 (T. 206, 224, 243-44, 292-93, 307). In contrast, Mr. Stanley was consistently referred to as the other individual who did not have a gun. See A. 394-95, 402, 421-32, 481 (T. 206-07, 214, 243-44, 293). The summation arguments of the respective parties also emphasized the alleged display of the B.B. gun. First, counsel for Mr. Stanley made only one relevant - 10 - mention of what was allegedly displayed during the commission of the robbery, which did not include any discussion of the unknown object allegedly held to Mr. Lopez’s back by Mr. Stanley, his own client. See A. 552-53 (T. 363-64). While Mr. Howard’s attorney briefly discussed the B.B. gun held to Mr. Lopez’s face on several occasions, see A. 560-62 (T. 371-73), he likewise made no mention of any object held to Mr. Lopez’s back by Mr. Stanley. See generally A. 556-566 (T. 367-77). Although, during its summation, the prosecution addressed the jury on both of the objects allegedly displayed during the robbery, references to Mr. Howard’s B.B. gun were far more prevalent. First, the prosecution stated: And what about the gun in the trunk of the car? The pellet gun. What appears to be a gun in the trunk of the car. Ladies and gentlemen, at 2:55 in the morning, God forbid if this was pointed at you. Would you think this is a gun or . . . [what] appears to be a real gun. Look what the evidence shows, ladies and gentleman. Don’t take my word for it. A. 568 (T. 379). Then, the prosecution asserted that, from Mr. Lopez’s viewpoint as a non-English speaker, Mr. Howard’s alleged act of “pointing a gun” at him was the equivalent of “speaking the language of the gun,” A. 570 (T. 381), adding that this act “was dictating what was happening . . . . [Y]ou can hear what happened. Malik Howard had the gun to his neck [while] going through his pockets trying to cover his eyes.” A. 570-71 (T. 381-82). Next, the prosecution urged the jury to convict “just based on the observations of what the complainant saw, the weapon that was used, what he described and what 6 While the prosecution used the word “press,” Mr. Lopez never used any word other than “touching.” See A. 393-94 (T. 205-06). - 11 - was ripped from his pockets,” mentioning the display of only one weapon. A. 573 (T. 384). Subsequently, the prosecution stated: “I already talked about the pistol. A black imitation pistol. An[d], of course, the pistol’s recovered from the car that the defendants were driving in.” A. 575 (T. 386). In its final reference, the prosecution again mentioned that, when the car Mr. Howard and Mr. Stanley were in was stopped and searched, the police recovered “the imitation pistol” inside. A. 577 (T. 388). In contrast, the prosecution only twice referred to the object allegedly displayed by Mr. Stanley during the robbery and did not even imply that the object was a gun, or was perceived as a gun: [Mr. Lopez] said he saw the bigger guy, the guy with the braids in the striped shirt come upon him and come behind him and press something up against [him]. . . . When [Mr. Lopez is] describing the robbery, he’s describing it as Hilbert Stanley’s behind him pressing something against his back. A. 571 (T. 382).6 At no point, did the prosecution argue that whatever was put to Mr. Lopez’s back satisfied the display element of Penal Law § 160.15(4). Instead, the prosecutor relied on the B.B. gun admitted into evidence as “the weapon that was used” to establish this element of the charge. See A. 573 (T. 384). - 12 - Defense Counsel Moves to Dismiss Several Counts, But Neglects to Challenge the Most Serious Charge Against Mr. Howard After both sides rested, the defense moved for a general trial order of dismissal on the ground that the prosecution had failed to prove the charges contained in the indictment. A. 502 (T. 314). Counsel for Mr. Howard then specifically challenged the two counts of criminal possession of a weapon in the fourth degree, pointing to the lack of expert testimony indicating that the B.B. gun had been tested to establish its operability. A. 502-03 (T. 314-15). Counsel also challenged the count of unlawful possession of an air pistol or rifle on the ground that there was no testimony indicating that it was actually an air pistol or rifle as defined by law. Id. The prosecution agreed to dismiss these charges, in addition to several others. A. 503-04 (T. 315-16). Counsel for Mr. Howard proceeded to note that the first two counts of the indictment, which were “basically, the same count,” still remained. A. 504 (T. 316). Both counts charged Mr. Howard and Mr. Stanley with first degree robbery under Penal Law § 160.15(4) for committing a robbery, during which they “displayed what appeared to be a pistol.” See A. 20 (Indictment No. 1873/06). While the court posited that the two charges were initially included “[i]n relation to each defendant individually,” as counsel pointed out, the language of both counts charged “the defendants [with] acting in concert with each other.” A. 504 (T. 316). The - 13 - prosecution acknowledged that the charges were duplicitous and agreed that only the first would be submitted to the jury. A. 504-05 (T. 316-17). The court likewise acknowledged that the second count of first degree robbery was “clearly duplicitous.” A. 505 (T. 317). As a result, only two counts remained for submission to the jury: one count of robbery in the first degree, and one count of second degree robbery, both of which were under an acting-in-concert theory. Id. Nothing on the record at the colloquy identifies the factual basis of the first degree robbery count the court dismissed as duplicitous. At no point did defense counsel argue that the remaining first degree robbery charge should either be dismissed or reduced because the B.B. gun Mr. Howard allegedly displayed did not qualify as a firearm under subsection (4) of the statute, and thus the affirmative defense contained therein had been proven. The Court’s Final Jury Instructions Do Not Limit the Jury’s Consideration of the Display of a Firearm Element to a Single Theory In its final charge to the jury, the court provided identical instructions on the first degree robbery count with respect to both Mr. Howard and Mr. Stanley, see A. 7 Specifically, the court charged the elements of first-degree robbery as follows: Under our law, a person is guilty of robbery in the first degree when that person forcibly steals property and when in the course of the commission of the crime or immediate flight therefrom, that person or another participant in the crime, displayed what appears to be a pistol, revolver, rifle or other firearm. The element that the person displayed what appears to be a pistol, revolver, rifle or other firearm, does not require the People to prove that the object displayed was actually a firearm. What the People are required to prove is that the person consciously displayed or manifested the presence of something that could reasonably be perceived as a pistol, revolver, rifle or other firearm. And that the person to whom the item was displayed or manifested perceived it as a pistol, revolver, rifle or other firearm. A. 609-10 (T. 420-21). - 14 - 605-07 (T. 416-18) (relating to Mr. Stanley); A. 608-10 (T. 419-21) (relating to Mr. Howard),7 after providing an acting-in-concert charge. See A. 601-03 (T. 412-14). It its final instructions, the court did not therefore specify which alleged display of a weapon the jury was to consider. As a result, the court did not inform the jury that it was only to consider Mr. Stanley’s