Opinion
4595/2008.
Decided July 26, 2011.
Robert T. Johnson, District Attorney, Bronx County, Bronx, NY, By: Nancy L. Borko, Esq., Assistant District Attorney Of Counsel, for the People.
Cesar Gonzalez, Jr., Esq., Bronx, NY, Of Counsel, for the Defendant.
The defendant, charged with the murder of Nadairee Walters and the attempted murder of Anthony McNeal and Melvin Osborne, moves to suppress identifications made of him by various witnesses. In addition, he moves to suppress writings that corrections officials seized from his cell at Rikers Island. Mapp, Wade, and Dunaway hearings were held on May 23, 24, 25, and 31, 2011. At the close of the hearing the court issued an oral decision denying the defendant's motions. This decision expands upon the oral decision.
Three witnesses testified for the People: Detective James Mangan of the 44th Precinct Detective Squad, Captain Robert Ellis of the Department of Correction, and Assistant District Attorney Nancy Borko. The defendant called no witnesses. All three witnesses were credible. Based upon the evidence adduced at the hearing, I make the following findings of fact and conclusions of law.
Findings of Fact
On November 16, 2008, Detective James Mangan, an eighteen year veteran of the New York City Police Department, was assigned to investigate a shooting in which Naidairee Walters was killed, and two other people were injured. After learning that two witnesses had seen the shooting, Detective Mangan telephoned each of them. The first, identified at the hearing as "Witness A," said that she and a group of friends were at a party. Another group confronted attendees, and the party was "shut down." The shooter was a light skinned male with "crazy. . . . real light, light eyes." (T: 44), and was with a group that was shouting "280" and "280 up." The detective knew that "280" was a local gang.
Because of threats to the witnesses described in this opinion, the People applied for and were granted permission to refer to the witnesses by letter.
Detective Mangan then called Witness B, and spoke to her briefly. She said she recognized the shooter from the College Avenue area, and as a member of the 280 gang. Like Witness A, she described him as a light-skinned male with "light, light eyes." (T:44-45).
The detective had previously heard the defendant's name in connection with the 280 gang, and had also seen photographs of him. He put the defendant's picture in a photographic array with five other photographs; the defendant's photograph was in the fourth position. Detective Mangan telephoned Witness A, and told her he wanted to speak with her. When he arrived at her residence, he took her to a separate room, and explained that he was going to show her a group of six photographs, and that she should tell him if she recognized anyone in the array. Witness A looked at the photographic array, and selected the defendant's picture, telling the defendant that he was the person who was shooting in front of the building, and who shot her friend. Detective Mangan had her sign the array, and include the date and the time, which she did.
Next, the detective went to Witness B's residence. He told her the same thing that he had told Witness A, and then showed her the array. Witness B selected the defendant's photograph, and told the detective, "That's the guy who shot Nadairee." (Tr: 49). She signed and dated the photographic array, and put the time on it.
Following these two identifications, Detective Mangan and other detectives went to look for the defendant. They started with the defendant's home, an apartment at 1204 Findlay Avenue. The defendant's mother told him that the defendant had attended a party in Queens on the previous night, and that she would bring him to the precinct. After determining that some of the defendant's fellow gang members were known to frequent 1205 College Avenue, and that one of them, Jesse Jones, lived in the building, Detective Managan and another detective went to Jones' apartment. The defendant was in one of the bedrooms with two other people, and Theodore Edwards was hiding in a closet. The detectives brought the defendant and the other occupants back to the precinct.
On November 17, 2008, Detective Mangan put together a line-up at the Bronx Homicide Task Force. He picked up Witnesses A and B, and brought them to the task force offices, to a room separate from where the defendant was being held, and separate from the line-up room. He then brought the defendant and the fillers into the line-up room. The defendant selected position number two in the line-up. Each participant was given a black knit hat to wear, and black garbage bags were placed on the participants so that only their faces were visible. The detective photographed the line-up.
Next, Detective Mangan brought Witness B from the witness room, and explained that she should look at the line-up and let him know if she recognized anyone, and if she did, from where she recognized the person. She looked at the line-up, and identified the defendant as the person who shot her friend. Detective Mangan had her fill out a form to that effect. He then took her into a nearby stairwell so that he could have Witness A look at the line-up.
Detective Mangan followed the same procedure with Witness A, who also identified the defendant as the shooter. She signed the form stating that the defendant was the shooter.
