Opinion
2002SU17697.
Decided May 6, 2004.
Central Islip, NY, DISTRICT ATTORNEY'S OFFICE.
NAIBURG, ROSENBLUM WEISSMAN, Central Islip, NY, Attorney for Defendant:
The Defendant Richard Ratchford is charged with one count of Criminal Possession of Marijuana in the Fifth Degree (PL § 221.10), Driving While Under the Influence of Alcohol or Drugs (VTL § 1192), Stalking in the Third Degree (PL § 120.50), Endangering the Welfare of a Child (PL § 260.10) and Failure to Signal (VTL § 1163[b]).
The Defendant moved to suppress evidence of his statements made to law enforcement officers, to suppress evidence obtained as a result of the Defendant being stopped without reasonable cause and being arrested without the requisite probable cause, and to preclude any out-of-court identification, as well as in-court identification of the Defendant, on the ground that the out-of-court identification was unduly suggestive. The Defendant's motion was granted to the extent that Huntley, Mapp/Dunaway, and Wade hearings were ordered.
The hearings began on March 17, 2004, and continued until March 25, 2004. The decision was reserved. At said hearings, two witnesses were called, Suffolk County Police Officer Lollo and Suffolk County Police Officer Cottingham. The Court found their testimony to be candid, trustworthy and credits that testimony.
Police Officer Lollo testified on March 17, 2004 that she had 8 ½ years on the Suffolk County Police force, and that she was assigned to a COPE unit. On the date that the alleged crimes were committed, May 5, 2002, she was working a four to twelve tour, assigned to unit 616 in the Selden area. She was working alone and was on routine patrol.
The sum and substance of Officer Lollo's testimony was that at 2111 hours (9:11 p.m.) there was a dispatch that said there was a young girl (10 years old) who was asked, or told, to get into a white Cougar type car with an American flag on top by a white male who had red hair and a beard.
The officer responded to the address of the complainant, which is 18 Camp Drive, Selden, and got there at approximately 2130 hours (9:30 p.m.). When she arrived on the scene, she knew that a subject had been detained in the immediate area who was driving a similarly described car and who matched the description of the suspect. After talking to the victim and her father for about ten minutes, the officer asked the victim and her father to go in the police car with her, and then proceeded to a "showup" where a person who matched the description of the suspect was being detained.
As they drove to where the detainee was being held, the victim's father was in the front seat, and the girl was in the rear passenger seat. Approximately two minutes after leaving the complainant's residence, they made a turn at the corner of Urban Drive where the Defendant was standing with a police officer by his vehicle. Upon seeing the Defendant, without being asked any questions, the young girl blurted out "that's him, that's the car". Police Officer Lollo stated that no questions had been asked of the victim, and that the officer asked the dispatcher for a time stamp of the "showup", and the time was 2142 hours or 9:42pm.
Officer Lollo then proceeded down Urban Drive in the direction of where the Defendant's car was pulled over, approximately 20 feet from the intersection. She further testified that there were two police cars shining their lights onto the Defendant's vehicle, and onto the Defendant himself. When the victim was asked if she recognized the vehicle and the person, she said "Yes, that's him, and that's the car".
Police Officer Lollo testified that when she asked the young girl whether she recognized the vehicle and the person, the Defendant was facing towards Officer Lollo's car, and standing next to Police Officer Standard. The Defendant's hands were behind his back, but the officer could not tell whether or not he was handcuffed. After the positive identification at about 9:50 p.m., Officer Lollo took both the complainant and her father to the police station. The officer further testified that at no time did either she, the father of the complainant, or the complainant leave the vehicle. The Officer stated that the Defendant had red hair, but she was not sure whether he had a hat on at the time she saw him. She did not recall seeing a flag on the car. Police Officer Lollo further testified that it was her understanding that the alleged crime happened at approximately 8:30 pm. It also was indicated that where the complainant lived (Camp Drive), where the incident happened (Elma Street) and where the Defendant was stopped (Urban Drive) are all in very close proximity. In fact, it took less than two minutes to get from the victim's home to the site where the Defendant was being detained.
Officer Cottingham testified that his sector included the Selden area, and that at approximately 2111 hrs., he received a 911 dispatch that indicated that a white male, with reddish hair and a beard, tried to lure a 10 year old girl into a white Cougar type vehicle.
