City Court of Rochester, February 15, 2018

Timothy Donaher, Public Defender (Marc Infantino of counsel), for defendant.

Sandra J. Doorley, District Attorney (Alyssa Zongrone of counsel), for plaintiff.

Introduction

Defendant Chaquan Murphy Jackson is charged with the misdemeanor of criminal trespass in the second degree. On January 4, 2018, a Wade hearing was held to determine whether the showup identification procedures used by the police in this case were unconstitutionally suggestive. For the reasons stated below, defendant's motion to suppress the witness's identification of him is granted.

Factual Background

At the hearing, Rochester Police Officer Giovanni Maldonado testified for the People. Defendant presented no evidence.

According to the credible evidence, at about midnight on November 4, 2017, Rochester Police Officer Maldonado responded to a dispatch call about a man who was reported to be looking through parked cars and checking house doors on Barrington Street in Rochester, New York. In response to the call, Officer Maldonado drove to 94 Barrington Street to speak to the caller, Thomas Szatko.

When Officer Maldonado arrived, Mr. Szatko showed him a video recording from his home security system that showed the man in question walking up Mr. Szatko's driveway, trying to open the doors to the cars in the driveway. The video recording also showed the man going onto the enclosed back porch of Mr. Szatko's house, opening the door, and remaining there for almost a minute before leaving. The man in question was wearing a white hooded shirt with the [*2]letters "USA" on the back and dark jeans, and he had a mask over his face.

After watching the video recording, Officer Maldonado initially searched the neighborhood for the man, but then sat in his car on East Avenue near Barrington Street. While there, he saw defendant, who was dressed in dark jeans and a white hooded shirt with the letters "USA" on the back, walking on {**59 Misc 3d at 246}the sidewalk. Officer Maldonado approached defendant, and asked if he could talk to him and to remove his hands from his pockets. As defendant began to remove his hands from his pockets, he suddenly ran away. Officer Maldonado chased defendant and eventually apprehended him near University Avenue and Portsmouth Terrace in Rochester, New York at around 1:08 a.m.

After defendant was apprehended, arrangements were made for Officer Santiago to drive defendant back to 94 Barrington Street so that a showup could be conducted with Mr. Szatko. In the meantime, Officer Maldonado went back to 94 Barrington Street and told Mr. Szatko and Mr. Szatko's young adult son, who was present, that he apprehended a man after chasing him on foot on University Avenue, and that it was a good thing that he was in pretty good shape. Officer Maldonado explained to Mr. Szatko that the police were going to show him a person who may or may not have been the person whom Mr. Szatko had seen, and to let Officer Maldonado know if the man he was about to see was the man he had observed earlier. In response, Mr. Szatko told Officer Maldonado that he would not be able to identify the man's face but he would be able to identify the man's clothes.

As Officer Maldonado was preparing the showup paperwork, Mr. Szatko asked him whether or not the man that Officer Maldonado had apprehended was wearing a mask. In response, Officer Maldonado told Mr. Szatko that the man had had something in his hand but that he didn't know what it was.

In preparation for the showup, Officer Maldonado stood next to Mr. Szatko, who was looking out of the window next to his front door. Mr. Szatko's son, who was in the same room, first looked out of the same window that his father was looking at, and then moved to another window. While he was looking out the window, Mr. Szatko's son asked Officer Maldonado whether the defendant had gloves on when he was caught. In response, Officer Maldonado said that he was not allowed to answer that question. At around 2:00 a.m., defendant was removed from the patrol car and stood on the curb outside 94 Barrington Street for the showup. When he saw defendant, Mr. Szatko immediately stated, "That's him."

Legal Discussion

With respect to police arranged identification procedures, the People have the initial burden of showing the reasonableness of the police conduct and the lack of undue suggestiveness in{**59 Misc 3d at 247} the identification procedures used, but the defendant then has the burden of showing, by a preponderance of the evidence, that the identification procedures were unduly suggestive. (People v Chipp, 75 NY2d 327 [1990]; People v Ballott, 20 NY2d 600 [1967].)

Courts have emphasized that showup procedures are generally disfavored "since they are suggestive by their very nature." (People v Ortiz, 90 NY2d 533, 537 [1997]; see People v Duuvon, 77 NY2d 541, 543 [1991].) A showup was not inappropriate in this case because of the exigent circumstances and the temporal and geographic proximity of defendant's apprehension and the showup to the commission of the crime. (See People v Brisco, 99 NY2d 596, 597 [2003]; People v Johnson, 81 NY2d 828 [1993]; People v Riley, 70 NY2d 523 [1987]; People [*3]v Hicks, 68 NY2d 234 [1986]; People v Brnja, 50 NY2d 366 [1980].)

