Opinion
1471-04.
Decided November 5, 2004.
An indictment has been filed against the defendant accusing him inter alia of the crime of robbery in the first degree. The charge is that the defendant is accused of threatening the immediate use of a knife while stealing property from the complaining witness.
Defendant claiming to be aggrieved by an unlawful acquisition of evidence, has moved to suppress statements made by him on January 18, 2004, to Police Officer Sean Coffey and Detective Robert Salvatore, on the ground that they were involuntarily made within the meaning of CPL 60.45.
A confession or admission is admissible at trial in this State only if its voluntariness is established by the People beyond a reasonable doubt.
Defendant, also claiming to be aggrieved by an unlawful search and seizure, has moved to suppress a knife and other personal property, seized from his person by Officer Sean Coffey on January 18, 2004.
In this case, the People assert that the seizure of the property from the defendant's person was incident to a lawful arrest. The People have the burden, in the first instance, of going forward to show the legality of police conduct. Defendant, however, bears the ultimate burden of proving by a preponderance of the evidence that the physical evidence should be suppressed.
Defendant, also claiming that improper identification testimony may be offered against him, has moved to exclude the pretrial identification as well as the prospective identification testimony of Darrell Selvathura on the ground that they are inadmissible because the prior identification of the defendant by the prospective witness was improper.
The People have the burden of going forward to show that the pretrial identification procedure was not constitutionally impermissible. The defendant, however, bears the burden of establishing, by preponderance of the evidence, that the procedure was impermissible. If the procedure is shown to be improper, the People then have the burden of proving by clear and convincing evidence that the prospective in-court identification testimony, rather then stemming from the unfair pretrial confrontation, has an independent source.
A pretrial suppression hearing was conducted before me on October 20 and November 3, 2004.
Testifying at this hearing were Police Officer Sean Coffey, Detective Robert Salvatore and defendant, Guy Morinville.
I find the testimony of all the witnesses to be partially credible.
I make the following findings of fact:
On January 18, 2004, Police Officer Sean Coffey, of the 102 Precinct, was working in uniform as the operator of a radio motor patrol car. He received a radio run at about 5:50 A.M., that there was a "heavy bleeder" at 92nd Street and Jamaica Avenue, inside a Dunkin Donuts store. When he arrived at the scene, he saw a male coming out of Dunkin Donuts with blood on his hands. That person was the defendant, Guy Morinville. Officer Coffey grabbed the defendant by the wrists and looked at his hands and observed that they were bleeding and had cuts on them. He asked the defendant what happened? Defendant said in words or substance that he had an altercation with someone down the street who pulled out a knife and attacked him and that the defendant pulled out his knife to defend himself and they fought.
An ambulance arrived at the scene and Officer Coffey offered medical assistance to the defendant which was first refused. Officer Coffey then directed the defendant to go to the ambulance to get medical attention. Defendant was left in the care of medical personnel in the ambulance. Officer Coffey then spoke to the manager of Dunkin Donuts, "Darrell." Darrell told Officer Coffey that a person came into the store to wash his hands and that he saw that person stab someone down the street. He identified the person without suggestiveness by the police by pointing to the ambulance and saying that the person going into the ambulance was that man.
While Officer Coffey was investigating, he heard another radio run that there was a "man down" at 89th Street and Jamaica Avenue.
A supervising lieutenant showed up and within a short period of time and told Coffey to arrest the defendant. The defendant's hands were bandaged and he ultimately received stitches at Jamaica Hospital.
While in the ambulance, the defendant was handcuffed and searched and a bloody knife and other personal property, some of which belonged to the complaining witness, was recovered.
While in the ambulance en route to the hospital, Officer Coffey continued to question the defendant. The defendant made additional statements. Defendant made more statements to another police officer at Jamaica Hospital.
Defendant was treated and released to Officer Coffey, who returned him to the 102 Precinct sometime before noon on January 18, 2004.
Officer Coffey spoke to Detective Robert Salvatore at about 2:30 P.M. at the 102 Precinct and told him that the defendant had been arrested for robbery and assault. As part of police policy the defendant was to be debriefed as to any information he may have about other violent crimes.
Defendant, thereafter, was brought to an interview room. Officer Coffey gave Detective Salvatore additional details concerning the incident for which the defendant was placed under arrest.
It is unclear at which point the defendant was apprised of his rights against self-incrimination in relation to the point as to when the defendant wrote out a statement in his own hand.