While enroute to the girl's home, he approached a four way intersection where he noticed a white Cougar. As he approached the intersection, the white Cougar pulled out in front of him without signaling. He immediately put on his "take down" lights and pulled over the Cougar. Upon approaching the Cougar, he noticed that the operator matched the description of the individual given in the 911 dispatch. In addition, when the car door of the Cougar was opened, the officer encountered a strong smell of marijuana. He then asked the driver to step out of the vehicle, and he saw marijuana in plain view inside the vehicle. He removed the marijuana and placed it upon the dashboard inside the police car. Also, the officer testified that there were beer cans and other debris inside the vehicle. Soon after exiting the vehicle, the Defendant was placed in cuffs with his hands behind his back.
While the Defendant was standing there, another police officer came upon the scene and, shortly thereafter, Officer Lollo's police car arrived with the complainant. At no time did Officer Lollo, or the complainant, speak to or approach the Defendant while he was at the scene. After Officer Lollo's vehicle left, the Defendant was placed in the patrol car by Officer Cottingham for transportation to the precinct. In the patrol car, the officer took the marijuana that he had placed on the dashboard, and moved it to secure same. While doing so, the Defendant indicated to him, "Yes, I smoked some several times today". When the Defendant was taken back to the precinct, he was given the requisite refusal warnings pursuant to VTL § 1194, which were contained in the Alcohol Influence Report. The report was marked into evidence. Despite the warnings, the Defendant refused to take the breathalyzer test.
CONCLUSIONS OF LAW
"Where, in a criminal proceeding, the Defendant's commission of an offense is in issue, a witness may testify that the one he observed and recognized on a second occasion is the one he observed on the first (incriminating) occasion. Such testimony, together with the evidence that the Defendant is in fact the person whom the witness observed and recognized on the second occasion, constitutes evidence in chief as defined in CPL § 1.20(40)" ( Canudo on Evidence, Laws of New York, at 126-a, 127 [G. Shaw, 2003]).
"Showup" identifications, i.e., showing a suspect singly, and not as part of a lineup, to persons for identification purposes, are by their nature suggestive, and, hence, disfavored by the courts. ( See, Canudo on Evidence, Laws of New York, supra, at 135). Lineups are preferred. However, prompt showup identifications by witnesses at or near the crime scene have been generally allowed, and have never been categorically or presumptively condemned ( see, People v. Duuvon, 77 NY2d 541). Showup identifications are permissible if exigent circumstances require immediate identification ( see, People v. Matthews, 257 AD2d 635 [2nd Dept. 1999]), or if the suspects are captured at or near the crime scene and can be viewed by the witness immediately ( see, People v. Matthews, supra; People v. Andrews, 255 AD2d 328 [2nd Dept. 1998] lv. denied, 92 NY2d 1027). In other words, showups are permitted if there is some necessity to resort to the procedure, or if it is conducted in close temporal and spacial proximity to the crime ( see, People v. Hernandez, 250 AD2d 704 [2nd Dept. 1998] aff'd as modified by 93 NY2d 261; People v. McCoy, 211 AD2d 732 [2nd Dept. 1995] appeal denied, 85 NY2d 911). Courts have held as to showup identifications that "potential suggestivity can, in proper circumstances, be outweighed by presumed reliability of an identification made shortly after the event when the witness' memory is fresh and the possibility that an innocent suspect could be promptly released . . . (citation omitted). What specific degree of temporal and spacial proximity will be sufficient to justify a show up as opposed to a line up has not, and perhaps cannot be, definitely articulated in advance" ( People v. Zambrano, 2003 WL 22922437 [N.Y. Sup]).
As to the acceptable length of time and space between the crime and the identification, the Second Department upheld a show up conducted three (3) hours after the commission of a robbery and concluded that "[a]lthough the two and one-half hour gap between the crime and the showup identification in People v. Johnson, 81 NY2d 828, was found to have violated due process precepts, the Court of Appeals stated that 'the limits of an appropriate time period . . . vary from case to case' ( People v. Johnson, supra, at 831 . . .). Here, in contrast to Johnson, the police undertook a prompt and appropriate investigatory showup at the very building where the crime occurred. In view of the rapidly unfolding circumstances, including the Defendant's unexpected presence, the fact that he matched the description of one of the robbers, and his flight upon seeing the victim and the detectives, exigent circumstances dictated that the detectives detain the Defendant and conduct an immediate showup" ( People v. Andrews, supra).
