[*1]
People v Pride
2012 NY Slip Op 50200(U) [34 Misc 3d 1222(A)]
Decided on January 27, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 27, 2012
Supreme Court, Kings County


The People of the State of New York, Plaintiff,

against

Edward Pride, Defendant.




1910/2011



George Sheinberg, Esq.

For the Defendant

Sabeeha Madni, Esq.

Assistant District Attorney

For the People

Guy J. Mangano, J.



The defendant is charged with two counts of Robbery in the First Degree (Penal Law § 160.15), two counts of Robbery in the Third Degree (Penal Law § 160.05), Grand Larceny in the Third Degree (Penal Law § 155.35), two counts of Grand Larceny in the Fourth Degree (Penal Law § 155.30) and two counts of Petit Larceny (Penal Law § 155.25). A Dunaway / Wade / Huntley hearing was ordered and held. The People called two witnesses: New York City Police Officer Omar Santiago and Detective Harry Antoine.

FINDINGS OF FACT


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

On February 11, 2011, New York City Police Detective Harry Antoine became involved in a robbery investigation which that day at the Sovereign Bank located at 195 Montague Street, Brooklyn. The detective met with bank teller Reyna Salvador approximately thirty minutes after the robbery. According to Ms. Salvador, a black male, approximately 50 year of age, entered the bank and approached her station with his hand in his pocket in such a fashion that she believed he had a weapon. The perpetrator handed the teller a note stating, "[n]o dye packs. No one gets hurt. And denomination twenty, 20's; twenty 50's, and twenty hundreds." Ms. Salvador complied and handed over approximately $2,500. Surveillance video recorded the incident. Thereafter, on February 24, 2011, Detective Antoine was called to the same bank and met with the same teller, Reyna Salvador. Earlier that day, the same man had entered the bank and handed her a note demanding "[n]o dye packs. No one gets hurt. And denomination of twenty $100 bills, twenty 50's and twenty 20's." Again, Ms. Salvador complied and handed over approximately $3,500. Surveillance video also recorded this incident

On March 3, 2011, Police Officer Omar Santiago, while on anti-crime patrol with his partner in an unmarked vehicle, received an assignment to further investigate two bank robberies which had occurred weeks before on February 11 and 24.[FN1] The officers responded to the Sovereign Bank [*2]located at 185 Montague Street, Brooklyn, and spoke with the bank's head of security. Officer Santiago viewed surveillance video from the date of the two robberies and compared that to video taken that day of a person resembling the perpetrator. The officer took a photograph of the suspected perpetrator with his cell phone and canvassed the area for a black male, approximately six feet tall, 50 years of age with salt and pepper hair, wearing sun glasses, a black jacket, black ski hat, grey pants and carrying a briefcase. A copy of this photograph was entered into evidence without objection.

While canvassing the area near the bank in an unmarked vehicle, Officer Santiago observed an individual matching the physical description of the perpetrator and carrying a briefcase. The person was stopped, Officer Santiago identified himself, and asked him where he was coming from at that time. The individual, defendant herein, responded that he was coming from "the welfare office," and he provided identification as one Edward Pride. Because defendant was putting his hands into his pockets in an apparent attempt to produce identification, Officer Santiago frisked his person for safety reasons, finding a pair of sunglasses. In response to a question posed by officer Santiago, defendant stated admitted that he was in the subject bank earlier that day. Based upon the fact that defendant closely resembled the photograph of the perpetrator obtained from the surveillance video, as well as the fact that he matched the specific description provided by the complaining witness, and the admission that he was in the bank earlier that day, defendant was placed under arrest. A search of defendant and the briefcase he was carrying revealed a map of Sovereign Bank locations in the Downtown Brooklyn area. Officer Santiago transported defendant to the 84th Precinct and then contacted Detective Antoine, who handled the remainder of the arrest process.

Once at the 84th Precinct, Detective Antoine stated that he read defendant his Miranda rights and defendant indicated that he did not wish to speak with the police. Notwithstanding the defendant's refusal to speak with the police, Detective Antoine showed defendant three photographs taken from the surveillance video. In response to being shown the photographs, defendant responded, "That's me in the picture," and "Do what you have to do."

Thereafter, defendant was placed in a lineup with five filler individuals obtained from a men's shelter. Detective Antoine contacted the bank teller of the Sovereign Bank, Reyna Salvador, who came the office to view the lineup. At no time did the witness come into contact with any of the lineup participants. Defendant chose to sit in the third position of the lineup and all participants wore caps to cover any hair differences. Upon viewing the lineup, the witness immediately identified defendant as the person who committed the robbery. A photograph of the lineup was taken and admitted into evidence.

Defendant challenges the warrantless arrest, the admissibility of the statements made at the precinct and the constitutional validity of the identification procedures employed by the police.

CONCLUSIONS OF LAW


DUNAWAY ISSUE

In enforcing the constitutionally protected right to be left alone, the level of permissible intrusion by law enforcement officers during street encounters with private citizens is governed by the four-tier analysis as set forth in

[*3]People v De Bour (40 NY2d 210). The lowest level of intrusion in approaching an individual to request information is permitted where there exists some objective credible reason for the interference not necessarily indicative of criminality (see id.; see also People v Hollman, 79 NY2d 181; People v Wells, 226 AD2d 406). The next level of intrusion, the common law right to inquire, is allowable when the police have a "founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure" (People v De Bour, 40 NY2d 210, supra at 223). Third, a police officer may pursue, stop and detain a person when a reasonable suspicion exists that such person has committed, is committing or is about to commit a crime (see id.; see also CPL 140.50; People v Martinez, 80 NY2d 444; People v Hollman, 79 NY2d 181, supra; People v Leung, 68 NY2d 734). Finally, the fourth level of intrusion permits the arrest and custody of a person where the police have probable cause to believe that the person has committed a crime (see People v De Bour, 40 NY2d 210, supra; People v Hollman, 79 NY2d 181, supra; see also CPL 140.10; People v Brown, 256 AD2d 414).

