Decided May 17, 2010.
Diego Hernandez, Esq., Assistant District Attorney, Criminal Court Bureau, Bronx, New York.
Peter Kennedy, Esq., Assistant District Attorney, Criminal Court Bureau, Bronx, New York.
Leana E. Amaez, Esq., The Bronx Defenders, Bronx, New York, Attorney for Defendant.
Karen Smolar, Esq., The Bronx Defenders, Bronx, New York, Attorney for Defendant.
Michael Torres, Esq., Bronx, New York, Assigned Counsel for Defendant.
Defendant Mark Jurgins was charged in a twelve count indictment with Robbery in the First Degree, PL § 160.15(3), Robbery in the Second Degree, PL § 160.15(1), Robbery in the Second Degree, PL § 160.10(2)(a), Robbery in the Third Degree, PL § 160.05, Grand Larceny in the Fourth Degree, PL § 155.30(5), Assault in the First Degree, PL § 120.10(1), Assault in the Second Degree, PL § 120.05(1), Assault in the Second Degree, PL § 120.05(2), Assault in the Second Degree, PL § 120.05(6), and several misdemeanors.
On October 10, 2008, Defendant filed an omnibus motion seeking, among other things, to have the Court: (1) dismiss or reduce the indicted charges for legal insufficiency; (2) suppress any physical evidence seized from the Defendant; (3) suppress oral and written statements and any identification of the Defendant; and (4) prevent the People from introducing any previous criminal convictions or bad acts of Defendant if Defendant were to testify.
People submitted an opposition, filed October 22, 2008, to Defendant's motion.
In his omnibus motion to suppress statements, physical evidence, and any identification of Defendant, Defendant contends that the police did not have probable cause to stop and search him and thus, no basis to place him under arrest, and asks this Court to suppress the identification and any statements allegedly made by Defendant as tainted fruit of the illegal arrest, as well as any physical evidence, and to preclude evidence of any prior convictions of Defendant at trial. Defendant also contends that the photograph array (hereinafter, "photo array") identifications of him were unduly suggestive and thus any identifications based on those photo arrays should be suppressed.
On September 19, 2008, the Honorable Nicholas Iacovetta granted, in part, and denied, in part, Defendant's motion. Judge Iacovetta denied Defendant's motion to dismiss or reduce the charges in the indictment, but ordered a Huntley hearing on consent of the People, and granted Defendant's motion for a Wade hearing as to the admissibility of the identifications and a Mapp hearing as to the admissibility of the physical evidence, and also ordered a Dunaway hearing on the issues of suppression of the identification, statements and evidence. The Court also reserved the Sandoval issue as to Defendant to the trial court.
On April 9, 2010, this Court held the combined Huntley-Wade-Mapp-Dunaway hearing. The hearing did not conclude on that date and was continued on April 12, 13 and April 14, 2010. The hearing concluded on April 14, 2010. At the hearing Detective Dawn Del Valle, a police officer at the 42nd Precinct at the time of the events, testified, as did Police Officer Carl Hall, Shield No. 5593, 42nd Precinct; Regino Valerio, complaining witness, and Detective Brian Maley, Shield No. 2247, 42nd Precinct.
As noted further herein, after the hearing and before the Court conducted an independent source hearing, the case reached a disposition on consent via a guilty plea by Defendant to one count of Robbery in the First Degree, PL § 160.15(3) with a sentence promise by the Court, upon certain conditions with which Defendant was required to comply, of eleven years incarceration plus five years post release supervision, an order of protection, and all mandatory surcharges. The sentencing was scheduled for May 7, 2010. On the scheduled date of sentencing, Defendant's counsel informed the Court that Defendant wanted to withdraw his plea and that Defendant contends that his attorney coerced him into pleading guilty. The Court relieved Defendant's attorney, assigned new counsel, and adjourned the matter for possible motion.
For the reasons set forth below and as detailed in the findings of fact and conclusions of law, herein, the Court denies, in large part, Defendant's motion to suppress, except to the extent that it grants that portion of Defendant's motion to suppress any in-court identification of Defendant by the complaining witness based on an unduly suggestive photo array. With respect to Sandoval, Defendant waived his right to that hearing contending that he did not anticipate testifying as a witness at trial and therefore, did not need a Sandoval hearing.
