Opinion
836/18 and 1315/18 (consolidated)
03-09-2020
The PEOPLE of the State of New York, Plaintiff, v. Roshaun ASHLEY, Sean Thompson, and Montrell Fortune, Defendants.
For the People: A.D.A.s Stephen MacArthur and Rachel Ehrhardt For Defendant Ashley: Glen Hardy, Esq. For Defendant Thompson: Zwi Wasserstein, Esq. For Defendant Fortune: Quincy Myers and Jeremiah Rygus, Esq.
For the People: A.D.A.s Stephen MacArthur and Rachel Ehrhardt
For Defendant Ashley: Glen Hardy, Esq.
For Defendant Thompson: Zwi Wasserstein, Esq.
For Defendant Fortune: Quincy Myers and Jeremiah Rygus, Esq.
DECISION
Steven M. Statsinger, J. The Court conducted a combined Dunaway/Mapp/Wade hearing on February 13, 18, and 24, 2020. Defendant Thompson was present for the entire hearing. Defendant Fortune was absent for the entire hearing. He had previously been issued Parker warnings and, after a Parker hearing, another judge of this Court concluded that Fortune's absence was willful. On each of the hearing dates, this Court ratified the prior judge's Parker findings without objection from Fortune's counsel. Finally, defendant Ashley attended some, by not all, of the hearing. He voluntarily absented himself from the afternoon proceedings on February 24, 2020, by refusing to return to court from the cellblock after a recess.
Defendant Ashley has moved to suppress certain physical evidence, an arrest photograph and an on-scene identification. Ashley's motion is DENIED in its entirety.
Defendant Thompson has likewise moved to suppress certain physical evidence, an arrest photograph, as well as two identifications - an eyewitness identification that took place at West 99th Street and Broadway and an identification by the complainant that took place outside the 24th Precinct on West 100th Street. Thompson's motion is GRANTED with respect to the eyewitness identification at West 99th Street and Broadway, although the Court orders an Independent Source Hearing, and is DENIED in all other respects.
Defendant Fortune moves to suppress certain physical evidence and an arrest photograph. That motion is DENIED in its entirety. FINDINGS OF FACT
1. BACKGROUND
Police Officers Erik Alba, Lirion Ahmedi, Raymond Castro, Lindsey Robles, and John Hart, from the New York City Police Department's 24th Precinct, testified and the Court finds them all to be credible witnesses. The Court makes this finding based on its own individual assessment of each officer's demeanor on the witness stand and the content of each officer's answers to the questions posed. The Court also notes that these officers are highly experienced; Officer Alba has about thirteen years on the force, Officer Ahmedi about five years, Officer Castro about three years, Officer Robles about eleven years, and Officer Hart, the arresting officer in this case, about five and a half years. Collectively, these officers have participated in more than 500 arrests.
At or around 11:45 p.m., on February 24, 2018, Officers Alba and Castro were standing in front of the 24th Precinct, which is located on West 100th Street, between Columbus and Amsterdam Avenues, in New York County. A pedestrian walked by and informed the officers that there were "some guys fighting" on Amsterdam Avenue. As the officers walked west, Officer Alba heard sounds consistent with "a commotion" from an area north of 100th Street and Amsterdam Avenue. He also heard what sounded like a metal object hit the street.
At the same time, Officer Ahmedi was parking his police vehicle across the street from the 24th Precinct. He observed Officer Alba and Castro walking towards Amsterdam Avenue with their flashlights out, which caused him to believe they were "looking for something" or "at something." He then saw them run towards Amsterdam Avenue and followed them in his vehicle.
2. THE ARREST AND IDENTIFICATION OF DEFENDANT ASHLEY
At Amsterdam Avenue and West 100th Street, Officer Alba, from less than two car lengths away, observed three suspects "surrounding one male" and "grabbing onto" him; the complainant. The men were on the street, but near a bus stop located on the east side of Amsterdam Avenue. The complainant was leaning over and his hands were protecting his face. One of the suspects, whom Officer Alba later learned was defendant Ashley, was wearing a multi-colored jacket. As Officers Alba and Castro approached the group, two of the suspects ran off. Ashley did not, and Officer Alba was able to detain him; after Officer Castro placed him in handcuffs. At this point, Officer Alba turned his attention to the complainant, who had moved to the area of the bus stop, and observed that his face was covered in blood and he also had a "gash" on his arm. The complainant was a male Hispanic in his mid-thirties and, when asked what happened, told Officer Alba that "they jumped me, they jumped me." An eyewitness then approached Officer Alba and pointed to Ashley, who was in Officer Castro's custody, and said "they jumped him." Officer Alba also observed a metal microphone stand on the ground near where he had first seen the suspects surround the complainant.
