Opinion
Docket No. CR-019417-22BX
12-13-2023
The People of the State of New York, v. Delvis Cruz, Defendant.
For the People: Darcel D. Clark, District Attorney, Bronx County (by Garrett Tracey and Michael Naughton, Esq.) For the Defense: The Bronx Defenders (by Rachna Agarwal, Esq. and Joanne Choi, Esq.)
Unpublished Opinion
For the People: Darcel D. Clark, District Attorney, Bronx County
(by Garrett Tracey and Michael Naughton, Esq.)
For the Defense: The Bronx Defenders
(by Rachna Agarwal, Esq. and Joanne Choi, Esq.)
Christopher Chin, J.
Hon. Christopher Chin, J.C.C.
BACKGROUND AND PROCEDURAL HISTORY
Defendant Delvis Cruz is charged with leaving the scene of an incident on October 28, 2022 without reporting (Vehicle and Traffic Law ["VTL"] § 600 [1][a] and[2][a]), driving while intoxicated (VTL § 1192 [3]), and other related charges. It is alleged in the superseding information that defendant drove his car into another vehicle, causing injury to the other driver and then left the scene on foot, without exchanging information. It is further alleged that defendant was driving while intoxicated at the time of the crash. The superseding information further provides that the driver of the other vehicle observed defendant to have blood coming from his face.
Defendant was arrested on October 29, 2023 and initially only charged with violating VTL § 600 (1)(a) and (2)(a); he was not arrested for driving while intoxicated (VTL 1192 [3]). On or about December 28, 2022, the People filed a superseding information which included charges for driving while intoxicated (VTL § 1192 [3]), driving while impaired (VTL §1192 [1]), and reckless driving (VTL § 1212).
The People served notices pursuant to, inter alia: (1) Criminal Procedure Law ("CPL") § 710.30 (1)(a), of their intent to use statements made by defendant at trial; and (2) CPL § 710.30 (1)(b), of their intent to use at trial identification procedures in which defendant was identified.
The noticed statements were that: (1) "[m]y car is the 2018 Honda Accord. I was driving. I flipped my car yesterday" made to PO Lantigua-Taveras inside of the 46th Precinct the day after the accident; and (2) "I don't' feel good. I am at Grand Concourse, Hold on I am checking the Map. Yes I am Outside. I cannot walk anymore. Please I am 25 years old. I am at 253 Burnside Ave. I am 25 years old. The People wanna kill me. I never got nervous. I need you. I am outside the laundromat. I can't walk anymore. I got drunk, I broke my face" made to the 911 Operator, on the evening of the accident.
By notice of omnibus motion, defendant moved to, inter alia: (1) suppress any and all statements taken from defendant for which the People served notice under CPL § 710.30, or in the alternative, granting a hearing pursuant to People v Huntley (15 N.Y.2d 72 [1965]) and Dunaway v New York ( 442 U.S. 200 [1979]); (2) suppress any and all evidence and testimony relating to identifications made of defendant for which the prosecution served notice pursuant to CPL § 710.30, or in the alternative, granting a hearing pursuant to United States v Wade (388 U.S. 218 [1967]) and United States v Crews, 455 U.S. 463 [1980]); and (3) preclude the People from introducing at trial any evidence of his prior convictions or bad acts.
By order dated August 1, 2023, the court (Hon. Craig J. Ortner), granted defendant's motion to the extent of ordering that Wade/Huntley/Dunaway hearings be conducted prior to trial.
The court also ruled that issues of preclusion and those relating to Sandoval/ Ventimiglia/Molineux were referred to the trial court.
The suppression hearings were conducted on September 25th and 26th and November 21, 2023. The People produced four (4) witnesses: Police Officer John Dailey, Detective Wilbert Morales, Detective Ariel Lora, Police Communication Technician Loreen Dick, and Police Officer Armani Lantigua-Taveras. Defendant neither testified, nor presented any witnesses.
