People v. Brown

• Decision Date: 14 January 1983
• Citation: 459 N.Y.S.2d 227,117 Misc.2d 587
• Parties: The PEOPLE of the State of New York v. Willie Frankie BROWN, Defendant.
• Court: New York County Court

Page 227

459 N.Y.S.2d 227

117 Misc.2d 587

The PEOPLE of the State of New York v. Willie Frankie BROWN, Defendant.

Westchester County Court.

Jan. 14, 1983.

Carl A. Vergari, Dist. Atty. of Westchester County, for the People; Asst. Dist. Atty. Stephen Lewis, White Plains, of counsel.

Stephen J. Pittari by Jeanne Mettler, Legal Aid Soc. of Westchester County, White Plains, for defendant.

NICHOLAS COLABELLA, Judge.

The defendant is charged in the above captioned indictment with the crimes of Robbery in the First Degree, Criminal Use of a Firearm in the First Degree, Robbery in the Second Degree, Criminal Use of a Firearm in the Second Degree and Grand Larceny in the Second Degree. On January 4 through 7, an extensive Wade hearing was held.

The following credible evidence was adduced at the hearing:

On the 14th day of July, 1981 at approximately 10:30 A.M. Mark Lederman entered Burkay Jewelers on Mamaroneck Avenue in White Plains to purchase an anniversary gift for his wife. Rick Burton, one of the owners, was discussing prices of jewelry After approximately 10 minutes, both individuals drew handguns and announced a robbery.

and reviewing a catalogue with a black male while Mr. Lederman waited to speak with him. Also present in the store was Louise Christello, an employee, and another black male. Mr. Lederman observed these individuals for approximately ten minutes from a maximum distance of 3-4 feet. Nothing was covering either individual's face and the lighting conditions in the store were good.

One black male approached Ms. Christello and placed a handgun on the counter with his hand on it. He then ordered her to lay on the floor behind the counter. All three black males then proceeded to take items of jewelry for approximately 20 minutes. During this period they ordered Ms. Christello to get up at various times and open different jewelry cases. At one point, one of them stated to her "where's the safe, lady?".

After the robbery, Burton, Christello and Lederman went to White Plains police headquarters where they viewed between 400--1,00 mug shots.

None of the witnesses made a positive identification of anyone at this time.

On the 18th day of July, 1981, Det. Giglio showed a photo array consisting of 8 photos to Rick Burton which contained a photo of the defendant which was obtained from the Plainview, New Jersey Police Department and was taken in 1978-79. Mr. Burton could not identify anyone from the array.

On the 20th day of July, 1981, this same array was shown to Mark Lederman. After viewing it, he too failed to make any identification.

On the 23rd day of July, 1981, this same photo array plus an additional array consisting of ten loose photos was shown to Burton, Christello and Lederman. The defendant's photo was in the first array. Burton and Christello stated defendant's photo looked like one of the perpetrators but they and Lederman failed to make a positive identification.

On August 10, 1981, Det. Frank Lanza of the White Plains Police Department showed a photo array of six photos to Burton and Lederman. In this array was a photo of the defendant in position No. 3. Burton again stated photo No. 3 was similar to a perpetrator but that he had to see the person in a corporeal manner. Lederman failed to make an identification.

On October 6, 1981, Det. Robert DeFazio showed a photo array consisting of six color photos to Mr. Burton at Burkay Jewelers. In position No. 4 in this array was a photo of the defendant obtained from the Los Angeles Police Department where the defendant had been arrested in September, 1981. Burton viewed the array and stated, except for the hair length, photo No. 4 was one of the gunmen.

On the same date, Lederman viewed the same array at the White Plains Police Department. He failed to make an identification after viewing the array for ten minutes. Det. DeFazio told him to "Take his time and look again". Lederman told DeFazio that No. 4 was similar to one of the perpetrators but that he wanted to see him in person. DeFazio told Lederman that if he could arrange to have the subject placed in a lineup, he would notify Lederman. Ms. Christello viewed the array that night at her home. She stated "I remember those eyes" and picked out the photo of the defendant.

On July 12, 1982 a line-up was conducted at the White Plains Police Department.

