People v. Bulgin

• Decision Date: 12 July 2010
• Parties: The PEOPLE of the State of New York v. Delroy BULGIN.
• Court: New York Supreme Court

908 N.Y.S.2d 817

29 Misc.3d 286

The PEOPLE of the State of New York

v.Delroy BULGIN.

Supreme Court, Bronx County, New York.

July 12, 2010.

Robert T. Johnson, District Attorney (Gina Torres and Aaron Kaplan of counsel), for plaintiff.

Bronx Defenders (Justine Olderman and Michael Oppenheimer of counsel), for defendant.

MIRIAM R. BEST, J.

For the reasons that follow, defendant's motion to suppress identification testimony is granted in part and denied in part.

Introduction

Defendant is charged with Criminal Contempt in the First Degree (PL § 215.51 [d] ), Criminal Contempt in the Second Degree (PL § 215.50[3] ), Criminal Mischief in the Second Degree (PL § 145.10), two counts of Menacing in the Second Degree (PL § 120.14[1] ), Unlawfully Fleeing a Police Officer in a Motor Vehicle in the Third Degree (PL § 270.25), two counts of Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01[2] ), Reckless Endangerment in the First Degree (PL § 120.25[1] ) and Reckless Driving (VTL 1212). Defendant moved to suppress the complainant's identification of him as the perpetrator, both as the tainted fruit of an unlawful arrest and because "[t]he identification is not reliable because it is the product of an unnecessarily suggestive identification procedure." By decision dated March 3, 2009, the Honorable Judith Lieb ordered that a combined Wade/Dunaway hearing be conducted on those issues.

This Court held the Wade/Dunaway hearing on May 6, 7, 14 and 17, 2010. ¹ The People called Police Officer Shawn O'Dwyer, Detective Sharon Harvey, Charles T. Williamson, and DetectiveStevenSwindell. Defendant called Assistant District Attorney ("ADA") Gina Torres, and recalled both Officer O'Dwyer and Mr. Williamson as defense witnesses. The Court found that each witness was credible. Based on the hearing testimony, the Court makes the following findings of fact and conclusions of law.

Findings of Fact

Early on the morning of August 24, 2008, Charles T. Williamson took his girlfriend, Inez Goodwin, to work at [redacted], where Mr. Williamson also used to work (H. 117, 142-43, 144-45, 148).² After Ms. Goodwin entered the building, Mr. Williamson saw her speaking with defendant, Delroy Bulgin. Mr. Williamson watched this conversation for about five minutes from less than 10 feet away and then he approached them to find out what was going on. Although Mr. Williamson had never met defendant before, Ms. Goodwin had spoken about him to Mr. Williamson and had told Mr. Williamson that she had had problems with defendant in the past (H. 150-51). Mr. Williamson also observed that Ms. Goodwin looked uncomfortable, as though she did not want to have any problems with defendant at her workplace (H. 147-48). Mr. Williamson told defendant that he did not belong there and asked him to leave. Defendant kept saying that he just wanted five minutes to talk with Ms. Goodwin, but Mr. Williamson replied that there was nothing to talk about and he should leave (H. 148). This conversation lasted 10 to 15 minutes (H. 146-50).

The next day, August 25, 2008, at about 5:30 a.m., defendant's car crashed into Mr. Williamson and Ms. Goodwin's minivan on Noble Avenue in the Bronx. Police Officer Shawn O'Dwyer and his partner, Officer Bluas, were in uniform in a marked police car on patrol in the 43rd Precinct at that time. As the officers were traveling westbound on Story Avenue, approaching the intersection of Noble Avenue, Officer O'Dwyer heard a loud bang to his left, which he thought might have been a car accident. He saw Mr. Williamson and Ms. Goodwin in a minivan at the corner of Story and Noble Avenues. Mr. Williamson flagged the officers down, leaning out of his window and pointingbehind him, indicating to Officer O'Dwyer that something was going on (H. 13-15, 20, 33, 57, 151-52, 154, 163).³

Officer O'Dwyer drove southbound on Noble Avenue and saw a gray or silver Acura about one-half block away, being driven by defendant, backing up. Defendant's car was the only car that Officer O'Dwyer saw driving on Noble Avenue at that time. Officer O'Dwyer immediately turned his lights on in order to stop defendant's car and investigate what he had heard, but defendant put the car in drive and drove past the police car. Officer O'Dwyer then made a U-turn and followed defendant's car northbound on Noble Avenue, approximately 15 feet behind the Acura (H. 18, 40-42, 71). At the intersection of Noble and Story Avenues, defendant failed to stop at the stop sign and turned right onto Story Avenue (H. 16, 46). Defendant proceeded eastbound on Story Avenue to the intersection of Story and Rosedale Avenues, where he failed to stop at a steady red traffic light and turned left onto Rosedale (H. 16-17). Officer O'Dwyer was approximately 15 to 20 feet from defendantat this point, with both lights and sirens on (H. 48-50, 71-72). Defendant drove northbound on Rosedale Avenue to the intersection of Rosedale and the Bruckner service road, where he again failed to stop at a steady red traffic light and turned right onto Bruckner Boulevard (H. 16-17). Officer O'Dwyer followed defendant's car for a minute or two and never lost sight of it. Approximately two-tenths to two-thirds of a mile later, defendant pulled over at a 45 degree angle and exited the Acura. When defendant's car stopped, Officer O'Dwyer saw damage to its left front quarter panel. Defendant was arrested without incident and transported back to the 43rd Precinct (H. 17-20, 51-52, 56, 71).⁴