In this case, defendant was found within an hour after Officer Maldonado was called to the scene, met with Mr. Szatko, and reviewed the video recording; the defendant, who was wearing the same clothing as the man viewed in the security video recording was wearing, was found within a short distance from the crime scene; Mr. Szatko was still at the scene when the showup was conducted; the showup was conducted at the crime scene; and the showup was conducted within an hour after defendant was apprehended.

Defendant contends that the showup was constitutionally defective because it was conducted two hours after the crime occurred. That argument is unavailing. The New York Court of Appeals rejected an identical argument in People v Howard (22 NY3d 388 [2013]). In that case, a showup was conducted two hours after the crime occurred, and 45 minutes after defendant was apprehended. In holding that the showup was not constitutionally improper, the Court emphasized: "While defendants suggest that a two-hour interval between the crime and a showup is per se unacceptable, we have never adopted any such bright-line rule." (People v Howard, 22 NY3d at 401-402; see People v Boyd, 272 AD2d 898 [4th Dept 2000], lv denied 95 NY2d 850 [2000] [showup that occurred not more than two hours after crime was constitutionally permissible]; People v McBride, 242 AD2d 482 [1st Dept 1997], lv denied 91 NY2d 876 [1997] [showup that occurred two hours after crime was constitutionally permissible].) Likewise, under all the circumstances, the two-hour time lapse between the crime and the showup did not render the showup in this case impermissible.{**59 Misc 3d at 248}

Defendant also maintains that the showup was constitutionally tainted because Mr. Szatko's son was present while his father was participating in the showup. The court disagrees. There was no evidence that the son said or did anything that influenced his father's identification of defendant or that suggested to his father that defendant was the perpetrator. Indeed, although Mr. Szatko's son was not asked to identify defendant during the showup, it would not have been improper to have him do so at the same time absent any evidence that Mr. Szatko and his son conferred or consulted with each other to influence their respective identifications. (See e.g. People v Reyes, 142 AD3d 868 [1st Dept 2016], lv denied 28 NY3d 1150 [2017]; People v Rodriguez, 32 AD3d 1203, 1204 [4th Dept 2006], lv denied 8 NY3d 849 [2007]; People v Delarosa, 28 AD3d 1186 [4th Dept 2006], lv denied 7 NY3d 811 [2006].)

Defendant further argues that the comments that Officer Maldonado made to Thomas Szatko before the showup was conducted were unconstitutionally suggestive. The court agrees.

When a police officer asks a witness to participate in a police-initiated identification procedure, it is not improper to inform the witness that the person he or she is being asked to view is a suspect in the crime. Such information is merely information that a witness would reasonably expect under the circumstances. (See People v Smith, 128 AD3d 1434, 1435 [4th Dept 2015], lv denied 26 NY3d 1011 [2015].) In contrast, when a police officer conveys information to a witness that suggests that the person the witness is about to view is the actual perpetrator, the identification procedure is unconstitutionally suggestive. (See People v Gambale, 150 AD3d 1667, 1668 [4th Dept 2017]; People v Lewis, 292 AD2d 814 [4th Dept 2002], lv denied 98 NY2d 677 [2002].)

In this case, before the showup began, Officer Maldonado told Mr. Szatko and his son [*4]that defendant had run away from him on University Avenue and that he had had to chase him to catch him. Additionally, in response to Mr. Szatko's question about whether the defendant had a mask when he was caught, Officer Maldonado told him that defendant had something in his hand.

These comments were both irrelevant to the showup procedure and unduly suggestive of defendant's identity as the alleged perpetrator. Because people who are innocent of wrongdoing normally do not flee when confronted by the police, a{**59 Misc 3d at 249} person's flight from police officers can be introduced as evidence of a defendant's guilt under appropriate circumstances (see People v Cintron, 95 NY2d 329 [2000]). Officer Maldonado's comment that he had to chase defendant implied that defendant, whom Mr. Szatko was about to view in the showup, was the perpetrator.

Officer Maldonado's response to Mr. Szatko's question about whether the defendant had a mask when he was caught was likewise improperly suggestive of defendant's guilt. By responding that defendant had something in his hand when he was caught, Officer Maldonado implied that defendant had or might have had the mask in his hand. That comment, like the previous comment, unduly suggested that defendant was the guilty party before Mr. Szatko had an opportunity to view him. As such, these comments rendered the police arranged identification procedures in this action constitutionally defective.

Conclusion

For the reasons discussed above, the court finds that the police arranged identification procedures in this case violated defendant's constitutional due process rights. Accordingly, defendant's motion to suppress Thomas Szatko's out-of-court and in-court identification of defendant is granted.