The People reserved their right to reopen the hearing to establish an independent source, if this court finds that the identification procedure conducted here was unduly suggestive.
Based on the testimony and evidence presented at the hearing, the court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
The court finds the testimony of the People's witnesses to be credible.
Testimony of Officer John Dailey
PO Dailey has been assigned to the Bronx's 46th Precinct for two (2) years and participated in over one hundred arrests. He was trained at the Police Academy on, inter alia, the law, guns and driving.
On the evening of October 28, 2022, Officer Dailey was working the 3 pm to 11:35 pm shift, with his partner Officer Vasquez. Officer Dailey was in uniform and was wearing a body- worn camera.
The officers responded to a 911 call for a car accident with an overturned vehicle at the intersection of West Tremont Avenue and West 177th Street, Bronx, New York. When the officers arrived at the location, Officer Dailey saw a red Honda Accord that had flipped onto its side and another car (a gray Hyundai) that had damage. Police Officer Castillo was already on the scene investigating the accident.
The driver of the gray car (Donald Smith) was at the scene and stated that he had been inside of his vehicle when it was hit by the red Honda. The driver of the gray car stated he was injured, the officer observed the gray car had damage to the rear driver's quarter panel, and the red car was also damaged, as it was on its side.
When Officer Dailey was on the scene, he did not know the identity of the driver of the red car because the driver was no longer on scene. Officer Dailey did not have the license, registration, or insurance information for the red car; nor did Donald Smith obtain that information.
The day following the incident (October 29, 2023), defendant voluntarily went into the 46th Precinct, and informed Officer Lantigua-Taveras that he had been the driver of the red car that had flipped the night before at West Tremont Avenue and West 177th Street. Officer Dailey was working inside the precinct at that time and was alerted by Officer Lantigua-Taveras as to the conversation with defendant about the accident which had occurred the night before.
Sergeant Seijas told Officer Dailey that it was possible defendant would be arrested for leaving the scene of an incident without reporting and asked Officer Dailey to process the arrest. Officer Dailey activated his body-worn camera for the interaction with defendant.
The officers spoke with defendant in the vestibule of the precinct. During the conversation, defendant was not handcuffed; none of the officers present took out their guns, handcuffs, tasers, batons or flashlights and, no force was used against defendant. The tone of the conversation was calm, and no one was yelling. There came a time when Officer Daily learned that defendant had placed a 911 call the night prior, from some distance away from the accident, in which defendant stated he had been in an accident, had broken his face, and that people wanted to kill him. Officer Dailey testified that at the time of defendant's arrest, he was not aware that defendant feared for his life at the scene of the accident; defendant did not tell PO Dailey that he was being threatened to be killed by the driver of the other vehicle.
Officer Dailey explained that he learned it was defendant that placed the 911 call from his cell phone on the evening of the accident through a search warrant in conjunction with this case.
At the hearings, the body worn camera ("BWC") footage of Officer Dailey from the 28th and 29th of October was introduced into evidence by the People without objection from the defense; the video was played at the hearings and corroborated officer Dailey's testimony.
Testimony of Detective Wilbert Morales
Detective Morales has been a member of the NYPD for over 31 years and is currently assigned to the 4-6 squad. His duties include investigating cases and conducting double-blind identification procedures.
On October 30, 2023, Detective Morales compiled a photo array for this matter by inputting defendant's name and NYSID into the Photo Manager program of a computer. Defendant's picture came up and the program automatically generated images of individuals that looked similar to defendant. Detective Morales selected and printed like images to defendant and since defendant had an injury, birthmark or scratch to his nose, Detective Morales used a Sharpie to put a circle on the similar images' noses, to make all of the images look the same.
Testimony of Detective Ariel Lora
Detective Lora has been a member of the NYPD for approximately ten (10) years. He is currently assigned to the 46th Precinct Detective Squad. His duties include conducting investigations and participating in double-blind photo array identifications.
