| People v James |
| 2015 NY Slip Op 03864 [128 AD3d 723] |
| May 6, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kenyatta James, Also Known as Nate Beander,Appellant. |
Mary Zugibe Raleigh, Warwick, N.Y., for appellant.
David M. Hoovler, District Attorney, Middletown, N.Y. (Elizabeth L. Schulz andAndrew R. Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County(Berry, J.), rendered January 31, 2012, convicting him of robbery in the first degree andcriminal possession of a weapon in the third degree, upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing, of that branch of thedefendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is reversed, on the law, that branch of the defendant'somnibus motion which was to suppress identification testimony is granted, and a newtrial is ordered.
This is a one-witness identification case, in which the complainant's description ofthe perpetrator and his clothing to the police immediately after she was robbed is whollyat odds with the physical attributes of the defendant and the clothing he was wearingwhen he was arrested by the police in the vicinity of the incident a short time later. Forthe reasons set forth below, we find that the police-arranged showup identificationprocedure which precipitated the defendant's arrest was unduly suggestive and, thus, theSupreme Court erred in denying that branch of the defendant's omnibus motion whichwas to suppress identification testimony. Moreover, since the evidence of the defendant'sguilt is not overwhelming, the conviction must be reversed and a new trial ordered.
On the evening of July 30, 2010, in Newburgh, Orange County, the 22-year-oldcomplainant called 911 to report that she had been robbed, and described the perpetratoras wearing jeans, and being about 20 years old and the same height as her uncle, whowas 6 feet tall. The complainant's report to the first police officer to respond to the scene,Police Officer Myra Rude, was that a man she had met about an hour earlier, whointroduced himself to her as "Manny," had walked her home, and robbed her with a silverknife, taking her purse. According to Officer Rude, the complainant described Manny asa light-skinned black male, wearing a brown-and-white-striped shirt. The defendant is a33-year-old black male, 5 feet 8 inches tall, who was wearing shorts and carrying ared-and-blue-striped shirt when he was arrested minutes after the incident.
The following testimony was elicited at the pretrial hearing. Upon hearing thecomplainant's description, Officer Rude immediately dispatched over the radio thedescription of "Manny" as a light-skinned black male, wearing abrown-and-white-striped shirt. Several minutes [*2]afterhearing that description over his radio, Detective Aaron Weaver, who was driving nearthe location, saw the defendant, a black male, who was shirtless but holding a stripedshirt in his hand, walking down the street. According to Detective Weaver, the defendantducked behind a parked vehicle as a marked police vehicle turned onto the street. PoliceOfficer Christopher Flaherty, who was driving the marked police vehicle, along withDetective Weaver and other police personnel who arrived at the scene, then seized thedefendant and held him until the complainant could be brought to the location for ashowup identification. Two of the officers testified that "a white-striped shirt" was foundon the ground near the parked vehicle.
At trial, the shirt that was introduced into evidence, as having been dropped by thedefendant near the parked vehicle, was a red-and-blue-striped shirt, not white, nor brownand white.
At the pretrial hearing, Officer Rude further testified that she drove the complainantto the location where the defendant was standing. The defendant was still shirtless andwas standing with his hands cuffed behind his back, next to Detective Weaver and atleast two other officers, with two or three patrol cars, and other officers, some inplainclothes, some in uniform, in the immediate area. Initially, the complainant hesitatedwhen asked if she could identify the defendant, so Officer Rude pulled the car up about afoot. Next, still before the complainant had made any identification, Officer Flaherty heldup the striped shirt the officers had retrieved. The complainant identified the shirt as thatof the perpetrator. Then, with the defendant standing between them, Detective Weaverand Officer Flaherty held the shirt over the defendant's chest. Only at that point did thecomplainant identify the defendant as the person who had robbed her. The defendant wasarrested immediately thereafter.
The County Court denied that branch of the defendant's omnibus motion which wasto suppress the identification testimony on the ground that the showup was undulysuggestive.
A showup identification procedure is an inherently suggestive procedure and crossesover to unduly suggestive when it creates a "substantial likelihood ofmisidentification" (People v Duuvon, 77 NY2d 541, 544 [1991]). Unnecessarywords or actions by the police may aggravate the inherent suggestiveness of a showup,rendering identifications arising therefrom inadmissible (see People v Ward, 116 AD3d989, 992 [2014]). For example, showup identifications have been found to beunduly suggestive in cases where police officers pulled a defendant into a standingposition and escorted him to where the complainant was standing, after the complainantinitially had failed to identify the defendant (see id. at 992), and where policeofficers shined a spotlight on a defendant while telling a witness to look in the "generaldirection" of the defendant (People v Dubinsky, 289 AD2d 415, 416[2001]).