alleged displayed of an unknown object, and not Mr. Howard’s alleged display of the B.B. gun. Such an instruction was necessary because, as Respondent conceded in the Appellate Division, see A. 685, 689-90 (Resp. AD Br. at 41, 45-46), the affirmative defense was plainly established with respect to Mr. Howard’s alleged display of the B.B. gun, and thus Mr. Howard could not have been guilty of first degree robbery based on his display of a B.B. gun. Defense counsel, however, failed to request that the court limit the scope of its charge to one display theory. Nor did counsel object to the instructions as given on the ground that they could result in an improper verdict. Because the court never - 15 - made clear to the jury that it could not rely on the display of the B.B. gun, it is entirely possible that the jury relied upon this legally insufficient basis to convict Mr. Howard of first degree robbery. It is also possible that some jurors found Mr. Howard guilty of first degree robbery based on his legally insufficient display of the B.B. gun, while other jurors voted to convict based on Mr. Stanley’s alleged display of “something else” to Mr. Lopez’s back, indicating the potential for a split verdict. The Verdict and Sentencing On April 9, 2008, Mr. Howard was found guilty of robbery in the first degree under Penal Law § 160.15(4). A. 630 (T. 441). He was initially sentenced in absentia to 25 years in prison on July 10, 2008 (Torres, J.), after absconding during trial. Upon returning, Mr. Howard was resentenced to a determinate term of fourteen years in prison as a condition of pleading guilty to second degree bail jumping, for which he received a determinate sentence of one-and-a-half to three years (Torres, J.), on November 25, 2009. Three Appellate Division Justices Vote to Affirm Mr. Howard’s Conviction On appeal, Mr. Howard asked the Appellate Division, inter alia, to reduce his first degree robbery conviction to second degree robbery in the interest of justice due to the lack of legally sufficient evidence to support his conviction because the - 16 - affirmative defense contained in Penal Law § 160.15(4) had been proven by a preponderance of the prosecution’s own evidence. In the alternative, Mr. Howard argued that his trial attorney had been ineffective for failing to move to dismiss the first degree robbery charge that was submitted to the jury on legal insufficiency grounds. Mr. Howard also challenged the denial of his motion to suppress the show- up identification which was conducted two hours after the crime and five miles from the scene, in the absence of exigent circumstances or an unbroken chain of events. Respondent conceded that displaying a B.B. gun was not displaying a firearm, and therefore such a display could not support a first degree robbery conviction under subsection (4) of the statute. See A. 684-85, 689-90 (Resp. AD Br. at 40-41, 45-46). Because the B.B. gun plainly could not serve as the foundation for Mr. Howard’s conviction, Respondent argued that the first degree robbery charge submitted to the jury “pertained solely to the object [Mr.] Stanley put against Mr. Lopez’s back.” A. 678 (Resp. AD Br. at 34). A divided First Department panel affirmed Mr. Howard’s conviction, contending that it was based on legally sufficient evidence. People v. Howard, 92 A.D.3d 176, 179 (1st Dep’t 2012) (A. 12-13). The majority noted that neither defense attorney had requested an instruction on the affirmative defense, objected to its absence in the court’s final instructions, or argued that the prosecution had failed to introduce legally sufficient evidence of the display element. Id. (A. 6). - 17 - As an “alternative holding,” the majority found that Mr. Lopez could reasonably have perceived Mr. Stanley’s object to be a gun, contending that Mr. Lopez’s “acknowledg[ment] that the object Stanley placed against his back could have been something other than a gun” was “of no legal consequence.” Id. at 180 (A. 7-8). The majority concluded that the “object displayed from behind by Stanley, together with the victim’s reasonable belief that it could be a gun, provided an independent basis for a conviction of first-degree robbery.” Id. at 181 (A. 9). While acknowledging that the prosecution’s summation had focused on the alleged display of a weapon by Mr. Howard, the majority asserted that the prosecution “did not limit [itself] to a theory that it was the only firearm displayed,” adding that the court’s instructions to the jury likewise contained no such limitation. Id. (A. 10). In addition, the majority decided that Mr. Howard’s attorney was not ineffective for failing to move to dismiss the first degree robbery charge, finding that, “in light of the evidence about Stanley’s actions, any such motion would have been unavailing.” Id. (A. 11). The majority also contended that “the defendants received effective assistance under the state and federal standards.” Id. The Appellate Divisions also found that Mr. Howard’s motion to suppress the show-up identification was properly denied. Id. at 182 (A. 11-12). In its view, the identification “took place within the constitutionally permissible range of temporal and spatial proximity to the crime,” and asserting that “‘the Court of Appeals has 8 Justices Freedman and Moskowitz did not dissent on the holding concerning the admission of the show-up identification in this case. - 18 - declined to draw a bright-line rule and has left the appropriate time period to be determined on a case-by-case basis.’” Id. (quoting People v. Greene, 39 A.D.3d 268, 270 [1st Dep’t 2007]). The majority also asserted that, although suggestive aspects of the show-up itself had been noted, “these factors were generally inherent in the nature of most showups, and we do not find them unduly suggestive under the circumstances of the case.” Id. (A. 12). Two Appellate Division Justices Dissent Justice Helen Freedman, joined by Justice Karla Moskowitz, dissented in part,8 taking the position that the first degree robbery convictions should have been reduced because there was “no question . . . that the prosecution’s case hinged upon the display of what appeared to be a weapon,” specifically, the only gun that was recovered – the B.B. gun. Id. at 183 (Freedman, J., dissenting) (A. 14-15). In support of this position, Justice Freedman pointed to the prosecution’s summation which “focused primarily on that gun and the fear that it engendered.” Id. (A. 15). After citing to several factually similar cases in which first degree robbery convictions had been reduced in the interest of justice, Justice Freedman acknowledged that “[a]ll of - 19 - the evidence adduced in this case establishes the affirmative defense.” See id. at 183- 84 (A. 15-16). Justice Freedman also questioned the alternative ground advanced by the majority for upholding Mr. Howard’s conviction, concluding that Mr. Lopez’s testimony relating to the object allegedly used by Mr. Stanley was insufficient to establish the display element. Id. at 184 (A. 16-17). Justice Freedman further noted that, in the cases cited by the majority, the complainant had actually perceived the object at issue to be a gun, which was not the situation here, where Mr. Lopez made only a singular reference to “something” he did not see and explicitly stated he was unsure was a gun. Id. Justice Freedman concluded by asserting that “an ambiguous statement about feeling ‘something’ should not be sufficient to establish the display element.” Id. (A. 