Opinion
2546/06.
Decided April 24, 2008.
Attorney for the People: ADA Michael Palkhiwala, District Attorney's Office, Kings County, Brooklyn, NY.
Attorney for the defendant: Harold Baker, Esq., Brooklyn, NY.
Defendant, charged with robbery, challenges his arrest as taking place without probable cause and further contends that a knife was recovered from his person in violation of his constitutional rights, and that the police photo display and line-up were unduly suggestive.
A Dunaway , Mapp and Wade hearing was held before the court to determine these issues. The People concede that notice of the defendant's statement was not served on defense counsel and cannot be used on their direct case.
FINDINGS OF FACT
On January 27, 2006, at about 8:30 PM, Police Officer Michael Toussaint of the Brooklyn Transit Task Force was on patrol when he observed the defendant urinating on the Manhattan bound platform of the IND Flushing Avenue station. The officer approached the defendant, identified himself as a police officer and asked for identification, which was produced. Upon questioning, the defendant told the officer he was on parole. Officer Toussaint asked if he was in possession of anything that could injure him and the defendant put a carpet knife on the platform. The officer became alarmed and handcuffed the defendant. When the defendant put his arms behind his back, Officer Toussaint noticed a bulge. He patted it and recovered a large butcher knife. He then ran defendant's name through the system and he was identified as a robbery recidivist. Defendant was arrested and taken to Central Booking.
While at Central Booking, Officer Toussaint noticed a police sketch of a robbery suspect which closely resembled Mr. Houston.
He called Detective Roberto Funes who had interviewed a witness to a robbery, Sergio Diaz, and a victim, Elizabeth Hill, which resulted in the sketch of the suspect. On January 31, 2006, Detective Funes presented Sergio Diaz with a series of twenty photos. The witness looked at them and stopped at the thirteenth photo, that of defendant, identifying him as the person he saw with the victim of a robbery.
On March 16, 2006, Detective Funes arranged for the defendant to be placed in a line-up with five fillers at Transit District 32. He received the assistance of Detective Irwin Ramos and Detective Victor Denza who conducted the line-up. Detective Denza set up the line-up and the defendant picked seat 1. Detective Ramos, without knowing the subject of the line-up, remained with the witness Sergio Diaz and the defendant's attorney. Upon observing the line-up, the witness picked the defendant as the person involved in the subway robbery.
CONCLUSIONS OF LAW
Upon personally observing the defendant urinating on a subway platform in violation of law ( Penal Law § 240.20[7]; NYC Adm. Code § 16-118[6]). Officer Toussaint was authorized to either arrest the defendant or issue him a summons ( CPL § 140.10[2]); People v St. Clair, 54 NY2d 900; People v Anderson, 111 AD2d 109; People v Presha, 107 AD2d 589). Since these facts authorize a safety frisk,
Officer Toussaint did nothing improper in asking about items defendant might possess that could hurt the officer while conducting the frisk ( People v Irizarry, 177 AD2d 457). It should also be noted that even when an arrest is not authorized, a search recovering contraband is not unlawful ( Virginia v Moore, 553 US ____ [2008]), and in addition, the minor nature of the infraction is of no moment with respect to the authority of the arresting officer to conduct a search ( U.S. v Robinson, 414 US 218; People v Bothwell, 261 AD2d 232).
The arrest, based upon illegal conduct actually observed by the officer was, therefore, affected with reasonable cause. Officer Toussaint, once the defendant produced the carpet knife was within his authority to handcuff the defendant. Seeing the bulge of the knife handle as defendant reached back, the officer would have been derelict if he had failed to pat down the defendant. Consequently, the recovery of the butcher knife did not violate the defendant's rights and will not be suppressed.
The photos displayed to Sergio Diaz by Detective Funes contained 20 photographs of similar looking individuals with the picture of the defendant placed thirteenth. Nothing about this procedure is unduly suggestive and there is no likelihood that the defendant's photograph would be singled out for identification ( People v Robert, 184 AD2d 597; People v Cherry, 150 AD2d 475; People v Simmons, 170 AD2d 15).
Likewise, the line-up procedure where Detective Funes procured the assistance of Detectives Ramos and Denza in a "double-blind" procedure to insure fairness. Mr. Houston's counsel was also present at the line-up. The fillers were similar in appearance to the defendant and constituted a fairly representative panel upon which a witness could make an identification ( People v Baity, 178 AD2d 190; People v Bishop, 167 AD2d 551). Defendant's motion to suppress the line-up identification is, therefore, denied.
This constitutes the Decision and Order of the Court.