[*1]
People v Hill
2009 NY Slip Op 52742(U) [26 Misc 3d 1224(A)]
Decided on February 11, 2009
Supreme Court, Kings County
Mangano, J.
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on February 11, 2009
Supreme Court, Kings County


People of the State of New York

against

Gerry Hill, Sheila Hill and Lamont Hill, Defendants.




10180-2007



Paul Hirsch, Esq.

For the Defendant Gerry Hill

Joshua Scheier, Esq.

For Defendant Gerry Hill

David Roche, Esq.

For Defendant Lamont Hill

Taryen O'Brien, Esq.

Asst. District Attorney

For the People

Guy J. Mangano, J.



The defendants are charged with Robbery in the First Degree and related crimes. A Wade/Huntley/Payton hearing was ordered and held. The People called two witnesses: New York City Police Detectives Mitchell Eisenberg and Joseph Mucciaccio.

FINDINGS OF FACT


This Court finds the People's witnesses to be credible.

On October 1, 2007, Detective Eisenberg was assigned a robbery case which occurred September 30, 2007, at Stillwell Avenue between Mermaid and Surf Avenues, Kings County. The detective was given the complainant's name as Desharn Porter. On October 2, 2007, Detective Eisenberg called the complaining witness who stated that she knew the identity of one of the perpetrators as a co-worker, Sheila Hill. The victim informed the detective what had happened and a wanted card was prepared for Sheila Hill. Ms. Hill was picked up at 77 Montauk Avenue, Kings County, by a member of the warrant squad, Detective Joseph Mucciaccio. Detective Mucciaccio was working with retired Detective Basoa who was no longer in the Country. The person who answered the door at 77 Montauk Avenue, apartment 2B, allowed the Detectives inside the premises. Approximately 15 minutes later, the detectives emerged with Sheila Hill who was not in handcuffs and voluntarily accompanied the police. While being transported to the precinct, however, Ms. Hill was handcuffed.

Once at the precinct, Ms. Hill was read her Miranda rights from a pre-printed sheet of paper containing six questions. Defendant responded that she understood each question and memorialized her affirmative answer by writing the word "yes" and her initials at the end of each question. Defendant Sheila Hill then provided a written statement concerning the robbery incident, naming her brother, Lamont Hill and her cousin, Gerry Hill, in the incident. [*2]

Detective then took a photograph of Sheila Hill and showed it to the complainant. Since Ms. Porter knew Sheila Hill, the perpetrator identity was confirmed. Detective Eisenberg then created a photo array containing a photograph of Gerry Hill and showed it to the complainant. Desharn Porter identified Gerry Hill as one of the perpetrators of the crime. Since Detective Eisenberg had no photographs of Lamont Hill, he spoke with Sheila Hill's family members and informed them that he wished to speak with Lamont Hill with respect to the incident. Subsequent to that conversation, Detective Eisenberg received a telephone call from Lamont Hill's attorney, who advised the detective that Lamont Hill would turn himself in to the police on October 8, 2007.

Detective Eisenberg then prepared two lineups for both male defendants, obtained five fillers for each lineup, and asked Ms. Porter to come to the precinct to view same. The complainant arrived at the precinct and was taken to the detective's office without coming into contact with any of the lineup participants. Detective Eisenberg informed the complainant that six individuals would be seated in a room and told her to advise him if she recognized any of the lineup participants. Detective Eisenberg used the same method for both lineups. Ms. Porter viewed the lineups and identified the male defendants in both lineups as perpetrators of the crime. A photograph of the lineups were taken and admitted into evidence.

CONCLUSIONS OF LAW


PAYTON ISSUE

A warrantless arrest in a suspect's home violates her Fourth Amendment rights and is prohibited, absent exigent circumstances or consent (Payton v New York, 445 US 573; People v Levan, 62 NY2d 139). "The evil to which the rule is addressed is the unsupervised invasion of a citizen's privacy in his own home" (People v Minley, 68 NY2d 952, 953), and the Court must suppress any evidence illegally obtained (see, People v Harris, 77 NY2d 434; People v Ramos, 206 AD2d 260). The record indicates that a formal arrest of the defendant Sheila Hill did not occur at her residence, and that she voluntarily accompanied the detectives to the precinct (see id.). Moreover, the defense never proffered any evidence that the subject apartment was in fact Sheila Hill's home.