Here, the active police involvement in the identification process—the policeofficers' draping of the shirt over the defendant's chest immediately after the complainanthad hesitated in identifying the shirtless defendant as the perpetrator and before she dididentify him—renders this showup identification procedure unduly suggestive(see People v Ward, 116 AD3d at 992; People v Dubinsky, 289 AD2d at416). The actions taken by the police officers suggested to the complainant that thedefendant was the perpetrator. Although the complainant saw the shirtless defendant, shedid not identify him as the perpetrator until after the police held the striped shirt upagainst him. This action by the police is akin to the police having pointed out thedefendant as the perpetrator (see People v Dubinsky, 289 AD2d at 416;People v Ward, 116 AD3d at 992; James v Marshall, 2007 WL 3232513,*12, 2007 US Dist LEXIS 72804, *32 [ED NY, Oct. 31, 2007, No. 05-CV-1992(BMC)], citing Foster v California, 394 US 440, 443 [1969]).
We do not agree with our dissenting colleague that People v Dennis (125AD2d 325 [1986]) and People v Mayers (100 AD2d 558 [1984]) are controllinghere. Although the defendant in each of those cases was required to don certain apparelfor the purpose of the identification procedure, neither case involves the police officersholding the apparel up against the defendant. Here, the defendant was not directed to donthe shirt; instead, the police, standing on either side of the defendant, draped the shirtover him while asking the complainant to make an identification. Neither Dennisnor Mayers involved any such role by the police. The affirmative act by thepolice officers during the [*3]identification process, notsimply the donning of clothing, renders the showup unduly suggestive. Nor can theundue suggestiveness of the showup in this case be ameliorated on the basis that thepolice acted at the behest of the complainant (see e.g. People v McKenzie, 220AD2d 228 [1995]). Here, the draping of the shirt was neither requested by, norundertaken at the behest of, the complainant; it was solely police initiated when thecomplainant initially failed to identify the defendant.
The Court of Appeals case cited by our dissenting colleague, People v Brisco(99 NY2d 596 [2003]), likewise is not dispositive. Brisco, like Dennisand Mayers, involved only a situation where a defendant was required to wearcertain clothing during an identification procedure. In Brisco, the defendant wasrequired to hold maroon shorts which matched the description of clothing worn by theperpetrator while he was viewed through a window by the victim as he stood in herdriveway (see id. at 598-599). Under those circumstances, the Court of Appealsdetermined that the presence of the maroon shorts did not negate the reasonableness ofthe police action where the victim had already independently identified the defendant,relying upon his height, hair color, and build (see id. at 597). More importantly,in Brisco, the defendant held the shorts, the police did not; indeed, the Court ofAppeals noted that the police took no action nor made any gesture that could influencethe victim's identification of the defendant (see id. at 597-599).
For these same reasons, People v Dunbar (104 AD3d 198 [2013], affd 24NY3d 304 [2014]), a case decided by this Court last year and relied on by the dissent, isimportant to consider in analyzing the suggestiveness of this showup identification, butfor reasons different from those suggested by the dissent. In Dunbar, a policeofficer who was standing next to the defendant was holding a striped shirt and a hat thatmatched the description of items worn by the perpetrator when that defendant wasviewed by the complainant (see id. at 215). This Court expressly considered thefact that the police officer was holding the clothing and hat in the vicinity of thedefendant during the viewing in evaluating the suggestiveness of the showup in that case(see id. at 217). Here, there is no dispute that such facts must be considered inevaluating suggestiveness. Under the circumstances of this case, however, that sameanalysis—whether the police officers' actions influenced the identification processso as to render the identification unreliable and inadmissible—yields a differentdetermination from that in Dunbar. In Dunbar, unlike here, the police didnot hold the shirt and hat up against that defendant, nor hold the items at the defendant'swaist, nor do anything else to suggest to the complainant that the person whom she wasviewing was the perpetrator who possessed the items she had described to the police(see id. at 217). Instead, the police officer was standing next to the defendantduring the viewing holding the items (see id. at 201). The Court took note of thefact that the items were held by the police officer at his own waist level when itdetermined that, although those circumstances did not render the showup identificationso unduly suggestive as to render the identification inadmissible, such facts lessened thereliability, and thus the weight, of the identification of the defendant in that case (seeid. at 215). Here, under circumstances very similar to those in Dunbar, theadditional act by the two police officers who were standing on either side of thedefendant, of draping a striped shirt over him, puts this matter outside the analytical"lessened reliability" purview of Dunbar and squarely within those cases findingundue suggestiveness, rendering the identification inadmissible (see People vDubinsky, 289 AD2d at 416; People v Ward, 116 AD3d at 992; see alsoUnited States v Kemper, 433 F2d 1153 [DC Cir 1970]).