On October 30, 2022, Detective Lora administered a double-blind photo array identification pertaining to this case, which he explained entailed putting the complainant (Donald Smith) in a room, reading him instructions, showing him the preselected photographs, and filling-out paperwork. Detective Lora did not know the facts of this case at the time of the photo array, nor did he know the facts at the time he testified. He was also unaware of which photograph image was the suspect, did not assist with preparing the photo array and did not speak with the detective who prepared the photo array about the subject.
The People put into evidence at the hearings the photo array and its paperwork. The paperwork shows that the complainant circled and signed a picture of defendant and in response to the question "[f]rom where do you recognize that person?," it was recorded that the complainant stated "from the car accident and running away."
Testimony of Police Communication Technician Loreen Dick
Lorreen Dick has been employed by the NYPD's tape and records unit, communication section since 2007. Her duties as communication technician included to retrieve audio from the NYPD's database. She was trained for her current position to go into the system and isolate requested audio and written information which had been stored on the NYPD's database. The audio information includes 911 calls (whatever is said when dispatchers interact with the officers in the field), as well as recorded conversations between 911 callers and operators. 911 calls, including the caller's location and whether the call was made from a landline or cell phone, are automatically stored on the NYPD's database, and cannot be altered. The People put into evidence the 911 call made by defendant on the evening of the accident, in the vicinity of 253 East Burnside Avenue at approximately 22:49. During the call, the caller did not identify himself but did supply a cell phone number that was found to belong to defendant.
Testimony of Officer Armani Lantigua-Taveras
PO Lantigua-Taveras was employed by the NYPD for over two (2) and a half years and assigned to the Bronx's 46th Precinct for two (2) years.
On October 29, 2022, at approximately 9:33 pm Officer Lantigua-Taveras and his partner Officer Aguilar were working at the 46th Precinct and were involved in defendant's arrest that occurred in the precinct's vestibule.
Defendant had come into the precinct voluntarily and spoke with Officer Aguilar, who did not speak Spanish. Officer Lantigua-Taveras, who is fluent in Spanish, was called to speak with defendant. Defendant told Officer Lantigua-Taveras that he was the driver of a red Honda Accord which was involved in an accident the day prior and that his Honda hit another car that was parked. Defendant stated that after the accident, both drivers got out of their vehicles and the driver of the other vehicle started threatening him. Defendant said he ran away from the accident site because he was afraid and called 911 for an ambulance at a location away from the accident, and that his face was covered in blood.
To explain his reason for leaving the scene, defendant showed Officer Lantigua-Taveras a video he had on his cell phone taken the prior evening showing the complainant standing inches away from defendant. In the video, the complainant is seen pressing closer and closer towards defendant, and the complainant is heard screaming at defendant and gesturing to something in his pocket, while being restrained by two (2) other individuals. Defendant repeatedly told Officer Lantigua-Taveras that he had been very afraid and thought if he stayed at the scene he would have been hurt by the other driver. Defendant explained to Officer Lantigua-Taveras that the complainant threatened to kill him at least three (3) times. Defendant also told Officer Lantigua-Taveras that prior to the accident he was not speeding because there was a streetlight ahead. Defendant gave Officer Lantiguataveras his hospital discharge papers and told Officer Lantigua-Taveras that he spoke with police officers at the hospital.
During the conversation with defendant, Officer Lantigua-Taveras's firearm remained in his gun belt, and the two other officers present also did not remove their firearms. There was no yelling by defendant, nor the officers; defendant was not restrained in any way; no physical force was used against defendant; and flashlights were not pointed at defendant during the interaction.
After the conversation, defendant was arrested for leaving the scene of the accident and placed into handcuffs, without any further investigation by the police.
