People v. Cruz

• Decision Date: 02 June 2015
• Docket Number: 643/10
• Citation: 10 N.Y.S.3d 214,2015 N.Y. Slip Op. 04597,129 A.D.3d 119
• Parties: The PEOPLE of the State of New York, Respondent, v. Thomas CRUZ, Defendant–Appellant. The People of the State of New York, Respondent, v. Kareem Santiago, Defendant–Appellant. The People of the State of New York, Respondent, v. Dimitri Marshall, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 119

10 N.Y.S.3d 214

2015 N.Y. Slip Op. 04597

The PEOPLE of the State of New York, Respondent

v.Thomas CRUZ, Defendant–Appellant.

The People of the State of New York, Respondent

v.Kareem Santiago, Defendant–Appellant.

The People of the State of New York, Respondent

v.Dimitri Marshall, Defendant–Appellant.

643/10

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

June 2, 2015.

Steven Banks, The Legal Aid Society, New York (Frances A. Gallagher of counsel), for Thomas Cruz, appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno and James D. Gibbons of counsel), for Kareem Santiago, appellant.

Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee of counsel), and Fried, Frank, Harris, Shriver & Jacobson LLP, New York (Victorien Wu and Jennifer L. Colyer of counsel), for Dimitri Marshall, appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Susan Axelrod of counsel), for respondent.

LUIS A. GONZALEZ, P.J., PETER TOM, DIANNE T. RENWICK, JUDITH J. GISCHE, and BARBARA R. KAPNICK, JJ.

Opinion

GISCHE, J.

Central to each of these appeals is the issue of whether a showup identification of the defendants made by the complainant in a nearby garage, approximately one hour after a 911 call reporting a crime, is unreliable because it was the product of an unduly suggestive procedure. Police officers Myskowsky and Mitchell were the only witnesses who testified at a Wade hearing challenging the identification. They were credible witnesses and the facts regarding the circumstances of the showup identifications are not disputed.

In reviewing the propriety of the showup identification we are, of course, limited to consideration of only the evidence presented at the suppression hearing (People v. Riley, 70 N.Y.2d 523, 531–532, 522 N.Y.S.2d 842, 517 N.E.2d 520 [1987] ; see People v. Gagner, 59 A.D.3d 963, 963, 872 N.Y.S.2d 623 [4th Dept.2009], lv. denied 12 N.Y.3d 816, 881 N.Y.S.2d 24, 908 N.E.2d 932 [2009] ). The dissent's consideration of facts later adduced at trial cannot be relied upon to substantiate an otherwise improper pretrial identification.

The following facts were adduced at the suppression hearing:

The complainant was attacked at night by a group of men as she walked home from work along West 90th Street on the uptown side between Columbus and Amsterdam Avenues. She was thrown to the ground, punched, and kicked, and her bag was taken from her. Her assailants then fled through a housing complex, heading uptown towards 91st Street. Officers Myskowsky and King, who were first to respond by patrol car to the 911 call, picked up the complainant at her apartment building and proceeded to drive her around the neighborhood for 15 to 20 minutes looking for suspects. According to Officer Myskowsky, the complainant described her attackers as “three or four male blacks, teens ...” No other description was given.

Several other officers responded to the call as well. Officer Mitchell, who was in a separate patrol car, initially canvassed the area with no success, but the search for suspects then focused on a garage with a roll down gate located about 1/4 of a block away from where the complainant had been attacked. Officer Myskowsky was directed to bring his car to the garage. Once he observed that the other officers had gained access to the garage on foot, he left and drove the complainant to the precinct on 100th Street, where she was treated by EMS.

Officer Mitchell was one of seven officers who searched the garage, which was located down a flight of stairs. The officers found a purse outside a locked boiler room. The Emergency Services Unit of the New York Police Department was contacted to come break open the locked door. Once inside the boiler room, the officers found defendant Dimitri Marshall lying on the floor. A plastic bank or credit card belonging to the complainant was located near him and to his left was a gun. Defendants Thomas Cruz and Kareem Santiago were found inside an opening or well in the floor of the boiler room. The well, which was covered by a grate, was described as being dirty and sooty when opened. A plastic bag containing one eighth of an ounce of crack cocaine was recovered from that area. Following a physical struggle between the officers and defendants, defendants were arrested and placed in handcuffs.

Approximately 15 minutes after he returned to the precinct, Officer Myskowsky was instructed to drive the complainant back to the garage for a showup identification. They arrived at the garage shortly after defendants had been arrested and approximately one hour after the 911 telephone call had been placed. During their ride from the precinct to the garage, Officer Myskowsky explained to the complainant “that [there are] people stopped in the garage” and told her that “she was to look at them and let me know if [she's] seen them before.”