I make the following conclusions of law:
Initially, defendant challenges the statement made to Officer Coffey outside the Dunkin Donuts. A threshold inquiry, as we have here, does not constitute interrogation. People v. Rosen, 112 AD2d 253, 491 N.Y.S.2d 701 (2nd Dept. 1982). At this juncture, the officer's inquiry was investigatory. See People v. Thomas, 292 AD2d 549, 739 N.Y.S.2d 732 (2nd Dept. 2002); People v. Petrovich, 202 AD2d 523, 609 N.Y.S.2d 248 (2nd Dept. 1994) aff'd 87 NY2d 961 (1996). Thus, this Court finds that this statement was merely investigatory and therefore is admissible.
However, the People have not met their burden of establishing beyond a reasonable doubt that the other statements made pre Miranda, those made after defendant was arrested while in the ambulance and at the hospital, or, the written statement that the People claim was made post Miranda at the precinct, was not in violation of defendant's rights. See People v. Witherspoon, 66 NY2d 973, 498 N.Y.S.2d 789 (1985). The People failed to demonstrate that defendant was fully and properly apprised of his Miranda rights and knowingly, intelligently and voluntarily waived them prior to making his written and oral statements after arrest and in custody. See People v. Sirno, 76 NY2d 967, 563 N.Y.S.2d 730 (1990). Thus, defendant's alleged pre and post Miranda statements, are inadmissible as evidence on the People's direct case, except for defendant's initial statement, as outlined above, which the Court has held was investigatory in nature.
Nevertheless, this Court does not find that the statements were coercively made, therefore, the People are permitted to use these statements at trial should defendant take the stand. It is well settled that even if a statement is obtained in violation of a defendant's Miranda rights and is thus, inadmissible as evidence-in-chief, it may be used to impeach a defendant's credibility if the trustworthiness of the statement satisfies legal standards. People v. Padron, 134 AD2d 625, 521 N.Y.S.2d 519 (2nd Dept. 1987). These legal standards have been met here. The written and oral statements at issue were not obtained through use of physical or psychological coercion, through compulsion by operation of law or by some other form of police overreaching. See id.; see also People v. Meadows, 64 NY2d 956, 488 N.Y.S.2d 643 (1985); People v. Maerling, 64 NY2d 134, 485 N.Y.S.2d 23 (1984); People v. Sease, 245 AD2d 396, 666 N.Y.S.2d 443 (2nd Dept. 1997); People v. Pilgrim, 208 AD2d 868, 617 N.Y.S.2d 847 (2nd Dept. 1994); People v. Masullo, 158 AD2d 548, 551 N.Y.S.2d 317 (2nd Dept. 1990).
Addressing defendant's application to suppress the identification made by the witness, the New York State Constitution prohibits the introduction at trial of identification evidence obtained by the government or its agents if the identification was secured through unduly suggestive means. An identification procedure is "unduly suggestive" if it "creates a substantial likelihood that the defendant would be singled out for identification." People v. Chipp, 75 NY2d 327, 335, 553 N.Y.S.2d 72 (1990) cert. denied, 498 U.S. 833 (1990).
At a hearing on the issue of undue suggestibility the People have the burden to go forward with credible evidence to establish that the noticed pre-trial identification procedure was legally conducted and not unduly suggestive, People v. Chipp, supra. Here, the People served notice of a "Point Out" by the witness. The Court has evaluated any potential procedures employed to determine whether a procedure did occur and, if so, whether it was proper and not unduly suggestive.
Upon reviewing the hearing testimony, no police-arranged procedure occurred. The facts revealed that this was a true "spontaneous" procedure whereby the witness, when describing the events that he had observed, pointed to the defendant as the individual who had stabbed the complainant without prompting by the police. It was the witness himself that indicated that defendant was the individual being treated in the ambulance. See People v. Dixon, 85 NY2d 218, 623 N.Y.S.2d 813 (1995); see also People v. Duuvon, 77 NY2d 541, 569 N.Y.S.2d 346 (1991); People v. Rios, 156 AD2d 397, 548 N.Y.S.2d 348 (2nd Dept. 1989). Thus, no police arranged procedure occurred and there was no unduly suggestive conduct that occurred.
In any event, this Court heard the testimony and notes that even if the facts presented could have been termed to involve police-arranged or police involvement, no undue suggestiveness took place. The crime was in close temporal proximity and location to the point-out and the witness was not influenced by the police in identifying defendant as the individual who had just stabbed the victim a short time earlier.
Furthermore, defendant's application to suppress the physical evidence recovered from his person is denied. The evidence was properly recovered based upon probable cause and incident to a lawful arrest and is admissible.
Accordingly, defendants' application to suppress the identification testimony and physical evidence seized from his person is denied. Defendant's application to suppress the post arrest oral and written statements is granted; however, should defendant testify at trial, use of these statements, which were not coerced is permissible by the prosecution.
The foregoing constitutes the opinion, decision and order of the court.