At the hearings, the BWC footage of Officer Lantigua-Taveras showing the interactions with defendant inside of the precinct on October 29th was introduced into evidence by the People without objection from the defense; the video was played at the hearings and corroborated Officer Lantigua-Taveras' testimony. The certified translation of the BWC footage was also admitted into evidence by the People and showed that defendant stated to Officer Lantigua-Taveras that, inter alia, after the accident defendant got out of his car and checked that everyone involved were fine; everyone was initially calm until the driver of the gray vehicle began to argue and make threats that he was going to kill defendant. Defendant explained that he had to run away because he was afraid and called an ambulance when he couldn't run anymore, he was very afraid, and his face was bloody. Defendant stated that he left in the ambulance to report, went to the hospital, and the police arrived at the hospital.
CONCLUSIONS OF LAW
Burden at a Suppression Hearing
At a suppression hearing, the People bear the initial burden of presenting evidence to show the legality of the police conduct (see People v Berrios, 28 N.Y.2d 361, 367-68 [1971] [citations omitted]. Once the People meet their burden, the defendant bears the ultimate burden to show by a preponderance of the credible evidence that the evidence at issue (i.e. statements, identification or items seized), should not be used against her because it was obtained in an illegal manner (see id. at 367; Mapp v Ohio, 367 U.S. 643 [1961]; Dunaway v New York, 442 U.S. 200 [1979]).
Additionally, hearsay is admissible at suppression hearings to establish material facts (see CPL § 710.60 [4]; People v Norman, 304 A.D.2d 405, 405 [1st Dept 2003]).
Probable Cause to Arrest/Dunaway Hearing
At a hearing to determine whether there was probable cause to arrest a defendant without a warrant, the People bear the burden of proving that the defendant's arrest was lawful (see Dunaway v New York, 442 U.S. 200 [1979]; People v De Bour, 40 N.Y.2d 210, 223 [1976]). An officer has probable cause to arrest a person for committing an offense when "it... 'appear[s] to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator'" (People v Vandover, 20 N.Y.3d 235 [2012] [citation omitted]). In determining "whether there is probable cause for an arrest... conduct equally compatible with guilt or innocence will not suffice" (People v Carrasquillo, 54 N.Y.2d 248, 254 [1981]).
As stated above, defendant was initially arrested only for violating VTL § 600 (1)(a) and (2)(a).
VTL § 600 - "Leaving scene of an incident without reporting" - provides in relevant part as follows:
1. Property damage. a. Any person operating a motor vehicle who, knowing or having cause to know that damage has been caused... to the personal property... of another, due to an incident involving the motor vehicle operated by such person shall, before leaving the place where the damage occurred, stop, exhibit his or her license and insurance identification card for such vehicle, when such card is required pursuant to articles six and eight of this chapter, and give his or her name, residence, including street and number, insurance carrier and insurance identification information including but not limited to the number and effective dates of said individual's insurance policy, and license number to the party sustaining the damage, or in case the person sustaining the damage is not present at the place where the damage occurred then he or she shall report the same as soon as physically able to the nearest police station, or judicial officer...
2. Personal injury. a. Any person operating a motor vehicle who, knowing or having cause to know that personal injury has been caused to another person, due to an incident involving the motor vehicle operated by such person shall, before leaving the place where the said personal injury occurred, stop, exhibit his or her license and insurance identification card for such vehicle, when such card is required pursuant to articles six and eight of this chapter, and give his or her name, residence, including street and street number, insurance carrier and insurance identification information including but not limited to the number and effective dates of said individual's insurance policy and license number, to the injured party, if practical, and also to a police officer, or in the event that no police officer is in the vicinity of the place of said injury, then, he or she shall report said incident as soon as physically able to the nearest police station or judicial officer.(emphasis supplied).
Here the court finds that the People failed to meet their burden of showing that defendant was arrested upon probable cause of violating VTL § 600 (leaving the scene of an incident without reporting). Notably, the hearing revealed that after the accident, defendant exited his stopped vehicle with his face covered in blood; defendant told Officer Lantigua-Taveras that the first thing he did was to check to see that everyone was fine. Defendant did not immediately leave the scene and instead only did so after the other driver began arguing and yelling at him aggressively, coming towards him, and threatening that he was going to kill defendant. Defendant stated that he was very afraid and had to leave because he feared that, if he stayed, he would be injured by the other driver.
