People v. Brisco

• Decision Date: 20 February 2003
• Citation: 788 N.E.2d 611,99 N.Y.2d 596,758 N.Y.S.2d 262
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANK BRISCO, Appellant.
• Court: New York Court of Appeals Court of Appeals

99 N.Y.2d 596

788 N.E.2d 611

758 N.Y.S.2d 262

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANK BRISCO, Appellant.

Court of Appeals of the State of New York.

Argued January 16, 2003.

Decided February 20, 2003.

Legal Aid Society Appeals Bureau, Riverhead (Robert B. Kenney and Robert C. Mitchell of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead (Guy Arcidiacono of counsel), for respondent.

Before: Chief Judge KAYE and Judges CIPARICK, WESLEY, ROSENBLATT, GRAFFEO and READ concur; Judge SMITH dissents and votes to reverse in an opinion.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed. The sole issue on this appeal is whether the crime scene showup identification of defendant was unduly suggestive when defendant, who was wearing tan shorts and no shirt, was asked to hold a pair of maroon shorts. The maroon shorts belonged to defendant, were found at the house where he was located, and matched the identifying victim's prior description of the clothing worn by the perpetrator.

We have allowed showup identifications, in the absence of exigent circumstances, where the showup was reasonable under the circumstances—that is, when conducted in close geographic and temporal proximity to the crime—and the procedure used was not unduly suggestive (see People v Ortiz, 90 NY2d 533, 537 [1997]; People v Johnson, 81 NY2d 828, 831 [1993]). Whether a crime scene showup is unduly suggestive is a mixed question of law and fact. Thus, if record evidence supports the determination below, this Court's review is at an end.

Here, record evidence supports the conclusion that the procedures used were reasonable under the circumstances. The showup took place at the scene of the crime, within an hour of the commission of the crime, and in the context of a continuous, ongoing investigation.¹ Record evidence also supports the conclusion that the showup identification was not unduly suggestive. The victim stated that defendant was the person whom she had seen leaving her house, and initially and independently identified him relying on his height, hair color, and build. In these circumstances, the presence of defendant's maroon shorts, admittedly his own, did not, as a matter of law, negate the reasonableness of the police action.

SMITH, J. (dissenting).

Because the showup in this case was unwarranted and broadened the use of a showup in violation of this Court's jurisprudence, I dissent. I would reverse the conviction.

The chronology of the relevant events is not in dispute. At 11:30 A.M. on July 6, 1999, two uniformed officers, Brian Holtje and Thomas Bafundo, riding in a patrol car, received a radio report of a burglary at 51 Mills Pond Road in Smithtown, New York. About 20 minutes later, at 11:55 A.M., the officers arrived at the crime scene where they met with another officer, John Crowley, who had arrived earlier. Crowley told the two officers that the complainant, an elderly lady, saw a man fleeing her home upon her arrival. The complainant described the man as a shirtless 18- to 20-year-old white male with brown hair and muscular build wearing red or maroon (i.e., dark red) shorts.

The two officers then drove north looking for suspects. The officers stopped in front of 66 Mills Pond, which appeared to be under renovation. While Holtje knocked on the front door, which was open, Bafundo went around the back where he noticed a swimming pool, and a man inside the house wrapping himself in a towel. Bafundo then came back to the front, told Holtje that he saw a man inside the house, and then went back to the back of the house again. Holtje knocked on the door once more, and defendant answered, wearing a towel. Defendant told Holtje that the house belonged to his sister and that he was renovating the bathroom. To Holtje, defendant appeared to be 30 years old although he was actually 40. Also in the house was a white male in his twenties fully clothed with either brown or black hair.

Once Holtje and Bafundo were back in their car, Holtje expressed skepticism at defendant's claim that the bathroom was being renovated, considering that he was wearing a towel. At that time, Holtje was not aware that there was a pool in the back. Holtje and Bafundo then drove around and contacted detective, Brian McNeil, who later met them in front of 66 Mills Pond. When Holtje knocked on the door, defendant answered, this time wearing tan shorts and no shirt. Defendant agreed to invite the officers inside. Once inside, Holtje went into a nearby bedroom where he noticed wet maroon shorts on the floor. Defendant stated that the shorts belonged to him. McNeil eventually asked defendant if he would go to the crime scene, and he agreed.