17). On April 26, 2012, Justice Freedman granted Mr. Howard’s application for leave to appeal. See A. 1. Leave to appeal was also granted in co-defendant Hilbert Stanley’s case by Judge Robert S. Smith on May 11, 2012. See People v. Stanley, 19 N.Y.3d 867, 867 (2012). - 20 - ARGUMENT POINT I MALIK HOWARD’S TRIAL ATTORNEY WAS INEFFECTIVE FOR FAILING: (A) TO CHALLENGE THE FIRST DEGREE ROBBERY CHARGE ON LEGAL INSUFFICIENCY GROUNDS, WHERE THE PROSECUTION’S EVIDENCE WAS THAT MR. HOWARD DISPLAYED ONLY A B.B. GUN, WHICH DOES NOT SATISFY THE DISPLAY OF A FIREARM ELEMENT; AND (B) TO ALERT THE COURT TO THE FACT THAT ITS FINAL INSTRUCTIONS COULD RESULT IN AN IMPROPER VERDICT AS THEY DID NOT INDICATE THAT THE JURY HAD TO BE UNANIMOUS WITH RESPECT TO ITS CHOICE OF THE TWO POTENTIAL DISPLAY THEORIES AT ISSUE, OR THAT SHOWING ONLY A B.B. GUN COULD NOT SATISFY THE DISPLAY ELEMENT. Even though it is undisputed that a B.B. gun cannot, as a matter of law, satisfy the display of a firearm element under that subsection of the first degree robbery statute under which Malik Howard was convicted, defense counsel failed to challenge this most serious count against his client at multiple junctures. First, counsel failed to move to dismiss this charge, which would likely have been a dispositive motion given that the prosecution’s own evidence was that Mr. Howard displayed only a B.B. gun during the commission of the crime, and such evidence cannot sustain a conviction for first degree robbery as a matter of law. The subsection of the first degree robbery statute under which Mr. Howard was convicted states that such a display also warrants the reduction of the charge to second degree robbery. Despite the clear lack of evidence to support first degree robbery, defense counsel never - 21 - moved to dismiss this count on legal insufficiency grounds, despite challenging several lesser weapons possession charges on similar grounds. This was ineffective. Defense counsel was also ineffective for failing to alert the court to the fact that its final instructions could result in an improper verdict because the court did not limit the jury’s consideration to only one of the two display of a firearm theories with which it was presented: Mr. Howard’s alleged display of a B.B. gun – which was a legally insufficient basis for first degree robbery – or the co-defendant’s alleged display of an unknown object to the complainant’s back. Because there were two potential display theories before the jury and the jury was never instructed either that its decision had to be unanimous as to the display at issue, or that it could not rely on the B.B. gun display, there is no assurance that the verdict here was proper. Due to defense counsel’s repeated and inexplicable failure to challenge the most serious charge against his client, Mr. Howard was foreclosed from several critical opportunities to reduce his criminal liability. Because counsel was clearly ineffective, this Court should reverse Mr. Howard’s conviction and remand the case for a new trial. - 22 - A. Malik Howard’s Attorney Was Ineffective for Failing to Move to Dismiss the First Degree Robbery Charge, Despite the Prosecution’s Evidence Indicating That Mr. Howard Displayed Only a B.B. Gun, Which Does Not Qualify as a Firearm, and Thus Could Not Support the Required Element of Displaying a Firearm. It is well-settled that B.B. guns, which fall under the same category as air pistols and air guns, do not qualify as firearms. See People v. Wilson, 283 A.D.2d 339, 340 (1st Dep’t 2001) (referring to such objects as “imitation pistols”); People v. Jones, 54 A.D.2d 740, 740 (2d Dep’t 1976) (finding “[d]efendant was improperly convicted of robbery in the first degree under subdivision 4 of section 160.15 of the Penal Law on proof by the People that the gun allegedly displayed was an air pistol. An air pistol is not a ‘firearm.’”); see also N.Y. Penal Law § 265.00(3) (McKinney 2008) (defining the term “firearm”). The prosecution’s evidence here indicated that Mr. Howard displayed only a B.B. gun during the commission of the crime, but such an object clearly does not satisfy the display of a firearm element of first degree robbery under subsection (4) of the statute. Indeed, neither Respondent nor the Appellate Division majority refuted the fact that Mr. Howard’s display of a B.B. gun was not sufficient to convict him of first degree robbery. Yet, defense counsel never moved to dismiss or reduce this charge. Compounding counsel’s inexplicable failure to do so is the fact that counsel moved to dismiss several lesser weapons possession counts on grounds connected to the deficiencies in the evidence related to the operability of the B.B. gun. To have so obviously neglected to challenge the most - 23 - serious offense against his client proves that counsel was ineffective. See U.S. Const. amends. VI, XIV; N.Y. Const. art. I, § 6; Strickland v. Washington, 466 U.S. 668 (1984); People v. Benevento, 91 N.Y.2d 708 (1998). As this Court has established, an attorney who fails to raise a dispositive motion can be deemed ineffective. See People v. Turner, 5 N.Y.3d 476, 485 (2005). Under Turner, counsel for Mr. Howard was clearly ineffective for failing to move to dismiss the first degree robbery charge on legal insufficiency grounds because such a motion would, in all likelihood, have resulted in a favorable outcome for his client given the lack of dispute that a B.B. gun cannot serve as the basis for a conviction under subsection (4) of the first degree robbery statute as a matter of law. Moreover, contrary to Respondent’s claims in the Appellate Division and the conclusion reached by the majority of that court, the record clearly shows that the prosecution’s case hinged upon the alleged display of the B.B. gun by Mr. Howard to support that element of first degree robbery, and not the alleged display of an unknown object by Hilbert Stanley, Mr. Howard’s co-defendant. First, Mr. Lopez provided very little testimony concerning Mr. Stanley’s display, stating only: “I felt the other person [Mr. Stanley] was touching me with something else on my back. I don’t know. I cannot say if it was a gun or something else.” A. 393 (T. 205) (emphasis added). Mr. Lopez provided no further details concerning his perceptions of the object allegedly used by Mr. Stanley during the robbery. In contrast, Mr. - 24 - Lopez repeatedly discussed the B.B. gun with which Mr. Howard allegedly threatened him. See A. 393, 394, 412, 431, 432, 480, 491, 495 (T. 205, 206, 224, 243, 244, 292, 303, 307). Given that Mr. Lopez made only one brief reference to the display of an unknown object to his back, in contrast to his multiple references to the B.B. gun held to his face, it is evident that the prosecution’s evidence with respect to the display element was based on the showing of the B.B. gun. That the almost exclusive focus of the prosecution and both defense attorneys was on the display of a B.B. gun by Mr. Howard, and conversely little attention was paid to Mr. Stanley’s display of an unknown object, also supports this conclusion. For example, in its summation, the prosecution made only two brief references to Mr. Stanley’s display and never implied that the object displayed was a gun. See A. 571 (T. 382) (twice referring to “something” having been pressed against Mr. Lopez). Significantly, neither counsel for Mr. Howard nor, more significantly, counsel for Mr. Stanley made reference to any object held by Mr. Stanley during their respective