With respect to Defendant's motion to suppress any in-court identification based upon a photo array identification procedure, statements and physical evidence on the basis that they were obtained as a result of an illegal arrest, the Court denies that portion of the motion in its entirety. The Court finds that, based upon the credible testimony of Police Officer Carl Hall, the police had reasonable suspicion to stop, detain and question Defendant, and, thereafter, probable cause to arrest him. Defendant matched the general description of the suspect for whom the police officers were searching; he was the only person in the hallway of the building to which the police officers were directed to search for the suspect; the search and apprehension of Defendant occurred only a short time after the incident had occurred; and that search and apprehension of Defendant occurred in a building that was in close proximity to the scene of the incident. The credible testimony of Police Officer Hall shows that, as a result of these facts, and the fact that the police were searching for a suspect who had used a weapon during the crime, the police officers properly directed Defendant when encountering him on the fifth floor of the building to show them his hands and to get on the floor. Police Officer Hall's credible testimony also shows that Defendant did not cooperate with either directive and the police were forced to restrain and search Defendant to ensure their own safety. When the police officers discovered a bloody knife and crack pipe in Defendant's pocket as a result of the search, the police had probable cause to arrest Defendant.
Accordingly, as probable cause existed for the arrest, Defendant's motion to suppress all physical evidence seized and statements and any identification of Defendant on the basis that they were obtained as a result of an illegal arrest is denied.
The Court also denies Defendant's motion to suppress the written statement made by Defendant finding that Det. Del Valle credibly testified that Defendant had knowingly, intelligently and voluntarily written the statement at issue after he had properly received Miranda warnings and waived his rights under Miranda.
The Court also finds that the photo array identification procedure conducted by the police with one of the witnesses on the scene who identified Defendant was not unduly suggestive and therefore Defendant's motion to suppress any in-court identification of Defendant based on that photo array identification is denied.
With respect to the photo array identification made by the complaining witness, Regino Valerio, for which the People gave notice pursuant to CPL § 710.30, and any in-court identification of the Defendant by Mr. Valerio based on that photo array identification, the Court grants Defendant's motion to suppress, finding that the credible testimony of Mr. Valerio established that the "noticed" photo array was preceded by an earlier photo array identification (for which the People did not provide any § 710.30 notice) which was conducted by a female police officer who matched Det. Del Valle's description. Not only did Det. Del Valle deny performing any photo array, Mr. Valerio could not recall enough specific details about such photo array except that he identified Defendant out of that photo array shown to him, and the People failed to provide Defendant with such photo array or any paperwork or documents arising out of or connected to that photo array.
Based upon the credible testimony of Mr. Valerio, the People's witness, which contradicted Det. Del Valle's testimony, and the dearth of specific information and documents about the procedure that was conducted in that first photo array, the Court imputes a negative inference that the first photo array procedure conducted with Mr. Valerio was unduly suggestive. As that first photo array with Mr. Valerio was conducted on the same day that the second photo array with Mr. Valerio also was conducted, the Court concludes that the second photo array conducted with Mr. Valerio was impermissibly tainted by the first unduly suggestive one. Accordingly, as the Court finds that the second (noticed) photo array identification was unduly suggestive, the Court grants Defendant's motion to suppress any in court identification of Defendant based upon that photo array identification.
As noted previously herein, the Court did not conduct such independent source hearing as the issue was moot upon Defendant's allocution of guilt pursuant to the plea agreement referred to in footnote 1, supra .
