People v Culbertson (2008 NY Slip Op 51435(U))

People v Culbertson (Donald)

2008 NY Slip Op 51435(U) [20 Misc 3d 131(A)]

Decided on July 2, 2008

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

The People of the State of New York, Appellant,

against

Donald F. Culbertson, Respondent.

Appeal from an order of the District Court of Suffolk County, First District (Lawrence Donohue, J.), entered May 16, 2007. The order granted defendant's motion to suppress identification evidence and statements.

Order reversed upon the law and matter remitted to the court below to reopen the suppression hearing to permit the People to introduce evidence erroneously precluded and for a determination de novo of defendant's motion to suppress.

Upon defendant's motion, a hearing was held to determine whether evidence of a showup identification at the arrest scene and defendant's inculpatory statements, made shortly after he was arrested, should be suppressed. The court, in error, suppressed the evidence of the showup identification on the sole ground that such identifications are inherently overly suggestive (cf. People v Brisco, 99 NY2d 596, 597 [2003]; People v Ortiz, 90 NY2d 533, 537 [1997]; People v Duuvon, 77 NY2d 541, 545 [1991]). Moreover, the court also improperly refused to permit the People to present police and citizen witnesses, whose testimony would be material on the questions of whether the procedure was overly suggestive and, if so, whether the identification evidence was nevertheless admissible as based on an independent source (id.; see also People v Crandall, 69 NY2d 459, 464 [1987]; People v Taylor, 160 AD2d 966, 967 [1990]). Similarly, the court erred in suppressing the statement, an admission of operation of a vehicle, by ruling, as a matter of law, that any custodial statement by a defendant, whether spontaneous or not, must be suppressed in the absence of a recitation of the Miranda rights and a waiver of those rights (see People v Torres, 21 NY2d 49, 54 [1967]; People v Smith, 21 AD3d 587, 588 [2005]).

Accordingly, the order granting defendant's suppression motion is reversed and the matter remitted to the court below to reopen the hearings to afford the People the opportunity to admit the testimony of the citizen witness, as well as the police officer who assisted in [*2]orchestrating the showup, and for a review de novo of the facts as
amplified by the additional evidence, if any, consistent with this order, and for proper determinations of credibility, fact and law (see CPL 710.60 [4], [6]).