Opinion
829-2004.
Decided September 17, 2004.
THOMAS J. SPOTA, District Attorney, Suffolk County, By: Colleen Nugent, Assistant District Attorney, Riverhead, New York.
JOHN. T. POWERS, JR., P.C. Deer Park, NY.
A combination Huntley/Wade hearing was held in this case, over two days, September 7th and 8th, 2004. Based upon the testimony given by the three witnesses, all called by the prosecution, the Court finds the facts to be as follows:
Detective Paul Waldvogel was assigned to investigate one robbery and one attempted robbery which allegedly occurred on October 5, 2003 in the area of Keith Lane and Union Boulevard in West Islip. The victims described their assailants as two white and one black males, all wearing shirts with hoods.
A couple of weeks later, on November 2nd, Waldvogel, starting with a photo of defendant, prepared an array of six photos. He did so by using a computer program maintained by the Suffolk Police which, based on profiles or parameters supplied by the detective, generated photos of individuals who supposedly resembled the defendant. On November 9th, one of the victims, Stephen Faist, arrived at the Third Precinct and Waldvogel told him he had pictures he wanted Faist to view to see if he recognized anyone.
Faist looked at the photo array and picked out No. 5, the defendant, as one of those who robbed him.
This same photo spread was shown to another of the victims, Michael Gruber, on November 10th, and Gruber was unable to make any identification.
That same day, November 10th, defendant was arrested by Walvogel and Detective Quaranta and brought to the Third Precinct. He was placed in an interview room and read his Miranda rights from a card at about 10:15 AM. The two detectives signed the card and defendant did so as well. Defendant agreed to speak to them. The interview went on and off for several hours, with defendant denying any involvement in the crimes. The session was interrupted at one point, a few minutes after 2:00 PM, for defendant to stand in a line-up. Actually, it appears there were two separate line-ups viewed separately, by two different victims. Neither of the victims was able to make an identification.
Following the line-ups, Walvogel told defendant there was a positive identification, and he was in big trouble. Defendant kind of slumped in his chair and indicated he would tell what happened. It was about 3:00 PM. In substance, defendant said he had been drinking and was at a house party when he and three others went out to buy some more beer. They drove to a store on Union Boulevard where the driver stayed with the car while the other three, including a black male, named Dwayne, got out and approached the store. They met a guy outside the store and Dwayne pulled out a gun and said something about money. They didn't get any money so they went back to the car and drove off.
Following these oral admissions, defendant gave a written statement to Detective Quaranta. This ran for two pages on a printed form. Defendant signed the bottom of each page, he initialed the Miranda rights which were on top of the first page, and wrote "yes," "no," and "yes" in response to the waivers. This was done at approximately 3:25 PM.
A short time later, at about 3:45 PM, defendant gave a second (oral) statement, to Detective Quaranta. Again, in substance, he said he had been drinking and didn't remember anything. The black guy told the driver to stop by two kids. They got out of the car and the black guy pulled the gun again while the white guy knocked one of the kids down. They got back in the car and took off.
Following that, defendant gave a second written statement, again on a prepared form. This statement, which was written out by Detective Waldvogel also went for two pages. Defendant signed the bottom of each page. He read the rights and waivers out loud. He initialed the rights and wrote "yes," "no," and "yes" in response to the waivers. This all occurred a few minutes before 4:00 PM.
Detective Brendan O'Hara was in the Third Precinct on November 10, 2003, when he was asked to prepare or conduct a line-up. Defendant was to be the subject of the line-up and Stephen Faist — who had arrived at the precinct with his father — was to view it. O'Hara got five police officers to serve as fillers. He told Faist he was going to view the six men, and if he recognized someone, he was to let O'Hara know.
Faist selected number three (the defendant), as the man who punched him and took Gruber's cell phone.
A second line-up was arranged, with defendant being given the opportunity to change seats and numbers. This time Faist selected number five, which again was the defendant.
These line-ups took place at about 6:56 PM, and 7:00 PM (several hours after the line-ups which produced no identification).
Detective Thomas Quaranta confirmed he was with Detective Waldvogel when they arrested defendant on November 10, and took him to the Third Precinct. It was he, Quaranta, who read defendant his rights from the card. Defendant indicated he understood, that he did not want a lawyer present, and that he'd talk with them. Quaranta and defendant signed the bottom of the card. Defendant basically denied any involvement in the crimes.
The questioning started up again at about 3:00 PM, i.e., after the line-ups were held and after Waldvogel (incorrectly) told defendant he had been identified. Defendant said ". . . all right, I'll tell you what happened." Defendant seemed sad and upset. Quaranta read defendant his rights from the form and wrote out a two-page statement which defendant read to himself and said "OK." This had to do with the attempted robbery. A short time later defendant gave a second statement which was written out by Waldvogel. This had to do with the "completed" robbery. Defendant initialed the rights, wrote "yes," "no," and "yes" to the waivers, and signed both pages.
Conclusions of Law
The People contend that defendant's oral and written statements were voluntary, made after proper administration of Miranda warnings and free from undue influence or police coercion. Defendant argues his statements were involuntarily made after the police lied to him about being identified in a line-up.
The People have the burden of proving beyond a reasonable doubt the voluntariness of defendant's statement to police (CPL 710.70). The test for determining when police tactics render a confession involuntarily is whether ". . . the deception [is] so fundamentally unfair as to deny due process or that a promise or threat was made that would induce a false confession" ( People v. Tarsia , 50 NY2d 1, 11). Every case requires an analysis of the totality of the specific circumstances under which the statement was made ( People v. Anderson , 42 NY2d 35, 38).
At bar, defendant was arrested, placed in an interview room and read his Miranda warnings from a card at about 10:15 AM. Defendant signed the card and agreed to speak to Detectives Waldvogel and Quaranta. (At this point defendant was aware of his rights and knowingly, voluntarily and intelligently waived them [see, People v. Sirno , 76 NY2d 967]). Over the course of several hours, defendant denied any involvement in the crimes.
About four hours into the interview, a few minutes after 2:00 PM, defendant was placed in two separate line-ups viewed separately by two different victims. No identification was made.
Defendant, however, was told by Detective Waldvogel that there was a positive identification, and that he was in big trouble. Defendant thereafter made oral admissions which were reduced to writing.
The fact that the police falsely informed defendant, prior to obtaining his confession, that two of the victims identified him in the line-ups, when in fact they were not able to do so, does not mandate suppression of the confessions as a matter of law (see, People v. Tarsia, supra ; People v. Jackson , 140 AD2d 458; People v. Hassell 180 AD2d 819). There is no showing here that the police work, although not without guile, was so fundamentally unfair as to deny defendant due process. There was no evidence that promises or threats were made to the defendant.
As for the line-ups conducted by Detective O'Hara at about 7:00 PM, the testimonial and photographic evidence shows that all of the participants, including the defendant, were close in age and had similar hairstyles, skin tones and facial hair. These line-ups were not unduly suggestive (see, People v. Chipp , 75 NY2d 327, People v. Burns , 138 AD2d 614).
In closing, it should be noted that although the People's 710.30 notice refers to some "observation" of the defendant made on November 10, 2003 at about 3:52 PM — presumably the line-ups which produced no identifications — no photographs of those line-ups were offered at the hearing. Defendant can hardly claim they were overly suggestive.
The foregoing constitutes the decision and order of the Court.