In the case at bar, the alleged offense occurred at 8:30 pm and the positive identification of the Defendant occurred at 9:50 pm, one hour and twenty minutes after the commission of the crime, and at a location very close to the crime scene. The Court is of the opinion that the Defendant herein was being held upon reasonable suspicion pending identification by the victim, and, like the events in People v. Andrews, supra, identification and the crime are linked by an "unbroken chain of events" and "rapidly unfolding circumstances", including the child victim returning home and reporting the incident to her parents, the father's call to the Suffolk County Police Department, the dispatch of the police units to the victim's house and the surrounding area, the Defendant's unexpected presence coupled with the temporal and geographic proximity to the commission of the crime, and the fact that the Defendant and his motor vehicle matched the description of the perpetrator. The Court concludes that the identification under these circumstances, to ascertain if the Defendant was the individual who had accosted the young victim, was reasonable and proper ( see, People v. Perez, 2001 WL1603320 [N.Y. Sup]). The matter sub judice is similar to People v. Perez, supra, wherein the Court stated that "[i]t appears to the court that the police, who had reasonable cause to suspect and detain the Defendant but lacked probable cause to arrest him absent an identification, had no alternative but to conduct an on-the-scene showup ( see, People v. Boyd, 272 AD2d 898 [4th Dept. 2000], appeal denied, 95 NY2d 850), in which a showup held within thirty minutes of the Defendant's detention and within two hours of the burglary was upheld for apparently similar reasons" ( People v. Perez, supra).
Although the Defendant bears the burden of establishing that the showup proceeding was unduly suggestive so as to be suppressed, the People have the burden to first produce evidence validating the admissibility of the showup evidence. The Court finds that the People have established that the showup was reasonable under the circumstances since it was conducted in close temporal and geographic proximity to the crime. Further, upon a review of all of the evidence produced at this hearing, the Court concludes that the procedure used was not unduly suggestive giving rise to a substantial likelihood of misidentification. The People have sustained their burden of establishing the reasonableness of the showup identification procedure, and the lack of undue suggestion. Hence, the witness shall be allowed to testify as to the showup identification and make an in Court identification. Accordingly, the Defendant's motion to suppress introduction of identification evidence is denied.
Likewise, the Defendant's motion to suppress evidence obtained as a result of the Defendant's being stopped and arrested without probable cause ( Dunaway/Mapp) is also denied. A police officer must possess probable cause to support the arrest of a Defendant ( see, People v. Carasquillo, 54 NY2d 248; People v. DeBour, 40 NY2d 210). Probable cause exists where facts and circumstances within the police officer's knowledge warrant a man of reasonable caution to believe that an offense has been, or is being committed ( Brinegar v. United States, 338 US 160). It is also to be viewed from the vantage point of a prudent, reasonable cautious police officer, on the scene at the time guided by experience and training ( United States v. Davis, 458 F2d 819). "Probable cause requires information sufficient to support a reasonable belief that an offense has been or is being committed by the subject" ( People v. Hicks, 68 NY2d 234). A probable cause assessment, however, need not rise to the level of evidence sufficient to support a conviction or to prove a prima facie case ( see, People v. Letendre, 264 AD2d 943 [3rd Dept. 1999] aff'd, 94 NY2d 939). "'Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it . . . such apparently reliable evidence may include or consist of hearsay" (CPL § 70.10).
Further, although the police must possess probable cause to support an arrest of a Defendant, an investigatory stop of a motor vehicle is permissible if based only upon reasonable suspicion that the driver is engaged in conduct in violation of the law ( see, People v. Sobotker, 43 NY2d 559, 563), including the commission of a traffic infraction ( see, People v. Ingle, 36 NY2d 413). Here, Police Officer Cottingham not only had a reasonable suspicion that the Defendant had violated VTL § 1163(b) by failing to signal, but he also had received the 911 radio dispatch that a white male driving a car matching the description of the Defendant's white Mercury had tried to lure a 10 year old girl into the vehicle. Based on the above stated law, the Court finds that the stop of the Defendant's motor vehicle was lawful, and that there was probable cause to arrest the Defendant. In addition, all physical evidence which resulted from the arrest was lawfully obtained since the arrest was clearly based on probable cause.