3. THE ARREST AND EYEWITNESS IDENTIFICATION OF DEFENDANT THOMPSON
Meanwhile, as Officer Ahmedi turned the corner onto Amsterdam Avenue to follow Officers Alba and Castro, he observed Officer Alba make a gesture, pointing towards "the subjects." Officer Ahmedi interpreted this gesture to mean "hey or come here." Officer Ahmedi then observed an individual, whom he later learned to be defendant Thompson, flee. Thompson was wearing a dark jacket with dark jeans and ran south on Amsterdam Avenue, passing Officer Ahmedi's car.
Officer Ahmedi got out of his car and pursued Thompson on foot. Thompson turned right on West 99th Street and was running towards Broadway. Officer Ahmedi chased him and warned that he would use his taser. Thompson eventually stopped running and Officer Ahmedi placed him on the ground. Officer Ahmedi only placed one handcuff on Thompson because the other cuff was locked and "Thompson was complying." Officer Ahmedi walked Thompson to West 99th Street and Broadway and radioed Officer Alba that he had a suspect in custody. In response to Officer Ahmedi's radio call, Officer Alba brought the eyewitness to West 99th Street and Broadway. Officer Alba told the eyewitness that "we are taking you to a location [and] if you see anybody that was at the location where it happened point him out." Officer Ahmedi testified that there were five to ten officers present at 99th and Broadway, with four or five standing close to Thompson, when Officer Alba and the eyewitness arrived. The eyewitness got out of Officer Alba's car and Officer Alba heard another officer say that there was a "positive on the show-up." Officer Ahmedi also heard another officer say that it was a "positive" show-up, but he could not recall who said it. A third officer at that location, Officer Hart, also heard there was a "positive" identification, but likewise did not know who said it. After the eyewitness identified Thompson, Officers Ahmedi and Hart brought him to the 24th Precinct.
4. THE SEARCH OF DEFENDANT ASHLEY
At around the same time that defendant Thompson was identified, Officers Castro and Luis Robles walked defendant Ashley from the scene to the 24th Precinct. On their way, Officer Lindsey Robles joined them. Inside the 24th Precinct, Officers Castro and Lindsey Robles emptied Ashley's pockets. Officer Castro found a gray box cutter, about "three or four inches" long, inside Ashley's front right pocket. He also found a wallet in Ashley's back right pocket. Officer Lindsey Robles searched Ashley's left pockets and recovered fourteen $20 bills, which she concluded were counterfeit because their texture and appearance were suspect, and because thirteen of them bore the same serial number. All the items recovered from Ashley were placed on the front desk in the 24th precinct for Officer Hart to voucher. Officer Hart also took Ashley's photograph.
5. THE COMPLAINANT'S IDENTIFICATION AND THE SEARCH OF DEFENDANT THOMPSON
While defendant Ashley was being searched inside the station house, Officers Hart, Ahmedi and Diaz transported defendant Thompson to the 24th Precinct. As they approached the building, the complainant was standing alone on the sidewalk outside the precinct, apparently waiting for an ambulance. Officer Hart heard the complainant say "look what they did to me" while staring at Thompson. The complainant was then taken away in an ambulance. Inside the precinct, officers searched Thompson at the front desk. Officer Ahmedi recovered an air pod from his ear, and a cell phone and a small amount of marijuana from his pockets. He gave these items to Officer Hart to process. Officer Hart also took Thompson's photograph.
