People v. Carson

• Decision Date: 21 November 2014
• Docket Number: 1159 KA 12-01728
• Parties: The PEOPLE Of the State of New York, Respondent, v. Willie CARSON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

122 A.D.3d 1391
997 N.Y.S.2d 881
2014 N.Y. Slip Op. 08166

The PEOPLE Of the State of New York, Respondent
v.
Willie CARSON, Defendant–Appellant.

1159 KA 12-01728

Supreme Court, Appellate Division, Fourth Department, New York.

Nov. 21, 2014.

997 N.Y.S.2d 883

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of Counsel), for Defendant–Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, and DeJOSEPH, JJ.

Opinion

MEMORANDUM:

122 A.D.3d 1391

Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the first degree (Penal Law § 140.30 [4 ] ), attempted robbery in the first degree (§§ 110.00, 160.15[4] ) and attempted robbery in the second degree (§§ 110.00, 160.10[1] ). Contrary to defendant's contention, County Court properly refused to suppress a witness's in-court identification of him. It is well settled that, “even when an identification is the product of a suggestive pretrial identification procedure, a witness will nonetheless be permitted to identify a defendant in court if that identification is based upon an independent source” (People v. Campbell, 200 A.D.2d 624, 625, 606 N.Y.S.2d 736, lv. denied 83 N.Y.2d 869, 613 N.Y.S.2d 130, 635 N.E.2d 299 ; see People v. Wilson, 43 A.D.3d 1409, 1410, 843 N.Y.S.2d 899, lv. denied 9 N.Y.3d 994, 848 N.Y.S.2d 611, 878 N.E.2d 1027 ). Here, after conducting a hearing and reviewing the appropriate factors (see Neil v. Biggers, 409 U.S. 188, 199–200, 93 S.Ct. 375, 34 L.Ed.2d 401 ; People v. Lopez, 85 A.D.3d 1641, 1641, 924 N.Y.S.2d 871, lv. denied 17 N.Y.3d 860, 932 N.Y.S.2d 25, 956 N.E.2d 806 ), the court properly concluded that the People established by clear and convincing evidence that the victim's observations of defendant during the commission of the crime provided an independent basis for the in-court identification (see People v. Young, 20 A.D.3d 893, 893–894, 798 N.Y.S.2d 625, affd. 7 N.Y.3d 40, 817 N.Y.S.2d 576, 850 N.E.2d 623 ; People v. Small, 110 A.D.3d 1106, 1106–1107, 973 N.Y.S.2d 796, lv. denied 22 N.Y.3d 1043, 981 N.Y.S.2d 377, 4 N.E.3d 389 ; People v. Jordan, 96 A.D.3d 640, 640, 947 N.Y.S.2d 108, lv. denied 19 N.Y.3d 1027, 953 N.Y.S.2d 560, 978 N.E.2d 112 ).

Defendant further contends that the police lieutenant who stopped him

997 N.Y.S.2d 884

lacked probable cause to arrest him or reasonable

122 A.D.3d 1392

suspicion to detain him, and that the court therefore erred in refusing to suppress all evidence flowing from that detention. We reject that contention. It is well settled that a police officer has reasonable suspicion to detain a suspect and transport him or her to the scene of a crime where the stop occurs close in time and location to the crime (see People v. Brisco, 99 N.Y.2d 596, 600, 758 N.Y.S.2d 262, 788 N.E.2d 611 ; People v. Hicks, 68 N.Y.2d 234, 239–240, 508 N.Y.S.2d 163, 500 N.E.2d 861 ). Here, the evidence at the hearing establishes that the lieutenant saw defendant running across a street three blocks from the scene of the crime, in the same direction in which the broadcast indicated that the suspects were fleeing. The lieutenant testified that, at the time when she first saw defendant running, the broadcast indicated that a crime was in progress, and defendant's description, i.e., a black male wearing blue jeans, was consistent with the broadcast description of the suspects. Contrary to defendant's contention, the slight variance between the T-shirt he was wearing at the time of the stop and the hooded sweatshirt that, according to the broadcast, the suspect was wearing does not require suppression inasmuch as the stop was in temporal and spatial proximity to the broadcast and the majority of the identifying factors were present (see People v. Richardson, 70 A.D.3d 1327, 1328, 896 N.Y.S.2d 542, lv. denied 15 N.Y.3d 756, 906 N.Y.S.2d 829, 933 N.E.2d 228 ; see also People v. Balkum, 71 A.D.3d 1594, 1595–1596, 897 N.Y.S.2d 824, lv. denied 14 N.Y.3d 885, 903 N.Y.S.2d 773, 929 N.E.2d 1008 ). Furthermore, the lieutenant was aware that the suspects had been running through back yards in an attempt to escape from the pursuing officers and civilians, and it is not remarkable that a fleeing suspect would discard his outer clothing in an attempt to avoid pursuit (see e.g. People v. Foster, 85 N.Y.2d 1012, 1013, 630 N.Y.S.2d 968, 654 N.E.2d 1216 ; People ex rel. Gonzalez v. Warden of Anna M. Cross Ctr., 79 N.Y.2d 892, 894, 581 N.Y.S.2d 649, 590 N.E.2d 234 ; People v. McCullin, 248 A.D.2d 277, 277–278, 670 N.Y.S.2d 459, lv. denied 92 N.Y.2d 928, 680 N.Y.S.2d 469, 703 N.E.2d 281 ). Finally, the lieutenant “had probable cause to arrest defendant after the victim identified him during the showup identification procedure” (People v. Dumbleton, 67 A.D.3d 1451, 1452, 888 N.Y.S.2d 817, lv....