People v. Carter

• Citation: 117 Misc.2d 4,457 N.Y.S.2d 695
• Parties: The PEOPLE of the State of New York v. Anthony CARTER, Defendant.
• Decision Date: 26 November 1982
• Court: New York Supreme Court

Page 695

457 N.Y.S.2d 695

117 Misc.2d 4

The PEOPLE of the State of New York v. Anthony CARTER, Defendant.

Supreme Court, Criminal Term Queens County, Part J9.

Nov. 26, 1982.

Joseph De Felice, Ozone Park, for defendant.

Asst. Dist. Atty. Robert Alexander, for the People.

JOSEPH F. FARLO, Justice.

During a period of several sessions, the court conducted a Wade hearing concerning a trilogy of Indictments, intertwined by a common thread consisting of "the photo spread" utilized in all three. Although the hearings were consolidated, the court will separate each decision in order to identify the particular Indictments involved.

Indictment No. 1581/82

The People called Carmen Oquendo, and the defendant called Police Officer Richard Carbone and Police Officer Patrick Laffey.

On the afternoon of January 19, 1982, Oquendo, while working at a laundromat several blocks from her home, observed the defendant and three others "hanging out in front of the laundromat". She knew them from the neighborhood, and two of them as Skip and T. Later that evening, on her way shopping, she observed the defendant and two others behind the stairway of a subway station located in the vicinity of Jamaica Avenue and 121st Street. When seen previously in front of the laundromat, the defendant was wearing blue jeans and a dark blue jacket with a hood; when she observed him behind the subway, he was wearing the same clothes.

A short time later that evening while at home, which is approximately a block from the subway, her attention was called to the window by her daughter and upon looking out the window, she observed the defendant and others attacking Mr. Charles Remichi. The defendant was kneeling on top of Remichi while another person was removing Remichi's watch. Oquendo banged on the window, then ran out as defendant looked up at her and then all fled. During all these observations, the defendant was only a few feet away and the lighting conditions were good.

When the police arrived in response to the Remichi robbery, she described the defendant as a male, black with very short hair, wearing blue jeans and a dark blue jacket. She also informed the police officer of the street names for two of the other three perpetrators as Skip and T.

Officer Carbone's involvement in this case appears to be peripheral in the respect that on February 15, he spoke to Oquendo at the laundromat and she, at that time, informed him that two of the perpetrators were known as Skip and T. At 2:30 that afternoon, she called him at the precinct to inform him that some of the perpetrators were outside the laundromat. He responded, brought them back to the laundromat, and upon her identifying these individuals, he arrested them. The defendant was not one of them.

On March 15, Officer Laffey, the investigating detective, showed Oquendo "the photo spread" which he had prepared. Upon viewing "the photo spread", Oquendo identified photo # 3 and placed her initials on the reverse side of the defendant's picture.

The court finds "the photo spread" contained a fair representation, and the police conduct, while showing it to Oquendo, proper.

Additionally, the court finds an independent source for her identification. Repeatedly, Oquendo insisted she knew defendant from the neighborhood. Although she did not know his name, she knew his face. In many cases, the face of the perpetrator is known to the victim as that of a neighborhood hang-around. This is a common factor in establishing independent source. See People v. Brown, 34 N.Y.2d 879, 359 N.Y.S.2d 278, 316 N.E.2d 714; People v. Oakley, 28 N.Y.2d 309, 321 N.Y.S.2d 596, 270 N.E.2d 318; People v. Grier, 45 A.D.2d 688, 357 N.Y.S.2d 4, aff'd 37 N.Y.2d 847, 378 N.Y.S.2d 37, 340 N.E.2d 471. Furthermore, Oquendo viewed the defendant on several occasions during the day of the robbery and clearly viewed his face.

Defense counsel argues that Oquendo's children, who possibly witnessed the robbery, should have been called to testify or be prohibited from attempting to identify defendant at the trial. The purpose of a Wade hearing is to determine whether defendant's constitutional rights have been violated by a pre-trial police induced identification procedure. The People have represented to the court that Oquendo's children were not subjected to such a procedure. If this be the case, then the children may be called at trial and the District Attorney can attempt to have them identify defendant, (People v. Bullock, 45 A.D.2d 902, 357 N.Y.S.2d 722).

