People v. Chipp

• Decision Date: 15 February 1990
• Citation: 553 N.Y.S.2d 72,552 N.E.2d 608,75 N.Y.2d 327
• Court: New York Court of Appeals Court of Appeals
• Parties: , 552 N.E.2d 608 The PEOPLE of the State of New York, Respondent, v. Jerome CHIPP, Appellant.

Page 72

553 N.Y.S.2d 72

75 N.Y.2d 327, 552 N.E.2d 608

The PEOPLE of the State of New York, Respondent, v. Jerome CHIPP, Appellant.

Court of Appeals of New York.

Feb. 15, 1990.

Certiorari Denied Oct. 1, 1990.

See 111 S.Ct. 99.

Miriam J. Hibel and Philip L. Weinstein, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. (Paul Harnisch, Mark Dwyer and James M. McGuire, New York City, of counsel), for respondent.

OPINION OF THE COURT

ALEXANDER, Judge.

Having been convicted after a jury trial of first degree sexual abuse, first degree attempted sodomy, endangering the welfare of a child and fourth degree criminal possession of a weapon, defendant appeals by leave of an Associate Judge of this court, from the Appellate Division order unanimously affirming, without opinion, the judgment of conviction, 147 A.D.2d 989, 537 N.Y.S.2d 939.

The principal issues presented are whether the hearing court's refusal to allow defendant to call the complaining witness to testify at a combined Huntley and Wade hearing (People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179; United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149) denied him a constitutional or statutory right to present relevant evidence on the issue of the suggestiveness of a pretrial lineup identification procedure, whether the lineup was unduly suggestive, and whether the lineup identification should have been suppressed in any event because it was the fruit of an unlawful arrest.

I

While on her way to school on April 7, 1986, Shanica F., who was then 10 years old, stopped in front of a building on West 131st Street in Manhattan to tie her shoe. A man, whom she later identified as the defendant, grabbed her from behind, threatened her with a knife and compelled her to accompany him to the roof where he sexually abused her and attempted to sodomize her.

Shanica pushed the defendant and, as he stumbled, she managed to escape by running past him and down the stairs. As she ran down the stairs she cried for help and pounded on apartment doors. Defendant fled down the stairs also. One of the tenants, Shermain Thompson, hearing the screams and the commotion, came out of her apartment, saw Shanica with her clothes in disarray and assisted her while a friend called the police. As Shanica described her attacker to the police who responded, Ms. Thompson realized that Shanica was describing the defendant, whom Ms. Thompson knew to be a friend of her brother, Sherman Thompson, and whom she had encountered in the building a scant half-hour earlier.

Detective Bruno Francisci was assigned to the case. He interviewed Shanica at the hospital where she had been taken. Shanica told him what had happened and gave him a description of her attacker and his knife. She described her attacker as a light-skinned Black male, with short black hair, wearing a black baseball cap with white writing on the front and black-framed glasses. The assailant had told Shanica that his name was "Oscar." Francisci also interviewed Shermain and Sherman Thompson. Shermain indicated that based on the description she heard Shanica give the police, she recognized the assailant as an acquaintance of her brother and as the person she had seen in the building that morning. Sherman Thompson, interviewed separately, indicated that he knew the person described by his sister as "Apache" and gave Francisci a description similar to that given by Shanica and Shermain.

Francisci gave his card to the Thompsons and to Larry Washington, another friend who also knew "Apache", and instructed them that if the man known as "Apache" should again "come into the area" they were to call 911, describe him and "present themselves" and tell the police that "the guy--was in the building at the time of the incident."

Two days later, police officers responding to a radio run directing them to the 131st Street building, found a number of civilians holding the defendant. The officers were told that defendant was the man who had "raped" a 10-year-old girl two days before. One of the male civilians gave the officers Detective Francisci's business card and said that Francisci was handling the case. The officers summoned their supervisor, the sergeant on patrol, who shortly arrived at the scene. The officers informed the sergeant that the people holding defendant had given them Francisci's business card and had said that defendant had raped a little girl. The sergeant was familiar with the case; he remembered the original police report which indicated that both Shermain Thompson and the victim could identify the perpetrator. He determined that defendant should be taken to the precinct house. Defendant did not resist his detention and transportation, but protested that he had done nothing.