Defendant showed a video to officer Lantigua-Taveras at the 46th Precinct which confirmed that the driver of the other vehicle shouted multiple times that he would kill defendant and that other driver (the complainant) was acting physically threatening and domineering. Despite defendant's injuries and blood on his face, defendant did in fact try to speak with the complainant, to no avail, and since he was feeling scared, he left to safety. Under the circumstances surrounding the incident in this matter, the court finds that it was not it was not "practical" as provided in the statute, for defendant to stay at the scene any longer to exchange the required information with the complainant (see People v Santangelo, 134 Misc.2d 615, 617 [Crim Court, Kings County 1986] [under VTL § 600, a motorist was not required to stay at the scene of an accident where he feared for his safety] [ People v Moran, 156 Misc.2d 145, 147-48 [Crim Court, Queens County 1992] [where rocks and cinder blocks were being thrown at the defendant's car at the time immediately after the accident, the court found it was not practical for the defendant to stop and exchange the requisite information under VTL § 600, and therefore found no violation of the statute].
The court notes that unlike VTL §600 (2)(a) which requires a driver to stop and stay at the scene to exchange information when there is personal injury only "if practical", VTL § 600 (1)(a) pertaining to when there is only property damage, fails to contain a similar provision. The court deems this omission by the Legislature to have been unintentional. It defies logic that statute would require that a driver only stop only if practical when personal injuries were sustained after an accident yet require that the driver stay on the scene, even where it was not practical to do so, when the accident involved only property damage.
Moreover, significantly, as required by the statute, defendant did in fact report the incident to law enforcement as soon as he was physically able to: (1) he called 911 from a safe location on the night of the incident; (2) he spoke with officers at the hospital; and (3) the very next day, after being discharged from the hospital, he voluntarily walked into the precinct the and gave an account of what had transpired the night before. Additionally, there was no showing by the People that they investigated defendant's claim of speaking with officers at the hospital, despite defendant providing the officers with corroborating information, including hospital discharge papers.
Thus, since there was no probable cause to arrest, the court grants defendant's motion to suppress to the extent that they are fruits of defendant's unlawful arrest. Specifically, the CPL § 710.30 (1)(b) double-blind identification procedure is suppressed. However, the noticed statements are not suppressed, as they were voluntarily made, prior to defendant's unlawful arrest, and not the result of a custodial interrogation.
Defendant's Statement/Huntley Hearing
Pursuant to CPL § 710.30 (1)(a), the People served notice of their intent to introduce statements made by defendant in the 911 call he made on the evening of the accident and to Officer Lantigua-Taveras at the precinct.
The People have the burden to prove beyond a reasonable doubt that a defendant's statements made to the police officer were voluntary and not the product of coercion (see CPL § 60.45 [2]; People v Huntley, 15 N.Y.2d 72, 78 [1965]; People v Lin, 26 N.Y.3d 701, 719 [2016] ["statements must not be 'products of coercion, either physical or psychological'... they must be the 'result of a free and unconstrained choice by their maker'" (citations omitted)]). The voluntariness of the statement is to be assessed when viewing the totality of the circumstances, including reasonable inferences made therefrom (see CPL§ 60.45 [2]; Dickerson v US, 530 U.S. 428, 434 [2000] ["the totality of the circumstances [includes]... the characteristics of the accused and the details of the interrogation" [citations and internal quotation marks omitted]; People v Lin, 26 N.Y.3d at 719.
