The People of
the State of New York, Plaintiff,
against
Randall M., Defendant.
|
2014KN055840
For the King's County District Attorney's Office, Assistant District Attorney
Yasmin Dwedar, Esq.
For Defendant, Legal Aid Society, Daniel Moore, Esq.
John T. Hecht, J.
The charges in this case involve an assault and theft that allegedly occurred on July
26, 2014, in Prospect Park, Brooklyn, at approximately 10 PM, when a teenager who was
skateboarding with friends was attacked by a number of other teens who beat him and
stole his iPhone. At issue is his ability to identify the person who first attacked him, who
is alleged to be the defendant.
On March 18-20, 2015, the Court conducted a Dunaway, Wade, and independent
source hearing to determine if the complainant may be permitted to identify the
defendant at trial (see Dunaway v New York, 442 US 200 [1979]; United
States v Wade, 388 US 218 [1967]; Manson v Brathwaite, 432 US 98
[1977]; People v Adams, 53 NY2d 241 [1981]). Three witnesses testified at the
suppression hearing.
Police Officer Robert Meka testified, and I credit his
testimony, that on the day in question he was patrolling Prospect Park when he received a
radio call that there had been a robbery in the park. The suspects were described as four
or five black males, one of whom wore a white shirt and had "dreads." Within a minute,
the officer responded in his scooter to the call box from which the 911 call had
originated and found two teens, one of whom was the complainant, who explained that
he had been punched and knocked off his skateboard by one of the assailants, who took
his iPhone. He described the individual in question as in his late teens, with long dreads
and wearing a white shirt, who fled southbound on East Drive towards Flatbush Avenue.
He did not say that the individual wore glasses (3/18/15 tr at 7-14).[FN1]
Police Officer David Mathura also testified, credibly, that he arrived at the
call box in an unmarked car with two other officers within two minutes of the call of a
robbery in the park and went on a canvass for suspects. He soon observed someone
fitting the description — a black male sporting dreads and wearing a white T-shirt
— walking with someone else southbound on Flatbush Avenue past Empire
Boulevard, a short distance (one block) from the park. The officer slowed his vehicle.
One of the officers may have called out, "Yo," or said something else to the suspect, who
took off running. He was apprehended nearby. He is the defendant. At the time Officer
Mathura first saw him, the defendant was wearing glasses (3/18/15 tr at 17-21, 24-25,
27).
Officer Mathura called for the complainant to come to the location of
defendant's detention for a showup identification. Within five minutes, the complainant
arrived in a police car. Officer Mathura and another officer stood on either side of the
defendant, one to two feet away from him. The defendant was handcuffed from behind.
According to a signal that Officer Mathura received from a supervisor, he understood
that the complainant had positively identified the defendant from inside the car. The
defendant was taken to the precinct. He was found to have his own, but not the
complainant's, cell phone on him. The defendant's companion also did not have the
victim's iPhone (3/18/15 tr at 21-22, 26, 28-30).
Presumably because the
officers who were in the vehicle with the complainant did not testify, the People
conceded the suggestiveness of the showup and consented to an independent [*2]source hearing (3/18/15 tr at 3, 32; 3/19/15 tr at
3).[FN2]
The complainant testified. I fully credit his testimony. The complainant is 18 years old.
At the time of the incident, he was skateboarding with friends up and down a hill in
Prospect Park. When he was going downhill at about 15 miles per hour, he passed a
group of four to six "kids" whose backs were towards him. He saw them — or
more precisely their backs - for three to four seconds. When he reached the bottom of the
hill he skated back up, although more slowly than when he had been going downhill. The
group of individuals he had seen earlier had at this time spread themselves out across
East Drive so that the complainant was forced in between them. He described one as
having a tie-dyed blue shirt, black pants, and fitted cap, and another as wearing a white
T-shirt and having thick, long dreads and very dark skin (3/19/15 tr at 6-12, 19).
When the complainant was directly in front of this group, the one wearing white
punched him in the face. The complainant landed on his back "in a state of shock." With
one hand, the individual who punched him reached into the complainant's pocket and
continued to punch with his other hand. The assailant's companions began to punch the
complainant as well. The complainant testified, "I didn't want to get jumped and
hospitalized over a cell phone," so he told them to "just take" the iPhone, which they did
(3/19/15 tr at 11-14).
The complainant testified that he made eye contact with
the first assailant and, although he could not say how long his observation lasted, he said
that he looked directly at the "kid" for "probably about like half second, two seconds,
maybe three. I couldn't give you a reasonable answer. It's been too long." He did not
testify that the assailant wore glasses. He described the lighting conditions on East Drive
at the time as fairly good, with street lights on alternating sides of the drive every thirty to
fifty feet (3/19/15 tr at 13-15).