summations. Had Mr. Stanley’s display actually been a second theory supporting the display of a firearm element, the parties would no doubt have paid much greater attention to the issue. In contrast, the discussion of Mr. Howard’s alleged display of a B.B. gun was far more significant. Indeed, the prosecution referenced Mr. Howard’s display no less than five times, often discussing the matter at length. See A. 568, 570-71, 573, 575, - 25 - 577 (T. 379, 381-82, 384, 386, 388). In addition, counsel for Mr. Howard discussed the B.B. gun held to Mr. Lopez’s face on several occasions. See A. 560-62 (T. 371- 73). While Mr. Stanley’s attorney made only one relevant mention of what was displayed during the robbery, it included no reference to what was allegedly held to Mr. Lopez’s back by his own client. See A. 552-53 (T. 363-64). The prosecution also introduced the B.B. gun found in the trunk of the car in which Mr. Howard had been stopped through the testimony of Officer Burns, who confirmed that this object was not a real handgun. A. 220-23 (T. 32-35). When later shown the recovered B.B. gun, Mr. Lopez testified that it looked like the same object with which he had been threatened. A. 412 (T. 224). Thus, it is clear that Mr. Howard’s display of the B.B. gun was the only real display of a weapon at issue here. Consequently, defense counsel had a responsibility to challenge the first degree robbery charge, given the prosecution’s reliance on Mr. Howard’s alleged use of the B.B. gun to satisfy the display element of this offense. Even if the prosecution had actively relied on the alternate theory that the object held to Mr. Lopez’s back by Mr. Stanley could satisfy the display of a firearm element, Mr. Lopez’s meager testimony regarding this object was arguably inadequate proof of this element. Indeed, all we have is Mr. Lopez’s testimony that he felt “something else” “touching” his back, A. 393-94 (T. 205-06) – a description which was made in direct contrast to the object held to his face that he actually - 26 - perceived as a gun. A. 393 (T. 205). Mr. Lopez also explicitly acknowledged that he did not know what the other object being touched to his back was. Id. In addition, Mr. Lopez did not objectively describe the sensation of that touch with any particularity, nor did he describe the touch as a forceful one. In fact, Mr. Lopez did not even describe the feel of a hard object. Despite the lack of any description by Mr. Lopez of the object he felt, and no statement by Mr. Lopez that he even thought it was a firearm, the Appellate Division majority found that Mr. Lopez “could reasonably have perceived Stanley’s object to be a gun,” concluding that Mr. Lopez’s singular mention of feeling “something” on his back provided legally sufficient evidence of first degree robbery. See Howard, 82 A.D.3d at 179 (A. 7). However, this Court established in People v. Lopez that, to satisfy the display element, what is required, at minimum, is that “the victim reasonably perceives that the defendant has a gun.” 73 N.Y.2d 214, 222 (1989) (emphasis added). As this Court made clear a “reasonable perception” means that the display was actually “witnessed in some manner by the victim, i.e., it must appear to the victim by sight, touch or sound that he is threatened by a firearm.” People v. Baskerville, 60 N.Y.2d 374, 381 (1983). See also Lopez, 73 N.Y.2d at 220 (noting that, “[a]lthough the display element focuses on the fearful impression made on the victim, it is not primarily subjective. The People must show that the defendant consciously displayed something that could reasonably be perceived as a firearm, with the intent of forcibly - 27 - taking property, and that the victim actually perceived the display.”) (citing Baskerville, 60 N.Y.2d at 381). In the case at bar, there was no perception by Mr. Lopez that what Mr. Stanley allegedly held to his back was a gun, let alone any kind of weapon. Significantly, Mr. Lopez did not even testify that he “believed” a weapon was present. Rather, he stated that he did not know what this object was. Thus, the majority’s position runs contrary to established precedent from this Court. In addition, the cases involving first degree robbery that were cited by the majority in support of its position, see Howard, 92 A.D.3d at 180 (A. 7-8), all present additional facts concerning the complaining witness’s perception that are simply not present here. See People v. Groves, 282 A.D.2d 278, 278 (1st Dep’t 2001) (object pressed to complainant’s back “felt like a gun”); People v. Washington, 229 A.D.2d 601, 602 (2d Dep’t 1996) (defendant “put his hand in the pocket of his jacket and pressed a hard object to [complainant’s] side,” which made complainant think the object was “‘probably a gun or a knife’”) (emphasis added); People v. Simmons, 186 A.D.2d 95, 96-97 (1st Dep’t 1992) (three times defendant “simulated possession of a gun by placing his hand in a paper bag, and on one occasion simply thrust his hand forward in his pants as if armed,” thus, in each instance, complainants actually perceived the presence of a weapon). Because Mr. Lopez’s single cursory reference at trial did not prove, beyond a reasonable doubt, that the object Mr. Stanley held to his back could reasonably have been perceived as a weapon, or that Mr. Lopez - 28 - actually perceived it as such, it is unlikely that there was legally sufficient evidence to support the display of a firearm element under this alternative display theory. Had defense counsel moved for the dismissal of the first degree robbery count, there is little chance that the motion would have been denied, given the great degree of emphasis placed on Mr. Howard’s alleged display of a B.B. gun and the comparatively scant evidence of Mr. Stanley’s alleged display of an unidentified object. Additional support for this conclusion is the fact that the most serious charge could have been challenged on the similar grounds of operability already advanced by counsel with respect to several lesser weapons possession charges – a challenge which was met with success in the form of the dismissal of those charges. See A. 502-04 (T. 314-16). However, even if the success of this motion was not absolutely guaranteed, as this Court made clear in Turner, this would not justify defense counsel’s failure to make the motion. 5 N.Y.3d at 481, 485 (finding appellate counsel ineffective for failing to raise trial counsel’s ineffectiveness, where trial counsel neglected to raise a dispositive statute of limitations defense; adding that, “[a] reasonable defense lawyer at the time of defendant’s trial might have doubted that the statute of limitations argument was a clear winner--but no reasonable defense lawyer could have found it so weak as to be not worth raising”). Thus the majority’s position that Mr. Howard’s attorney could not have been ineffective because a motion to dismiss 9 If convicted of first degree robbery, Mr. Howard faced a prison sentence of up to 25 years, as opposed to a maximum of only fifteen years if he had been convicted of second degree robbery. See N.Y. Penal Law § 70.04(3)(a), (b) (McKinney 2011). - 29 - would have been “unavailing” in light of Mr. Lopez’s testimony concerning Mr. Stanley’s display of an unknown object, Howard, 92 A.D.3d at 181 (A. 11), is not only unconvincing, but incorrect. Furthermore, because challenging the most serious charge faced by Mr. Howard could have significantly reduced his sentencing exposure,9 no reasonable attorney could have