Opinion
No. 9838–2016.
08-17-2017
The PEOPLE of the State of New York, Plaintiff, v. Brandon CRADDOCK, Defendant.
Jamal Johnson, Esq., Nicholas Wiltsie, Esq., for the Defendant. Daniel Costello, Esq., Colleen Babb, Esq., for the People.
Jamal Johnson, Esq., Nicholas Wiltsie, Esq., for the Defendant.
Daniel Costello, Esq., Colleen Babb, Esq., for the People.
JOANNE D. QUIÑONES, J.
Defendant is charged, by way of indictment, with the crimes of Robbery in the First Degree, in violation of Penal Law (P.L.) section 160.15(4), Robbery in the Second Degree, in violation of P.L. section 160.10(1), Robbery in the Third Degree, in violation of P.L. section 160.05, and other related charges stemming from an incident that allegedly occurred on November 14, 2016. Defendant moves to suppress a videotaped statement and two line-up identifications on various grounds. On July 27, 28, 31 and August 1, 2017, the court conducted a combined Huntley/Wade/Dunaway hearing.
I make the following findings of fact and conclusions of law:
FINDINGS OF FACT:
The People presented two witnesses: Parole Officer Jennifer Sass and Detective Sonya Yi. Defendant did not present any witnesses.
Detective Sonya Yi has been working with the New York City Police Department (N.Y.PD) for approximately 13 years, and has been working as a detective with the 81st Precinct for approximately three and a half years. Parole Officer Jennifer Sass has been with the New York State Department of Correction, Community Supervision for approximately 3 years, and is currently assigned to the Queens 1 Area Office. In September 2016, Parole Officer Sass was assigned to supervise Defendant Brandon Craddock. I find the People's witnesses credible.
On November 14, 2016, Detective Yi became involved in an investigation of a robbery that occurred that day in a park on Madison Street between Ralph and Patchen Avenues in Kings County. She was informed by Police Officer Harry that two complainants walked into the 81st Precinct and reported that their cell phones were taken. One of the cellphones taken was an iPhone with the track my iPhone application activated. Officer Harry used her phone to track the stolen iPhone, which tracked to 112–20 Dillon Street in Queens, New York. Officer Harry took the complainants to the Queens address to do a canvass, but Detective Yi had no additional information about the canvass.
Later that day, at approximately 12:20 pm, Detective Yi spoke with the complainants, Dimaine Holmes–Nedd and Jaden Wayne. Each complainant advised her that as they were walking to school, they noticed two individuals following them, and decided to go into the park where they were stopped by the two individuals. One of the individuals displayed a firearm and demanded their cellphones, and then their cellphones were taken.
Mr. Holmes–Nedd described the first individual as a male black, between the ages of 19 and 23, approximately 5'6, slim build, dark short black hair with waves, a scar on his chin, wearing a white hoodie with the hood up, a light blue jacket and gray colored wool 12 Jordan sneakers. The second one he described as a male black, approximately 19 years of age, 6'1 to 6'2, Caesar haircut, medium build, wearing an all-black track suit with Nike logo on the left breast and white uptown sneakers.
Mr. Wayne described the first individual as a male black approximately 19 years of age, 5'6, slim build, scar on his chin, short black hair with waves, wearing a white hoodie with the hood up, black jacket, and gray wool Jordan 12 sneakers. The second one he described as a male black, much taller than the first individual, Caesar haircut wearing a black track suit.
Both complainants informed Detective Yi that the first individual displayed the firearm. She then conducted mug shot photo viewings for both complainants using Photo Manager. Photo Manager is a program that contains mug shot photos, and certain attributes can be selected to conduct the mug shot photo viewing. In this case, the attributes Detective Yi chose were male black between the ages of 17 and 25 years of age, within the 73rd, 81st and 113th Precincts. On separate computers in the same office, the complainants viewed color mug shot photos which appeared one at a time on the computer screen. Mr. Holmes–Nedd began viewing photos at approximately 12:30 or 12:40 pm and viewed over a thousand photos and Mr. Wayne began viewing photos at approximately 1:10 pm and viewed approximately 140 photos. Neither complainant positively identified anyone from the photos. Defendant's photo was not included in the photos viewed by the complainants.
Detective Yi also used a department search system called Das Light which allows you to search by address, name, and other key words. She inputted the Queens address the phone tracked to and it generated numerous pedigree information and ten photos. According to Detective Yi, the photos come out in tab portions, in a column on top of each other, and if available, a photo, name, phone number, address, social security number, date of birth, and NYSID number would appear. Detective Yi could not recall how many of the photos were of men versus women or the ages of any of the individuals, but remembered there was at least one female, all the photos were of black or Hispanic individuals, and Defendant's photo was in the fifth position.
