People v Harris 2018 NY Slip Op 33524(U) May 3, 2018 County Court, Westchester County Docket Number: Judge: Larry J. Schwartz Cases posted

Transcription

1 People v Harris 2018 NY Slip Op 33524(U) May 3, 2018 County Court, Westchester County Docket Number: Judge: Larry J. Schwartz Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's ecourts Service. This opinion is uncorrected and not selected for official publication.

2 [* 1] COUNTY COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER )( THE PEOPLE OF THE STA TE OF ~EW YORK, ". -against- f::f LE:o DECISION & ORDER M4y f 0 1. Indict. No GREGORY HARRIS, ilmo;, '/Jl!J. coun.g,.oun'r(, c. / OF:w. cu~ Defendant. i2sic 'K ~~]j ~ SCHWARTZ, J., By Westchester County Indictment Number , defendant GREGORY HARRIS is charged with robbery in the first degree (five counts), criminal possession of a weapon in the second degree, and attempted robbery. On April 30, 2018 and May 1, 2018, a Mapp/Dunaway/Huntley/Harris/Wade hearing was conducted before this Court at which the People cal led Yonkers Police Officer Robert Hanney, Detective Javier Lugo, and Officer Thomas Braig. The defendant was identified in court. Received into evidence at the above hearing were the People's Exhibits 19, 41, 44, , , 119, and 133. No witnesses testified for the defense and the defendant offered no evidence at the hearings. Prior to the hearings, the defendant stipulated that his grand jury testimony ("Second Noticed Statement") was voluntarily given and would not be the subject of the Huntley/Harris portion of the hearings. At a Mapp/Dunaway hearing, the People have the burden of going forward to show the legality of police conduct which lead to the seizure of evidence and/or the obtaining of statements from the defendant. In seeking to challenge the propriety of the same conduct, the defendant bears the burden to show by a fair preponderance of the credible evidence that the police conduct was illegal (see Mapp v Ohio, 367 US 643 (1961]; Dunaway v New York, 422 us 1053 (1979]). At a Huntley hearing, the People have the burden of showing whether any statements allegedly made by the defendant, which have been noticed pursuant to CPL (l)(a), were voluntarily made by the defendant within the meaning of CPL (see CPL (3); CPL 71Q.60[3][b]; People v Weaver, 49 NY2d 1012 [1980]) and/or obtained in accord with defendant's Sixth Amendment right to counsel.

3 [* 2] '. At a Harris hearing, the People have the burden to show whether any statements obtained in violation of Miranda were voluntary and thus admissible for impeachment of the defendant at trial (People v Harris, 25 NY2d 175 [1969]). At a Wade hearing, the defendant must show that the noticed identification was unduly suggestive (United States v Wade, 388 US 218 [1967)). Specifically, the Court must determine whether the identifications were so improperly suggestive as to taint any in-court identification. I find the testimony offered by the People's witnesses to be plausible, candid, and fully credible. I make the following findings of fact: FINDINGS OF FACT On or about August 23, 2016, at approximately 10:30 p.m., Officer Thomas Braig of the City of Yonkers Police Department was surveilling the Global gas station at 1800 Central Park Avenue in Yonkers with two colleagues when he observed an individual wearing a gray hooded sweatshirt walk in a northerly direction across the front of the station's store, past the open night window where customers were being serviced, to the store's main door. The individual was later identified as the defendant. Officers Braig, together with Officers Timothy Cooper and John Doherty, were surveilling the gas station as members of the department's Pattern Crime Task Force and were aware their department was actively investigating three prior robberies of the same gas station that had taken place in prior months between 10:30 p.m. and midnight and two of which occurred on Tuesdays. He was also aware it was reported the individual who previously robbed the gas station had been seen driving a dark colored Honda Accord. Officer Braig observed the defendant's stature and figure matched that of the suspect pictured in a still image the department obtained from a surveillance video of one of the prior robberies. The officers were in an unmarked vehicle parked across the four or five lane roadway that is Central Park A venue, in a parking lot that was some elevated above the Global gas station. Officer Braig then saw the defendant attempt to open the store's front door. The defendant pulled at the door about 3 times but was unable to open it as it was locked. The defendant then proceeded in a northerly direction towards Holbrook A venue and eventually broke into a run towards a dark colored Honda Accord parked on the north side of Holbrook A venue facing Central Park A venue. The officers then proceeded in their vehicle to approach the defendant. Officer Doherty radioed to dispatch that they were conducting a traffic stop. As the officers' drove northbound on Central Park A venue towards Holbrook A venue, the defendant pulled out of his parking spot on Holbrook A venue and made a right tum on Central Park A venue. The officers pulled the defendant over approximately one and one-half blocks away from the Global gas station. At or about this time, Yonkers Police Officer Robert Hanney was on patrol in uniform and in a marked police vehicle when he heard Officer Dohcrty's transmission and proceeded 2