thought that such a challenge was not worth pursuing. See Turner, 5 N.Y.3d at 485. Indeed, defense counsel had no legitimate basis for failing to bring such a motion, especially when he had moved to dismiss other counts in the indictment, including the two counts of fourth degree weapons possession on the ground that there was no expert testimony evidencing that the B.B. gun was an operable weapon. A. 502-03 (T. 314-15). Given that the first degree robbery charge could have been challenged on similar grounds, and there was absolutely no strategic reason not to do so, counsel’s failure to pursue any attempt to dismiss the top count of the indictment is inexcusable. Even if the court had denied the motion, by raising the matter, defense counsel would have put the court on notice of the fact that two potential theories of the display element were before the jury. As discussed in greater length, see Point I-B infra, this could very well have prompted the court to provide proper instructions to - 30 - the jury, so it would have known that, not only did there need to be a unanimous decision as to which display it believed was the basis for conviction, but also that the display of a B.B. gun could not support the charge of first degree robbery. Given the lack of proper instructions, there is nothing to assure that the verdict here was proper. Counsel’s failure to move to dismiss the first degree robbery count thus denied Mr. Howard not only the opportunity to reduce the most serious charge against him, but also denied him the chance to alleviate a potentially improper verdict. In sum, because the affirmative defense was plainly established as to Mr. Howard’s alleged display of the B.B. gun, which is not in dispute, this display could not have served as the basis for his first degree robbery conviction. At most, it was sufficient to convict him of second degree robbery. Defense counsel was therefore obligated to move to dismiss this charge on legal insufficiency grounds, given that Mr. Howard’s status as a second violent felony offender meant that he would be exposed to a considerably lower maximum sentence if convicted of the lesser robbery charge. Because counsel’s failure to move to dismiss the top count of the indictment was plainly egregious under the circumstances, Mr. Howard was deprived of his right 10 Even if defense counsel had been unsuccessful in moving to dismiss the first degree robbery count, counsel should have at least requested a jury instruction on the affirmative defense contained in subsection (4) of the first degree robbery statue. Indeed, the subsection under which Mr. Howard was charged contains a unique defense whereby, if “such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged,” the offense is, at most, second degree robbery. N.Y. Penal Law §160.15(4) (McKinney 2010) (emphasis added). Because the prosecution’s evidence at trial was that the object allegedly displayed by Mr. Howard was a B.B. gun, and it is undisputed that a B.B. gun is not a firearm, there is no question that the affirmative defense was proven. In light of the fact that an instruction could have significantly reduced Mr. Howard’s criminal liability, counsel would plainly have been ineffective for failing to request that the jury be charged on the affirmative defense had he been unsuccessful in moving to dismiss the first degree robbery count. - 31 - to effective assistance of counsel and to a fair trial, warranting this Court’s reversal of his conviction.10 B. Defense Counsel Was Likewise Ineffective for Failing to Alert the Court to the Fact that Its Final Jury Instructions Could Result in an Improper Verdict Because They Did Not Indicate That the Decision Had to be Unanimous With Respect to the Potential Theory of Display at Issue, Or That the B.B. Gun Display Was a Legally Insufficient Theory. In its final instructions to the jury, the court failed to specify which alleged display of a weapon the jury was to consider. Instead, it provided identical charges on first degree robbery with respect to both Mr. Howard and Mr. Stanley, see A. 605- 07 (T. 416-21), after providing an acting-in-concert charge. See A. 601-03 (T. 412- 14). As a result, the court did not inform the jury that it was only to consider Mr. Stanley’s alleged displayed of an unknown object, and not Mr. Howard’s alleged display of the B.B. gun. Such an instruction was necessary because, as no one - 32 - disputes, the display of a B.B. gun could not be relied upon by the jury to support a conviction for first degree robbery as a matter of law. Given that the court’s final charge did not remove the B.B. gun display from the jury’s consideration, the jury could have based Mr. Howard’s conviction on this legally insufficient display theory. This would have been an improper verdict. Because the court’s instructions also did not limit the jury’s consideration to only one display theory, there is no assurance that the verdict was unanimous as there is now way to know whether some jurors convicted Mr. Howard based on the B.B. gun display, while others convicted him based on Mr. Stanley’s display of an unknown object. Defense counsel was thus ineffective for failing to bring this critical issue to the court’s attention. There is a significant danger that the jury relied entirely upon the showing of the B.B. gun to satisfy the display element, which there is no question was a legally insufficient basis for the first degree robbery conviction in this case. Indeed, it is easy to see how the jury could have done so in light of the repeated emphasis placed on Mr. Howard’s alleged display of the B.B. gun by all parties and the admission of the B.B. gun recovered from the trunk of the car at trial, which Mr. Lopez testified appeared to be the object with which Mr. Howard threatened him. See A. 412 (T. 224) (discussed in greater detail in Point I-A, supra.) Adding to that, the comparative lack of discussion concerning the touch of an unspecified object to Mr. Lopez’s back, it would be surprising for the jury to have found that this single cursory reference to - 33 - Mr. Stanley’s alleged display supported the display element. What is critical, however, is that, at no time was Mr. Howard’s display removed from the jury’s consideration. There is thus absolutely no assurance that the jury did not rely exclusively on this display theory in arriving at its verdict. As this Court recently explained, “if jurors are given the option of convicting on legally inadequate grounds, ‘there is no reason to think that their own intelligence and expertise will save them from that error.’” People v. Beacoats, 17 N.Y.3d 643, 654 (2011) (quoting Griffin v. United States, 502 U.S. 46, 59 [1991]). Because, based on the court’s instructions, none of the jurors here could have known that a B.B. gun did not qualify as a firearm, and thus could not support the display of a firearm element of first degree robbery, “there is no way of concluding, short of speculation, that the jury did not rely on” this legally insufficient theory. People v. Martinez, 83 N.Y.2d 26, 37 (1993). In light of the repeated emphasis by all parties on the B.B. gun display, not only is it possible that the verdict was based on a legally invalid theory, but there is a strong likelihood that it was. Because the showing of a B.B. gun could not legally serve as the basis for the display element, defense counsel was obligated to either request that the court inform the jury that it could not rely on the B.B. gun to