People v. Chuyn

• Decision Date: 24 April 2012
• Docket Number: No. 2707/2010.,2707/2010.
• Citation: 35 Misc.3d 1216,953 N.Y.S.2d 552,2012 N.Y. Slip Op. 50720
• Parties: The PEOPLE of the State of New York, v. Manuel CHUYN, Defendant.
• Court: New York Supreme Court

35 Misc.3d 1216

953 N.Y.S.2d 552

2012 N.Y. Slip Op. 50720

The PEOPLE of the State of New York,

v.Manuel CHUYN, Defendant.

No. 2707/2010.

Supreme Court, New York County, New York.

April 24, 2012.

Stephanie Kaplan, Esquire, The Legal Aid Society, New York, for the defendant.

Nicholas Viorst, Esquire, Assistant District Attorney, New York County District Attorney's Office, New York, for the prosecution.

MARCY L. KAHN, J.

Defendant Manuel Chuyn, charged with one count of burglary in the second degree (PL § 140.25[2] ) and two counts of assault in the third degree (PL § 120.00[1] ), moved to re-open the hearing previously held by this court (Tr. of proceedings dated Jan. 19, 2011 [oral ruling] [ Chuyn I ] ) on his motion to suppress identification evidence. Having granted the motion to re-open (oral ruling, Nov. 18, 2011, followed by written decision, People v. Chuyn, 33 Misc.3d 1233(A), 2011 N.Y. slip op. 52228[U] [Sup.Ct. N.Y. County Dec. 13, 2011][ Chuyn II ] ), having conducted the re-opened suppression hearing and having considered extensive submissions by the parties, this court on March 16, 2012, denied the motion to suppress in an oral ruling. This written decision and order explains that ruling, and sets forth amended findings of fact and conclusions of law as indicated below.

I. PROCEDURAL BACKGROUND

On November 15, 2010, December 8, 2010 and January 13, 2011, this court held a hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), on defendant's motion to suppress the identification testimony of three eyewitnesses who had identified defendant at the scene shortly after the occurrence. During the course of that litigation, the court considered and rejected the defendant's request to call the three civilian eyewitnesses to testify. On January 19, 2011, the court denied defendant's motion to suppress identification evidence in an oral ruling. [ Chuyn I ] ). ¹

Based upon statements of the civilians provided to defendant in Rosario/Consolazio material (People v. Rosario, 9 N.Y.2d 286 [1961];People v. Consolazio, 40 N.Y.2d 446 [1976] ) just prior to trial, defendant moved on September 9, 2011 to re-open the Wade hearing to permit the calling of the civilian witnesses. The statements indicated that the male eyewitness, James Juliano, on being dispatched by the police to bring his wife and daughter outside to view the defendant, had called to them to come downstairs, informing them that he had just identified the individual being detained by the officers as the robber. ( See Chuyn II, supra, at *2). Defendant sought at the re-opened hearing to suppress pre-trial and in-court identification testimony from the three complainants based on allegations of impermissibly suggestive conduct either by police or by the civilian eyewitnesses themselves,² which he contended violated his federal and state rights to due process. He also asked the court to “expand the standard of review of any independent source analysis consistent with eyewitness identification research and to permit the presentation of expert testimony on factors relevant to this analysis.” (Letter of Stephanie Kaplan, Esq., dated Oct. 3, 2011, at 3).³

In Chuyn II, this court granted defendant's motion to re-open the Wade hearing for the purpose of calling the three civilian eyewitnesses in order to determine whether defendant's federal or state constitutional rights to due process under the Fourteenth Amendment (U.S. Const. amend. XIV)⁴ and the New York Constitution ( N.Y. Const. art. I, § 6) were violated by police action which may have resulted in undue suggestiveness influencing the identifications of defendant by the two female eyewitnesses at a show-up at the scene.⁵ In particular, the court stated that the hearing would address “matters relating to the police officers' conduct which may not have been fully explored at the original Wade hearing, such as whether the officers took any steps to avoid the risks inherent in deputizing a civilian to assist in the show-up procedure, and if so, what they were, and whether they were followed by Mr. Juliano.” ( Chuyn II, supra, slip op. at *5). This court further advised both parties that they should be prepared at the re-opened hearing for the possibility of the court finding impermissible suggestiveness attributable to the police, triggering the need for the prosecution to prove by clear and convincing evidence that the identifications made by one or both of the female eyewitnesses emanated from sources independent of any tainted police action or inaction. ( Chuyn II, supra, slip op. at *12–*13, citing People v. Wilson, 5 N.Y.3d 778, 780, 802 N.Y.S.2d 112, 835 N.E.2d 1220 [prosecution is “generally well-advised” to provide independent source evidence at Wade hearing to enable court to rule in alternative] ). Defendant's application to present an expert on eyewitness identification at any independent source hearing was denied, with leave to renew upon a specific showing of relevance and need as to the particular evidence in question, made in conformity with the standards for admission of such evidence at trial ( see Chuyn II, at *15–*18 following People v. LeGrand, 8 N.Y.3d 449 [2007] ),⁶ and without prejudice to its renewal for purposes of trial.⁷