4 [* 3] towards Central Park Avenue to provide backup. While en route, he heard a report of a panic hold-up alann dispatch over the radio and responded to the Global gas station to investigate. Officer Hanney knew that location had been previously robbed as the location was in the l 51 precinct, the precinct to which he was assigned. When he arrived, he saw the lights were on in the store. He approached the door and Jasbir Singh, one of the employees present, came to the door, opened it, pointed toward the direction of the traffic stop and said, "They have him up the street". A second employee, Mohammed Arshad, stood directly behind Mr. Singh. Officer Hanney then radioed to advise the traffic stop was connected to the panic alarm at the Global gas station. At or about this time, Officer Braig overheard said transmission from Officer Hanney and stepped out of his vehicle to approach the defendant. When asked where he was coming from, defendant twice stated, in sum and substance, that he was coming from "[n]owhere," as well as that he was going to "Sadore" (together the "First Noticed Statements"). Officer Braig asked for the defendant's license and as the defendant reached for it Officer Braig heard a bang against the driver's-side door. He believed that to be the sound of a gun. He was aware that the individual who previously robbed the Global gas station had discharged a hand gun during one of the prior robberies. Fearing for his safety, the officer opened the door to reveal a large utility knife. Defendant was brought to the rear of the vehicle, handcuffed, patted down for officer safety, and detained for a show up identification. Officer Hanney, after speaking to both Mr. Singh ~nd Mr. Arshad, asked Mr. Arshad if he could positively the suspect who had run away from the store and Mr. Arshad stated he could. Officer Hanney then took Mr. Arshad to the scene of the traffic stop for a show up. On the ride there, Officer Hanney explained that he was about to show Mr. Arshad a gentleman and that if Mr. Arshad was l 00% sure it was the same person, he should tell him so. If Mr. Arshad was not sure, he need not worry about it. When they arrived at the traffic stop for the show up, the defendant was not handcuffed. The defendant was stood up by one of the officers and Mr. Arshad said, "That's definitely him." He further stated that the san1e male tried to rob him several times. Mr. Arshad was five feet away from the defendant when he identified the defendant at about l 0:48 p.m. Thereafter the defendant was placed under arrest and transported to the Yonkers Police Detective Division at the station and the vehicle was impounded. At the station, the interview of the defendant by Detective Javier Lugo and Detective Vincent Didio was recorded ("Third Noticed Statements") It began at about 2:35 a.m. on August 24, Prior to questioning, the defendant was asked if he wanted food and water and he stated he did not. The defendant indicated he was cold and he was then given a jacket by the detectives. The defendant was read his Miranda rights and he signed and dated. the Miranda card from which the Detective Lugo read. During the interview the defendant advised the detectives that he shared an apartment with his fiance Hope Burgess at 866 Beck St, Apt. SE in Bronx New York. At about 4:03 a.m. the defendant inquired if he should be asking for a lawyer and the interview ended at about 4:06 a.m. Shortly thereafter, the detectives seized defendant's sweatshirt, pants, hat, and shoes. 3

5 [* 4] Later that day on August 24 1 h, Detective Lugo was accompanied by Detective Fitzpatrick of the Yonkers Police to the Bronx apartment where the defendant lived with Ms. Burgess. When they arrived, Ms. Burgess was home with her mother, a teenager, and a small child. Ms. Burgess invited the detectives in. Detective Lugo advised they were investigating numerous robberies and asked Ms. Burgess if she would consent to them searching the apartment for some of the defendant's belongings. Detective Lugo gave her a consent form he prepared for her to review. Ms. Hope went into a separate room to review the consent form with her mother and she took a few minutes to discuss it with her mother. The detectives observed pictures of Ms. Hope displayed in the apartment. She returned, advised the detectives she would consent, and signed the consent form. The detectives referred to stiil pictures from surveillance videos of the robberies while searching the apartment for clothing. They seized converse sneakers found in a closet which they believed matched those worn by the suspect as shown in the still pictures. The detectives advised Ms. Burgess they would be taking them as evidence. Pursuant to these findings of fact, I make the following conclusions of Jaw: A. stop of the Vehicle CONCLUSIONS OF LAW The stop of the defendant's vehicle was lawful and proper. Pursuant to the standard set forth in People v Ingle, 36 NY2d 413 ( 1975) and its progeny, police officers may stop a motor vehicle on a public highway if they have a reasonable, individualized suspicion that its occupants have committed or are about to commit a violation of Jaw, including traffic infractions (see People v Sobotker, 43 NY2d 559, [1978]). The reasonable suspicion must be based on specific and articulable facts which taken together with rational inferences from those facts, reasonably warrant the intrusion (see id.). Based on the evidence adduced at this hearing, the Court concludes the police had a reasonable suspicion that the defendant had committed an attempted robbery when they stopped his vehicle. Specifically, at the time of the stop they had just observed the defendant flee from the gas station which they knew had been robbed on more than one occasion and, in fact, they were surveilling the gas station for that very reason. Moreover, the gas station's employees had activated a panic alarm atter the defendant passed the night window and attempt to enter the store, and the defendant fled to a dark colored Honda Accord that matched the description of the vehicle used by the suspect in the previous robberies. Accordingly, the police had reasonable suspicion to stop the defendant pursuant to Ingle and the First Noticed Statements were not the product of an illegal stop. 4

