People v. Dunbar
| Decision Date | 05 June 2020 |
| Docket Number | 1217/2009 |
| Citation | 135 N.Y.S.3d 575,70 Misc.3d 734 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Jermaine DUNBAR, Defendant. |
| Court | New York Supreme Court |
For the Defendant: Lori Zeno, The Queens Defenders, Queens, New York (Kenneth Deane, Esq., of counsel)
For the People: Melinda Katz, District Attorney of Queens County (Sharon Brodt, Esq., and Jonathan Selkowe, Esq., of counsel)
Joseph A. Zayas, J. Defendant Jermaine Dunbar has been convicted twice, after two jury trials, of robbery charges. The first judgment was reversed because the Appellate Division concluded, and the Court of Appeals later agreed, that certain statements defendant made after his arrest should have been suppressed. The second judgment is pending on direct appeal. In an interim decision and order, the Appellate Division agreed with the defendant's contention that his application to reopen the suppression hearing, made prior to his re-trial, should have been granted. As a result, the Appellate Division held the appeal in abeyance and remitted the matter to this Court "for a suppression hearing on issues raised as a result of newly discovered evidence"—namely, information from "an unidentified and anonymous bystander"—and, thereafter, to issue a report reconsidering "those branches of the defendant's omnibus motion which were to suppress physical evidence and identification evidence" ( People v. Dunbar , 178 A.D.3d 948, 948, 116 N.Y.S.3d 293 [2d Dept. 2019] ). The remittal required the Court to assess the reliability and import of statements made to the police by a civilian eyewitness who made no attempt to hide his identity, but whose name and contact information the police never obtained due to the exigencies of a quickly unfolding investigation, and to distinguish those circumstances from those in which anonymous witnesses who insist upon anonymity provide tips to law enforcement. The Court, having held a hearing, concludes that the "newly discovered evidence" does not warrant suppression of either physical evidence or identification testimony.1
On April 23, 2009, defendant was arrested and charged with attempting to rob Rapid Multi-Services (a business that, among other things, facilitated money transfers), with what appeared to be a handgun. Defendant was arrested within minutes of the attempted robbery, in a livery cab with New Jersey plates that was heading towards the Grand Central Parkway.
On the floor beneath where defendant had been sitting in the backseat, police officers found a baseball hat, a striped shirt, and a BB gun. Defendant was identified as the perpetrator by the sole employee at Rapid Multi-Services who was present during the incident when she was brought to the scene of the car-stop for a show-up identification procedure.
Defendant was indicted for attempted second-degree robbery and other lesser related offenses. He moved, in an omnibus motion, to suppress the baseball hat, striped shirt, and BB gun, as well as identification testimony.
At the pre-trial hearing, the People called two police officers to describe the circumstances of defendant's arrest. The first, Police Officer Francis DiLiberto of the 115th Precinct, recounted that, on the afternoon of April 23, 2009, he was working, along with several partners, as part of a conditions unit. At around 12:40 p.m., when the officers were on Roosevelt Avenue, near 112th Street, they received a radio report of a gunpoint robbery in progress, at a location on 108th Street. The perpetrator was described as a black male, wearing a blue and white striped shirt, traveling in a "black livery with New Jersey plates."
The officers began to canvass the area for the vehicle. They made a right turn onto 114th Street and headed south towards 41st Avenue. At that location — six blocks from the scene of the reported robbery — DiLiberto saw a black livery car with New Jersey plates heading in the opposite direction. The officers turned on their lights and stopped the car. DiLiberto used the loudspeaker to order the two occupants — the driver and a passenger in the back seat (the defendant) — to put their hands up. Although the driver quickly complied, defendant did not. The officers got out of their van, approached the car with their guns drawn, removed both men and handcuffed them. On the floor of the car, beneath where defendant had been sitting, DiLiberto saw, in plain view, a Yankee hat, a blue and white striped shirt, and a black handgun. All of this had occurred, DiLiberto estimated, within about three minutes of receiving the radio run.
The second officer who provided information about defendant's arrest was Detective Peter Linke of the 110th Precinct. On the afternoon of the robbery, Linke testified, he was assigned to a plainclothes anti-crime unit. He was working with three partners, in an unmarked car.