6. THE ARREST AND SEARCH OF DEFENDANT FORTUNE
While defendant Thompson was being searched, the eyewitness entered the precinct and told Officer Hart that the incident had begun as a dispute between him and two of the suspects inside a deli on the west side of Amsterdam Avenue, near West 101st Street, and the complainant tried to intervene. The dispute escalated and the men left the deli and moved towards the bus stop. One of the assailants from inside the deli made a phone call, after which a third person showed up, and began to "slice" the complainant, while the men from the deli "hit [the complainant] with metal sticks." The eyewitness described one of the individuals in the deli as wearing all red, and the other was the person he had identified as Thompson. The eyewitness further reported that the third individual, the one who "wasn't in the deli" was "wearing a multi-colored jacket."
The following day, Officer Hart went to the deli, where he located and watched video surveillance showing the events that had occurred inside the deli the night before. On the video, Officer Hart recognized defendant Fortune because Officer Hart had assisted in an unrelated arrest of Fortune in approximately February of 2017. Moreover, Officer Hart had seen Fortune's image on a poster of alleged gang members that was displayed inside of the 24th Precinct. Officer Hart looked at this poster "every time [he] went to work," as it was part of his job as an anti-crime officer to "be familiar with the gang members of the area."
On April 6, 2018, Officer Hart was in his personal car with Officer Ahmedi on their way to work when he recognized defendant Fortune at the corner of West 110th Street and Central Park West. Officer Hart exited his car and followed Fortune on foot. Since Officer Hart was not yet on duty, he called Officer Maxi and asked him to arrest Fortune for the February 24 incident, as an i-card had been issued for Fortune. Officer Maxi arrived and arrested Fortune; another police officer, Officer Gomez, searched Fortune and found a cell phone and 2 Apple watches. At the 24th Precinct, an officer took Fortune's photograph.
7. ADDITIONAL PROPERTY RECOVERED ON FEBRUARY 24, 2018
On February 24, after speaking to the eyewitness, Officer Hart returned to the scene and recovered two "metal sticks in the street" and a box cutter from the fenced-in garden area of a residential building that was "right next to the location" where defendant Ashley had been stopped.
CONCLUSIONS OF LAW
Based upon the above facts, the Court makes the following conclusions of law:
1. DEFENDANT ASHLEY
At the outset, the Court finds that Officer Alba acted lawfully in his apprehension of defendant Ashley. After Officer Alba was told there were "some guys" fighting around the corner, he went to the location and observed defendants Ashley and Thompson, along with a third individual, whom the People contend was defendant Fortune, surrounding the complainant and "grabbing" him. The complainant was covering his face, in what Officer Alba could reasonably have interpreted as a defensive maneuver. Having observed the defendants engaging in what any reasonable officer would have concluded was criminal conduct, Officer Alba's stop and subsequent detention of Ashley was lawful. People v. De Bour , 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976) ; People v. Maldonado , 86 N.Y.2d 631, 635, 635 N.Y.S.2d 155, 658 N.E.2d 1028 (1995) (probable cause exists when an officer has knowledge of facts and circumstances "sufficient to support a reasonable belief that an offense has been or is being committed.")
It follows that the eyewitness' identification of defendant Ashley was not the fruit of an unlawful arrest. Ashley argues separately that the eyewitness' on-scene identification should be independently suppressed as suggestive. The Court need not determine whether this identification was suggestive, since it was spontaneously initiated by the eyewitness, and not by the police. People v. Dixon, 85 N.Y.2d 218, 223, 623 N.Y.S.2d 813, 647 N.E.2d 1321 (1995) ; People v. Bello , 219 A.D.2d 657, 631 N.Y.S.2d 714 (2d Dept. 1995). As Officer Alba was tending to the complainant, the eyewitness approached, pointed to Ashley and spontaneously said "they jumped him." This identification is therefore admissible. Dixon , 85 N.Y.2d at 223, 623 N.Y.S.2d 813, 647 N.E.2d 1321 ("a true ‘spontaneous’ procedure would exist where a complainant flags down a police officer and then points to the attackers," emphasis in original).
Lastly, the box cutter, wallet and its contents, and the counterfeit $20 bills recovered from defendant Ashley's person inside the 24th Precinct, and Ashley's arrest photograph were lawfully obtained, as they were fruits of a lawful arrest. People v. Wylie , 244 A.D.2d 247, 666 N.Y.S.2d 1 (1st Dept. 1997).