In short, the active role taken by the police officers during the identificationprocedure suggested to the complainant that the defendant was the perpetrator and, assuch, the showup identification should have been suppressed (see People v Ortiz,90 NY2d 533, 537 [1997]).
Since the defendant's constitutional right to due process was violated by the impropershowup, "a reversal and a new trial is required unless it can be said beyond a reasonabledoubt that the error did not contribute to the conviction" (People v G., 45 NY2d962, 964 [1978]; People v Crimmins, 36 NY2d 230 [1975]). "Such aconstitutional error can be harmless only if the evidence of guilt, without reference to theerror, is overwhelming, and there is no reasonable possibility that the error might havecontributed to the defendant's conviction, such that it is harmless beyond a reasonabledoubt" (People v Dunbar, 104 AD3d at 214-215; see People v Crimmins,36 NY2d at 237; People vHarris, 93 AD3d 58, 71 [2012], affd 20 NY3d 912[2012]).
[*4] Without the showup identificationtestimony, we cannot say that the evidence of guilt in this one-witness identification casewas overwhelming or that the error was harmless beyond a reasonable doubt (seePeople v Ruffino, 110 AD2d 198, 204 [1985]). This case rests squarely upon thetestimony of the complainant, whose memory, according to a member of her family whotestified at trial, was "bad on things." The complainant's initial description to police ofthe perpetrator and his clothing did not match the actual physical characteristics of thedefendant and his clothing. The complainant described the perpetrator as wearing abrown-and-white-striped shirt. However, at the showup, when the complainant wasshown the shirt seized by the police officers, which they described at the pretrial hearingas a white-striped shirt, she said that she recognized it to be that of the perpetrator. Yet,later at trial, she identified a red-and-blue-striped shirt that was offered into evidence bythe People as the one that was worn by the perpetrator. Moreover, although the defendantpossessed a "Sawz-all" blade, it was not the "silver knife" described by the complainant,who, when presented with both a photograph of the Sawz-all and then the actualSawz-all at trial, was unable to identify it as the weapon that had been used against her.In addition, when the defendant was arrested, although he possessed a pack of cigarettesthat matched the brand the complainant had said was in her purse, he possessed neitherthe money nor the personal items which had been taken from the complainant. Indeed,the only real evidence connecting the defendant to the crime is his presence in closegeographic and temporal proximity to the crime, his behavior in ducking behind a carwhen a marked police vehicle turned onto the street, and the complainant's in-courtidentification.
While the People correctly argue that the complainant had an independent source forher in-court identification based upon her testimony that she spent at least an hour in theperpetrator's company, prior to, and up until, the crime (see People v Williams,236 AD2d 433, 434 [1997]; People v Paul, 222 AD2d 706, 707 [1995]), in thecontext of this case, which rested entirely on the identification by a single witness, evenwith an in-court identification by the complainant of the defendant, it cannot be said thatthe evidence of guilt was overwhelming, nor that the error was harmless beyond areasonable doubt (see People v Ruffino, 110 AD2d at 204). Accordingly, theconviction must be reversed and the matter remitted for a new trial.
In light of our determination, we need not reach the defendant's remainingcontentions. Dickerson, Cohen and Duffy, JJ., concur.
Dillon, J.P., dissents, and votes to affirm the judgment appealed from, with thefollowing memorandum: I respectfully dissent from my colleagues with respect to theadmissibility of the showup identification of the defendant, and vote to affirm thedefendant's judgment of conviction.
The facts on appeal are not in dispute. On July 30, 2010, the complainant met ayoung man at the front stoop of a friend's home in the City of Newburgh, and hung outwith him and two other friends for approximately one hour. When the complainantannounced that she was going home, the young man asked if he could accompany her.During the 10-minute walk, while it was still daylight, the complainant was robbed atknife point by the young man, and the complainant immediately reported the robbery toher uncle at her home. The police were called and responded to the home promptly. Thecomplainant described the perpetrator to Police Officer Myra Rude as a black malewearing a brown-and-white striped shirt. At roughly the same time, Detective AaronWeaver received a radio call describing the perpetrator as a black male in a striped shirt,and observed the shirtless defendant in the vicinity of the reported crime walking quicklyand carrying a striped shirt. The defendant, upon seeing yet another police officer,Christopher Flaherty, ducked behind a parked vehicle.
The defendant was apprehended and handcuffed by Detective Weaver. When thedefendant stood up at the time of his apprehension, he dropped the striped shirt on theground. During a patdown, Police Officer John Maguire recovered from the defendant'spants pocket a[*5]"Sawz-all" with an 8-inch-to-10-inchsilver serrated blade.