Burton picked out a Vernon Wells when he viewed the line-up.

Lederman viewed the line-up and asked to have each subject state "Where's the safe, Lady?". He identified the defendant as a perpetrator. He stated, however, that he knew one of the participants to be a White Plains police officer.

Ms. Christello then viewed the line-up. She identified the defendant.

Dr. Robert Buckhout testified as to his research in the field of memory and witness identification. It was Dr. Buckhout's opinion that the photo arrays used in this case

were defective. The repeated showing of the defendant's photo, according to him, "created" memory. Also, he testified that once memory is tainted, it is lost forever and cannot be rehabilitated.

CONCLUSIONS OF LAW

The narrow issue before this Court is whether the identification procedures utilized in this case were unduly suggestive. Each case must be decided on its own facts (Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247). Suggestiveness must be determined after reviewing the "totality of the circumstances" (Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199).

Turning first to the composition of the photo arrays in question, it appears that, as to each array, the police assembled a sufficient number of photographs which were substantially similar in many respects. Thus, the photo arrays, in and of themselves, were not suggestive.

The conduct of the police in displaying the photos to the witnesses presents a different situation. The police obviously used the same photograph of the defendant in different arrays and repeatedly showed the witnesses these arrays. Courts in other jurisdictions have found that this practice, although not recommended, may not under the circumstances of each case be unduly suggestive. [See United States v. Marchand, 564 F.2d 983 (2d Cir.) cert denied, 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 760; State v. Thompson, 37 N.C.App. 651, 247 S.E.2d 235; Sobel, Eyewitness Identification § 5.3(b) ]. Other Courts have held that duplicate displays of the suspect's photo were suggestive but that this fact is not sufficient standing alone to preclude an in court identification where the witness had an independent source (United States v. DiPalermo, 606 F.2d 17 (2nd Cir.) cert denied 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 599; People v. Ware, 78 Cal.App.3d 822, 144 Cal.Rptr. 354).

In this particular case, the Court finds under the circumstances before it, the repeated showing of the defendant's photo was not proper. While the Court finds the testimony credible that there was basically no overt suggestiveness in the display of these photos, it cannot be said that there was no suggestiveness present. The police conduct in asking Mr. Lederman at one point to "take his time and look again" was certainly suggestive. The suggestiveness here does not come from any intentional acts on the part of the police to have the witness pick out this particular defendant, but it is clear that they intended that a photo should be identified.

The Court therefore will suppress the photo identifications utilized in this case. This ruling is not based solely on the fact that the defendant's photo was repeatedly shown to the witnesses. Rather, based upon all the circumstances present before this Court, it is the opinion of this Court that the photo identification procedures utilized were unduly suggestive.

Turning now to the corporeal identification, the foregoing principles also apply.

The line-up in this particular case shows that the participants were substantially the same in all respects, such as age, skin complexion, hair style and length and clothing. In an effort to minimize discrepancies, all the participants were seated, thus making the heights of the participants similar. Counsel for the defendant was present and participated in the conduct of the line-up (People v. Blake, 35 N.Y.2d 331, 361 N.Y.S.2d 881, 320 N.E.2d 625).

That is not to say, however, that this line-up was proper. There are a number of factors to be considered in the determination of the suggestiveness of a particular line-up. Here, the line-up consisted of the defendant, police officers and city of White Plains employees. Mr. Lederman knew one "filler" in the line-up was a police officer. He had also been told some time prior to the line-up that if the individual he tentatively identified from a photo could be placed in a line-up, that Lederman would be called to view it. Obviously, in any line-up, a witness will assume that a suspect is present somewhere in the line-up. This will not, in and of itself, necessitate an otherwise valid line-up to fall. However, here Lederman was able to positively eliminate at least one filler from the line-up. The testimony also revealed that the other employees and police in the line-up had duty stations in the vicinity of the location of this incident. Moreover, after the line-up Ms. Christello was told that she "did good" and identified the right individual. This fact will certainly affect the suggestiveness of a line-up (United States ex rel. Stevenson v. Mancusi; 409 F.2d 801--2d Cir).

Based, therefore, on all of the circumstances previously discussed, this Court will suppress the use of the pre-trial identifications for use on the People's...