Detective Yi asked Mr. Holmes–Nedd to view the photos and see if he recognized anyone. Mr. Holmes–Nedd identified the fifth photo, a mug shot photo of Brandon Craddock, as one of the guys that robbed him in the park. Using the same NYSID that was on the Das Light program, Detective Yi went on the Photo Manager and printed out Defendant's photo. She then showed the photo to Mr. Holmes–Nedd and asked him if this was the same person he was identifying as the one who robbed him and he answered yes that it was the same individual he saw on the Das Light program. He then signed and dated the photo, which was introduced into evidence as People's No. 1. The photo displays a scar on Defendant's chin. Detective Yi did not print the other photos viewed by Mr. Holmes–Nedd on the Das Light program and the original display cannot be replicated because some photos may have been sealed and others added.
The next day, Detective Yi activated an investigation card, known as an I–Card, for Brandon Craddock. An I–Card is a tool wherein a person's name and date of birth can be activated so that in the case of any police contact, the police would be notified that the person is sought as a witness, perpetrator, or suspect. Detective Yi also generated wanted flyers which were distributed to other commands.
On November 18, 2016, Detective Yi spoke to Detective Ortiz of the Brooklyn North Warrant Squad and requested his assistance in the apprehension of Brandon Craddock. She learned that Brandon Craddock was on parole and was scheduled to see his parole officer on November 22, 2016. That same day, Detective Yi went to a bodega at the corner of Madison Street and Ralph Avenue and downloaded video footage from November 14, 2016 that captured the two complainants, Defendant and another individual. Detective Yi created still images from the video, which were introduced into evidence as People's # 2A–2D.
On November 21, 2016 Officer Sass received a phone call from Detective Ortiz advising her that Brandon Craddock was wanted for a robbery in Brooklyn. Detective Ortiz asked Officer Sass to hold Defendant on his next report date, November 22, 2016. On November 22, 2016 at approximately 7:45 pm, Officer Sass called Defendant into her office and placed him in handcuffs. She advised him that he was wanted by the police and then she contacted Brooklyn detectives to inform them that she had Defendant in custody. Approximately an hour later, Detective Paray picked Defendant up.
On November 22, 2016, Detective Yi was advised by Detective Ortiz that Brandon Craddock had been picked up at his parole office in Queens and transported to the 81st Precinct by Detectives Paray and Jimenez. Defendant arrived at the precinct at approximately 8:50 pm and was placed into a holding cell.
On November 23, 2016, Detective Yi conducted two lineups, one with complainant Wayne and the other with complainant Holmes–Nedd. Defendant was the subject of the lineups and there were five fillers. The same fillers were used for both line ups. For both line ups, Defendant chose to be in position # 1. Photographs of the lineup were admitted into evidence as People's # 3A–3C. Mr. Wayne was brought to the 81st Precinct by Detective Yi and was escorted by an assistant principal. He was placed into a room to wait until he was called in to view the lineup. Mr. Holmes–Nedd arrived at the precinct separately with his mother and was placed into a different room to wait until he was called in to view the lineup. Neither complainant had any contact with Defendant, with the fillers or with each other prior to viewing the lineups. Detective Yi read the instructions that appear on the Lineup Instructions to Witness Report to each complainant separately. Copies of the reports for each complainant were entered into evidence as People's # 4 and # 6.
Mr. Wayne viewed the lineup first at approximately 12:05 pm. During the initial viewing of the lineup, he requested that position # 1 come closer to the window. Detective Yi had the complainant step out of the lineup room with Detective Paray. She then instructed everyone sitting in the lineup to stand up at the window one by one. Mr. Wayne reentered the viewing room and once the curtain was raised, # 1 was standing closer to the window. Mr. Wayne indicated he recognized # 1 as the guy who robbed him in the park. Mr. Wayne and the assistant principal then left the precinct on their own.
At approximately 12:10 pm Mr. Holmes–Nedd viewed the lineup and indicated he recognized # 1 as the guy from the park who robbed him. Afterward, Mr. Holmes–Nedd and his mother left the precinct and Defendant was placed under arrest.