The record reveals that Officer Santiago stopped defendant because he matched the specific description of the perpetrator of the robberies provided by the complaining witness and also closely resembled the person in the photograph taken of the individual in the bank surveillance video. Given the facts that defendant bore such a close match to the physical description provided to the police and that he was located near the scene of the crime, the People established that the arrest was premised upon the requisite probable cause (see People v Johnson, 63 AD3d 518, lv denied 13 NY3d 797; People v Ortiz, 291 AD2d 273, lv denied 98 NY2d 679; People v Charles, 222 AD2d 688, appeal denied 87 NY2d 971; People v Douglas, 185 AD2d 895, lv denied 81 NY2d 762).

HUNTLEY ISSUE


As for the admissibility of defendant's statements made at the precinct, Detective Antoine testified that he read Miranda warnings from a pre-printed document detailing the rights of a defendant in custody, and that defendant stated he did not wish to speak with the police. While the hearing testimony did not include the specific rights explained to defendant, the detective stated on several occasions during direct and cross examination that defendant was apprised of his rights. "In the absence of any proof whatsoever that such reading was or might have been deficient in some particular, [a] suppression court [may draw] the inference that the constitutional preinterrogation warnings were adequately stated" (People v Gonzalez, 55 NY2d 720, 722). There being no proof to the contrary, this Court finds that defendant was properly advised of his rights pursuant to Miranda v Arizona (384 US 436).

This Court also finds, however, that defendant specifically stated to detective Antoine, in no uncertain terms, that he did not wish to speak with the police. At this point in the process, once an individual in custody "exercises his right to remain silent, the police must scrupulously honor that decision and questioning must cease." (People v Kinnard, 62 NY2d 910, 912; People v Ferro, 63 NY2d 316, cert denied 472 US 1007). The record revels, however, that Detective Antoine completely ignored defendant's invocation of his constitutional right to remain silent and immediately displayed to defendant three photographs taken from the video surveillance on the dates of the two robberies, February 11 and 24, 2011, as well as the day defendant was arrested on March 3, 2011. While the detective did not ask defendant questions, the act of displaying photographs of [*4]video surveillance to defendant which contain his likeness was clearly done to elicit an incriminating response and was thus the "functional equivalent" of interrogation (see Rhode Island v Innis, 446 US 291; People Lanahan, 55 NY2d 711; People v Ferro, 63 NY2d 316, supra at 319 ["What constitutes interrogation of a suspect . . . is determined not by the subjective intent of the police, but by whether an objective observer with the same knowledge concerning the suspect as the police had, would conclude that the remark or conduct of the police was reasonably likely to elicit a response"]).

Accordingly, the statements made at the 84th Precinct n response to being shown the photographs, "That's me in the picture," and "Do what you have to do," are suppressed.

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).

With regard to the lineup, "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 defendant in appearance so as not to single out defendant, there is no requirement that all the members of the lineup be nearly identical in appearance (see People v Chipp, 75 NY2d 327, 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).

A review of the photograph of the lineup reveals that the physical characteristics of the five fillers leaves no question that the lineup was unduly suggestive. The fillers ranged in age from 25 to 36. At the time of the lineup, defendant was 48 years of age, and looked markedly older than any of the fillers. Quite frankly, in this lineup, defendant was clearly the old man which surely singled him out as described 50 year old that allegedly committed the crimes charged (see People v Puckett, 270 AD2d 364; People v Murphy, 260 AD2d 505).

INDEPENDENT SOURCE


In light of this Court's finding of a constitutionally impermissible unduly suggestive lineup procedure, the People must establish, by clear and convincing evidence, an independent source for an in-court identification (see People v Chipp, 75 NY2d 327, supra).

At the hearing, the People presented evidence that during the commission of the two separate robberies against the same complainant, Reyna Salvador, she had a clear, unobstructed and close view of defendant for several minutes on two separate occasions and recognized defendant a third time when he entered the bank on the day of his arrest. Accordingly, notwithstanding the [*5]constitutionally defective lineup procedure, the People established by "clear and convincing evidence that the identification is based upon the witness's independent observation of the defendant during the commission of the crime" (People v Houston, 82 AD3d 1122; see also People v Marte, 12 NY3d 583, cert denied __ US __, 130 S Ct 1501; People v Adelman, 36 AD3d 926, lv denied 9 NY3d 872; see also People v Ortiz, 7 AD3d 544; see also People v Thomas, 51 NY2d 466; People v Ashe, 297 AD2d 287; People v Hyatt, 162 AD2d 713; People v DeMaio, 154 AD2d 386). Thus, while the lineup testimony is suppressed, Ms. Salvador may make an in-court identification based upon a source independent of the police arranged procedure (id.).

This shall constitute the Decision and Order of the Court.

__________________________________

HON. GUY J. MANGANO, JR.

JUSTICE OF THE SUPREME COURT

Footnotes


Footnote 1: Officer Santiago had been investigating the matter since the first robbery o February 11, 2011, and was provided with the physical description of the perpetrator at that time and had been canvassing the area in an attempt to locate a suspect.