Another officer, Christine Ward, arrived in a patrol car and drove Holtje and defendant to the victim's house, which was two minutes away by car. McNeil and Bafundo went in separate cars. Once they all arrived, around 12:25 P.M., defendant exited the police car and stood in the driveway, about 15 to 20 feet from the front of the house. He was wearing the tan shorts, no shirt, and he was not handcuffed. McNeil asked defendant to hold the shorts, and then went inside the house to meet the complainant. Apparently, defendant held the shorts "down to his side" "next to his hip." Bafundo and Ward were standing beside defendant and Holtje was behind him. There were three vehicles in front of the house. As McNeil and the complainant were standing in the front room of the house looking out the window, McNeil asked her if she recognized anyone standing outside. According to McNeil, the complainant stated that defendant was "the person that she saw leaving the house, and that he was the same height, color hair, build, and she also identified the shorts that he was holding."

Defendant was then asked to go to the precinct, but he was not arrested until three days later. At a suppression hearing, the trial court found that "(1) the show-up was conducted promptly, within a short time after the commission of the crime; (2) it was conducted at the crime scene; (3) defendant was not singled out—in fact, he was not even in handcuffs; and (4) he was allowed to leave after the victim saw him." After his arrest, defendant was charged with burglary in the second degree and petit larceny. He pleaded guilty to one count of second-degree attempted burglary after receiving assurances that he could appeal the suppression ruling.

A majority of the Appellate Division affirmed, holding that the identification was proper. Also relevant, the Court found that the "show up was conducted in close temporal and geographical proximity to the crime scene." (292 AD2d 626.) The majority rejected the argument that requiring defendant to hold the shorts during the identification was improper. The lone dissenter argued that "[t]here was no reason for him to hold the shorts, other than to single him out as the perpetrator." (292 AD2d at 629.)

On appeal, defendant focuses on the argument of the dissent that the showup was unduly suggestive because he was required to hold the shorts, although he still argues that "no exigency existed."

It has been said repeatedly that a showup—the presentation of a single witness for identification—is inherently suggestive and for that reason strongly disfavored (see People v Riley, 70 NY2d 523, 528 [1987]). That showup identifications are inherently suggestive means that they are likely to result in the identification of an innocent person as the perpetrator of a crime. Despite their inherent suggestiveness, showup identifications "are permissible if exigent circumstances require immediate identification (People v Rivera, 22 NY2d 453), or if the suspects are captured at or near the crime scene and can be viewed by the witness immediately (People v Love, 57 NY2d 1023)" (id.). Showups that are "not the product of police suggestion but rather spontaneous" or "the result of happenstance" need not satisfy temporal and geographic conditions (People v Clark, 85 NY2d 886, 888 [1995]). In light of the difficulty of having to show that exigent circumstances compelled a showup of a defendant sitting in jail, rather than the less suggestive lineup, it should come as no surprise that precinct showups are presumptively infirm (Riley, 70 NY2d at 529). We have found exigent circumstances, however, where the eyewitness was in the hospital suffering from critical wounds (see Rivera). While street showups of suspects caught in or near the crime scene are not presumptively infirm, they "must be scrutinized very carefully for unacceptable suggestiveness and unreliability" (People v Duuvon, 77 NY2d 541, 542, 543 [1991]). We have stated that "[w]hile the limits of an appropriate time period between the alleged crime and a showup identification may vary from case to case, the emphasis must be upon the prompt and immediate nature of an identification after the crime has been committed * * *" (People v Johnson, 81 NY2d 828, 831 [1993]).

The cases where we have found no infirmity with the showups have generally involved a temporal span of 15 minutes or less between the crime and the showup. In some of these cases, the central focus was the legality of the stop or arrest. For example, in People v Brnja (50 NY2d 366 [1980]), the defendant and his accomplice were sitting in a van parked less than a mile from the crime scene when the police, acting on a...