6 [* 5] B. CustodyN oluntariness of Statements That the First Noticed Statements made by defendant were also not the product of custodial interrogation and Miranda warnings were not necessary. "It is well settled that the applicable standard for determining whether interrogation is or is not custodial is what 'a reasonable man, innocent of any crime would have thought had he been in the defendant's position... [R]oadside detentions have been held to be noncustodial and reasonable initial interrogation attendant thereto has been held to be merely investigatory" (see People v Mason, 157 AD2d 859 [2d Dep't 1990] quoting People v Yukl, 25 NY2d 585 [1969]). Accordingly, the subjective beliefs of the defendant are not determinative in this regard, nor are the uncommunicated beliefs of the police officer who recorded the noticed statement. The determination of custody depends upon the objective circumstances which existed at the time that the noticed statement was made by the defendant. Factors which the Court has considered on this issue include: 1. The amount of time the defendant spent with the police; 2. Whether the defendant's freedom of movement was restricted and if so, in what manner; 3. The location and atmosphere of the questioning; 4. The degree of cooperation exhibited; 5. Whether constitutional warnings were given; 6. Whether questioning was investigatory or accusatory in nature. Here, since the Court finds the officer's questions at the time of the stop were investigatory in nature, the People will be permitted to use First Noticed Statements at trial. As to the Third Noticed Statements, the Court finds they were voluntarily made and obtained in accord with defendant's Sixth Amendment right to counsel. The defendant was apprised of his Miranda rights and knowingly and voluntarily waived them. He then made the Third Noticed Statements. However, at 04 :03:45 of the Third Noticed Statements, the Court finds the defendant did invoke his right to have counsel present. Accordingly, the People will be permitted to introduce the Third Noticed Statements on their direct case at trial but will not be permitted to introduce that po1tion of the Third Noticed Statements which begins after 04 :03 :45 of People's Exhibits The People may use the video recording after this point that shows the police seizing the defendant's clothing if they so choose. The defendant's motion to suppress the Noticed Third Notice Statements is otherwise denied. In that the First and Third Noticed Statements were voluntarily made, the defendant's motion to preclude the use of said statements for the impeachment of defendant is denied, (People v Harris, 25 NY2d 175 [1969]). 5

7 [* 6] ' ~ C. Probable Cause for Arrest The police had probable cause to arrest the defendant after the stop and the show up identification. Therefore, the arrest was lawful. Accordingly, the noticed statements and the evidence seized were not the product of an unlawful arrest. D. Show Up Identification The show up identification was close in spatial and temporal proximity to the August 23, 2016 incident and was not unduly suggestive (United States v Wade, 388 US 218 [1967]). Accordingly, the witness will be permitted to identify the defendant in court at trial. E. Consent to Search The evidence adduced at the hearing supports the conclusion that Ms. Burgess had sufficient apparent capability to consent to a search of the Bronx apartment. Accordingly, the evidence seized at the apartment is admissible (People v Robinson, 136 AD3d 1064 [2016]). The foregoing constitutes the opinion, decision and order of the Court. Dated: White Plains, New York May 3, 2018 To: Hon. Larry J. S h artz Westchester County Court Judge HON. ANTHONY A. SCARPINO, JR. District Attorney, Westchester County 111 Dr. Martin Luther King, Jr. Boulevard White Plains, New York RICHARD F. SWEENEY, ESQ. 30 S. Broadway, Suite 810 Yonkers, NY