2. DEFENDANT THOMPSON
A. The Stop Was Lawful Under the "Fellow-Officer" Rule
Defendant Thompson's principal claim is that Officer Ahmedi lacked a lawful basis to stop and detain him. This argument requires the Court to examine a largely unanswered question in applying the "fellow-officer" rule: Can the conduct of a fellow-officer, if observed by the officer who forcibly stops a suspect, serve as a substitute for verbal communication?
Defendant Thompson argues that the two identifications, the property recovered from his person at the 24th Precinct, and his arrest photograph should be suppressed as the fruits of an illegal detention. Thompson contends that the fellow-officer rule does not apply in this case as there was no communication between Officer Alba and Officer Ahmedi before Officer Ahmedi stopped Thompson. Absent such communication, Thompson argues, Officer Ahmedi's pursuit and eventual stop of Thompson was illegal, as Officer Ahmedi's own observations of Thompson did not give rise to reasonable suspicion.
The Court first notes that both sides agree that Officer Ahmedi's pursuit and eventual stop of Thompson was a "level three" encounter under the DeBour framework, and thus that reasonable suspicion was required. The parties are correct. De Bour , 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 (reasonable suspicion "that a particular person has committed, is committing or is about to commit a felony or misdemeanor authorizes a forcible stop and detention of that person").
Reasonable suspicion is "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand." People v. Cantor , 36 N.Y.2d 106, 112-13, 365 N.Y.S.2d 509, 324 N.E.2d 872 (1975) ; People v. Martinez , 80 N.Y.2d 444, 448, 591 N.Y.S.2d 823, 606 N.E.2d 951 (1992). To justify a forcible stop, the officer must "indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion." Cantor , 36 N.Y.2d at 113, 365 N.Y.S.2d 509, 324 N.E.2d 872. The Court also agrees with Thompson that Officer Ahmedi's own knowledge, absent any communication from Officer Alba, did not give rise to reasonable suspicion. Officer Ahmedi saw Officers Alba and Castro first walking, then running, towards Amsterdam Avenue, with their flashlights out. This legitimately aroused Officer Ahmedi's suspicion to some degree, and he acted reasonably in following the officers in his vehicle to inquire further and, if necessary, render assistance. But Officer Ahmedi did not see the actual altercation, and his seeing Officers Alba and Castro running did not, by itself, give rise to reasonable suspicion of criminal activity, let alone reasonable suspicion that Thompson himself was involved in criminal activity. At this point, Officer Ahmedi had only a general "founded suspicion that criminal activity [was] afoot." De Bour , 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562.
Officer Ahmedi's only direct observation of defendant Thompson's behavior was that he saw Thompson flee once Officer Alba made a gesture that Officer Ahmedi interpreted as meaning "hey or come here." While a suspect's flight does not by itself give rise to reasonable suspicion, People v. Bilal , 170 A.D.3d 83, 86, 96 N.Y.S.3d 1 (1st Dept. 2019), flight in combination with "specific circumstances indicating the suspect's possible engagement in criminal activity," can do so. Id. Here, however, the Court concludes that even the combination of seeing Officers Alba and Castro running and Thompson's flight did not give rise to reasonable suspicion.
This case accordingly turns on the Court's assessment of what, if anything Officer Alba communicated to Officer Ahmedi. If the fellow-officer rule requires an actual, verbal communication from one officer to another, then the Court would have little trouble finding that Officer Ahmedi's stop of Thompson was unlawful, since there was none. But the Court concludes that verbal communication is not the only way that the fellow-officer rule can be satisfied.
The fellow-officer rule permits an officer to arrest a suspect when the officer is acting at the direction of, or based on information communicated from, another officer who actually has probable cause. People v. Ketcham , 93 N.Y.2d 416, 419, 690 N.Y.S.2d 874, 712 N.E.2d 1238 (1999).The fellow-officer rule also applies to communications containing information that furnishes reasonable suspicion, permitting the receiving officer to forcibly stop a suspect on this basis. People v. Lee , 193 A.D.2d 529, 598 N.Y.S.2d 456 (1st Dept. 1993) ; People v. Bellamy , 228 A.D.2d 230, 643 N.Y.S.2d 561 (1st Dept. 1996). Information received from a fellow-officer is presumptively reliable. Ketcham , 93 N.Y.2d at 420, 690 N.Y.S.2d 874, 712 N.E.2d 1238.