Indictment No. 2084/82

At the hearing, the People called Joseph Pristina and Detective Anthony E. Burke, Jr. Based upon their testimony, the court finds that on April 27, 1982, Pristina was babysitting for some friends on the second floor of a two-family house and had been at the premises since 2:00 P.M. At approximately 3:30 p.m., Isaac, previously known to Pristina, called him into the kitchen and introduced him to three of the individuals in the kitchen as Big Min, Big Nick (later identified as defendant, CARTER), and Eddie. After a few minutes of conversation, Pristina returned to the living room to watch TV. A short time thereafter, Isaac informed Pristina that some people were throwing bottles off the bridge; Pristina then ran down the flight of stairs to exit the premises. Upon reaching the bottom of the stairs, he observed Big Nick and Big Min at the bottom of the stairs. As he approached, Big Min put a knife to his throat, the perpetrators removed a gold chain from his neck, relieved him of some money, and ran out. The theft occurred in a well lit area.

On April 29, Pristina reported the incident to the police, and on May 4, he spoke to Detective Burke at the 102nd Precinct who showed him "the photo spread". He identified photo # 3 as that of defendant, CARTER.

On May 27, Pristina viewed a line-up at the 112th Precinct and identified defendant, CARTER. The line-up was conducted the same date; the line-up was conducted on Indictment No. 1534/82, although different detectives were responsible for each. Further, the defendant was represented by the same attorney on both Indictments.

As previously indicated, the court finds "the photo spread", and in this Indictment, the police procedure to be non-suggestive.

Regarding the line-up, counsel argues that the take out order prepared to obtain custody of the defendant to bring him to the 112th Precinct for the line-up was prepared for the case of the gas station robbery (infra Indictment No. 1534/82), and not Pristina's robbery. Counsel argues, this procedure was improper although he has not explained how this procedure has prejudiced defendant. Counsel failed to provide, and the court has been unable to discover any New York cases quite on point. Accordingly, it appears to be a matter of first impression.

The law is settled, that the Fifth Amendment privilege against self-incrimination is not violated by compelled participation in identification procedures, (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149). Once a person is lawfully incarcerated, he may be forced to appear in line-ups for any number of crimes, (Adams v. United States, 399 F.2d 574). It has been held by New York Courts that there is no violation of due process, ordering a defendant to appear in a line-up once he is in custody, (Pidgeon v. Rubin, 80 App.Div.2d 568, 435 N.Y.S.2d 763; People v. McClain, 88 Misc.2d 693, 389 N.Y.S.2d 976). The fact that counsel was not warned ahead of time that a witness to another robbery would be present does not change the fact that even if counsel had known this fact, he could not have legally prevented the line-up. The role of counsel at a line-up is usually that of an observer. The fact that different witnesses other than those counsel expected viewed the line-up, in no way violated defendant's rights nor changes counsel's role. It would be a waste of time and taxpayer's money to require the District Attorney to prepare a separate take-out order and hold a separate line-up for each crime a defendant is charged with or suspected of committing. This court will not require that of the District Attorney.

Finally, the court finds an independent source for Pristina's in-court identification. Taking into account the factors previously mentioned, Pristina had ample opportunity to observe defendant. He was introduced to him and stayed with him in the same room for approximately a minute. He observed the defendant again during the crime. He made the identification approximately seven days after the incident and was sure of it. Under these circumstances, the court finds an independent basis for Pristina's identification.

Indictment No. 1534/82

The People called Gasper Ashley, Linton Pommells and Detective DeMarco.

On April 27, 1982, at approximately 6:30 p.m., Pommells, the owner of the service station located at 101st Avenue, Richmond Hill in Queens County, was seated on the edge of a desk in the office speaking with Ashley and Sonya Kasko. The office was separated by a half door partition from storage area.

As the parties were engaged in conversation, a male black (later identified as the defendant, CARTER), entered carrying an orange colored box from which he produced a gun and announced a stick-up. He then passed between Ashley and Pommells and attempted to enter the store room. As he was doing so, Pommells stood up. As he stood up, a second male black, later identified as Johnny Rucker, entered the office and without saying a word, shot Pommells. Before leaving, they relieved Kasko of her jewelry and took some other articles from both Ashley and Pommells. The incident took approximately 10 to 15 minutes in a well lit area.

Ashley called the police and when they arrived, he described the two perpetrators to them and Pommells was taken to the hospital.

On April 29, "the photo spread" was shown to Ashley by Detective DeMarco who identified picture # 3 as that of CARTER.

On May 2, Detective DeMarco...