At approximately 1:25 pm that day, Detective Yi interviewed Defendant. The interview was memorialized on video and entered into evidence as People's # 8. Defendant was uncuffed and was offered food, water and cigarettes. He accepted a cigarette and smoked it as he spoke to the detective. Detective Yi did not have her weapon in the room. No one else was present in the room and there was no evidence of any promises or threats made to Defendant. At the start of the interview, Detective Yi read Defendant his Miranda warnings. In response to the first five Miranda questions, Defendant acknowledged that he understood his rights by answering yes to each question. In response to last Miranda question, "Now that I have advised you of your rights, are you willing to answer questions," Defendant asked, "Like what type of questions?" The detective responded that she will ask questions and if Defendant doesn't want to answer them he doesn't have to. Defendant responded "alright" and nodded his head up and down. Detective Yi then indicated she needs a clear answer from him and re-asked the final Miranda question. Defendant stated "I will answer" and something to the effect of "um hmm." The detective explained that she needs him to say "yes or no" and Defendant responded yes. Defendant then answered the detective's questions until he requested the assistance of a lawyer approximately 14 minutes into the interview. At that point, the detective stopped questioning Defendant.
CONCLUSIONS OF LAW
The court will first address Defendant's request that the court give itself an adverse inference for 1) the detective's handwritten notes which she discarded after inputting the information into her DD5s; 2) the "original" digital file photo of the lineup; and 3) the photos in the DAS Light system that the detective failed to preserve. With respect to Rosario material, the People's duty is two-fold: the People have a duty to produce it and a duty to preserve it until a request for disclosure is made (see People v. Kelly, 62 N.Y.2d 516, 520 [1984] ). In the event of a Rosario violation, the appropriate sanction, if any, to be imposed is left to the sound discretion of the trial court (see People v. Martinez, 71 N.Y.2d 937, 940 [1988] ). Where Rosario evidence has been destroyed and cannot be produced, an adverse inference is appropriate ( Martinez, 71 N.Y.2d 937, 528 N.Y.S.2d 813, 524 N.E.2d 134 [where officer's notes were lost and any prejudice to defendant was remote, adverse inference charge was appropriate]; People v. Mallet, 164 Misc.2d 1009, 627 N.Y.S.2d 248 [Sup Ct, Kings County 1995] [hearing court drew adverse inference for People's failure to preserve tapes of transit communications by transit police officers]; People v. Gajadahar, 2001 WL 36524977 [Sup Ct, N.Y. County] [hearing court considered adverse inference that may be drawn from loss of detective's handwritten notes] ).
As to the detective's handwritten notes which have been lost, the court will give itself an adverse inference, namely that the information on the handwritten notes would have varied from the information contained in the DD5s (see Mallet, 164 Misc.2d at 1013, 627 N.Y.S.2d 248 ). The court, however, declines to take an adverse inference regarding any "original" image of the photo taken of the line up. The photo entered into evidence was a printed copy of the lineup photo taken by an officer on a department phone and was a fair and accurate depiction of the lineups Defendant sat in on November 23, 2016. Finally, with respect to the Das Light photos, as discussed in greater detail below, the People's failure to preserve the photo array gives rise to a rebuttable presumption that the People have failed to meet their burden of production ( People v. Holley, 26 N.Y.3d 514, 522 [2015] ) and the court finds that the People have failed to rebut that presumption.
The Dunaway Portion
On November 14, 2016, two citizen informants made a complaint that that they were robbed of their cellphones at gunpoint by two individuals. The same day, the phone was tracked to Defendant's address in Queens and one of the complainants, Mr. Holmes–Nedd, identified Defendant from a photo array on Das Light as one of the men who robbed him. It is well-settled that the statement of an identified citizen complainant is sufficient to establish probable cause for an arrest ( People v. Read, 74 A.D.3d 1245, 1246, 904 N.Y.S.2d 147 [2nd Dept 2010] ; People v. Boykin, 187 A.D.2d 661, 662, 590 N.Y.S.2d 261 [2nd Dept 1992] ). Here, the information available to the police established sufficient probable cause for Defendant's arrest. Accordingly, Defendant's motion to suppress evidence, namely his videotaped statement and the lineup identifications, as the fruit of an unlawful arrest is denied.
The Huntley Portion
The People have the burden of proving beyond a reasonable doubt that the statement made by Defendant were voluntary. It is manifest that a defendant who is in custody may not be interrogated by law enforcement without being advised of his constitutional rights ( Miranda v. Arizona, 384 U.S. 436 [1966] ). "Both the elements of police custody and police interrogation must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda" ( People v. Huffman, 41 N.Y.2d 29, 33 [1976] ).
