| People v Williams |
| 2010 NY Slip Op 04431 [73 AD3d 1097] |
| May 18, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Appellant, v Brandon Williams, Respondent. |
—[*1] Steven Banks, New York, N.Y. (Joseph Levine of counsel), for respondent.
Appeals by the People from (1) an order of the Supreme Court, Kings County, (Marrus, J.),entered June 29, 2009, which granted that branch of the defendant's omnibus motion which wasto suppress evidence of a showup identification, and (2) an order of the same court (Tomei, J.),also entered June 29, 2009, which granted that branch of the defendant's omnibus motion whichwas to suppress an in-court identification of the defendant based upon the lack of an independentsource.
Ordered that the appeal from the second order entered June 29, 2009, is dismissed asacademic in light of our determination on the appeal from the first order entered June 29, 2009;and it is further,
Ordered that the first order entered June 29, 2009, is reversed, on the law and the facts, thesecond order entered June 29, 2009, is vacated, and the matter is remitted to the Supreme Court,Kings County, for further proceedings on the indictment.
As developed at a Dunaway/Wade hearing (see Dunaway v New York, 442US 200 [1979]; United States v Wade, 388 US 218 [1967]) conducted by the SupremeCourt, the victim in the instant matter stepped from an elevator on the fifth floor of his apartmentbuilding and was confronted by two men, one of whom was holding a gun. To avoid being shot,the victim grabbed the man with the gun as if "hugging" him, and struggled with the gunmanuntil he was able to push the gunman down a flight of stairs. As the gunman fell backwards, heshot the victim twice in the upper legs. From there, the victim made his way to his apartment onthe sixth floor, where a family member called 911.
Two police officers patrolling the area heard three to four gunshots from inside the building.Upon entering the building, they observed the defendant and another man running down thestairs. One of the officers identified himself as a police officer and, although the officers were inplain clothes, that officer displayed his police shield. The defendant slipped, was grabbed by oneof the officers, and told not to move. The defendant raised his hands and was thereafterhandcuffed behind his back. The other man [*2]turned, ran up thestairs, and escaped. The second police officer went up the stairs, found a trail of blood near thevictim's sixth floor apartment, located the victim in the apartment, and obtained from the victim adescription of the two men that had been involved in the altercation. One of the descriptionsmatched the race and clothing of the defendant, who remained downstairs. The defendant wasbrought to the victim's apartment, whereupon the victim identified him as the shooter. Thedefendant's detention prior to the showup identification lasted approximately 10 to 15 minutes.
An investigative detention is constitutionally permissible only where it is based uponreasonable suspicion of criminal activity (see People v Hicks, 68 NY2d 234, 238[1986]). The requirement of reasonable suspicion is satisfied where an officer has "that quantumof knowledge sufficient to induce an ordinarily prudent and cautious [person] under thecircumstances to believe criminal activity is at hand" (People v Woods, 98 NY2d 627,628 [2002] [internal quotation marks omitted]; see People v Warren, 276 AD2d 505[2000]). However, when police conduct an investigative stop, their conduct must remain"reasonably related to the circumstances surrounding the encounter," for "a stop which isjustified at its inception may be rendered unlawful by unwarranted police action taken as theconfrontation progresses" (People v Finlayson, 76 AD2d 670, 678 [1980], certdenied 450 US 931 [1981]; see People v De Bour, 40 NY2d 210, 219 [1976]).
The showup identification was suppressed, upon a finding that the conduct of the police indetaining, searching, and handcuffing the defendant for 10 to 15 minutes exceeded the scope oftheir authority as warranted by the information available to them, which ripened into an arrestthat was not supported by probable cause (see People v Ryan, 12 NY3d 28, 31 [2009]; People vHicks, 68 NY2d 234 240 [1986]; People v De Bour, 40 NY2d at 217; People vBattaglia, 82 AD2d 389, 396 [1981] [Hancock, J., dissenting], revd on dissent ofHancock, J., 56 NY2d 558 [1982]; People v Robinson, 282 AD2d 75, 81 [2001]).We disagree.
In this case, a reasonable suspicion existed that the defendant was involved in criminalactivity when two men, including the defendant, were observed running down the stairs of abuilding moments after the sound of three or four gunshots had been heard in the same buildingat approximately 3:35 a.m., and where one of the two men turned and ran back up the stairswhen confronted by police who had identified themselves (see People v De Bour, 40NY2d at 223). We note that the defendant argued that he was detained in the absence of eitherprobable cause or reasonable suspicion for a total of less than the 10 to 15 minutes found by thehearing court, since a deduction should be made for the time it took for the defendant to bewalked six flights up the stairs to the victim's apartment for the showup identification.
Accordingly, it was error to suppress the showup identification. The handcuffing of thedefendant was undertaken to effect his nonarrest detention, and to ensure the officers' safety lateat night at premises where multiple gunshots had just been fired (see People v Allen, 73NY2d 378, 379-380 [1989]). Moreover, the period in which the defendant was detaineddownstairs was not more than a few minutes, the scene under investigation and the defendantwere in close proximity to each other, the defendant was not questioned while detained and wasnot transported elsewhere, the sound of gunshots suggested potentially serious crimes, and a lessintrusive means of fulfilling the police investigation was not readily apparent (see People v Blas, 70 AD3d 846[2010]; People v Hicks, 68 NY2d at 243; People v Boyd, 272 AD2d 898, 899[2000]; People v Pinkney, 156 AD2d 182 [1989]).
We further find that, under the circumstances presented, the showup identificationprocedures were conducted for the purpose of securing a prompt and reliable identification, andwere not unduly suggestive (see People v Duuvon, 77 NY2d 541, 543 [1991]).
In light of our determination with respect to the propriety of the showup identification, theissue concerning the propriety of the proposed independent source identification has beenrendered academic.
Accordingly, the matter must be remitted to the Supreme Court, Kings County, for furtherproceedings on the indictment. Rivera, J.P., Dillon, Florio and Balkin, JJ., concur.