FINDINGS OF FACT
The Court has considered all of the testimony and finds credible all of the testimony of the witnesses except for Det. Del Valle's testimony relating to photo array identification procedures conducted in connection with Mr. Valerio. Police Officer Hall credibly testified as to the facts and circumstances surrounding the arrest of Defendant for the charged crimes. Officer Hall testified that he and his partner had received a radio call on the morning of May 1, 2008, at approximately 7:50 a.m., of an assault in progress, and that they proceeded to the scene. Officer Hall testified that, at the scene, he and his partner received a description of the perpetrator as a "black male wearing a blue suit," and that he and his partner proceeded by vehicle to canvas the area to look for the suspect. Officer Hall testified that, as he and his partner drove to a location that they were intending to search, they received another radio call informing them that another officer had new information as to the suspect's whereabouts. Officer Hall testified that, based upon that information, he and his partner headed to 1384 Bristow Avenue.
Officer Hall testified that, upon arriving at 1384 Bristow Avenue, he and his partner were flagged down by people outside of the building who told them that the person they were looking for went into that building and that he was trying to get into apartments. Officer Hall testified that he and his partner then entered the building, a five-story walk-up, and proceeded to ascend the stairs looking for someone who fit the description of the suspect. Officer Hall further testified that, upon reaching the fifth level, he heard his partner, who was directly in front of him on the stairs, say, "Let me see your hands." Officer Hall testified that, at that, he quickly ran up to be next to his partner, and he saw Defendant standing on the fifth floor platform. Officer Hall testified that the Defendant was wearing a blue jean jacket with black pants, that he and his partner had encountered no one else in the building during that five flight walk up and no one else, other than Defendant and a woman standing in the doorway of one of the apartments, was on the fifth floor. Officer Hall testified that the woman was saying to Defendant, "you're not getting in here." Officer Hall testified that Defendant did not comply with his partner's order and Officer Hall ordered Defendant to get on the floor and that Defendant failed to comply. Officer Hall also testified that, at that time, two more officers, including Lieutenant Sedran, reached the fifth floor landing and, because Defendant was not complying with the officers' instructions, all four officers forced the Defendant to the floor, where he was handcuffed. Officer Hall further testified that Lt. Sedran asked the Defendant if he had any weapons and Defendant stated that he had a knife in his pocket. Officer Hall testified that Lt. Sedran then recovered a kitchen knife with a black handle from Defendant's pocket, which had what appeared to Officer Hall to be blood on the blade. Defendant was then taken to the 42nd Precinct.
Det. Del Valle testified as to the Miranda warnings given to Defendant, the statement that he thereafter made, and a photo array identification that Mr. Valerio, while still in the hospital, made of Defendant. Det. Del Valle testified that, at the 42nd Precinct, she read Defendant his Miranda rights, and that Defendant indicated, both verbally and in writing, that he understood and waived these rights. Det. Del Valle testified that Defendant then wrote out a statement in his own handwriting. As to the photo array identifications, Det. Del Valle was not credible when she testified that she had interviewed the complaining witness in the hospital, the morning of the crime, but had not conducted any photo array identification procedure with him or with any other witness. Det. Del Valle stated that the only photo array procedure was conducted by Police Officers Brown and Godino with the complaining witness in his hospital room, the evening after the attack.
The complaining witness, Regino Valerio, contradicted Det. Del Valle's testimony regarding the photo array identification procedures that were conducted. Mr. Valerio testified that, while he was at St. Barnabas hospital the morning of the incident, a thin, African-American, female police officer with straight hair came to see him and showed him an array of photos. (Det. Del Valle, who matches that description, testified that she had gone to the hospital to interview Mr. Valerio shortly after the incident occurred.) Mr. Valerio testified that during that photo array, he selected one of the photographs as depicting the person who robbed and stabbed him. The People provided no notice to Defendant about this identification as required by CPL § 710.30 and no evidence of the photo array that was shown to Mr. Valerio at that time was provided to Defendant or offered at the hearing.
Mr. Valerio further testified that two more officers came to see him in the hospital later that same day — May 1st — and showed him another photo array. Mr. Valerio testified that he again picked Defendant out of the array of photographs shown to him and that he wrote his name under the photograph of Defendant.