When asked if he could now make out
what the assailant looked like, the complainant stated that he could not, given the length
of time since the incident, although "in a lineup possibly I would be able to
effectively — like, something would like — the memory would hit me."
He said there is "a good chance I could recognize him, but also there is maybe a chance
that I might not" (3/19/15 tr at 15-16).
After this incident, which, he
acknowledged, "shook" him up, the police arrived. He described the assailant to them as
an individual wearing an oversize white T-shirt and having dreads. He went with the
police. While in the police car, he heard a police radio transmission that "they got him,"
after which the officers "asked me to identify him." The victim said that when he was
taken to view the suspect he instantly recognized the defendant to be his assailant. He
testified that when he was looking at the defendant, an officer inside the car asked, "Is
this the guy?" The witness described the defendant as sweating — "because he
just ran from the scene of the crime" — trying to "put up" his dreads —
"so that maybe he would not fit the description" — and wearing the same T-shirt
as the assailant (3/19/15 tr at 17-21).
First, as to the Dunaway issue,
the police acted permissibly in conducting a showup; therefore, the showup is not a
suppressible fruit of an unlawful stop. The police were justified in briefly detaining the
defendant, who matched the given physical description and direction of flight of the
suspect, in order to allow the complainant to make an identification shortly after and
[*3]near the alleged incident (see People v Brisco,
99 NY2d 596 [2003]).
The decisive and important issue presented is whether,
on these facts, the complainant was sufficiently able to observe his assailant during the
commission of the offense so that at trial he may be permitted to identify the defendant as
that assailant. Wholly apart from the well-known "vagaries" of eyewitness identification
(see United States v Wade, 388 US 218, 228 [1967]) is that a showup is an
inherently suggestive procedure because a single suspect, usually handcuffed and
surrounded by police officers, is shown to the witness (see People v Brisco, 99
NY2d 596, 612-13 [2003] [noting that showups are inherently but not necessarily
"unduly" suggestive] [majority opinion and Smith, J., dissenting]). That occurred here.
Moreover, the People presented no evidence at the pre-trial hearing, except for the
testimony of the complainant himself, of what transpired in the police car when the
officers took the complainant to the showup (cf. People v Jerry, 2015 NY Slip Op
02499 [2d Dept Mar. 25, 2015] [People established reasonableness and
nonsuggestiveness of showup "through the testimony of the police officers who
transported the complainants to the showup and provided a detailed account of the
physical circumstances of the procedure"]). Although the complainant may not have
realized that the police suggested to him that he identify the defendant as the perpetrator,
they did so when they allowed the complainant to hear a police transmission that "they
got him" and an officer asked, also suggestively, "Is this the guy?" (see People v
Francis, 303 AD2d 598 [2d Dept 2003]). Because a showup "must be scrutinized
very carefully for evidence of unacceptable suggestiveness and unreliability"
(see People v Ortiz, 90 NY2d 533, 537 [1997] [internal brackets and citation
omitted; emphasis added]), I find that the People have failed to prove that the showup
was not unduly suggestive and unreliable (as the People themselves apparently initially
conceded).
Besides the factors already noted, the witness's identification of
the defendant as his assailant appears to have been influenced by what he inferred was
guilty conduct on the part of the defendant. But not only were the witness's inferences
based on observations unrelated to the accuracy of his identification, they were likely
wrong and at least partly attributable to police conduct. The witness concluded that the
defendant was sweating "because ... he just ran from the scene of the crime." In fact, the
defendant had been walking when the police first encountered him. The officers, who
were in an unmarked car and did not announce that they were police, slowed down their
vehicle and may have called out to the defendant, after which he began to run.
This is not to say that the police acted improperly in stopping the defendant but that their
permitting the showup to proceed while the defendant was still sweating from his flight
further impaired its reliability as an accurate identification procedure (see Ortiz,
90 NY2d at 537 [People must show "lack of any undue suggestiveness in a
pretrial identification procedure"] [citation omitted] [emphasis in original]).
The witness also believed that defendant was trying to hide his dreads by "put[ting
them] up" — a questionable memory given that the defendant was rear-cuffed at
the time and there is no evidence that he knew that the perpetrator had been described as
having dreads. Thus, in addition to all the factors that tainted the identification, the
witness may have identified the defendant because the witness believed at the time, and
continues to believe, that the defendant looked guilty, not because the defendant
was the perpetrator of the crime.