establish the display element, or to object to the court’s instructions as given on the basis that they allowed the jury to rely upon this legally insufficient display theory. Since counsel failed to take any - 34 - steps to ensure that the jury’s verdict did not depend on a display theory that, as a matter of law, could not serve as a valid basis for convicting Mr. Howard of first degree robbery, counsel was plainly ineffective. Even if the Appellate Division majority is correct and Mr. Lopez’s single vague reference to the “something else” Mr. Stanley held to his back was somehow sufficient evidence to uphold Mr. Howard’s conviction for first degree robbery, see Howard, 92 A.D.3d at 179-81 (A. 7-10), there is still the danger that the jury rendered a split verdict. Given that two theories concerning the display of a firearm element were technically before them, some jurors could have found Mr. Howard guilty based on his alleged display of a B.B. gun – a legally improper basis – while others could have voted to convict based on Mr. Stanley’s alleged display of an unknown object. Such a dual basis for a verdict is clearly improper. Given that the court’s final instructions did not remove either display theory from the jury’s consideration, the jury was in a position to convict on either or both theories. See People v Booker, 63 A.D.3d 750, 751-52 (2d Dep’t 2009) (reversing weapons possession conviction where defendant was alleged to have possessed more than one firearm, but lower court refused to inform jury that it had to be “unanimous on any conviction as to a particular gun for each count,” thus it could not be known “without speculating” which gun jury found defendant had possessed); People v Jones, 233 A.D.2d 342, 342 (2d Dep’t 1996) (vacating weapons possession - 35 - conviction where defendant was charged with two counts of same and jury convicted on only one count, and record showed that two weapons were used in shooting,” but “the identically worded counts . . . failed to identify which weapon pertained to each count,” and “court failed to link a particular weapon to a specific count”); People v Jackson, 174 A.D.2d 444, 445-46 (1st Dep’t 1991) (where defendant was charged with four identical weapons possession counts that did not specify which of four guns pertained to each count, it was “impossible to conclude with certainty” which gun defendant was convicted of possessing, or “whether all twelve members of the jury voted to convict him of possessing the same gun”; because conviction was “clearly duplicitous,” reversal was warranted). Since it cannot be ascertained on the basis of the record before this Court whether the verdict was predicated on the legally invalid theory of the B.B. gun display or on the alternative theory, or both simultaneously, there is no other conclusion to be reached other than that the verdict here was invalid. It is notable that neither Respondent nor the Appellate Division majority made any attempt to reconcile this critical problem. Indeed, the decision by the Appellate Division majority actually draws attention to the flaws in the verdict, because it found that the jury could have convicted under either display theory. First, the majority rejected the claim that Mr. Howard’s conviction should be reduced to second degree robbery, finding that it was - 36 - unpreserved due to counsel’s failure to request a charge on the affirmative defense, to object to its absence in the court’s final instructions, or to argue that the prosecution had offered legally sufficient evidence of the display element, Howard, 92 A.D.3d at 179 (A. 6); thus acknowledging that the B.B. gun display was never removed from the jury’s consideration. The majority went on to find, “[a]s an alternative holding,” that there was legally sufficient evidence to support the jury’s verdict because, in its opinion, the “object displayed from behind by Stanley, together with the victim’s reasonable belief that it could be a gun, provided an independent basis” for the conviction. Id. at 179, 181 (A. 7, 9) (emphasis added). Significantly, the majority did not adopt Respondent’s position that the first degree robbery charge was based solely on the object held to Mr. Lopez’s back. Rather, the court acknowledged that, while the prosecution’s summation emphasized the B.B. gun display, the prosecution did not confine itself “to a theory that [this] was the only firearm display.” Id. at 181 (A. 10). Because the majority’s decision plainly indicates that the verdict could have been predicated on either display theory, it illustrates the inherent problems with the verdict in this case. Because the jury’s consideration was never restricted to a single display theory, and there is thus no assurance that the verdict was unanimous, defense counsel should have requested that the court limit the scope of its charge to one display theory, or should have objected to the court’s instructions as given. Indeed, there was no - 37 - strategic reason for allowing Mr. Howard’s basis for liability to be expanded to encompass two alleged displays. Because counsel took no steps to ensure a unanimous verdict, counsel was ineffective. In sum, defense counsel’s failure to pursue any action aimed at safeguarding against a verdict that was either based on a legally insufficient theory, or was not unanimous, violated Mr. Howard’s constitutional rights to effective assistance of counsel. See U.S. Const. amends. VI, XIV; N.Y. Const. art. I, § 6. - 38 - POINT II THE COURT BELOW ERRED IN DENYING MALIK HOWARD’S MOTION TO SUPPRESS A SHOW-UP IDENTIFICATION WHICH WAS FAR TOO ATTENUATED, BOTH SPATIALLY AND TEMPORALLY, FROM THE CRIME ITSELF, IT WAS NOT PROMPTED BY EITHER EXIGENCY OR AN UNBROKEN CHAIN OF EVENTS, AND IT INVOLVED PROCEDURES THAT WERE UNDULY SUGGESTIVE. As this Court has mandated, show-up identifications are “strongly disfavored.” People v. Riley, 70 N.Y.2d 523, 529 (1987). Despite this directive, courts routinely uphold these identifications, which are, “by their [very] nature, suggestive.” Id. In Malik Howard’s case, the First Department upheld a show-up that was improper for several reasons. First, it was marked by such an extreme attenuation of both the spatial and temporal factors that no show-up characterized by such lengthy dual attenuation has ever before been upheld by a court of this state. Furthermore, there was a lack of justification for conducting such a suggestive identification procedure given that no exigent circumstances existed where Mr. Howard was already under arrest for a separate offense. Mr. Howard was also not detained as part of an ongoing investigation immediately following the robbery at issue, which would have provided a reason to conduct a show-up. Moreover, when viewing the totality of the circumstances surrounding the show-up itself, it is clear that the presence of a multitude of inherently suggestive factors rendered the resulting identification impermissibly unreliable. - 39 - By affirming Mr. Howard’s case, the First Department has signaled that there are virtually no limits to the use of such an inherently suggestive identification procedure. However, there are limitations when it comes to the admission of show- ups, which this Court must once again strengthen given the egregious situation that now exists. Because the introduction of this wholly unnecessary and suggestive identification also violated Mr. Howard’s constitutional rights, see U.S. Const. amends. V, XIV; N.Y. Const. art. 1, § 6, this