CPL § 60.45 (2) provides, in relevant part, that
[a] confession, admission or other statement is "involuntarily made" by a defendant when it is obtained from him: (a) [b]y any person by the use or threatened use of physical forces upon the defendant... or by any other improper conduct or undue pressure which impaired the defendant's physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement; or (b) [b]y a public servant engaged in law enforcement...: (i) by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself; or (ii) in violation of such rights as the defendant may derive from the constitution of [New York]... or of the United States.
The prosecution "may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination" (Miranda v Arizona, 384 U.S. 436, 444 [1966]). "[C]ustodial interrogation" was explained by the Supreme Court in Miranda to mean "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way" (id. at 444). By "procedural safeguards," the Miranda Court referred to warning defendant of her right to remain silent, that any statement made may be used as evidence against her, and that she has the right to an attorney (see id. at 444-45).
It is well settled that statements made by a defendant at a preliminary stage of an investigation in response to a law enforcement agency's general inquiry are not generally considered the product of interrogation (see People v Johnson, 59 N.Y.2d 1014, 1016 [1983]; People v Huffman, 41 N.Y.2d 29, 33 [1976]).
Here, the court finds that the People proved beyond a reasonable doubt that defendant made the noticed statements voluntarily prior to his arrest, and not part of a custodial interrogation requiring Miranda warnings (see People v Lin, 26 N.Y.3d at 719; People v Brown, 107 A.D.3d 1305, 1306 [2013], lv dismissed 23 N.Y.3d 1018 [2014]). The evidence shows that when defendant made the statements at the precinct he was not handcuffed, coerced, or threatened in any way; no promises were made to defendant; the officers' guns remained in their holsters; and the conversation in the vestibule of the precinct was calm and rational, with no yelling by the officers, nor defendant (see People v Lilliard, 206 A.D.3d 1241, 1242-43 [3rd Dept 2022] [the defendant made his statements giving his account of the subject crime in response to being asked what had happened as a witness, not as someone under arrest]). Additionally, the statements made during the 911 call, if in fact made by defendant, were also voluntary.
Thus, defendant's motion to suppress the noticed statements is denied.
Identification/Wade Hearing
At a Wade hearing, the People have the initial burden of establishing the reasonableness of the police conduct and lack of undue suggestiveness in the pre-trial identification procedure conducted (US v Wade, 388 U.S. 218 [1967]; see also People v Chipp, 75 N.Y.2d 327, 335 [1990]). Once the People have met that burden, the defendant bears the ultimate burden of establishing that the procedure was unduly suggestive, by a fair preponderance of the evidence (Chipp, id. at 335). If a defendant fails to show undue suggestiveness, there is no need to demonstrate that a source independent of the pretrial identification procedure exists for the witness' in-court identification" (Chipp, id. at 335).
Here, the court finds that the People met their initial burden and established the reasonableness of the police conduct in the double-blind photo array used in this case. The filler photos used were sufficiently similar to defendant in appearance that there was no reasonable possibility that defendant would be singled out for identification (see Chipp, id. at 335) . Detective Lora emphasized when he testified that he did not know anything about the facts of this case at the time of the photo array, nor did he know the facts at the time he testified. He was also unaware of which photograph image was the suspect, did not assist with preparing the photo array and did not speak with the detective who prepared the photo array about the subject. Moreover, no evidence was submitted by the defense to show that the photo array was unduly suggestive.
While the court finds that the identification procedure here was not unduly suggestive, in any event, since the court found there was a lack of probable cause to arrest defendant for violating VTL § 600, the photo array identification of defendant conducted after defendant was arrested is suppressed as fruit of an unlawful arrest. Additionally, while the People reserved their right to an independent source hearing, a hearing is not warranted as the court did not find that the identification procedure was unduly suggestive (see People v Gethers, 86 N.Y.2d 159 [1995]).
CONCLUSION
Based upon the above, defendant's motion to suppress is granted only to the extent that the identification made after defendant's arrest is suppressed as the fruit of an unlawful arrest. Any request by the People to reopen the hearing to establish an independent source, is denied as this court found the identification procedure conducted here was not unduly suggestive.