The independent source hearing is intended
to mitigate the effect of the suggestive [*4]showup by
requiring the People to prove that sufficient evidence exists of a source for the witness's
identification of the defendant, other than the showup, before the witness may be
permitted at trial to identify the defendant as the perpetrator of the crime. For the reasons
that follow, the suggestive showup was not overcome by clear and convincing evidence
that the complainant has an independent source for his identification of the defendant.
Although I credit the complainant's truthfulness, no matter how honestly he may believe
that he identified the correct person on the night in question, he lacks the ability to make
a reliable in-court identification of the defendant as the person who victimized him. The
record does not establish that if the witness were permitted to identify the defendant at
trial as the perpetrator of the charged crimes he would be doing so based on his
observation of the perpetrator during the commission of the crimes and not based on his
recognizing the defendant from the police-arranged showup whose circumstances led
him to conclude that defendant was the perpetrator (see Wade, 388 US at 229 ["It
is a matter of common experience that, once a witness has picked out the accused , he is
not likely to go back on his word later on, so that in practice the issue of identity may (in
the absence of other relevant evidence) for all practical purposes be determined there and
then, before the trial"] [citation omitted]).
In considering the due process
concerns implicated in the showup, and in concluding that no reliable source exists for
the victim's identification of defendant, I have weighed the factors enumerated in Neil
v. Biggers, 409 U.S. 188, 199—200 [1972]. These are the victim's opportunity
to observe his assailant during the crime; his degree of attention; the accuracy of his prior
description; the degree of certainty in his prior identification; and the lapse of time
between the crime and the identification. I address these factors with an eye to the
reliability of the proposed identification testimony, because "reliability is the linchpin"
(Manson v Braithwaite, 432 US 98, 114 [1977]).
There are reported
cases in which identifications have been allowed when the time the victim had to observe
his or her assailant was "less than a minute" (see People v Thomas, 17 NY3d 923, 927 [2011] [Ciparick,
J., dissenting]) or even "only a few seconds" (Matter of Jason V., 171 AD2d 447
[1st Dept 1991]), or "a matter of seconds" (People v Androvett, 135 AD2d 640,
642 [2d Dept 1987]). In one case, the time was as short as "three to five seconds"
(People v Hyatt, 162 AD2d 713 [2d Dept 1990]). I have found no reported case,
however, nor have the People directed me to one, in which the time, as here, of the
face-to-face encounter between victim and assailant was as little as from one-half a
second to "maybe" three seconds. In fact, suppression has been granted where, as
here, the opportunity of a victim of a group assault to view his assailant was only
"seconds," among other reasons because the circumstances of the assault provided only a
"fleeting opportunity to observe [the] assailants" and therefore precluded a reliable
identification (see People v
Mankhar, 25 Misc 3d 1243(A) [Sup Ct Kings County 2009]).
Aside
from the vanishingly small amount of time the complainant had to view his assailant in
the present case (as little as one-half a second), none of the other factors that
sustained the reliability of the identifications in the above-cited decisions was present.
For example, in Jason V., "although the time to observe the assailant was only a
few seconds," there were "good lighting conditions, both before and after the incident,
and the complainant had good reason to observe his assailant after he was struck"
(Jason V., 171 AD2d 447). Here, in contrast, [*5]the incident occurred in a park at night. Clearly this cannot
be called "good lighting conditions," with street lights giving illumination only every
thirty to fifty feet. There was, for example, no testimony as to where, in relation to these
spread-out street lights, the incident occurred. When the victim in this case was struck in
the face, a number of individuals piled on top of him, further diminishing his ability to
identify the one who had given the first punch that landed him on the ground, unlike the
situation in Jason V., where the complainant was still able to observe his assailant
after the attack.
Similarly, in Androvett, the scene of the crime was
"well-lit," so that the witness was "able to give a detailed description of the defendant to
the police" (Androvett, 135 AD2d at 642). Not only was the description here
bare-boned — notably, it included no description of any facial feature of the
defendant — it was limited to race, gender, age, complexion, hairstyle and
clothing. This is not "detailed."
Hyatt involved an identification made
after an observation of as little as three to five seconds, but "the complaining witness was
able to see the defendant entering her bedroom through the window, under good lighting
conditions, at a distance of 10 to 15 feet," and "her description was sufficiently specific
as to establish her ability to observe the perpetrator at the time of the crime"
(Hyatt, 162 AD2d at 714). Both factors that sustained the reliability of the
identification in Hyatt — the good lighting conditions and the specificity
of the description — are lacking here. I also infer that in Hyatt (in which
there appears not to have been any charge of assault) the complainant was more
self-possessed than the complainant here because her observations were not accompanied
by a punch to the face that "shock[ed]" her.