When Linke received a radio transmission of an armed robbery in progress (involving a black male perpetrator wearing a striped shirt, traveling in a livery cab with New Jersey plates), he and his partners headed towards the scene. But they were redirected when they heard that a suspect had been stopped. When they arrived at 114th Street, defendant was being removed from a black car and placed in handcuffs.
During Detective Linke's cross-examination, it became apparent that defense counsel knew that the complaining witness from Rapid Multi-Services (Anunciacion Betancourt) was not the source of the information about the livery cab with New Jersey plates. In fact, during a sidebar discussion, defense counsel told the judge that she "[had] the 911 tape and [Betancourt] didn't say anything about that." Linke, however, could not clarify the issue; he acknowledged that he did not know who had provided the description of the vehicle.
The issue of who provided the police with the information about the vehicle in which defendant fled from the scene of the attempted robbery was not resolved by the court (McGann, J.) at the suppression hearing. In its decision and order denying suppression of the evidence recovered from the car and testimony concerning the show-up identification that occurred shortly after the stop, the court held that the unattributed radio transmissions amounted to reasonable suspicion.
Defendant was convicted after trial in 2010. On appeal, the Appellate Division reversed the judgment, holding that inculpatory statements defendant made at Queens Central Banking should have been suppressed ( People v. Dunbar , 104 A.D.3d 198, 207-214, 958 N.Y.S.2d 764 [2d Dept. 2012] ). The Court of Appeals affirmed that determination ( People v. Dunbar , 24 N.Y.3d 304, 316, 998 N.Y.S.2d 679, 23 N.E.3d 946 [2014] ).
When defendant's retrial was about to commence, in the summer of 2016, the prosecutor revealed seemingly new information about why the livery cab with New Jersey plates was stopped. Then-Sergeant Aaron Edwards2 — who had responded to the scene of the robbery, spoken with Betancourt, and then brought her to the location where the livery cab had been stopped for a show-up — had a vague recollection of the source of the description of the car. According to the prosecutor, Edwards believed that either Betancourt, or a bystander translating for Betancourt (who spoke Spanish), or the bystander independently, had provided the information.
In light of this development, defense counsel moved to re-open the suppression hearing (see CPL 710.40 [4] ), contending that, if the description of the car came from an "anonymous" or "unknown" source, an Aguilar - Spinelli inquiry into the witness's reliability and basis of knowledge (which was not engaged in by the hearing court) would be necessary ( Spinelli v. United States , 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 [1969] ; Aguilar v. Texas , 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 [1964] ). After a lengthy discussion, the court (Lopez, J.) denied the motion.
Defendant was convicted after his second trial as well, and he appealed again to the Appellate Division, which agreed with his claim that the suppression hearing should have been reopened based on the prosecutor's representations regarding Edwards' limited recollection of how he learned about the livery cab with New Jersey plates. The court reasoned that "[t]he information that the livery car description came from an unidentified and anonymous bystander would have affected the earlier suppression determination by placing squarely before the court questions regarding the identity and reliability of the person who described the livery car" ( People v. Dunbar , 178 A.D.3d 948, 950, 116 N.Y.S.3d 293 [2d Dept. 2019], citing, among other cases, Florida v. J.L. , 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 [2000] ). The court further found that, "because [Edwards] did not previously testify in the case, [this information] could not have been discovered with due diligence by the defendant" prior to the resolution of the original suppression motion ( Dunbar , 178 A.D.3d at 950, 116 N.Y.S.3d 293 ).
At the reopened suppression hearing, the People called one witness, Captain Aaron Edwards of the 7th Precinct in Manhattan. The defense did not call any witnesses, but introduced into evidence an excerpt from the retrial transcript during which, as recounted above, the prosecutor suggested that Edwards could not recall the precise source of the information about the livery cab.
Captain Edwards testified that, in April of 2009, he was a Sergeant with the 110th Precinct. On April 23, 2009, he was assigned to "supervise patrol functions," which consisted of "responding to serious incidents," among other things. His partner was Police Officer LaRosa. Both officers were in uniform and traveling in a marked patrol car.
At around 12:30 p.m., Edwards received a radio transmission from central dispatch...
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