Opinion
3821/07.
Decided June 4, 2008.
Defendant has been indicted for Grand Larceny in the Fourth Degree and other crimes arising out of an incident allegedly occurring at a Target store located at 40 West 225th Street, Bronx, New York. Defendant moved to suppress the complainant's identification testimony and the property allegedly recovered in connection with the arrest. Pursuant to a Decision and Order of the Honorable Troy K. Webber dated March 26, 2008, defendant was granted a Mapp/Wade/Dunaway hearing. The hearing was conducted before me on May 27, 2008.For the reasons set forth below, defendant's motion is denied in its entirety.
The People called one witness: Police Officer Thomas Latorre ("Latorre") of the 52nd Precinct. The Court finds Latorre to be credible and credits his testimony in all material respects.
FINDINGS OF FACT
Latorre has been a police officer with the New York City Police Department for approximately one and one-half years and is currently assigned to the 52nd Precinct. See Hearing Minutes at 10. On September 1, 2007, at approximately 6:50 P.M., Latorre was in a marked police car when he received a radio run reporting a larceny at the Target store on West 225th Street. Id. at 10-12.
Upon arriving at Target, Latorre went to the security office, where he observed the defendant in the store's holding cell and a security guard taking pictures of DVDs and an empty fan box that were on the floor. Id. Another security guard, Pedro Duran ("Duran"), told Latorre that he had personally observed the defendant place approximately 93 DVDs into an empty fan box, purchase the box, and attempt to leave the store. Id. at 13-14. Duran stopped the defendant as he left the store with the fan box, and recovered the DVDs from inside. Id. at 14. Duran then provided Latorre with three pictures of the DVDs and a receipt detailing the stolen merchandise. Id. at 14-15. Latorre did not search defendant. Id. at 22-23. After speaking with Duran, Latorre placed defendant under arrest. Id. at 14-16.
It is uncontroverted that Duran is not employed by the New York City Police Department and is not a government employee, that he was not acting at the direction of Latorre on September 1, 2007, that Duran and Latorre had never had any contact before September 1, 2007, and that Latorre had never been to the store before that day. Id. at 15-18.
CONCLUSIONS OF LAW
At this Mapp/Wade/Dunaway hearing, the People had the burden of going forward with credible evidence tending to show that the police acted lawfully, and the defendant had the burden of proving by a preponderance of the evidence that the police acted illegally. People v. Chipp, 75 NY2d 327, 335 (1990); People v. DiStefano, 38 NY2d 640, 652 (1976). The People have met their burden of going forward, but defendant has not met his ultimate burden of proof.
First, the People presented ample evidence to meet their burden of going forward on the Dunaway issue. Latorre went to Target after being notified of a larceny there; Duran then told him that he had personally seen defendant fill an empty fan box with approximately 93 DVDs, purchase the fan, and try to leave without paying for the DVDs. Thus, Latorre had reasonable cause to believe that defendant had committed a crime, justifying the arrest. See CPL 140.10(1)(b); People v. Cloyce, 13 AD3d 115 (1st Dept. 2004), appeal denied, 4 NY3d 762 (2005); People v. Rogers, 245 AD2d 395 (1st Dept. 1997), appeal denied, 91 NY2d 1012 (1998). The People have met their burden of going forward with evidence tending to show that the arrest was lawful.
Second, the People presented ample evidence to meet their burden of going forward on the Wade issue. Defendant was being permissibly detained by the employees of Target when they identified him to the police officer. See Gen. Bus. Law § 218; Penal Law § 35.10(6). Thus, the identification procedure was entirely "witness initiated" and not the result of police action. See People v. Burgos, 219 AD2d 504 (1st Dept.) (finding notice of identification not required because witness-initiated identification not police arranged), appeal denied, 86 NY2d 872 (1995).
Third, as to the Mapp portion of the hearing, it is uncontroverted that Latorre did not search defendant and that employees of Target recovered the fan box and DVDs from defendant. It is black-letter law that the protections of the Fourth Amendment "have not been applied to searches and seizures by persons other than government officers and agents." People v. Horman, 22 NY2d 378, 381 (1968); see e.g. People v. Taylor, 157 AD2d 617 (1st Dept.) (holding evidence recovered by store detective not covered by Fourth Amendment), appeal denied, 76 NY2d 796 (1990); People v. Cloyce, 13 AD3d 115 (1st Dept. 2004) (holding store security guard's conduct not covered by Fourth Amendment), appeal denied, 4 NY3d 762 (2005).
The motion to suppress is denied in all respects.
The foregoing constitutes the Decision and Order of the Court.