Detective Mangan obtained photographs of the 280 gang from a MySpace page; almost all of them were group shots of about eight young men, and many of the same men appear in different photographs. The defendant appears in several of them, but in most his features are blurry or he is standing in the back row. On July 2, 2010, Detective Mangan met with Witness C at the Bronx District Attorney's Office. She told him that the shooter, whom she described as light skinned with green eyes, had been arguing with someone named "Lolo." She also said that the shooter was a member of 280, and that she had seen him in the area. Referring to 280, she also said that she was familiar with "the whole crew." (T: 65). Detective Mangan then started showing her the photographs from the 280 MySpace page. Witness C stopped at one group photograph of about thirteen young men, and pointed to the defendant, who was standing in the back row of the group. Witness C said "That's him, right there." (T: 67). Next, the detective showed Witness C a surveillance videotape that had been recorded on the date of the shooting; the recording shows a large group of young people in the lobby area of 1495 Morris Avenue, close to where the shooting took place. Witness C pointed to the defendant, identifying him as "the boy that's arguing with Lolo" (T:69).
Detective Mangan did not think any of the previous photographs that Witness C saw included the defendant. He was not certain if she looked at other MySpace photographs after identifying the defendant.
At some later time, Witness C told the detective that the defendant was the shooter.
Assistant District Attorney Nancy Borko was assigned to prosecute the case against the defendant. On September 28, 2010, Ms. Borko interviewed Witness D; to Ms. Borko's knowledge, no one from the police department or the district attorney's office had previously spoken with this witness. Witness D told Ms. Borko that she was at the party, but did not see the shooting. In an effort to identify additional witnesses, Ms. Borko showed Witness D the surveillance tape depicting the lobby of 1495 Morris Avenue. While watching the tape, Witness D pointed to the defendant and said that he was the person "arguing with Lolo after the party" (T: 124). Witness D also told Ms. Borko the names of some of the other people on the tape.
In 2010, Captain Robert Ellis was assigned to the Gang Intelligence Unit on Rikers Island. He was responsible for preventing violence in the facility, and for protecting both the inmates and the employees. In his experience, gangs were the sources of most of the crime on Rikers Island, crime that included fights, drug activity, and "hits" — killings and assaults — on other prisoners. Gang members frequently wrote letters to other inmates, and kept copies of these letters and other writings. These writings were often a "treasure trove" of information, and enabled the gang unit to monitor the gangs' activities, to "stay one step ahead of the game," and to identify other gang members.
In late April of 2010, Captain Ellis was asked to investigate tension and violence in the area in which the defendant was housed. At that point, Captain Ellis did not know anything about the defendant's pending case, nor had he consulted anyone from the Bronx County District Attorney's Office or the New York City Police Department. Captain Ellis and his unit interviewed gang members and searched their cells, looking for contraband, weapons and gang paraphernalia that might give clues about future violence, and provide a "window into their activities." Tr. at p. 9, lines 7-8. The defendant, who had previously admitted to being a member of the Crips gang, was one of approximately six inmates who were interviewed and whose cells were searched.
During the search of the defendant's cell, Captain Ellis found a packet of writings that included letters to and from the defendant. Captain Ellis went through them to determine whether any of the addressees were also inmates, and whether any of them should be added to the risk groups. Many of the writings referred to the Crip gang, and used gang symbols, including replacing the letter "b" with the letter "c," to signify the Crips' hatred of a rival gang, the Bloods. Some of the letters appeared to contain threats to people outside of Rikers. Accordingly, Captain Ellis looked up the defendant's case, and learned that he was charged with murder. Captain Ellis contacted the police department's liaison to Riker's Island, Detective Derrick Reed, who determined that the defendant's case was being investigated by detectives from the 44th Precinct. The captain turned over the letters to Detective Reed, who in turn contacted the assigned detective.
Conclusions of Law The Wade Issues
The Wade issues relate to photograph arrays, lineups, a collection of photographs on a MySpace page, and footage from a security camera videotape at the crime scene. These issues will be discussed seriatim.
A. The Photographic Arrays. Witnesses A and B, who witnessed the shooting, provided remarkably similar descriptions of the shooter to Detective Mangan. Based on those descriptions, Mangan constructed photo arrays containing six photographs, including the defendant. I have carefully examined those arrays, which were admitted into evidence at the hearing.
The defendant does have some distinctive features, but those same features are shared by at least some of the people whose photographs appear in the array. All of the photos are sufficiently similar such that the defendant does not stand out. "There is no requirement that the participants in a lineup or photo array be identical in appearance, and all that is required is that they resemble each other sufficiently so that defendant is not singled out for identification.'" People v. Chipp, 75 NY2d 327, 336, cert. denied, 498 US 833 (1990). Accordingly, I find that the photo arrays are not unduly suggestive, and may be used at trial for whatever purpose is deemed proper.
B. The Lineups. The standard enunciated in Chipp also applies to lineups, and I find that the lineups here met that standard in that they were appropriately administered and fairly constructed. Witnesses A and B were kept apart before the lineup, and each separately viewed the lineup. The instructions given to the witnesses by Detective Mangan — namely, to look at the lineup, to determine whether the witness recognizes anyone, and to advise the detective the number that person is wearing and from where the witness recognizes the individual — were proper.