Officer Myskowsky drove into the garage where he encountered a “large group of people” inside. The group included defendants who were standing side by side, just outside the boiler room. Although no handcuffs were readily visible, each defendant had his hands behind his back and Officer Myskowsky stated he assumed they were handcuffed “because they had their hands behind their backs in that position.” Officer Mitchell was physically holding onto Santiago, who had sustained a laceration to his face during his struggle with police. Other than the complainant, defendants were the only civilians present. Two uniformed officers stood to the right of defendants and two other uniformed officers stood on their left side. Another three or four uniformed officers stood behind them. Including ESU, there may have been eight or more officers in the garage surrounding defendants. All three defendants, particularly Cruz and Santiago, were visibly dirty and, as Officer Mitchell described it, covered with soot from head to toe, including their faces. No effort was made to clean up defendants before they were shown to the complainant.

When Officer Myskowsky drove his patrol car into the garage, he already had his headlights on. He then turned on the takedown lights mounted on the hood of his car, pointing them directly ahead in the direction of the defendants. The garage was well lit, even without the patrol car lights. As Officer Myskowsky described it, the overhead lighting was “pretty good” and “it wasn't dark before the car came in.” He stopped his vehicle approximately 20 to 30 feet away from the group and got out of the patrol car, leaving the complainant seated in the rear. Officer Myskowsky then positioned himself to speak with the complainant and asked her to look at the individuals. Although there was a mesh divider between the back and front seats of the car, and the complainant looked at the individuals through the front windshield, Officer Myskowsky testified, without contradiction, that the complainant had a clear view of the individuals she was asked to identify. After looking at the three men, she identified them as the men who had robbed her, but according to Officer Myskowsky, the complainant also stated that they looked different than when they had attacked her because they were “dirty.”

Officer Mitchell, who testified that he pulled Santiago out of the well and was holding on to him, stated that when Santiago was shown to the complainant, he was covered with soot and had a laceration on his nose. The officer could not tell if the cut was bleeding, because “he was still covered in it,” an apparent reference to the soot. Despite his appearance, Officer Mitchell stated that no effort was made to clean up Santiago's face. When asked at the Wade hearing whether it was reasonable to say that Santiago's face was much darker in the garage than it appeared “right now” (in court), Officer Mitchell responded “it was a little darker, yes.” Santiago is not black, but a light skinned Hispanic. None of the defendants were teenagers at the time of the crime.

The Court of Appeals has repeatedly held that showup identifications are strongly disfavored because they are suggestive by their very nature (People v. Ortiz, 90 N.Y.2d 533, 664 N.Y.S.2d 243, 686 N.E.2d 1337 [1997] ; People v. Johnson, 81 N.Y.2d 828, 595 N.Y.S.2d 385, 611 N.E.2d 286 [1993] ; People v. Riley, 70 N.Y.2d 523, 522 N.Y.S.2d 842, 517 N.E.2d 520 [1987] ). However, they are not presumptively infirm and are permissible where exigent circumstances exist requiring immediate identification (see People v. Rivera, 22 N.Y.2d 453, 455, 293 N.Y.S.2d 271, 239 N.E.2d 873 [1968]cert. denied 395 U.S. 964, 89 S.Ct. 2107, 23 L.Ed.2d 750 [1969] ) or if the suspects are captured at or near the crime scene and can be viewed immediately (see Riley, at 529, 522 N.Y.S.2d 842, 517 N.E.2d 520 ).

Examples of exigency include the police needing to know whether they have apprehended the right person or whether they should keep looking for other suspects, or when the victim has been mortally wounded and is not expected to survive his or her injuries to later identify his or her attacker (see People v. Howard, 22 N.Y.3d 388, 402, 981 N.Y.S.2d 310, 4 N.E.3d 320 [2013] ). Even in the absence of exigent circumstances, a showup identification may still be permissible if it took place at or near the scene of the crime, shortly after it was committed and in the context of a continuous, ongoing investigation (People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611 [2003] ).

Although prompt showup identifications which are conducted in close geographic and temporal proximity are not presumptively infirm, they are not routinely admissible either (see Ortiz, at 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337 ), but must be examined further to see whether they are part of an unbroken chain of events, or ongoing investigation (People v. Duuvon, 77 N.Y.2d 541, 543–545, 569 N.Y.S.2d 346, 571 N.E.2d 654 [1991] ). “Promptness” varies from case to case (see Howard, at 402, 981 N.Y.S.2d 310, 4...