With respect to the creation of the photo arrays, Police Officer Brian Maley, Shield Number 2247, testified that, on the morning of May 1, 2008, at 9:25 a.m. and 9:38 a.m., he had compiled two different photo arrays, using photographs generated by computer, each with Defendant in one of the six positions. Officer Maley testified that he showed one photo array to an eyewitness, Marcelle Marshall, who identified the Defendant from the photos. Officer Maley testified that he does not know why he generated two arrays, and that he did not show the second photo array to anyone.
CONCLUSIONS OF LAW
Upon consideration of the evidence and testimony presented, the Court finds that there was probable cause to stop, detain, secure and arrest Defendant. The police officers had reasonable suspicion to enter the apartment building when, in close temporal and physical proximity to the crime, citizen witnesses indicated that the suspect had fled into the building. People v. Hallman, 237 AD2d 17, 20, 667 NYS2d 23, 25 (1st Dep't 1997) (ample reasonable suspicion, based on statements from several eyewitnesses that suspect had fled into apartment building, for police to ascend fire escape to canvas for armed defendant), app. denied, 92 NY2d 840, 699 NE2d 423 (1998). The fact that Defendant was the only person in the building hallway, and that he generally matched the description provided to police, gave the police reasonable suspicion to stop and inquire of the Defendant. People v. Klass, 55 NY2d 821, 822, 432 NE2d 135, 136 (1981); People v. Quinones , 45 AD3d 874 , 874-75, 847 NYS2d 145, 146 (2007); People v. Mack , 23 AD3d 220 , 221, 805 NYS2d 11, 12 (1st Dep't 2005). Defendant's refusal to comply with the police order to show his hands — particularly in light of the fact that police were aware that the suspect they were searching for had used a weapon — further increased the suspicion level. People v. Minaya, 245 AD2d 238, 239, 666 NYS2d 637, 639 (1st Dep't 1997); People v. Dawson, 243 AD2d 318, 320-21, 663 NYS2d 839, 840-41 (1st Dep't 1997), app. denied, 91 NY2d 890, 691 NE2d 1031 (1998).
In addition, Defendant's refusal to cooperate required the police to use force to detain and secure Defendant by forcing Defendant to the ground and cuffing him. This action was necessary to ensure the safety of the police officers and the public particularly because Officer Hall testified that he could see that Defendant held cash in one hand, but could not see what he held in the other. People v. Herold, 282 AD2d 1, 8, 726 NYS2d 65, 70 (1st Dep't 2001).
Once the officers had detained and cuffed Defendant, frisking him also was appropriate. Dawson, 243 AD2d at 321, 663 NYS2d at 840-41. The discovery of a knife with blood residue on it, along with a crack pipe, in Defendant's pocket gave the police probable cause to arrest Defendant. People v. Perry, 71 NY2d 871, 522 NE2d 1058 (1998) (discovery of approximately 20 pieces of jewelry in handkerchief after frisk gave probable cause to arrest); Herold, 282 AD2d at 8, 726 NYS2d at 70 (discovery of gun after frisking gave probable cause to arrest).
The Court also finds that the police properly administered Miranda warnings to Defendant and that he understood those warnings and knowingly waived them, prior to making his written statement. Det. Del Valle credibly testified that Defendant was given the Miranda warnings both verbally and in writing. Defendant's signature on the Miranda form, as well as his initials next to each warning, also are evidence that Defendant knowingly waived his rights before writing his statement. Accordingly, Defendant's motion to suppress his written statement is denied. Miranda v. Arizona, 384 U.S. 436 (1966).
The photo array identification of Defendant by Marcelle Marshall, which photo array procedure was conducted by Officer Maley, bears no evidence of suggestiveness in the array or in how it was performed. People v. Lee, 96 NY2d 157, 163, 750 NE2d 63, 67 (2001); People v. Prado, 276 AD2d 383, 383, 714 NYS2d 475, 476 (1st Dep't 2000) (photographs in photo array do not have to be identical in appearance; they simply must resemble each other sufficiently so that defendant is not singled out). Officer Maley credibly testified that he chose the most recent photograph of Defendant in the system, that he chose other photographs of individuals who closely matched Defendant's photograph, and that he did not indicate to Mr. Marshall that anyone was in custody in connection with the incident, nor that the person the police were looking for would be in the photo array. These procedures evidence a non-suggestive, permissible photo array identification. People v. Drayton , 70 AD3d 595 , 596, 896 NYS2d 320, 321 (1st Dep't 2010); People v. Chipp, 75 NY2d 327, 336, 552 NE2d 608, 613 (1990), cert. denied, 498 U.S. 833 (1990); Prado, 276 AD2d at 383, 714 NYS2d at 476. Defendant's motion to suppress any in-court identification of Defendant by Mr. Marshall, based on the photo array identification procedure, is therefore denied.
