| People v Mais |
| 2010 NY Slip Op 02818 [71 AD3d 1163] |
| March 30, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Appellant, v Donovan Mais, Respondent. |
—[*1] James D. Licata, New City, N.Y. (Lois Cappelletti of counsel; Alan Williams and BryanDuroy on the brief), for respondent.
Appeal by the People, as limited by their brief, from so much of an order of the CountyCourt, Rockland County (Bartlett, J.), dated March 2, 2009, as, after a hearing, granted thosebranches of the defendant's omnibus motion which were to suppress physical evidence,identification testimony, and his statements to law enforcement officials.
Ordered that the order is modified, on the law and on the facts, (1) by deleting the provisionthereof granting that branch of the defendant's omnibus motion which was to suppress theshowup identification and substituting therefor a provision denying that branch of the motion, (2)by deleting the provision thereof granting that branch of the defendant's omnibus motion whichwas to suppress his statements to the police at the station house and substituting therefor aprovision denying that branch of the motion, (3) by deleting the provision thereof, in effect,granting that branch of the defendant's motion which was to preclude the People fromintroducing evidence in their case-in-chief that the defendant told Police Officer Manzella thathe did not come from a house and substituting therefor a provision denying that branch of themotion; as so modified, the order is affirmed insofar as appealed from.
Contrary to the determination of the County Court, Police Officer Manzella, who hadreceived a radio report of a burglary, possessed the requisite reasonable suspicion to stop anddetain the defendant for a showup identification. "Where a police officer has reasonablesuspicion that a particular person was involved in a felony or misdemeanor, the officer isauthorized to forcibly stop and detain that person" (People v Hollman, 79 NY2d 181,185 [1992]; see CPL 140.50 [3]; People v Hicks, 68 NY2d 234, 242 [1986]).Officer Manzella testified that he encountered the defendant two blocks from the location of thealleged burglary within an hour of its occurrence, and that the defendant matched the physicaldescription given by the complainant with regard to the perpetrator's race, gender, height, build,and age. Accordingly, given the matching general description and the defendant's temporal andspacial proximity to the crime scene, a brief detention for a showup was permissible to confirmor dispel the suspicion that the defendant had committed the crime (see People v Hines,46 AD3d 912, 913 [2007]; People v Bennett, 37 AD3d 483, 484 [2007]; People vQuinones, 45 AD3d 874, 874-875 [2007], affd 12 NY3d 116 [2009], cert denied558 US —, [*2]130 S Ct 104 [2009];People v Nicia, 32 AD3d 543, 544 [2006]).
However, although the detention was justified, the subsequent frisk, which occurred beforethe showup was conducted, was not. At the hearing, Manzella failed to articulate any fact orcircumstance which would support a reasonable suspicion that the defendant was armed (seePeople v Stevenson, 7 AD3d 820, 821 [2004]; see also People v Batista, 88 NY2d650, 655 [1996]; cf. People v Zingale, 246 AD2d 613 [1998]). Notably, when Manzellawas asked on cross-examination if he frisked the defendant because he thought he was armed,Manzella replied, "I was not sure, but for my safety and everybody else he was frisked."Manzella offered no testimony that, for example, the defendant acted furtively (see People vDobson, 41 AD3d 496 [2007]), that he reached toward his rear waistband (see People vDoe, 236 AD2d 621, 622 [1997]), or that he had a bulge under his clothing characteristic ofa weapon (see People v Henderson, 26 AD3d 444, 446 [2006]), nor was there evidencethat the alleged crime involved a weapon (see People v Johnson, 244 AD2d 573 [1997]).Accordingly, the small flashlight recovered from the defendant's pocket was properlysuppressed. The People's alternative argument, that the flashlight inevitably would have beendiscovered through normal police procedures, is without merit, as the inevitable discoverydoctrine does not apply to primary evidence (see People v Stith, 69 NY2d 313, 320[1987]; People v Lindsey, 13 AD3d 651, 652 [2004]).
Next, we disagree with the County Court's finding that the showup identification was undulysuggestive. Although showup procedures are generally disfavored, they are permissible whenthey are spatially and temporally proximate to the commission of the crime and not undulysuggestive (see People v Berry, 50 AD3d 1047, 1048 [2008]; see also People vBrisco, 99 NY2d 596, 597 [2003], cert denied 558 US —, 130 S Ct739 [2009]). Here, the showup was spatially and temporally proximate to the commission of thecrime, as it was conducted two blocks from the location of the alleged home invasion, within anhour after it was reported (see People v Gonzalez, 57 AD3d 560, 561 [2008]). Moreover,neither the conduct of the police, nor the illumination used to facilitate the identification,rendered the identification impermissibly suggestive (see People v Duuvon, 77 NY2d541, 545 [1991]; People v Guy, 47 AD3d 643 [2008]; People v Gonzalez, 57AD3d at 561; see also People v Siler, 45 AD3d 1403 [2007]). Accordingly, the showupidentification should not have been suppressed.
The County Court also suppressed the defendant's statements to the detectives at the stationhouse on the ground that these statements were not attenuated from the unlawful arrest.However, since Manzella's initial detention of the defendant was lawful, and since thecomplainant's positive identification of the defendant gave the police probable cause to arrest thedefendant (see CPL 140.10 [1] [b]; People v Mobley, 58 AD3d 756, 756-757[2009]), his subsequent statements to the police should not have been suppressed as the fruits ofthe poisonous tree (see People v Fleury, 8 AD3d 585, 587 [2004]; see generallyWong Sun v United States, 371 US 471 [1963]).
The County Court properly suppressed the sneakers and "do-rags" which were seized fromthe defendant's home, as the warrant did not authorize the seizure of those items (see Peoplev Baker, 23 NY2d 307, 319-320 [1968]; see also Marron v United States, 275 US192 [1927]). The plain view doctrine is not applicable since the incriminating character of thoseitems was not immediately apparent (see People v Brown, 96 NY2d 80, 89 [2001];cf. People v Desmarat, 38 AD3d 913, 915-916 [2007]; People v Crawford, 239AD2d 515 [1997]).
Finally, the County Court should not have precluded the portion of the defendant's statementto Officer Manzella in which he denied coming from a house, since the notice provided pursuantto CPL 710.30 informed the defendant of the "sum and substance" of the conversation sought tobe introduced at trial (see People v Carter, 44 AD3d 677, 678 [2007]; People vColeman, 256 AD2d 473, 474 [1998]). Rivera, J.P., Angiolillo, Dickerson and Roman, JJ.,concur.