Court should reverse the denial of Mr. Howard’s suppression motion. A. The Show-Up Here Was So Remote, Both in Space and Time, From the Crime Itself That Such Extreme Dual Attenuation Has Never Before Been Upheld By a Court of This State. As this Court has mandated, show-up identifications are only permissible when necessitated by exigent circumstances or when conducted in close proximity, both spatially and temporally, to the actual crime. People v. Duuvon, 77 N.Y.2d 541, 543- 44 (1991). As the police testimony at the suppression hearing in this case made clear, at least two hours elapsed between when the radio run about the robbery was sent out, and when the show-up took place. See A.35, 69 (H. 12, 46). In addition, as judicially noted, the location of the show-up was approximately five miles from the scene of the crime. A. 188 (Decision at 5). Thus, it was not connected by any sort of reasonable proximity to the actual crime and should not have been deemed permissible, - 40 - especially when considering that no other state court decision has upheld such a lengthy attenuation of both the spatial and temporal factors in the absence of exigency or an unbroken chain of events. First, the two hour lapse between the crime and the show-up is, by itself, at the very highest end of the spectrum. See People v. Brisco, 99 N.Y.2d 596, 600 (2003) (Smith, J., dissenting) (noting that “cases where we have found no infirmity with the show-ups have generally involved a temporal span of 15 minutes or less”). Although it is true that a significant lapse in time will not, “by itself,” render a show-up impermissible, People v. Wells, 221 A.D.2d 281, 281 (1st Dep’t 1995), courts are nonetheless obligated to consider the spatial and temporal factors together. See People v. Gilford, 16 N.Y.3d 864, 868 (2011) (due process requires that courts “decide whether the showup was reasonable under the circumstances—i.e., justified by exigency or temporal and spatial proximity—and, if so, whether the showup as conducted was unduly suggestive”) (citation omitted); Brisco, 99 N.Y.2d at 597 (recognizing that, “in the absence of exigent circumstances,” a show-up is only admissible when it “was reasonable under the circumstances--that is, when conducted in close geographic and temporal proximity to the crime--and the procedure used was not unduly suggestive”); see also Duuvon, 77 N.Y.2d at 543. Notably, in several cases where courts have concluded that the show-up at issue was not rendered improper based on a two or three hour time lapse alone, the - 41 - decisions have specifically noted the “close” geographic proximity that existed between the show-up and the crime. See People v. McBride, 242 A.D.2d 482, 482 (1st Dep’t 1997); Wells, 221 A.D.2d at 281. See also People v. Wall, 38 A.D.3d 1341, 1341 (4th Dep’t 2007) (defendant was apprehended “near the crime scene,” where show-up was conducted); People v. Andrews, 255 A.D.2d 328, 329 (2d Dep’t 1998) (show-up took place in same building as crime); People v. Maybell, 198 A.D.2d 108, 108-09 (1st Dep’t 1993) (noting show-up occurred two blocks away). In addition to the significant temporal attenuation, the show-up here also took place five miles from the scene of the crime. Although the suppression court refused to find that the five mile distance alone was improper, A. 188 ( Decision at 5), such a protracted geographic attenuation is clearly problematic and cannot support a conclusion that the situation warranted the use of a show-up, especially when it took place so long after the commission of the crime. It is thus clear that both the First Department and the suppression court were fundamentally mistaken in their analysis, as neither court considered the time and distance factors together. Time and again, however, this Court has mandated simultaneous analysis. See Gilford, 16 N.Y.3d at 868; Brisco, 99 N.Y.2d at 597; People v. Ortiz, 90 N.Y.2d 533, 537 (1997); Duuvon, 77 N.Y.2d at 543. It is also significant that no court in this state, when considering both spatial and temporal proximity in tandem, and where there was a similarly lengthy dual - 42 - attenuation – although none of such an extreme attenuation of both factors as here – has found the use of show-up identifications proper. See, e.g., People v. Johnson, 81 N.Y.2d 828, 830-31 (1998) (where there was a break in chain of events, a lapse of two-and-a-half hours, and complainant and suspect were transported to crime scene, show-up was improper); People v. James, 218 A.D.2d 709, 710 (2d Dep’t 1995) (show-up conducted two miles from crime scene and at least two hours later deemed improper); People v. Walker, 198 A.D.2d 826, 827 (4th Dep’t 1993) (where over an hour had passed since crime, and complainant had to be transported four miles for show-up, identification was inadmissible). Indeed, neither Respondent nor the First Department cited a single New York state case where a show-up marked by such lengthy dual attenuation as here has been upheld. It is thus evident that the show-up in Malik Howard’s case was too remote, both spatially and temporally, from the crime to have been found properly admissible. B. The Show-Up Here Was Also Unnecessary Given the Absence of Either Exigent Circumstances or an Ongoing Investigation. There were no compelling circumstances to justify law enforcement’s decision to conduct a show-up identification in this case, as opposed to a more reliable lineup procedure. Although it is true that show-ups may be necessary to “obtain a prompt and reliable identification,” People v. Green, 256 A.D.2d 85, 85 (1st Dep’t 1998), there was no such need here, given that Mr. Howard was already under arrest for a 11 It should be noted that the suppression court did not find that any exigent circumstances were present. See A. 187 (Decision at 4). - 43 - separate offense. A. 94-95 (H. 70-71) (Officer Burns confirming “absolutely no emergency”existed after Mr. Howard was arrested for marijuana possession prior to show-up) (emphasis added). Therefore, detaining Mr. Howard for the purpose of allowing the complainant to identify him was not an exigent circumstance justifying the show-up here. Moreover, because Mr. Howard was already under arrest, the police had more than sufficient time and opportunity to transport him to the precinct for a more reliable identification – namely a lineup with proper fillers, which is a far better practice than conducting an inherently suggestive show-up.11 Furthermore, the show-up here was not the result of an unbroken chain of events or an ongoing investigation. As Officer Burns testified, after receiving a radio run about an armed robbery, he and other officers canvassed the area near the scene of the crime scene for about 20 minutes, with no results. A. 35-37 (H. 12-14). Burns and the other officers then returned to their precinct. A. 37 (H. 14). While back on patrol around 4:00 a.m., possibly 4:15 a.m. – well over an hour after the robbery – the officers stopped the car in which Mr. Howard was a passenger, five miles from the where the robbery occurred. A. 61, 69 (H. 38, 46). Indeed, as even Respondent acknowledged before the Appellate Division, Mr. Howard and Mr. Stanley “were encountered by chance a few hours” after the crime took place. A. 668 (Resp. AD Br. - 44 - at 24) (emphasis added). In addition, Mr. Lopez had already returned home after the initial canvassing and only later received a phone call from police asking him to go to the arrest location to participate in the show-up. A. 