With regard to the suppression of the Defendant's refusal to submit to a chemical test, the Court finds that the Defendant was given sufficient warning in clear and unequivocal language of the effect of said refusal, and the Defendant persisted in his refusal ( see, People v. Thomas, 46 NY2d 100, appeal dismissed, 444 US 891; People v. Boudreau, 115 AD2d 652; People v. Andrews, 2002 WL 31163137; People v. Coludro, 166 Misc2d 662; VTL § 1194[f]). It is the opinion of the Court that the persistence requirement of VTL § 1192(2)(f) was satisfied by the "Defendant's conscious and definitive choice to refuse the test after having the consequences of refusal explained to him" ( People v. Andrews, supra). Consequently, the People have met their burden by a fair preponderance of the evidence that the Defendant refused to consent to the test, and, at the trial of this action, will be permitted to introduce into evidence that the Defendant refused to submit to a chemical test.
The last issue is the admissibility of the Defendant's statement "Yes, I smoked some several times today", which was uttered to Police Officer Cottingham when he removed the marijuana taken out of the Defendant's car from the dashboard of his patrol car. Here the officer's intent was to move the marijuana off the dashboard and was not to illicit a response from the Defendant. The Defendant contends, inter alia, that no Miranda warnings were administered prior to custodial interrogation, and that the police officer's action of showing the evidence was designed to elicit an incriminating response.
The prosecution has the burden of proving the voluntariness of any admission or confession beyond a reasonable doubt ( see, People v. Washington, 51 NY2d 214; People v. Pobliner, 32 NY2d 356, reargument denied, 33 NY2d 657, cert. denied, 416 US 905; People v. Valerius, 31 NY2d 51). Further, a Defendant enters custodial status (i.e., "is arrested") at the point in time when a reasonable man, innocent of any crime would conclude in the position of the Defendant that he was not free to leave, but was in fact "under arrest" ( see, People v. Yukl, 25 NY2d 585). It is clear that the Defendant was placed under arrest at the time he was originally handcuffed. The fact that he was placed in the police car, still in handcuffs, further supports the fact that the Defendant was in custody and not free to leave. It is also clear that Miranda warnings were not given to the Defendant at the time he was taken into custody.
As stated above, the law requires that the People bear the burden of proving beyond a reasonable doubt that the Defendant's statements were "voluntarily made". If the statements came in response to a police officer's question at a time when the Defendant was in custody, it would have been made in response to "custodial interrogation" for which Miranda warnings are clearly required. Nevertheless, "[a]ny statement given freely and voluntarily without any compelling influence is, of course, admissible in evidence . . . There is no requirement that police stop a person who . . . states that he wishes to confess to a crime . . ." ( Miranda v. Arizona, 384 US 436; see also, People v. Jackson, 41 NY2d 146; People v. Jenkins, 199 AD2d 536 [2d Dept., 1993], aff'd 84 NY2d 1001). The test for spontaneousness is that the Defendant must have spoken with "genuine spontaneity and not the result of inducement, provocation, encouragement, or acquiescence (citations omitted)" ( People v. McAdoo, 166 AD2d 674 [2d Dept., 1990], lv. denied, 78 NY2d 970; People v. Gonzalez, 75 NY2d 938, cert. denied, 498 US 833).
In the matter sub judice, the Court finds that the Defendant's statement was spontaneous, and not the result of custodial interrogation, and not in response to a question. The mere showing of the marijuana to the Defendant is not sufficient provocation to defeat the spontaneity of the Defendant's statement. It is the opinion of the Court that the statement was blurted out, and was not the subject of any improper elicitation ( see, People v. Stoesser, 53 NY2d 648; People v. Rivers, 56 NY2d 476). Hence, the Defendant's statement was spontaneous. Miranda warnings need not apply to statements volunteered by a Defendant ( see, People v. Torres, 21 NY2d 49). Consequently, the Court finds that the People have proven beyond a reasonable doubt that the Defendant's statement was voluntarily made. Accordingly, the Defendant's motion to suppress the statement is denied.