After further consultation with the parties, by letter dated February 7, 2012, this court notified both counsel that the re-opened Wade hearing would be conducted in bifurcated fashion, initially addressing the issue of undue police suggestiveness in the show-up procedure, and, thereafter, addressing the issue of independent source, if necessary. ( See People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608,cert. denied,498 U.S. 833 [1990] [absent a showing of impermissible suggestiveness, no need to demonstrate independent source] ). On February 10, 2012, the re-opened Wade hearing was held, at which the three eyewitnesses testified, solely on the suggestiveness issue as to the show-up presented to Wendy Juliano and Sandra Juliano.

Subsequent to the re-opened hearing, defendant renewed his application to introduce expert testimony at the Wade hearing, specifying particular subject areas of the proposed testimony, and seeking for the first time to introduce such evidence at both the suggestiveness and independent source portions of the hearing. (Letter from Stephanie Kaplan, Esq., dated Feb. 17, 2012 [Kaplan 2/17/12 letter] ).⁸ The People did not respond to this proffer.

Both parties thereafter submitted post-hearing memoranda on the issue of police suggestiveness, focusing on the following issues: the need for a show-up involving Wendy and Sandra Juliano after James Juliano had pointed defendant out to police; the officers' decision to dispatch Mr. Juliano to summon his wife and daughter downstairs without properly instructing him to avoid suggestive comments; the circumstances of the show-up, including defendant being visible from inside the building, wearing handcuffs, being surrounded by three police officers, and being viewed simultaneously by two witnesses; the effect of joint interviews of the witnesses by the police prior to the show-up; and the cumulative effect of all of these factors.

(Defendant's Supplemental Motion to Suppress, filed Mar. 5, 2012; Letter from Nicholas Viorst, Esq., dated Mar. 7, 2012).In a series of subsequent letters to the court, the parties continued to disagree about the weight to be given by the court to the subjective assessments by the civilian witnesses of the influence of comments of their family members in assessing the reliability of their identification testimony. (Letters of Stephanie Kaplan, Esq., Mar. 12 and 15, 2012; Letter of Nicholas Viorst, Esq., Mar. 14, 2012).

This decision and order constitutes this court's amended ruling on the Wade hearing, as well as a resolution of defendant's renewed request to introduce expert testimony on eyewitness identification at both phases of the hearing.

II. THE RE–OPENED WADE HEARINGA. Amended Findings of Fact

Except to the extent that they are amended as indicated below, I adhere to my essential findings of fact in Chuyn I, which are incorporated in this decision by reference. Further, I find all three civilian eyewitnesses who testified at the re-opened Wade hearing to have been credible.

1. Police Officer Carini's instructions to James Juliano on dispatching him to get his wife and daughter

James Juliano's testimony confirms that when Officer Carini dispatched him to summon his wife and daughter, neither Carini nor any other police officer gave Mr. Juliano instructions regarding his communications to his family members. In fact, Mr. Juliano credibly testified that he was sure that the officer said nothing more to him than “Call your wife and daughter” (Tr. Feb. 10, 2012, at 12), and that Carini offered no explanation as to his purpose in having him do so.⁹ The situation was chaotic, with Carini and his partner unable to subdue Mr. Chuyn and requiring Carini to enlist Officer Leier to assist them. He was more likely barking orders in order to dispatch James Juliano immediately in order to get the two witnesses quickly to a show-up, while continuing his own efforts to place Mr. Chuyn in handcuffs, rather than engaging in any discursive explanation of his actions to the witness who had just dramatically contradicted his earlier negative identification of defendant. In any case, I am persuaded that James Juliano did not hear any statement by Carini of his purpose in summoning the two women, and the fact remains uncontroverted that Carini's direction to James Juliano was devoid of any instruction as to what he should tell his wife and daughter.

2. James Juliano's calling Wendy and Sandra Juliano downstairs

James Juliano, consistently with Officer Sprunger's earlier testimony, testified that he did not say “I think we have the guy” or anything other than “Wendy, Sandra, come down.”

Sandra Juliano, who was the most...