Furthermore, in the absence of any conduct comparable to a formal arrest, any restraint of the defendant, or restriction of her movement, it cannot be said that under the circumstances and atmosphere surrounding the encounter inside the apartment, a reasonable person innocent of any crime in the defendant's position, would have believed she was under arrest or that her freedom of movement was restricted to the degree associated with a formal arrest (People v Yukl, 25 NY2d 585, cert denied 400 US 851; People v Hicks, 68 NY2d 234). While defendant might have felt compelled to cooperate with police, this cannot be equated with an arrest as every citizen has a duty to assist law enforcement officers up to the point of self-incrimination (id.).

Thus, this Court finds a "de facto arrest" did not occur while inside the apartment, and that defendant voluntarily accompanied the detectives to the precinct where she was formally arrested and there was no Payton violation.

HUNTLEY ISSUE


As for the admissibility of defendant Sheila Hill's statement made at the precinct, the record is clear that defendant answered in the affirmative as to whether she understood the Miranda Warnings read from a pre-printed document detailing the rights of a defendant in custody. Further, defendant initialed each of the six sentences and also signed her name on the page. Thus, under the [*3]totality of the circumstances, this Court finds that defendant knowingly, intelligently and voluntarily waived her Miranda rights before making the statement (see People v Washington, 155 AD2d 635, appeal denied 75 NY2d 925; see also People v Davis, 55 NY2d 731). The statement will therefore be admissible at trial.

WADE ISSUES

It is well settled that the People have the burden of going forward to establish the reasonableness of the police conduct and the lack of suggestiveness of the pretrial identification procedure while defendant bears the ultimate burden of proof to establish that a pretrial identification procedure was unduly suggestive (see, People v Berrios, 28 NY2d 361; People v Jackson, 108 AD2d 757).

Concerning the propriety of the photo array for defendant Gerry Hill, there is nothing in the record to suggest that the procedures employed by the police were improper or constitutionally defective (see, e.g. People v Edwards, 115 AD2d 657; People v Rolston, 109 AD2d 854).

With regard to the lineups, "corporal lineups, properly conducted, generally provide a reliable pretrial identification procedure and are properly admitted unless it is shown that some undue suggestiveness attached to the procedure" (People v Chipp, 75 NY2d 327, 335, cert denied 498 US 833). To evaluate the fairness of the lineup, some of the factors to be considered by the Court are the "physical characteristics of the subject such as skin color, height, weight, clothing, hairstyle, age, and whether the subject is clean-shaven or has facial hair" (People v Gonzalez, 173 AD2d 48, 56, appeal denied 79 NY2d 1001). Further, while the fillers must be sufficiently similar to the defendants in appearance so as not to single out defendants, there is no requirement that all the members of the lineup be nearly identical in appearance (see People v Chipp, supra; see also People v Poey, 260 AD2d 411, lv denied 93 NY2d 928; People v Longshore, 249 AD2d 565, lv denied 92 NY2d 900; People v Veeney, 215 AD2d 605, appeal denied 86 NY2d 875).

An inspection of a photograph of the lineups confirms the fact that the lineup participants were sufficiently similar to the defendants in appearance so that they were not singled out for identification (see People v Miranda, 265 AD2d 507, lv denied 94 NY2d 923; People v Lopez, 209 AD2d 442, appeal denied 85 NY2d 911; People v Baptiste, 201 AD2d 659). Moreover, this Court finds that the complaining witness was summoned to the police precinct by the detective investigating the case and taken to an office while defendant and the fillers were placed in separate areas of the building. Since the evidence established that the complainant did not come into contact with or see the lineup participants prior to the viewing, there is nothing to suggest that the lineup was tainted in any manner (see e.g. People v Bradley, 268 AD2d 591, lv denied 95 NY2d 832; People v Gelzer, 224 AD2d 443, appeal denied 88 NY2d 847). Finally, contrary to the argument advanced by defense counsel for Gerry Hill, there is nothing in the record which indicates that the scar on defendant's face figured prominently in the complaint's description to the police (see People v Cusimano, 48 AD2d 475, lv denied 10 NY3d 861).

Accordingly, defendants' motion to suppress are denied in their entirety.

This shall constitute the Decision and Order of the Court.

__________________________________

HON. GUY J. MANGANO, JR. [*4]

JUSTICE OF THE SUPREME COURT