People v. Adams

• Decision Date: 16 June 1981
• Citation: 53 N.Y.2d 241,440 N.Y.S.2d 902,423 N.E.2d 379
• Parties: , 423 N.E.2d 379 The PEOPLE of the State of New York, Respondent, v. Robert ADAMS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 902

440 N.Y.S.2d 902

53 N.Y.2d 241, 423 N.E.2d 379

The PEOPLE of the State of New York, Respondent, v. Robert ADAMS, Appellant.

Court of Appeals of New York.

June 16, 1981.

Marilyn A. Kneeland and William E. Hellerstein, New York City, for appellant

Mario Merola, Dist. Atty. (Steven R. Kartagener and Charles L. Bach, Jr., New York City, of counsel), for respondent.

OPINION OF THE COURT

WACHTLER, Judge.

Defendant appeals from an order of the Appellate Division, 70 A.D.2d 825, 417 N.Y.S.2d 868, affirming his conviction for robbery. The novel issue on the appeal is whether testimony of a station house showup should have been excluded as a matter of State constitutional law. Defendant also contends that he was denied his right to present witnesses on his behalf when the prosecutor refused to grant immunity to one of the defendant's prospective witnesses. The conviction should be affirmed.

At 4:30 on the afternoon of August 29, 1975, three men entered a Bronx stationery store owned by Sabet Mangoubi and his wife. At the time Mangoubi was behind the cash register, his wife was on the other side of the counter and their nephew, Abraham Darwish, was working in the front of the store. ¹ One of the three men, later identified as the defendant, held a gun to Mrs. Mangoubi's head and either announced a holdup or demanded money. One of the other robbers then took $42 from the cash register. After the men had been in the store for five or ten minutes Mr. Mangoubi screamed and the men ran out with Darwish and his uncle in pursuit.

As they ran from the store the robbers were observed by Luis Rodriguez, a private security guard on his way to work, and Officer Harrison who was on patrol in a police car across the street from the store. Officer Harrison made a U turn and started after the robbers while Rodriguez, Mangoubi, Darwish and several others chased them on foot. When the robbers reversed direction one of them, identified as Orlando Sanabria, was apprehended by Rodriguez. The other two men successfully fled the scene. A bag taken from Sanabria contained approximately $42. The police also recovered an imitation pistol discarded by the defendant as he ran from the store.

As a result of information obtained from Sanabria, defendant and Louis Gaston were arrested at a Bronx apartment later that afternoon. Defendant was found hiding in a closet and Gaston was hiding behind a bathroom shower curtain.

At 6:30 or 7 o'clock that evening the Mangoubis and their nephew identified the defendant and the other two men at the station house. Before viewing the men a police officer informed the victims that he thought they had the robbers. The victims were then brought into a room where they saw the defendant and the two others standing with their hands behind their backs, near the small of the back, with a police officer behind each one holding him. The Mangoubis shouted that those were the robbers and apparently attempted to assault them. Darwish agreed that those were the men who had robbed the store.

The defendant made a pretrial motion to suppress the station house identification and to preclude the victims from identifying him at trial. After a hearing the court found that Mrs. Mangoubi's recollection of the station house identification was confused with what occurred in another case. The motion to suppress was granted with respect to her pretrial identification of the defendant but was otherwise denied. The court found that the station house identification was not unduly suggestive and that, in any event, each of the victim's observations during the robbery provided an independent source for any in-court identification.

At the trial the defendant was identified by the three victims as well as by Officer Harrison and Luis Rodriguez. The defendant offered an alibi defense supported by his own testimony and the testimony of others. He also called Sanabria who had previously pleaded guilty and had completely served a six-month sentence for the robbery. Sanabria admitted committing the robbery with Louis Gaston and other. Although he had previously told the police and the prosecutor that the defendant was the third man, he claimed at trial that the third robber was a "Dominican dude" named Victor. The defendant also sought to call Gaston. However, out of the presence of the jury Gaston informed the court that he would refuse to answer questions unless granted immunity, and the prosecutor refused to confer immunity upon him. Thus, over defendant's objection, Gaston was excused without testifying.

The jury found the defendant guilty of two counts of robbery. The Appellate Division affirmed, without opinion, one Justice concurring in a memorandum.