Later that afternoon, after administering Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) to defendant, Francisci took a statement in which defendant denied any complicity in the events of April 7 and explained his presence at the 131st Street building on April 9. Francisci arranged for Shanica and her father to attend a lineup at the 20th Precinct where defendant was being detained. Defendant was isolated in a room where neither Shanica nor her father could see him. Four fill-ins were secured and placed in the lineup with defendant who chose the number 2. Viewing the lineup with only Detective Francisci present, Shanica identified defendant as her attacker within 10 seconds.

At the combined Huntley-Wade hearing, defense counsel requested that the People be required to produce Shanica to sustain their burden of going forward to establish the propriety of the pretrial identification. Counsel argued that because he had not been present at the prearraignment lineup and because his attempts to interview Shanica had been prevented by Francisci he had not been able to "discover what exactly, what police procedures were used". He contended that under existing precedent the People had "the burden of producing the complainant, the identifying witness for the purpose of sustaining the[ir] legality of the misarranged [sic] confrontation."

The People argued, however, that a bifurcated hearing should be held to determine, initially, whether the lineup procedures were unduly suggestive and, if so, to then proceed to determine whether the complaining witness's identification was grounded upon an independent basis, free of the taint of the suggestive lineup procedures. The court agreed with the People's position and ordered a bifurcated hearing.

As the hearing was about to proceed, defense counsel was furnished with a color photograph of the lineup together with a lineup form describing the ages, heights and weights of the stand-ins, who, respectively, were: number 1: 22 years old, 5 feet 8 inches, 140 pounds; number 3: 29, 5 feet 7 inches, 140 pounds; number 4: 17, 5 feet 7 inches, 140 pounds; and number 5: 21, 5 feet 7 inches, 130 pounds. ¹ The photograph and lineup form were received in evidence.

Counsel argued that because three of the fill-ins had "significantly darker" complexions than defendant, who had been described as a "light-skinned Black male wearing dark clothes" and because the only fill-in arguably of a hue similar to defendant's complexion was Hispanic and was dressed in light clothes, the lineup was prima facie suggestive, thus necessitating the People having to call Shanica to sustain their burden. The application was summarily denied and the hearing proceeded.

Detective Francisci and Officers Burns and Dibisceglio, the two officers who had responded on April 9, testified to the facts as outlined above. Defense counsel renewed his application to call Shanica, this time as a defense witness, "for the purpose of determining whether there was any such activity [of suggestiveness] regarding the police arranged confrontation between [defendant] and Shanica F[ ]". He again remarked upon the fact that he had not been present at the lineup and that Shanica was the only person having information about the lineup other than the police officers. He also renewed his argument that the photograph of the lineup demonstrated, prima facie, undue suggestiveness. The court denied the application, finding that no undue suggestiveness had been shown and concluding that there had been no showing of a need to call the complaining witness to establish an independent basis for an in-court identification.

Defense counsel then proffered two additional bases upon which he claimed to be entitled to call Shanica as a witness: that defendant had been deprived of his right to counsel at the lineup by virtue of an unreasonable 40-hour delay between arrest and arraignment ² and that the police lacked probable cause for defendant's arrest. He argued that the lineup identification should be suppressed based on either ground and that Shanica should be called to determine whether an independent basis existed for her in-court identification.

In a written decision the court denied suppression of defendant's statements ³ and the lineup identification, concluding that no undue suggestiveness had been demonstrated, and thus there was no need to produce the complaining witness at the hearing.

The Appellate Division affirmed defendant's conviction, without opinion. We now also affirm.

II

Recognizing that he has no right to compel the People to produce the complaining witness at the Wade hearing (People v. Blue, 31 N.Y.2d 1002, 341 N.Y.S.2d 453, 293 N.E.2d 827, affg. 37 A.D.2d 581, 323 N.Y.S.2d 663), defendant asserts an unqualified right to call the complainant as his witness to present relevant evidence and that because he was denied this right he is entitled to a new hearing. He argues the complainant had relevant evidence because she viewed the lineup and was "the only means by which the defense [could] meaningfully supplement or challenge the People's case." Defendant urges that this right...