The Court of Appeals has held that the fellow-officer rule can be satisfied by circumstantial evidence. Thus, direct evidence that an officer who possessed the requisite information passed it on to the officer who actually acted on it is not always necessary. People v. Ramirez-Portoreal , 88 N.Y.2d 99, 114, 643 N.Y.S.2d 502, 666 N.E.2d 207 (1996). The Court of Appeals has seemingly only considered cases involving a verbal communication between or among officers and has not directly addressed the question whether some other form of communication, such as conduct, might satisfy the fellow-officer rule. See, e.g. , id. at n.* (not reaching the question whether "knowledge of a team of officers generally in communication may be aggregated to establish probable cause even in the absence of evidence of an express communication between them").
The question whether conduct, as a form of non-verbal communication, can satisfy the fellow-officer rule, would thus appear to be a novel one, although the Second Department has suggested that it can be. People v. Gittens , 211 A.D.2d 242, 627 N.Y.S.2d 435 (2d Dept. 1995), focused primarily on addressing the "aggregate knowledge" question left open in Ramirez-Portoreal . Gittens held that "[w]hen officers are working in close temporal and spatial proximity to one another, circumstances may provide one officer with grounds for a reasonable belief that a fellow officer or officers possess knowledge which, alone or in conjunction with the knowledge possessed by him, is sufficient to warrant some level of intrusive action." This holding strongly suggests that the Second Department views the conduct of one officer, if supported by the requisite level of suspicion and if actually observed by another officer, can support an application of the fellow-officer rule, even if there is no direct verbal communication between them. Indeed, in Gittens , part of the knowledge that served as the lawful basis for a stop was the acting officer's observation that a fellow officer "pursued the defendant," even though the acting officer "denied that he stopped the defendant at the express direction of" the pursuing officer. Id. at 246, 627 N.Y.S.2d 435.
The Court also notes that the First Department has at least suggested that one officer's observations of another officer's conduct could satisfy the fellow-officer rule. In People v. Mitchell , 185 A.D.2d 163, 585 N.Y.S.2d 759 (1st Dept. 1992), the court concluded that a stop was illegal, in part, because the acting officer did not see that his partner had picked up from the ground a vial of cocaine that the suspect had dropped.
In any event, this Court concludes that the fellow-officer rule should apply to cases where one officer acts based upon his observations of a fellow officer, if the fellow officer both possesses the requisite level of suspicion and conveys it by his conduct. After all, it is an uncontroversial proposition that conduct can often serve the same communicative function as speech. See, e.g. , People v. Caviness , 38 N.Y.2d 227, 230, 379 N.Y.S.2d 695, 342 N.E.2d 496 (1975) (non-verbal conduct can communicate the intent of the actor as effectively as words); People v. Parson , 94 A.D.3d 577, 944 N.Y.S.2d 18 (1st Dept. 2012) (child's pointing his hand out a car window "conveyed a direction to look out the window").
Accordingly, if Officer Alba's actions communicated information to Officer Ahmedi that was sufficient to allow Officer Ahmedi to stop Thompson, then the stop was lawful. As noted above, Officer Alba had probable cause to make an arrest based on his own observations of the assault. And that probable cause extended to all three of the assailants, including Thompson, as Officer Alba would reasonably have understood them to be acting in concert. As also noted above, Officer Ahmedi's stop of Thompson was only lawful if it was based on reasonable suspicion that arose from the combination of his own observations of Thompson and his interpretation of the information conveyed by Officer Alba's conduct.
The Court concludes that, while Officer Alba's actions—at least those that Officer Ahmedi actually saw—did not communicate that he had probable cause for an arrest, they did, in fact, communicate that he had reasonable suspicion. Officer Ahmedi observed Officer Alba gesture and point towards "the subjects," including Thompson, a gesture that Officer Ahmedi interpreted to mean "hey or come here." In other words, Officer Alba's conduct demonstrated to Officer Ahmedi that Officer Alba was attempting to effectuate a forcible stop, an action that could only be justified by reasonable suspicion. De Bour , 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; People v. Herrera , 76 A.D.3d 891, 908 N.Y.S.2d 383 (1st Dept. 2010).