The photo array identifications of Defendant made by Regino Valerio, the complaining witness, based on the two photo array identification procedures conducted by the police, however, do not meet the requisite non-suggestive standard. Mr. Valerio credibly testified that he made two identifications of Defendant in photo arrays shown to him by police while he was at St. Barnabas Hospital, one on the morning of the crime with a female officer matching the description of Det. Del Valle, and another later that evening, with a male police officer whose name he could not recall.
Mr. Valerio's testimony, which contradicts Det. Del Valle, who denied that she conducted or was present during any photo array identification, raises the question as to why the police did not give notice of this procedure to Defendant nor preserve evidence of it. The failure of the police to preserve the photographic array that was shown to Mr. Valerio to make the identification of Defendant gives rise to a presumption that the array was suggestive. People v. Quinones, 228 AD2d 796, 796-97, 644 NYS2d 365, 367 (3d Dep't 1996); People v. Addison, 174 AD2d 627, 628, 571 NYS2d 95, 97 (2d Dep't 1991), app.. denied, 79 NY2d 824 (1991).
The People have failed to rebut this presumption; they have introduced no evidence to support a finding that this identification procedure was not suggestive. Indeed, the presumption that the photo array was suggestive is strengthened by the fact that Mr. Valerio's credible testimony contradicts Det. Del Valle's denial as to having conducted any such photo array. Accordingly, the only reasonable conclusion that can be drawn from this evidence is that this first photo array identification procedure conducted by the police with the complaining witness in which Defendant was identified was unduly suggestive.
With respect to the appropriateness of the second photo array identification procedure, this Court finds that the second photo array identification made by the complaining witness in the hospital the evening after his attack was tainted by the suggestive photo array he was shown earlier that day and must be suppressed. People v. Smith, 109 AD2d 1096, 1098, 487 NYS2d 210, 213 (4th Dep't 1985) (suggestive show up tainted lineup). There was very little time, less than half a day, between the witness' viewing of the two arrays. Far longer time periods between a suggestive identification and a subsequent non-suggestive identification must exist before a finding could be made that a second photo array was not tainted by the first suggestive one. See, e. g., People v. Alton, 169 AD2d 529, 529, 564 NYS2d 380, 381 (1st Dep't 1991) (four weeks between identifications); People v. Greenwood, 156 AD2d 159, 159, 548 NYS2d 886, 886 (1st Dep't 1989) (five and one-half weeks between identifications); People v. Butts, 279 AD2d 587, 587, 719 NYS2d 680, 681 (2d Dep't 2001) (six weeks between identifications). In this case, a span of ten to twelve hours between identification procedures simply is not a sufficient period of time to attenuate the effect of the first unduly suggestive photo array in the witness' memory. Therefore, Defendant's motion to suppress the second photo array identification made by the complaining witness and any in-court identification based upon that photo array identification is granted.
A hearing is ordered as to whether the complaining witness has an independent basis — separate from the photo array procedures — that would serve as a basis for an in-court identification of Defendant by Mr. Valerio. People v. Gethers, 86 NY2d 159,163 (1995).
As noted in footnote 1, supra, no such hearing occurred as Defendant entered a guilty plea to one of the counts in the Indictment.
The following papers also were considered by the Court in deciding the motion: Notice of Motion, filed on October 10, 2008, and Affirmation of Leana E. Amaez, attorney for Defendant, in Support of Motion; Affirmation in Opposition by Diego Hernandez, Assistant District Attorney, filed on October 22, 2008.
This constitutes the Decision and Order of this Court.