152-53 (H. 127-28). Because there was clearly no intervening event to connect the commission of the crime and the car stop, there is no support for a conclusion that there was an unbroken chain of events or that Mr. Howard’s apprehension was the result of an ongoing investigation. In other words, these circumstances plainly do not fall under the category of a “prompt, at-the-scene show-up procedure.” People v. Cortez, 221 A.D.2d 255, 256 (1st Dep’t 1995). Notably, the only situations in which courts have upheld show-up identifications marked by both geographic and temporal attenuations of a somewhat similar degree to Mr. Howard’s case, have been marked by a “fast-moving” and “unbroken chain of events.” Duuvon, 77 N.Y.2d at 545. Even in those instances, however, there did not exist such significant attenuations in both the spatial and temporal contexts as what exists here. See, e.g., People v. Davis, 232 A.D.2d 154, 154 (1st Dep’t 1996) (show-up was “culmination of an unbroken chain of exigent events” where officers were meeting with complainants minutes after robbery when they heard a possible suspect had been detained, and immediately drove complainants to suspect’s location 30 blocks away for identification); People v. Serrano, 219 A.D.2d 508, 508 (1st Dep’t 1995) (show-up 120 blocks from crime scene and 45 - 45 - minutes later found proper where defendant was apprehended following a car chase, thus there was a “single unbroken chain of exigent events”). In sum, there was simply no reason for the police to have conducted a show-up so far from the crime and so long after its commission, given the lack of any exigent circumstances, an unbroken chain of events, or an ongoing investigation. There were also far too many unduly suggestive factors present during the actual show-up for either the suppression court or the First Department to have concluded that the resulting identification was reliable. C. Lastly, the Show-Up Was Tainted By an Overwhelming Number of Suggestive Factors, Rendering the Resulting Identification Improper. As this Court has recognized, show-up identifications are, “by their nature suggestive.” Riley, 70 N.Y.2d at 529. This is precisely why this Court has acknowledged that they are to be utilized only when they are the result of exigent circumstances or an ongoing investigation, or when conducted in close proximity, both spatially and temporally, to the crime. Duuvon, 77 N.Y.2d at 543-44. However, even when the surrounding circumstances justify the use of such a suggestive identification procedure, this Court has made clear that the situation “must be scrutinized very carefully for unacceptable suggestiveness and unreliability.” Id. at 543. While it is true that “[i]nherent in any showup is the likelihood that an identifying witness will realize that the police are displaying a person they suspect of 12 As this Court cautioned, the suggestiveness of showing the defendant while handcuffed and sitting in the back of a police car “presses judicial tolerance to its limits.” Duuvon, 77 N.Y.2d at 545. - 46 - committing the crime, rather than a person selected at random,” People v. Gatling, 38 A.D.3d 239, 240 (1st Dep’t 2007), there were simply too many suggestive factors to conclude that the show-up in this case was admissible. Here, Mr. Howard was handcuffed and positioned next to two officers prior to the complainant’s arrival. A. 47 (H. 24); see also A. 131 (H. 107).12 These officers were not black men, as the perpetrators had been described by Mr. Lopez – although both Mr. Howard and Mr. Stanley were. A. 36, 101 (H. 13, 77). Mr. Lopez also confirmed that he knew the two men standing next to Mr. Howard and Mr. Stanley were officers “because what other people could be next to them.” A. 134 (H. 110). In addition, when Mr. Lopez arrived at the arrest location, he saw Mr. Howard standing near a vehicle matching the description of the getaway car he had previously provided. A. 60, 74, 130-31 (H. 37, 51, 106-07). Mr. Howard was also situated in close proximity to a police car. A. 73 (H. 50). Even more troubling is the fact that, before the show-up took place, the police had already informed Mr. Lopez that they had someone with characteristics matching the description he had provided. A. 114 (H. 90). Under the applicable totality of circumstances approach, the plethora of inherently suggestive factors present at the show-up here rendered it impermissibly - 47 - unreliable because it isolated Mr. Howard, thereby creating a substantial likelihood of misidentification. In its decision, the First Department summarily dismissed the multitude of suggestive factors present at the show-up here, claiming that they amounted to nothing more than those “generally inherent in the nature of most showups.” Howard, 92 A.D.3d at 182 (A. 12). However, this reasoning subverts the fundamental principle established by this Court over two decades ago in Riley that show-ups are “strongly disfavored” and should be conducted only when necessary. 70 N.Y.2d at 529. In addition, the suggestiveness of the show-up conducted in this case should be analyzed against the backdrop of the growing recognition of the general lack of reliability in eyewitness identifications, including recent acknowledgments by this Court. See People v. Santiago, 17 N.Y.3d 661, 672-73 (2011); People v. LeGrand, 8 N.Y.3d 449, 454-55 (2007). See also People v. Muhammad, 17 N.Y.3d 532, 546 (2011) (“Our concern in recent years has arisen from psychological studies that have addressed the potential for misidentification when a person observes an assailant—usually a stranger—for the first time in a highly stressful environment.”). In this vein, it is critical to note that, with show-ups, as opposed to more reliable procedures involving multiple suspects, any undue suggestiveness has an even greater potential to incriminate the single suspect. Because the very nature of the show-up - 48 - identification calls into question its validity, the use of such a highly suggestive procedure should be carefully scrutinized. In conclusion, while there are no “bright-line,” Johnson, 81 N.Y.2d at 831, “per se or presumptive rules,” Duuvon, 77 N.Y.2d at 545, when determining the propriety of a particular show-up identification, such an extreme level of dual attenuation, when coupled with a lack of exigency or an unbroken chain of events, and the sheer number of suggestive factors present at the identification itself, rendered the show-up here improper. The fact that no one – neither the prosecution at the suppression hearing or at trial, the hearing court, Respondent on appeal, nor the First Department – has provided any remotely convincing justification for the use of such an inherently suggestive procedure, yet the identification was still upheld by not one, but two courts, should alert this Court to the problematic lack of any cognizable limitation on the admission of show-ups. Given the facts presented by this case, which plainly evidence the admission of an improper and unreliable identification, this Court should reverse the denial of that branch of Mr. Howard’s motion to suppress. - 49 - CONCLUSION For the reasons stated above, this Court should grant the requested relief. Dated: New York, New York December 21, 2012 Respectfully submitted, RICHARD M. GREENBERG, ESQ. Attorney for Defendant EUNICE C. LEE, ESQ. Supervising Attorney By: _____________________________ REBEKAH J. PAZMIÑO, ESQ. Staff Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 (212) 402-4100