This is so because a forcible stop can take many forms. Of course, the actual detention of a person is a stop, e.g. , People v. Rosa , 67 A.D.3d 440, 889 N.Y.S.2d 140 (1st Dept. 2010), but that is not what Officer Ahmedi observed. He observed Officer Alba ordering the suspects, including Thompson, to obey a directive to "come here." Ordering an individual to comply with a police directive is just another type of stop that requires reasonable suspicion. E.g. , People v. Diaz , 33 Misc. 3d 1220(A), 939 N.Y.S.2d 742 (Sup Ct, New York County, 2011) (ordering suspect to raise hands); People v. Simkins , 256 A.D.2d 132, 681 N.Y.S.2d 513 (1st Dept. 1998) (ordering suspect to spit object out of his mouth); People v. King , 200 A.D.2d 487, 606 N.Y.S.2d 647 (1st Dept. 1993) (ordering suspect to open his hand); People v. McPherson , 165 A.D.2d 818, 560 N.Y.S.2d 161 (2d Dept. 1990) (police order to place hands on a bar); People v. Taveras , 155 A.D.2d 131, 553 N.Y.S.2d 305 (1st Dept. 1990) (police order to "turn around"); People v. Berry , 87 A.D.2d 53, 451 N.Y.S.2d 79 (1st Dept. 1982) (officer's direction to defendant to come to police car); People v. Pollard , 2002 WL 31109819 (App. Term 1st Dept. 2002) (ordering suspect to open his hand); People v. Phoenix , 2001 WL 1327249 (Sup. Ct. Bronx County 2001) (ordering suspect to lie on ground); People v. Camber , 187 Misc. 2d 153, 722 N.Y.S.2d 700 (Broome County Ct. 2000) (police order to "drop the bag"). Cf. People v. Thompson , 4 Misc. 3d 126(A), 791 N.Y.S.2d 872 (App. Term 2d Dept. 2004) (because there was no reasonable suspicion, police could not ask defendant to open his hand); People v. McFadden , 136 A.D.2d 934, 524 N.Y.S.2d 902 (4th Dept 1988) (absent reasonable suspicion, officers could not order suspect to "come over to the police vehicle").
Accordingly, since (1) Officer Alba had at least reasonable suspicion that Thompson had been engaged in criminal activity and (2) communicated that he had reasonable suspicion by acting in a manner that could only be lawful if so supported, and (3) Officer Ahmedi actually observed Officer Alba's conduct, it follows that under the fellow-officer rule Officer Ahmedi's stop of Thompson was lawful.
The Court concludes by observing that, of course, the "touchstone of any analysis of a governmental invasion of a citizen's person under the Fourth Amendment and the constitutional analogue of New York State is reasonableness." People v. Batista , 88 N.Y.2d 650, 653, 649 N.Y.S.2d 356, 672 N.E.2d 581 (1996). And, to be sure, limiting the scope of the fellow-officer rule to cases involving an actual, verbal communication has some superficial appeal. It is a bright-line principle that is easy for reviewing courts to apply with consistency. By contrast, including nonverbal communication in the fellow-officer rule might well require courts to analyze the legality of a range of much more ambiguous or equivocal facts.
But the "reasonableness" at issue in any search-and-seizure analysis does not turn on the workability of the legal rule at the judicial-review stage. It turns on the balancing of the right of citizens "to be free from arbitrary interference by law enforcement officers" against the "nondelegable duty placed squarely on the shoulders of law enforcement officers to make the streets reasonably safe for us all," People v. Chestnut , 51 N.Y.2d 14, 19, 431 N.Y.S.2d 485, 409 N.E.2d 958 (1980), produces a reasonable outcome. And the fellow-officer rule has long been found to be reasonable in this way. See People v. Lypka , 36 N.Y.2d 210, 366 N.Y.S.2d 622, 326 N.E.2d 294 (1975) (adopting the fellow-officer rule). Including expressive conduct within the type of communications that are amenable to the fellow-officer rule does not in any away affect this well-settled calculus. To the contrary, requiring a police officer to always stop and verbally communicate, even when faced with rapidly unfolding and potentially dangerous situations, for another officer to lawfully act would clearly be unreasonable under the balance identified in Chestnut .