The defendant first contends that he was deprived of his constitutional right to call witnesses on his behalf when the court refused to direct the prosecutor to grant immunity to Louis Gaston. Because this issue has been recently discussed at length in several of our decisions (see People v. Sapia, 41 N.Y.2d 160, 391 N.Y.S.2d 93, 359 N.E.2d 688; People v. Shapiro, 50 N.Y.2d 747, 431 N.Y.S.2d 422, 409 N.E.2d 897), the basic principles will be only briefly summarized.

By statute the prosecutor has discretion to confer full transactional immunity on witnesses for the prosecution or the defense (CPL 50.30). Although this discretion is reviewable for abuse if, for instance, the prosecutor builds his case with immunized witnesses but denies the defendant a similar opportunity or affirmatively threatens the defendant's witnesses with prosecution for perjury if they give evidence favorable to the defense (see, e. g., People v. Shapiro, supra), there was no such abuse in this case. The defendant only contends that the prosecutor had not legitimate reason to deny the request for immunity because there were no charges pending against Gaston at the time of trial. It appears that after his arrest the charges against Gaston were dismissed when Mrs. Mangoubi was unable to identify him at a preliminary hearing at which she was the only victim called to testify.

Of course, if Gaston had been indicted the prosecutor could not be said to have abused his powers under the immunity statute if he refused to grant him immunity from future prosecution even though the witness may have been willing to exculpate the defendant in exchange for his own release from criminal liability. Neither, in our view, can the prosecutor be said to have acted in bad faith whenever he refuses to grant absolution to a participant in the crime who has thus far eluded prosecution. Indeed to permit a defendant to override the prosecutor's discretion under those circumstances could itself lead to abuses of the immunity statute. In addition, the prosecutor's decision in this case did not deprive the defendant of all witnesses for the defense. As indicated, the defendant and others testified regarding the alibi defense. The defendant also had the benefit of the testimony of Sanabria, an admitted and convicted participant in the robbery who testified, as Gaston presumably would have, that the defendant was not involved in the robbery. At most the defendant would have been entitled to a neutral instruction that Gaston was not available to testify in this case and that no unfavorable inference should be drawn from the failure to produce him (People v. Thomas, 51 N.Y.2d 466, 434 N.Y.S.2d 941, 415 N.E.2d 931). However the defendant did not request such limited relief.

The defendant also contends that the station house showup was so suggestive as to deprive him of due process under the Federal and State Constitutions. He urges that the trial court should have suppressed the pretrial identification of all three victims, and not just Mrs. Mangoubi's. He also claims that the showup tainted the in-court identifications of the three victims and that they too should have been suppressed.

The trial court's determination that there was an independent source for the in-court identification by the victims is supported by sufficient evidence and is therefore beyond our review (People v. Zabrocky, 26 N.Y.2d 530, 536, 311 N.Y.S.2d 892, 260 N.E.2d 529; People v. Freeland, 36 N.Y.2d 518, 524, 369 N.Y.S.2d 649, 330 N.E.2d 611; People v. Ramos, 42 N.Y.2d 834, 397 N.Y.S.2d 375, 366 N.E.2d 76). However, under no view of the evidence could it be said that the station house identification was not suggestive (see, e. g., People v. Brown, 20 N.Y.2d 238, 244, 282 N.Y.S.2d 497, 229 N.E.2d 192; People v. Ballott, 20 N.Y.2d 600, 606-607, 286 N.Y.S.2d 1, 233 N.E.2d 103; People v. Logan, 25 N.Y.2d 184, 191, 303 N.Y.S.2d 353, 250 N.E.2d 454).

There was of course no lineup. The victims were shown only the suspects in custody after apparently being informed that they were the suspected robbers. The suggestion was reinforced when each of the suspects was literally held by a police officer during the confrontation. Showing the suspects together also enhanced the possibility that if one of them were recognized the others would be identified as well. It was particularly unfair in this case because the defendant, who was not apprehended at the scene, was shown together with Sanabria who was arrested immediately outside the store and was undoubtedly more familiar to the victims who could hardly have any doubt of his guilt. Finally, permitting the victims as a group to view the suspects, increased the likelihood that if one of them made an identification the others would concur.

The record does not indicate any apparent need for such a flawed procedure. The showup did not occur at the scene of the crime soon after the robbery. It was held at the station house several hours after the crime had been committed. There is no indication that it would have been unduly burdensome at that particular place and time to form some kind of lineup or at least to place others in the room besides the suspects and their obvious custodians. Certainly there was no justification...