People v. Ashley
| Citation | 121 N.Y.S.3d 572,68 Misc.3d 179 |
| Decision Date | 09 March 2020 |
| Docket Number | 836/18 and 1315/18 (consolidated) |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Roshaun ASHLEY, Sean Thompson, and Montrell Fortune, Defendants. |
| Court | New York Supreme Court |
For the People: A.D.A.s Stephen MacArthur and Rachel Ehrhardt
For Defendant Ashley: Glen Hardy, Esq.
For Defendant Thompson: Zwi Wasserstein, Esq.
For Defendant Fortune: Quincy Myers and Jeremiah Rygus, Esq.
DECISION
The Court conducted a combined Dunaway/Mapp/Wade hearing on February 13, 18, and 24, 2020. Defendant Thompson was present for the entire hearing. Defendant Fortune was absent for the entire hearing. He had previously been issued Parker warnings and, after a Parker hearing, another judge of this Court concluded that Fortune's absence was willful. On each of the hearing dates, this Court ratified the prior judge's Parker findings without objection from Fortune's counsel. Finally, defendant Ashley attended some, by not all, of the hearing. He voluntarily absented himself from the afternoon proceedings on February 24, 2020, by refusing to return to court from the cellblock after a recess.
Defendant Ashley has moved to suppress certain physical evidence, an arrest photograph and an on-scene identification. Ashley's motion is DENIED in its entirety.
Defendant Thompson has likewise moved to suppress certain physical evidence, an arrest photograph, as well as two identifications - an eyewitness identification that took place at West 99th Street and Broadway and an identification by the complainant that took place outside the 24th Precinct on West 100th Street. Thompson's motion is GRANTED with respect to the eyewitness identification at West 99th Street and Broadway, although the Court orders an Independent Source Hearing, and is DENIED in all other respects.
Defendant Fortune moves to suppress certain physical evidence and an arrest photograph. That motion is DENIED in its entirety.
Police Officers Erik Alba, Lirion Ahmedi, Raymond Castro, Lindsey Robles, and John Hart, from the New York City Police Department's 24th Precinct, testified and the Court finds them all to be credible witnesses. The Court makes this finding based on its own individual assessment of each officer's demeanor on the witness stand and the content of each officer's answers to the questions posed. The Court also notes that these officers are highly experienced; Officer Alba has about thirteen years on the force, Officer Ahmedi about five years, Officer Castro about three years, Officer Robles about eleven years, and Officer Hart, the arresting officer in this case, about five and a half years. Collectively, these officers have participated in more than 500 arrests.
At or around 11:45 p.m., on February 24, 2018, Officers Alba and Castro were standing in front of the 24th Precinct, which is located on West 100th Street, between Columbus and Amsterdam Avenues, in New York County. A pedestrian walked by and informed the officers that there were "some guys fighting" on Amsterdam Avenue. As the officers walked west, Officer Alba heard sounds consistent with "a commotion" from an area north of 100th Street and Amsterdam Avenue. He also heard what sounded like a metal object hit the street.
At the same time, Officer Ahmedi was parking his police vehicle across the street from the 24th Precinct. He observed Officer Alba and Castro walking towards Amsterdam Avenue with their flashlights out, which caused him to believe they were "looking for something" or "at something." He then saw them run towards Amsterdam Avenue and followed them in his vehicle.
At Amsterdam Avenue and West 100th Street, Officer Alba, from less than two car lengths away, observed three suspects "surrounding one male" and "grabbing onto" him; the complainant. The men were on the street, but near a bus stop located on the east side of Amsterdam Avenue. The complainant was leaning over and his hands were protecting his face. One of the suspects, whom Officer Alba later learned was defendant Ashley, was wearing a multi-colored jacket. As Officers Alba and Castro approached the group, two of the suspects ran off. Ashley did not, and Officer Alba was able to detain him; after Officer Castro placed him in handcuffs.
At this point, Officer Alba turned his attention to the complainant, who had moved to the area of the bus stop, and observed that his face was covered in blood and he also had a "gash" on his arm. The complainant was a male Hispanic in his mid-thirties and, when asked what happened, told Officer Alba that "they jumped me, they jumped me." An eyewitness then approached Officer Alba and pointed to Ashley, who was in Officer Castro's custody, and said "they jumped him." Officer Alba also observed a metal microphone stand on the ground near where he had first seen the suspects surround the complainant.
