| People v Polhill |
| 2013 NY Slip Op 00514 [102 AD3d 988] |
| January 30, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Eugene Polhill, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and DonnaAldea of counsel), for respondent. Taylor Prendergrass, Susannah Karlsson, and Christopher Dunn, New York, N.Y.,for New York Civil Liberties Union Foundation, American Civil Liberties Union,Brennan Center for Justice, New York State Defenders Association, Pre Trial JusticeInstitute, New York Association of Criminal Defense Lawyers, Five Borough Defense,and Bronx Defenders, amici curiae (one brief filed).
Appeal by the defendant from a judgment of Supreme Court, Queens County(Buchter, J.), rendered January 27, 2010, convicting him of attempted robbery in thesecond degree, upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing, of those branches of the defendant's omnibus motionwhich were to suppress a videotaped statement made by him to law enforcementauthorities, and identification evidence.
Ordered that the judgment is reversed, on the law, that branch of the defendant'somnibus motion which was to suppress a videotaped statement made by him to lawenforcement authorities is granted, and a new trial is ordered.
The defendant moved to suppress a videotaped statement made by him to an assistantdistrict attorney during the course of an interview conducted prior to the defendant'sarraignment, pursuant to a program instituted by the Queens County District Attorney'soffice. In accordance with that program, a script formulated by the Queens CountyDistrict Attorney's office was read to the defendant prior to administeringMiranda warnings (see Miranda v Arizona, 384 US 436 [1966]), andobtaining a waiver of the defendant's rights. Because this procedure was not effective tosecure the defendant's fundamental constitutional privilege against self-incrimination andright to counsel, the defendant's videotaped statement should have been suppressed(see People v Dunbar, — AD3d —, 2013 NY Slip Op 00505 [2013][decided herewith]).
The Supreme Court also should have suppressed the identification evidence becausethe police lacked reasonable suspicion to stop and detain the defendant on the street. Theradio broadcast of a robbery in progress described the perpetrators as two black maleswearing black jackets, one of whom was wearing blue jeans and one of whom waswearing black jeans. When [*2]responding police officersspoke with the complainant, however, the complainant merely described the perpetratorsas "wearing dark clothing," one taller than the other, and one with a hood. Thesedescriptions of the perpetrators did not provide the police with reasonable suspicion tostop and detain the defendant, who was dressed in a dark gray and dark greencamouflage jacket and was standing alone, outside a liquor store, 20 blocks away fromthe crime scene. In this respect, the defendant's appearance did not match the descriptionbroadcast on the radio, and the complainant's description was too vague and general tosupply reasonable suspicion to stop and detain the defendant (see People vStewart, 41 NY2d 65, 69 [1976]; People v Dubinsky, 289 AD2d 415, 416[2001]; People v Riddick, 269 AD2d 471 [2000]; People v Yiu C. Choy,173 AD2d 883 [1991]; People v Dawkins, 163 AD2d 322, 324 [1990]). Nor didthe other facts identified by the People supply reasonable suspicion to stop him.Accordingly, that branch of the defendant's omnibus motion which was to suppress theidentification evidence should have been granted (see People v Ridley, 307AD2d 269 [2003]; People v Thomas, 300 AD2d 416 [2002]; People vDubinsky, 289 AD2d at 416; People v Riddick, 269 AD2d 471 [2000];People v Yiu C. Choy, 173 AD2d 883 [1991]).
These errors were not harmless beyond a reasonable doubt, since the evidence of thedefendant's guilt, without reference to the errors, was not overwhelming, and there was areasonable possibility that the errors might have contributed to the defendant's conviction(see generally People v Crimmins, 36 NY2d 230, 237 [1975]; see People vSchaeffer, 56 NY2d 448, 454 [1982]; People v Dunbar, — AD3d—, 2013 NY Slip Op 00505 [2013] [decided herewith]; People v Harris, 93 AD3d58, 71 [2012], affd 20 NY3d 912 [2012]).
The defendant's remaining contention is without merit. Skelos, J.P., Balkin,Leventhal and Cohen, JJ., concur.