There is no question that at the time of his videotaped statement, Defendant was in custody. It is also clear from the record that Defendant was given his Miranda warnings by Detective Yi at the start of the interview, that Defendant indicated he understood them, and that Defendant made a statement to the police. The question remaining is whether Defendant's statement was made after a knowing, intelligent, and voluntary waiver his Miranda rights. The Second Department has repeatedly held that an express waiver of Miranda is not required, rather the totality of the circumstances, including a defendant's prior involvement with the law and his express indication that he understands his rights, must be considered (see People v. Harris, 115 A.D.2d 619, 619, 496 N.Y.S.2d 476 [2nd Dept 1985] ). At the start of the interview, Defendant was given his Miranda warnings. Without hesitation, he answered yes to the first five questions and acknowledged that he understood them. In response to the final Miranda question, Defendant asked a question. After answering Defendant's question, the detective advised Defendant that she needed a clear yes or no answer to her final question and asked the final Miranda question again. Defendant answered yes and agreed to answer questions. The court finds that Defendant expressly waived his Miranda rights (see People v. Dunwoody, 89 A.D.2d 569, 570–1, 452 N.Y.S.2d 96 [2nd Dept 1982] [defendant's affirmative response to final Miranda question "constituted a sufficient, expressly stated waiver of his constitutional rights ... [and] must be evaluated in light of the context of the question, which called for an acknowledgment of his understanding of his constitutional rights, ... and having such understanding, to willingly submit to interrogation"]; see also People v. Campbell, 81 A.D.2d 300, 308, 440 N.Y.S.2d 336 [2nd Dept 1981] [" ‘Where a defendant in custody has been fully informed of his rights and has indicated that he understands them, his subsequent voluntary decision to speak to the police without requesting an attorney may, in all but the most unusual circumstances, be held to constitute a waiver’ "] [emphasis in original] ).
Defense counsel argues that after Defendant asked whether or not he will see the judge today, Detective Yi's response, "We'll talk about that in a second, let's talk about this first," insinuates that Defendant had to continue with the interrogation before he could see a judge thus rendering his statement involuntary. This court does not agree. It is evident that Defendant understood his constitutional rights, particularly that he could stop the questioning, because14 minutes into the interview he invoked his right to counsel and stopped the interrogation. As to Defendant's other contention, standing alone, the fact that he had been in custody for approximately 18 hours and at times appeared tired during the interview does not render his statement involuntary (cf. People v. Anderson, 42 N.Y.2d 35, 38–40 [1977] [given totality of circumstances, including defendant's detention and confinement for 19+ hours in one room, subjecting him to relay questioning by various interrogators, and depriving him of sleep and food, defendant's statement deemed involuntary] ).
Also considered in the court's analysis is the fact that Defendant has had substantial contact with the criminal justice system which he referred to during the interview. Taking into consideration the totality of the circumstances surrounding Defendant's statement, this court finds that the People have met their burden of proving beyond a reasonable doubt that Defendant's statement was voluntary. Accordingly, Defendant's motion to suppress his statement on Huntley grounds is denied.
The Wade Portion
At a Wade hearing, the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure. Once the People have established this, "it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive" ( People v. Coleman, 73 A.D.3d 1200, 1203, 903 N.Y.S.2d 431 [2nd Dept 2010], citing People v. Chipp, 75 N.Y.2d 327, 335 [1990], cert den 498 U.S. 833 [1990] ).
With respect to the photo array, the People's "failure to preserve a photo array creates a rebuttable presumption that the People have failed ‘to meet their burden of going forward to establish the lack of suggestiveness' " ( Holley, 26 N.Y.3d at 522, 25 N.Y.S.3d 40, 45 N.E.3d 936 ; see People v. McDonald, 138 A.D.3d 1027, 1028–9, 30 N.Y.S.3d 241 [2nd Dept 2016] ; People v. Reaves, 112 A.D.3d 746, 747, 976 N.Y.S.2d 228 [2nd Dept 2013] ). The People can rebut this presumption "by presenting sufficient evidence of nonsuggestiveness, such as by reconstructing the photo array from related materials" ( People v. Dobbins, 112 A.D.3d 735, 736, 976 N.Y.S.2d 213 [2nd Dept 2013] ). Detective Yi did not preserve or otherwise recreate the photo array shown to the complainant on Das Light. She was also unable to recall sufficient specifics about the 10 individuals whose photos were shown to the complainant. The court is unable to determine whether Defendant's photo was the only photo that showed an identifying characteristic, namely a scar on the chin as described by the witness (see People v. Shea, 54 A.D.2d 722, 387 N.Y.S.2d 477 [2nd Dept 1976] [photo ID procedure impermissibly suggestive where some characteristic of one picture draws viewer's attention] ). As such, the People have failed to present sufficient testimony detailing the procedures used to safeguard against suggestiveness and are therefore unable to meet their burden of showing the lack of any undue suggestiveness with respect to the photo array (see McDonald, 138 A.D.3d 1027, 30 N.Y.S.3d 241 ; Dobbins, 112 A.D.3d 735, 976 N.Y.S.2d 213 ).
