People v. Clemons

• Decision Date: 30 October 1990
• Citation: 561 N.Y.S.2d 425,166 A.D.2d 363
• Parties: PEOPLE of the State of New York, Respondent, v. Chris CLEMONS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 425

561 N.Y.S.2d 425

166 A.D.2d 363

PEOPLE of the State of New York, Respondent, v. Chris CLEMONS, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Oct. 30, 1990.

Before MURPHY, P.J., and ROSS, CARRO and ROSENBERGER, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County (Dennis Edwards, J.), rendered on December 4, 1986, convicting defendant, after a trial by jury, of two counts of robbery in the first degree and one count of assault in the first degree, and sentencing him, as a predicate felon, to concurrent terms of 12 1/2 to 25 years' imprisonment on each robbery count and to 7 1/2 to 15 years' imprisonment on the assault count, is unanimously reversed, on the law and as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court for a Huntley hearing and a new trial.

After the complainant left the restaurant where he was working on March 29, 1986, he went to a bar and then to a motel with a woman he had met at the bar. When he left the motel at 5:00 A.M., he decided to walk for a while to clear his head before driving home. As he walked up 42nd Street, defendant, who was dressed as a woman, tapped him on the shoulder and made a sexual offer. The complainant refused and began to walk away but defendant approached him from behind, cut his right pants' leg with a sharp instrument and removed the complainant's wallet. Defendant then cut the complainant's face, chest and hand before fleeing across 42nd Street.

The complainant followed and three young men from New Jersey joined in the chase. While one of the men from New Jersey cornered defendant by a fence and tried to detain him by punching him, the complainant, who was bleeding, approached Officers Charlton and Holihan and told them to go after defendant. The officers had also witnessed the fight between defendant and the complainant. Officer Charlton subdued defendant and handcuffed him to the bumper of his police truck where he was identified by the men from New Jersey. The complainant arrived with Officer Holihan a few minutes later and also identified defendant as his assailant. A utility knife and a wig were recovered from a nearby alley.

Defendant testified that he was a transvestite working as a prostitute on March 29, 1986 and that while he was standing on the corner of 42nd Street and Tenth Avenue, the complainant approached and asked him for a "date". Defendant told him it would cost $100 and went with the complainant to a parking lot. The complainant refused to pay and slapped defendant who then slapped him back. A struggle ensued, and, when defendant realized that the complainant had cut him, he grabbed the knife and started swinging it at the complainant. He then ran down the street but was stopped by the police and the men from New Jersey who punched and kicked him.

We disagree with defendant's contention that the Supreme Court erred in denying his motion to suppress identification testimony. While showup identifications are strongly disfavored, they are permissible where suspects are captured at or near the crime scene and can be viewed by witnesses immediately (People v. Riley, 70 N.Y.2d 523, 529, 522 N.Y.S.2d 842, 517 N.E.2d 520; People v. Brown, 158 A.D.2d 375, 551 N.Y.S.2d 230, app. denied, 76 N.Y.2d 731, 558 N.Y.S.2d 893, 557 N.E.2d 1189). The fact that defendant was handcuffed at the time of the showups did not warrant the suppression of the identification evidence (People v. Muhammad, 159 A.D.2d 266, 552 N.Y.S.2d 267, app. denied, 76 N.Y.2d 740, 558 N.Y.S.2d 901, 557 N.E.2d 1197). Defendant was apprehended within minutes of the crime after a chase in which he remained within sight of the complainant and then of the officers (see, People v. Muhammad, supra).

We do agree with defendant, however, that the cumulative effect of the errors committed by all the participants at this trial requires a reversal of his conviction (People v. Dowdell, 88 A.D.2d 239, 453 N.Y.S.2d 174). While some of the errors were not objected to by defense counsel, we reach them in the interest of justice.

Initially, the trial court erred in denying defendant's motion for a Huntley hearing. In his omnibus motion, defense counsel claimed that a statement made by his client to the police was involuntarily made because defendant had not been advised of his Miranda rights. He further claimed that the pain defendant suffered as a result of beatings he sustained at the time of his apprehension prevented him from understanding the warnings even if they had been administered. The court denied the motion after the prosecutor represented that defendant's statement would only be used for impeachment purposes. The prosecutor, over defense counsel's objection, used the statement on cross-examination to impeach defendant's testimony. An officer also testified to defendant's statement on rebuttal.

CPL 710.60 mandates that a Huntley hearing be held whenever defendant claims that his statement was involuntary (People v. Weaver, 49 N.Y.2d 1012, 429 N.Y.S.2d 399, 406 N.E.2d 1335). Had defendant's claim that his statement was involuntary been substantiated at a Huntley hearing, the prosecutor would have been precluded from using it to impeach defendant's testimony (Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290; People v. Maerling, 64 N.Y.2d 134, 485 N.Y.S.2d 23, 474 N.E.2d 231).

Defendant was deprived of a fair trial by the misconduct of the prosecutor, whose questioning and comments during summation exceeded the bounds of legitimate advocacy (People v. Hicks, 102 A.D.2d 173, 478 N.Y.S.2d 256). At the conclusion of a Sandoval hearing, the court ruled that the prosecutor would be permitted, should defendant testify at trial, to inquire whether defendant had previously been convicted of one felony and two misdemeanors. The prosecutor was also permitted to ask one question with respect to warrants which had been issued for defendant....