Meanwhile, as Officer Ahmedi turned the corner onto Amsterdam Avenue to follow Officers Alba and Castro, he observed Officer Alba make a gesture, pointing towards "the subjects." Officer Ahmedi interpreted this gesture to mean "hey or come here." Officer Ahmedi then observed an individual, whom he later learned to be defendant Thompson, flee. Thompson was wearing a dark jacket with dark jeans and ran south on Amsterdam Avenue, passing Officer Ahmedi's car.
Officer Ahmedi got out of his car and pursued Thompson on foot. Thompson turned right on West 99th Street and was running towards Broadway. Officer Ahmedi chased him and warned that he would use his taser. Thompson eventually stopped running and Officer Ahmedi placed him on the ground. Officer Ahmedi only placed one handcuff on Thompson because the other cuff was locked and "Thompson was complying." Officer Ahmedi walked Thompson to West 99th Street and Broadway and radioed Officer Alba that he had a suspect in custody.
In response to Officer Ahmedi's radio call, Officer Alba brought the eyewitness to West 99th Street and Broadway. Officer Alba told the eyewitness that "we are taking you to a location [and] if you see anybody that was at the location where it happened point him out." Officer Ahmedi testified that there were five to ten officers present at 99th and Broadway, with four or five standing close to Thompson, when Officer Alba and the eyewitness arrived. The eyewitness got out of Officer Alba's car and Officer Alba heard another officer say that there was a "positive on the show-up." Officer Ahmedi also heard another officer say that it was a "positive" show-up, but he could not recall who said it. A third officer at that location, Officer Hart, also heard there was a "positive" identification, but likewise did not know who said it. After the eyewitness identified Thompson, Officers Ahmedi and Hart brought him to the 24th Precinct.
At around the same time that defendant Thompson was identified, Officers Castro and Luis Robles walked defendant Ashley from the scene to the 24th Precinct. On their way, Officer Lindsey Robles joined them. Inside the 24th Precinct, Officers Castro and Lindsey Robles emptied Ashley's pockets. Officer Castro found a gray box cutter, about "three or four inches" long, inside Ashley's front right pocket. He also found a wallet in Ashley's back right pocket. Officer Lindsey Robles searched Ashley's left pockets and recovered fourteen $20 bills, which she concluded were counterfeit because their texture and appearance were suspect, and because thirteen of them bore the same serial number. All the items recovered from Ashley were placed on the front desk in the 24th precinct for Officer Hart to voucher. Officer Hart also took Ashley's photograph.
While defendant Ashley was being searched inside the station house, Officers Hart, Ahmedi and Diaz transported defendant Thompson to the 24th Precinct. As they approached the building, the complainant was standing alone on the sidewalk outside the precinct, apparently waiting for an ambulance. Officer Hart heard the complainant say "look what they did to me" while staring at Thompson. The complainant was then taken away in an ambulance. Inside the precinct, officers searched Thompson at the front desk. Officer Ahmedi recovered an air pod from his ear, and a cell phone and a small amount of marijuana from his pockets. He gave these items to Officer Hart to process. Officer Hart also took Thompson's photograph.
While defendant Thompson was being searched, the eyewitness entered the precinct and told Officer Hart that the incident had begun as a dispute between him and two of the suspects inside a deli on the west side of Amsterdam Avenue, near West 101st Street, and the complainant tried to intervene. The dispute escalated and the men left the deli and moved towards the bus stop. One of the assailants from inside the deli made a phone call, after which a third person showed up, and began to "slice" the complainant, while the men from the deli "hit [the complainant] with metal sticks." The eyewitness described one of the individuals in the deli as wearing all red, and the other was the person he had identified as Thompson. The eyewitness further reported that the third individual, the one who "wasn't in the deli" was "wearing a multi-colored jacket."
The following day, Officer Hart went to the deli, where he located and watched video surveillance showing the events that had occurred inside the deli the night before. On the video, Officer Hart recognized defendant Fortune because Officer Hart had assisted in an unrelated arrest of Fortune in approximately February of 2017. Moreover, Officer Hart had seen Fortune's image on a poster of alleged gang members that was displayed inside of the 24th Precinct....
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