As he was following defendant's car, Officer O'Dwyer saw that it was pulling slightly to the left and handling "poorly" (H. 73-74, 79). He believed that defendant swerved to avoid hitting the police car as the Acura passed it on Noble Avenue, but he did not form an opinion as to whether defendant intentionally moved the car to the left or whether the "pulling" was the faultof the car itself (H. 73-74, 81). Office O'Dwyer described the traffic conditions as "light." He did not recall seeing any other cars or pedestrians during his pursuit of defendant, and he was certain that there were no other cars on Rosedale Avenue (H. 25-26, 50). Defendant was traveling between approximately 20 and 30 miles per hour on Noble Avenue and later between 40 and 50 miles per hour. The speed limit on Story and Rosedale Avenues was posted at 30 miles per hour, and may have been 35 miles per hour on the Bruckner (H. 18-19, 73).⁵

Mr. Williamson and Ms. Goodwin went to the 43rd Precinct "[r]ight after the accident" (H. 153). When they arrived there, Mr. Williamson explained to the desk officer "what's occurring" and then the officers took them to a room "to sit down and wait" (H. 154-55). They were waiting in the room when Officer O'Dwyer arrived at the precinct with defendant.⁶ Defendant was brought to the front desk, a pedigree sheet was filled out and he was placed in a holding cell (H. 61). Mr. Williamson saw defendant being brought into the station by "a lot" of officers. Defendant was in handcuffs, with his arms behind his back and his head and chest forward. Mr. Williamson did not recall how long he saw defendant at that time but estimated "less than about two, three minutes" (H. 157-60, 183). Mr. Williamson also heard defendant speaking and recognized his voice, although he did not know what defendant was saying (H. 156-57, 160). Thereafter, Officer O'Dwyer learned that Mr. Williamson and Ms. Goodwin were at the precinct and he spoke with them. He learned that defendant had driven past them and brandished a knife toward Mr. Williamson from inside his car. Mr. Williamson had decided to drive to the precinct to avoid a confrontation and, while en route there, defendant hit Mr. Williamson's car with his car (H. 24-25, 64-66, 156). Officer O'Dwyer filled out a complaint report after speaking with Mr. Williamson and Ms.Goodwin, but did not conduct any identification procedure (H. 27).

At some point on August 25, defendant was taken to Central Booking, where his photo was taken and saved to the NYPD'scomputerized photo manager system (H. 229, 232-33).⁷

At about 6:30 p.m. that same day, Officer O'Dwyer, Mr. Williamson and Ms. Goodwin were at the complaint room of the District Attorney's Office (H. 117, 161, 164). Because Officer O'Dwyer had not conducted any identification procedure, Detective Sharon Harvey from the 45th Precinct, who was at the complaint room on an unrelated matter, was asked to show a photo array to Mr. Williamson (H. 27, 84-85, 120-21, 165). The photo array, containing six photographs, was generated in the Bronx District Attorney's Detective Squad using the photo manager system (H. 91, 100, 104).⁸ Mr. Williamson knew that he was going to be shown some photos to see if he could pick out the person he "had the situation with," but no one told him how many or whose photos he was going to see and he was not told that he would be seeing a photo of defendant (H. 90, 122-23, 135-36, 165-66). Detective Harvey put the photo array in front of Mr. Williamson and asked him to indicate whether any photo was familiar to him (H. 167). He identified defendant's photo, which was No. 3, initialed and dated the array and wrote a brief statement on the document, "Stalking girlfriend and running us off road" (H. 89, 121-22).⁹ Mr. Williamson testifiedunequivocally that he selected defendant's photo because he recognized his face from their confrontation (H. 263).

Approximately 16 months later, on December 7, 2009, Mr. Williamson met ADA Gina Torres at her office in order to prepare for the hearing and trial in this case. Ms. Goodwin did not come with him (H. 137, 171-72). During that meeting, ADA Torres told Mr. Williamson what would happen at the hearing and "I said something to the effect of, and at that point I am going to show this to you," and she held up PX 3, the blank, color photo array. Mr. Williamson pointed to defendant's photo and said, "That's the guy." He did not recall whether he saw his own handwriting on the document at that time, because "[...