The defendant was allowed to choose his own position in the lineup. The fillers appear to be approximately the same age as the defendant, and they have roughly the same skin tone. Hairstyle differences were minimized by having all of the participants wear identical black knit hats. Similarly, clothing differences were obviated by obscuring all clothing with large black plastic bags. The result of these procedures was to focus the witnesses' attention solely on the faces of the individuals in the lineup. Under these circumstances, I find that the lineups were not unduly suggestive, and evidence of the lineups is admissible at trial.
C. MySpace Page Photographs. Witness C observed a collection of photographs taken from a MySpace page identified with the 280 gang. Detective Mangan and an assistant district attorney displayed several photos of groups of young men and asked if the witness recognized anyone. I have examined the photos, which were admitted into evidence at the hearing. The defendant appears in some of the photos, but his features are blurry, or he is standing in the back row. He does not stand out in any of these photos.
These photos, which were not created by law enforcement, are a "random array" and do not "single out a police suspect," in any way, shape or form, thus eliminating any suggestiveness. People v. Edmonson, 75 NY2d 672, 676-677, cert. denied, 498 US 1001 (1990).
D. The Security Camera Surveillance Videotape. The same rationale applies to the videotape taken from a security camera at 1495 Morris Avenue. Witnesses C and D attended the party where the shooting occurred, and were sufficiently familiar with the events and people depicted on that video to reliably render an opinion as to what and who was depicted in it. See People v. Harte , 29 AD3d 475 , 476 (1st Dep't 2006). They separately viewed the videotape and identified the defendant, as well as other individuals they knew who had attended the party. Law enforcement personnel had no role in the creation of this videotape. Rather, the cameras were installed and maintained by the security company hired by the building owners, and the videotape was obtained from their office. Like the MySpace photos, this videotape was a "random array" which did not "single out a police suspect," Edmonson, supra, and is utterly nonsuggestive. The witnesses' identification testimony relating to the videotape is therefore admissible at trial.
The Dunaway Issue
The defendant asserts that the police did not have probable cause to arrest him for these crimes, and therefore all of the evidence recovered must be suppressed. See Dunaway v. New York, 442 US 200 (1979). On the contrary, I find that the police had ample cause to arrest this defendant. Witnesses A and B, who attended the party where the shootings occurred and who were familiar with the defendant, provided detailed descriptions of him to the police. Those descriptions were very similar. They both identified the defendant's photograph in separate photo arrays. They identified the defendant again in lineups. Based upon this abundant and credible evidence, the defendant's Dunaway motion is denied.
The Mapp Issue
Corrections officers searched the defendant's prison cell and recovered a packet of documents which included letters to and from the defendant. The defendant argues that the warrantless search of his cell and the seizure of those documents violated his Fourth Amendment rights, and he seeks suppression of those documents. For the reasons which follow, his motion is denied.
Captain Robert Ellis, assigned to the Gang Intelligence Unit on Rikers Island, testified that he was responsible for preventing violence, particularly gang-related violence, at the prison. As part of his duties, Captain Ellis investigated violence in the area of the prison in which the defendant was housed. He did not know anything about the defendant's pending case, nor had he communicated with other law enforcement officials about the case. He was aware that the defendant had identified himself as a Crips gang member to prison officials. From experience, Captain Ellis knew that gang members frequently maintained a "treasure trove" of letters in their cells, and he knew that obtaining these letters offered valuable investigative leads. To safeguard prison security, Captain Ellis and his team searched the cells of this defendant and approximately five other inmates. The letters recovered from the defendant's cell, many of which contained threats against the witnesses in this case, confirmed Captain Ellis' suspicions.
The United States Supreme Court has made it clear beyond cavil that under these circumstances, the defendant has no reasonable expectation of privacy in his cell, and therefore no cognizable Fourth Amendment right or remedy. In Hudson v. Palmer, 468 US 517 (1984), the court observed:
". . . we hold that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions."
Id. At 529.
After Hudson, the Second Circuit decided that "a small remnant" of Fourth Amendment protection remained for pre-trial detainees in the specific circumstances of a warrantless cell search "initiated by the prosecution solely to obtain information for a superseding indictment," and carried out by "non-prison officials for non-institutional security related reasons." United States v. Cohen, 796 F2d 20, 24 (2d Cir.), cert. denied, 479 US 854 (1986). Those unique circumstances are not present here. The letters seized from the defendant's cells will be admitted into evidence at trial with certain redactions and restrictions which will be determined at a pre-trial conference.
In view of the foregoing, the defendant's motions to suppress are denied.
This constitutes the Decision and Order of the Court.
SO ORDERED.