Notwithstanding the court's finding that the photo array was suggestive, the court finds that the 9–day period between the photo array and the lineup was sufficient to dissipate any taint of suggestiveness, particularly here where both Mr. Holmes–Nedd and Mr. Wayne had given a very detailed description of the suspects and the distinguishing feature described by the complainants, a scar on the chin of one of the suspects, was covered up by placing a bandage on the chin of the lineup participants. There was no evidence adduced at the hearing that at the lineup Mr. Holmes–Nedd was merely identifying the man in the photograph rather than the man who robbed him (see People v. Allah, 158 A.D.2d 605, 551 N.Y.S.2d 577 [2nd Dept 1990] ; People v. McMickel, 105 A.D.2d 851, 481 N.Y.S.2d 768 [2nd Dept 1984] ).
Having found attenuation, the court will now address Defendant's claim that the lineup was suggestive. While "[t]here is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance" ( People v. Brown, 89 A.D.3d 1032, 1033, 933 N.Y.S.2d 339 [2nd Dept 2011], citing Chipp, 75 N.Y.2d at 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 ), the fillers in the lineup should sufficiently resemble Defendant so that there is no substantial likelihood that Defendant would be singled out for identification (see People v. Jean–Baptiste, 57 A.D.3d 566, 868 N.Y.S.2d 724 [2nd Dept 2008] ); People v. Valdez, 204 A.D.2d 369, 611 N.Y.S.2d 566 [2nd Dept 1994] ). To evaluate the fairness of the lineup, factors to be considered include the subject's physical characteristics including skin color, height, weight, clothing, hairstyle, age, and whether the subject is clean shaven or has facial hair (see People v. Gonzalez, 173 A.D.2d 48, 56, 578 N.Y.S.2d 890 [1st Dept 1991], app den 79 N.Y.2d 1001, 584 N.Y.S.2d 455, 594 N.E.2d 949 ).
The court inspected photographs of the lineup entered into evidence as People's # 3A–3C, and noticed several similarities between Defendant-suspect and the fillers, including similar complexions, all were wearing white t-shirts, head coverings and a bandage on the chin in the area of Defendant's scar, and, with the exception of the filler seated in position # 4, all looked similar in age and had similar builds. Additionally, any differences in height were minimized by having the subjects of the lineup seated (see People v. McBride, 14 N.Y.3d 440, 448 [2010] ). As to Defendant's contention that the lineup was unduly suggestive because the fillers were all older than Defendant, "an age discrepancy between a defendant and the fillers, without more, is not ‘sufficient to create a substantial likelihood that the defendant would be singled out for identification’ " ( People v. Jackson, 98 N.Y.2d 555, 560 [2002] [lineup consisting of defendant-subject aged 19 and fillers aged 29, 36, 38 and 41 not unduly suggestive] ). Here, while the fillers were older than Defendant, they appeared similar in age to Defendant and so the age discrepancy was not so apparent as to draw attention to Defendant (see Holley, 26 N.Y.3d at 525, 25 N.Y.S.3d 40, 45 N.E.3d 936 ).
There was also nothing in the record to suggest that the complainants, who arrived at the precinct at different times and were kept separate and apart from each other, came into contact with any of the lineup participants prior to viewing the lineup to suggest the lineup was tainted in any manner (see People v. Bradley, 268 A.D.2d 591, 704 N.Y.S.2d 262, lv den 95 N.Y.2d 832, 713 N.Y.S.2d 139, 735 N.E.2d 419 ; People v. Gelzer, 224 A.D.2d 443, 637 N.Y.S.2d 764, app den 88 N.Y.2d 847, 644 N.Y.S.2d 694, 667 N.E.2d 344 ).
For the reasons set forth above, the court finds that the identifications were not the result of an unduly suggestive procedure. Accordingly, Defendant's motion to suppress evidence of the identifications is denied.
This constitutes the decision and order of the court.