People v. Dubinsky
| Decision Date | 17 December 2001 |
| Citation | 289 A.D.2d 415,734 N.Y.S.2d 245 |
| Court | New York Supreme Court — Appellate Division |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>LENNIE DUBINSKY, Appellant. |
Altman, J. P., Goldstein, McGinity and Cozier, JJ., concur.
Ordered that the judgment is reversed, on the law, that branch of the defendant's omnibus motion which was to suppress identification testimony is granted, and a new trial is ordered, to be preceded by an independent source hearing.
We agree with the defendant's contention that the police lacked reasonable suspicion to stop and detain him on the street. Vague and general descriptions are not sufficient to constitute reasonable suspicion (see, People v Stewart, 41 NY2d 65, 69; People v Dawkins, 163 AD2d 322, 324). Here, the only description that the police officers had of the robbers was that they were two white males, 15 to 16 years old, who were wearing dark jackets that might be black or blue. The defendant was stopped approximately six blocks southwest of the location of the crime, was alone, and was walking towards the direction where the robbery had occurred only 15 minutes earlier. Moreover, while the arresting officer, the only witness to testify at the suppression hearing, insisted that he did not see anyone who fit the description other than the defendant, he also stated that he probably saw other white males who were "15, 16, or 17," but that he could not remember whether he saw other people who were wearing blue or black jackets in the busy commercial district. Indeed, his testimony at the hearing clearly shows that he stopped the defendant based on the fact that he recognized the defendant as someone who had been arrested at some time in the past. Accordingly, since the police lacked reasonable suspicion to stop the defendant, that branch of the omnibus motion which was to suppress the identification testimony should have been granted (see, People v Choy, 173 AD2d 883; but see, People v Grant, 130 AD2d 683).
The showup identification was also unduly suggestive. Standing alone, the fact that the unrestrained defendant was flanked by plainclothes police officers did not render the showup identification unduly suggestive (see, People v McLaughlin, 132 AD2d 712; People v Grant, supra). However, the added fact that the arresting police officer told the witness to look in the "general direction" of the defendant while a spotlight, described by the officer at the hearing as a "take down" light or "alley" light, was shining on him, rendered the...
To continue reading
Request your trial
-
People v. James
...shined a spotlight on a defendant while telling a witness to look in the “general direction” of the defendant (People v. Dubinsky, 289 A.D.2d 415, 416, 734 N.Y.S.2d 245 ). Here, the active police involvement in the identification process—the police officers' draping of the shirt over the de......
-
People v. Lloyd
... ... by plainclothes police officers, but the arresting police ... officer also tells the witness to look in the "general ... direction" of the defendant while a light that described ... as a "take down" light or "alley" light ... is shining on the defendant. People v. Dubinsky, 289 ... A.D.2d 415 [2nd Dept. 2001] ... Here, ... the People failed to meet their burden of establishing that ... the showup identification by the complainant was proper and ... was not unduly suggestive. As a starting point, the People ... did not present the proper ... ...
-
People v. Polhill
...to stop and detain the defendant ( see People v. Stewart, 41 N.Y.2d 65, 69, 390 N.Y.S.2d 870, 359 N.E.2d 379;People v. Dubinsky, 289 A.D.2d 415, 416, 734 N.Y.S.2d 245;People v. Riddick, 269 A.D.2d 471, 704 N.Y.S.2d 270;People v. Yiu C. Choy, 173 A.D.2d 883, 571 N.Y.S.2d 83;People v. Dawkins......
-
People v. Reed
...and Perez got a good look at defendant on a well-lit street. The cases relied on by defendant ( see e.g. People v. Dubinsky, 289 A.D.2d 415, 734 N.Y.S.2d 245 [2d Dept. 2001]; People v. Yiu C. Choy, 173 A.D.2d 883, 571 N.Y.S.2d 83 [2d Dept. 1991] ), do not involve situations where the police......