Accordingly, since Officer Ahmedi lawfully stopped defendant Thompson, the two identifications, the property recovered from his person at the 24th Precinct and his arrest photograph are not the tainted "fruit of the poisonous tree." People v. Martinez , 37 N.Y.2d 662, 664, 376 N.Y.S.2d 469, 339 N.E.2d 162 (1975).
B. the Eyewitness Identification, but Not the Complainant's Identification, must Be Suppressed
Thompson moves, in the alternative, to suppress the identification made by the eyewitness at West 99th Street and Broadway. He claims that the People failed to meet their burden that the identification was not suggestive.
The Court agrees that the People failed to meet their "initial burden of [presenting evidence that established] the reasonableness of the police conduct and the lack of any undue suggestiveness" in the show up that was conducted at West 99th Street and Broadway at which the eyewitness identified Thompson. People v. Ortiz , 90 N.2.d 533, 664 N.Y.S.2d 243, 686 N.E.2d 1337 (1997). Officer Alba provided great detail as to what happened at West 100th Street and Amsterdam Avenue between him and the eyewitness before the identification procedure took place around the corner. But, Officers Alba, Ahmedi and Hart all testified merely that the eyewitness arrived at the location and that thereafter an unidentified officer indicated there had been a "positive" identification. But those officers did not actually conduct the show up, and the People failed to call the officer or officers who did. While that might not be necessary in every case, here absent "some proof of the circumstances of the on-site identification procedure," this Court finds that the People have not met their burden of demonstrating that the show up was not suggestive. Ortiz , 90 N.Y.2d at 538, 664 N.Y.S.2d 243, 686 N.E.2d 1337. Therefore, the identification of Thompson at West 99th Street and Broadway is suppressed. However, an independent source hearing is granted and is to be conducted before the commencement of trial. E.g. , People v. Wilson , 5 N.Y.3d 778, 802 N.Y.S.2d 112, 835 N.E.2d 1220 (2005).
As to the identification made by the complainant at the 24th Precinct, the Court finds that the identification procedure was not police-arranged, and that the complainant's identification of Thompson was spontaneous. People v. Dixon , 85 N.Y.2d 218, 623 N.Y.S.2d 813, 647 N.E.2d 1321 (1995) ; People v. Bello , 219 A.D.2d 657, 631 N.Y.S.2d 714 (2nd Dept. 1995).
3. DEFENDANT FORTUNE
Defendant Fortune contends he was unlawfully arrested on April 6, 2018, and thus the physical evidence recovered from his person, along with his arrest photograph, should be suppressed. Specifically, he argues that absent a description by the eyewitness as to the alleged assailant's age or ethnicity, the description of the color of the clothing the suspect was wearing is not enough. The Court disagrees.
Officer Hart watched surveillance video depicting the suspects, complainant and eyewitness moments before this crime took place. The Court has viewed the video (although not played at the hearing, by stipulation among all parties, the video was admitted as an exhibit). The video is in color and is of a high quality, and Officer Hart quite reasonable recognized defendant Fortune as one of the people depicted. Moreover, prior to observing the video, Officer Hart was well-acquainted with Fortune; he had assisted in an earlier arrest of Fortune and saw Fortune's face on a poster inside the 24th Precinct practically every day. Since Officer Hart was familiar with Fortune's appearance and the eyewitness had told him that the person whom Hart knew to be Fortune was involved in the assault, and since that account was partially corroborated by the video of this incident, Officer Hart had probable cause to arrest Fortune. And, on April 6, 2018, when Officer Hart saw Fortune on the street, he still had probable cause, and appropriately communicated that to a fellow officer, who placed Fortune under arrest. The subsequent search and photographing of Fortune were accordingly lawful; therefore, the cell phone, two Apple watches and Fortune's arrest photograph were not unlawfully obtained. Wylie , 244 A.D.2d 247, 666 N.Y.S.2d 1.
4. CONCLUSION
Defendant Ashley's motion to suppress physical evidence, an arrest photograph, and an on-scene identification is denied.
Defendant Thompson's motion to suppress physical evidence, an arrest photograph and two identifications is granted with respect to the eyewitness identification at West 99th Street and Broadway, although the Court orders an Independent Source Hearing, and is denied in all other respects.
Defendant Fortune's motion to suppress physical evidence and an arrest photograph is denied.
This opinion constitutes the Decision and Order of the Court.