Instructively, an independent
source for an identification was found in People v. Williams, 222 AD2d 149,
150-51 [1st Dept 1996], where the victim was "inches" away from, and "face-to-face"
with, her assailant in a well-lit hallway in an incident that lasted "two to three minutes,
during which time the victim never' took her eyes off him," and she was able to give the
police a detailed and accurate description.
To the extent that these cases
suggest a baseline for a reliable identification, they show that in this case the
complainant's opportunity to observe his assailant during the crime was inadequate. The
incident occurred at night in a park that was lit by streetlamps only every thirty to fifty
feet. The victim was thrown to the ground by the force of a punch to the face before he
was pummeled by a number of individuals. He was able to see the first assailant —
allegedly the defendant — for only one-half a second to "maybe" three seconds.
Although this incident would certainly have caused him to pay attention, his attention
was not focused on identifying his assailants as much as on his personal safety ("I didn't
want to get hospitalized over a cell phone"), as demonstrated by his inability to give a
detailed description of any of them and of the first assailant in particular, whom he
described rather generically as being a black teen, having dreads and very dark skin, and
wearing a white T-shirt. The complainant admitted that he was in a state of shock, which
may have detracted from, rather than supported, a reliable identification (see People v Abney, 13 NY3d
251, 268 [2009] [discussing effect of event stress as affecting eyewitness
identification]). The certainty he expressed in his identification of the defendant a few
minutes after the incident, notably after the complainant had overheard that the police
had "got him," and when an officer asked, "Is this the guy?" is of little consequence
because these suggestive expressions compounded the unreliability of what was already a
suggestive procedure [*6](see People v LeGrand, 8 NY3d
449, 458 [2007] [post-event information (i.e., statements or questions by the
police to the witness) may affect the accuracy of an identification]). Further, the
correlation between a witness's confidence and the accuracy of his identification is not
necessarily direct (id.). Even more to the point, as the complainant admits,
candidly and to his credit, he does not believe that he could identify the individual who
assaulted him. At best, in a lineup "possibly something would like —
the memory would hit me," which is hardly an affirmation that he can identify his
assailant. In short, the complainant is unable to make a positive identification at trial.
As to the Neil v. Biggers factor of whether the victim gave an accurate
description to the police, the only physical characteristics that he described, aside from
race and gender, were the assailant's complexion and hair and that he appeared to be in
his "late teens." While some elements of this description match the defendant, who is a
black male in his teens and sports dreads, because the description was so lacking in detail
it could apply to most any young adult black male with dreads. To this observer, the
defendant, who was sixteen years old at the time, does not appear (even several months
after the incident) to be in his late teens, nor does his complexion appear to be
"very dark." But this is not dispositive. Nor is the fact that the complainant implicitly
described an individual who did not wear glasses (when he testified that he made eye
contact with and looked directly in the face of his assailant), and the defendant,
according to police testimony, wore glasses on the night in question. What is dispositive
is that the description is too lacking in detail to assure the Court that the victim had a
sufficient opportunity to observe, describe, and recognize his attacker. Again, the victim's
opportunity to observe and therefore describe, let alone recognize, his attacker was
insufficient to permit a reliable identification.
I make one final comment.
Although it might be argued that adolescents are particularly attuned to identifying each
other,[FN3]
under very similar facts also involving teenagers, suppression has been granted where, as
here, the circumstances precluded a reliable identification (see People v Mankhar, 25 Misc
3d 1243(A) [Sup Ct Kings County 2009]; see also People v Foster, 200
AD2d 196, 203 n 6 [1st Dept 1994] ["it would be very hard to find that the People have
met their burden" where a complainant's viewing of the perpetrator was "a matter of
seconds" and it was followed by a suggestive identification procedure]).
For
these reasons, defendant's motion to suppress is granted, and the complainant will not be
permitted to make an in-court identification of the defendant.The foregoing
constitutes the decision and order of the Court.
Dated: April 2, 2015
Brooklyn, New York
__________________John T. Hecht
J.C.C.
Footnotes
Footnote 1:References to "tr" are to
the hearing transcript.
Footnote 2:In a memorandum of
law dated March 31, 2015, the People appear to have withdrawn their concession that
they were unable to prove lack of undue suggestion.
Footnote 3:There are psychological
studies indicating an "own-age bias" such that individuals may exhibit superior
discriminability for faces of people their age (see, e.g., Matthew G. Rhodes and
Jeffrey S. Anastasi, The own-age bias in face recognition: A meta-analytic and
theoretical review, Psychological Bulletin, Jan 2012 at 146-74). Those studies are
beyond the scope of this decision.