Officer Rude drove the complainant two blocks to where the defendant was detained,leaving fewer than five minutes after she had first arrived at the complainant's home.While still in daylight, Officer Rude drove her patrol car toward the shirtless defendantand initially stopped the vehicle 28 to 30 feet from him. When the complainant wasasked, "is that him?" she initially hesitated, saying that she could not see well, so OfficerRude pulled the car forward another foot. At about the same time, Officer Flaherty heldup in front of the defendant the shirt that the defendant had previously dropped, at whichpoint the complainant identified the shirt. Detective Weaver and Officer Flaherty thendraped the shirt over the defendant's chest, at which time the complainant identified thedefendant as the perpetrator of the armed robbery.
The defendant filed an omnibus motion seeking, inter alia, suppression of theshowup identification on the ground that it was unduly suggestive. After a hearing, theCounty Court denied suppression.
Showup identification procedures, while disfavored, are permissible in the absenceof exigent circumstances when the People demonstrate that it was reasonable under thecircumstances, such as by being in close temporal and geographic proximity to the crime,and by not being performed in a manner that is unduly suggestive (see People vOrtiz, 90 NY2d 533, 537 [1997]; People v Ward, 116 AD3d 989, 991 [2014]; People v Calero, 105 AD3d864 [2013]; People vJohnson, 104 AD3d 705, 706 [2013]).
Here, the People established that the showup identification of the defendant occurredwithin close spatial and temporal proximity to the commission of the crime (seePeople v Ortiz, 90 NY2d at 537; People v Duuvon, 77 NY2d 541, 544[1991]; Matter of RussellF., 118 AD3d 874 [2014]; People v Guitierres, 82 AD3d 1116 [2011]). Theidentification occurred within two blocks of the crime, approximately 10 minutes after itsoccurrence.
Contrary to the defendant's contention, the identification procedure utilized by thepolice was not unduly suggestive in the manner of its performance. In People vDennis (125 AD2d 325 [1986]), this Court upheld a showup identification of ahandcuffed defendant who had been compelled to don the black jacket and cap that heallegedly wore at the time of a burglary (see id. at 326). Similarly, in People vMayers (100 AD2d 558 [1984]), this Court upheld a showup identification of adefendant who had been compelled by police to don a black turtleneck that he allegedlywore at the time of a robbery (see People v Mayers, 100 AD2d at 558; cf.People v Brisco, 99 NY2d 596, 597 [2003]; People v Cruz, 31 AD3d 660, 661 [2006]). In my view,Dennis and Mayers are controlling, and the holding of clothing in front ofa suspect versus requiring a suspect to wear certain clothing is a distinction relied uponby the majority that is without a difference.
Significantly, this Court recently had occasion to pass judgment upon theadmissibility of a showup identification where, under facts remarkably similar to thosepresent here, the defendant was surrounded by police officers in close geographic andtemporal proximity to the alleged crime, and the police held, at waist height, ablue-and-white-striped shirt that was viewed by the complainant at the exact time of theidentification. The case, Peoplev Dunbar (104 AD3d 198 [2013], affd 24 NY3d 304 [2014]), involved adefendant who allegedly committed a crime while wearing a blue and white striped shirt,and when he was arrested shortly thereafter in a taxi cab, a blue-and-white-striped shirtwas found on the floor of the cab. In Dunbar, we held that while the policeofficer's display of the striped shirt near the defendant and certain unrelated policeinconsistencies might affect the reliability, and hence, weight, of the identification, theshowup procedure itself was not rendered unduly suggestive by the presence of thestriped shirt (see id. at 215). Clearly, both here and in Dunbar, the policeheld a striped shirt near each defendant at the time the complainants made theidentifications. However, as we concluded in Dunbar, that mere fact does notrender the procedure unduly suggestive so as to preclude admission of the identification(see id. at 217).
As for the remaining issues on appeal, the County Court properly denied thedefendant's request for a missing witness charge, as the defendant failed to demonstratethat the [*6]witness in question was under the control ofthe People (see People vRead, 97 AD3d 702, 703 [2012]; cf. People v Gonzalez, 68 NY2d 424,431 [1986]).
Moreover, the evidence, viewed in the light most favorable to the prosecution (see People v Hawkins, 11NY3d 484, 493 [2008]; People v Contes, 60 NY2d 620, 621 [1983]), waslegally sufficient to prove the defendant's guilt beyond a reasonable doubt. Further, uponan independent review pursuant to CPL 470.15 (5), the verdict of guilt was not againstthe weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]). The discrepancies and othercircumstances discussed above, while rendering the evidence less than overwhelming,were properly before the jury for consideration (see People v Reid, 82 AD3d 1268, 1268-1269 [2011]; People v Jean-Marie, 67 AD3d704, 705 [2009]; People vStroman, 60 AD3d 708 [2009]).
Accordingly, the judgment of conviction should be affirmed.