People v. Hargrove
| Decision Date | 18 April 2018 |
| Docket Number | Index No. 10150/91,2015–04231 |
| Citation | 75 N.Y.S.3d 551,162 A.D.3d 25 |
| Parties | The PEOPLE, etc., appellant, v. Rosean HARGROVE, respondent. |
| Court | New York Supreme Court — Appellate Division |
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel), for appellant.
Edelstein & Grossman, New York, N.Y. (Jonathan I. Edelstein, Pierre Sussman, and Robert M. Grossman of counsel), for respondent.
MARK C. DILLON, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.
The defendant in this case has remained behind bars for more than two decades for a crime that he has consistently maintained he did not commit. The Supreme Court, on the basis of newly discovered evidence, vacated the defendant's judgment of conviction and ordered a new trial.
The People have appealed from the Supreme Court's order. While the issues implicated by this case represent some of the most pressing and contentious matters facing the criminal justice system today, the People have chosen to focus their appeal on an array of procedural and evidentiary arguments, largely ignoring the major underlying issues at stake.
But these rules of procedure and evidence are not to be invoked for their own sake. They do not exist solely as an arsenal to be ranged against the accused or the imprisoned. They exist so that truth may emerge from their considered application. Indeed, it requires no earth-shattering pronouncement to state simply what centuries of jurisprudence make clear: that justice is the whole of the law.
And although our institutions of law enforcement are the bedrock of our system of justice, they do not deserve our blind faith or allegiance. When we succumb to that temptation we abdicate our duty to ensure that justice is done in every case and under every circumstance. Society's allegiance and faith must be earned through our labors and consistently reaffirmed by our decisions. Recognition of our errors does not make our system weak, it makes it resilient. When we ignore our errors or seek to avoid confronting them, we imperil the very foundations of our legitimacy.
In this case, the Supreme Court determined that evidence of prior police misconduct, if known to the court and the jury, would have created a probability of a more favorable verdict to the defendant. As such, the trial court acted appropriately when it vacated the conviction and ordered a new trial. For the gravest manner of injustice that we know is the imprisonment of a fellow human being for a crime that he or she did not commit.
Through it all, we cannot say whether the defendant is guilty or whether justice has ultimately been done in this case. But that is precisely why the defendant is entitled to a new trial. Accordingly, we affirm the order insofar as appealed from.
In the early morning hours of August 13, 1991, Rolando Neischer and Robert Crosson sat in a car in front of the Kingsborough housing projects in Brooklyn, New York. The two men both lived in the housing project and had known each other for their entire lives. They both worked as correction officers at Rikers Island.
Neischer and Crosson sat in the car and talked for about an hour. Neischer sat in the driver's seat and Crosson was seated next to him in the front passenger seat. The windows of the car were open.
Sometime around 4:00 a.m., while Neischer and Crosson were sitting and talking, two people approached the car on bicycles. One of the individuals was on the driver's side of the car and the other was on the passenger's side. As soon as the individuals came up to the car they displayed guns and told Neischer and Crosson to "get the fuck out the car."
Neischer opened the driver's side door of the car and as soon as he got out, Crosson saw the individual on the driver's side fire a gun. While the shots were being fired, the individual on the passenger side told Crosson to "get the fuck out of the car." The individual on the passenger side pointed a gun in the car and Crosson "put [his] hands up to [his] face because the gun was pointed right at [his] face." Then the gun "went off" and Crosson was hit in the hand.
Crosson thought he had been shot in the head because blood was rushing down his head. He got out of the car and kneeled down beside it. He put both of his hands over his head and assumed a somewhat crouched position. He later testified that he looked up at one of the perpetrators. When the two perpetrators got into the car, Crosson ran towards the housing project. After the car drove off, Crosson ran back to the street and looked for Neischer, but he "didn't see him." Crosson then ran to get help.
Crosson came upon a police car as soon as he went around the corner. Crosson ran to the police car and identified himself as a correction officer. Crosson returned to the scene of the crime with the police officers. They found Neischer on the ground "[a]bout a half-block" down the street, reloading the .38 caliber handgun that he had been carrying with him that night. Six .38 caliber spent shell casings were recovered at the scene.
Neischer was transported from the scene in an ambulance. Crosson accompanied him. Neischer, who sustained a total of five gunshot wounds
, later died as a result of those injuries. Crosson was treated for a gunshot wound to his hand.
Police officers responding to the scene observed two bicycles lying on the ground on opposite sides of the street at the location of the shooting. Fingerprint evidence was recovered from at least one of the bicycles. Blood samples were also recovered from the bicycles. The blood evidence was submitted to the police laboratory later on the date of the shooting for a comparison with Neischer's blood.
Less than 24 hours after the shooting, an unidentified individual at the police precinct received a telephone call from an anonymous caller. After learning of the telephone call, Louis Scarcella, then a detective with the New York City Police Department, responded to 230 Lott Avenue in Brooklyn with his partner, Detective Steven Chmil, and another detective named John Barba. The detectives proceeded to the second floor of the building where they arrested the defendant in the hallway.
After the defendant was handcuffed, the defendant was informed that he was being charged with attempted murder. The defendant was 17 years old at the time.
The defendant was subsequently taken to the police precinct where he was placed in a lineup. Crosson viewed the lineup and identified the defendant as one of the perpetrators. Crosson had previously selected the defendant's photograph from a group of photographs that were shown to him by Detective Chmil.
Police recovered Neischer's vehicle at a location in Brooklyn the day after the shooting on August 14, 1991. The car had a flat tire and there was blood on the driver's side door frame. A bullet was recovered from the tire. Blood was also observed inside the car on the seats. Fingerprints and palm prints were lifted by police investigators from the stolen vehicle. The "numerous blood samples" recovered from the vehicle were sent to "be processed further at the lab."
The defendant and a 14 year old named John Bunn (hereinafter the codefendant) were charged with two counts of murder in the second degree, attempted murder in the second degree, robbery in the first degree, two counts of assault in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree.
The defendant and the codefendant moved to suppress Crosson's identification and were granted a hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639. The suppression hearing took place on September 9, 1992, before the Honorable Gloria Goldstein, a Justice of the Supreme Court, Kings County.1
Prior to the hearing, the prosecutor noted that there were "a lot of latent palm prints" that were recovered from the stolen vehicle. He requested that the defendant and the codefendant submit their palm prints for comparison. The defendant voluntarily agreed to provide "whatever" prints the prosecutor requested. The codefendant also agreed to submit his palm prints, and additionally volunteered to undergo "a polygraph."
The People presented the testimony of Detectives Barba, Chmil, and Scarcella in order to sustain their burden of demonstrating that the police did not use any impermissible procedures in conducting the pretrial identifications, that the series of photographs and the composition of the lineups were not unduly suggestive, and that the defendant's arrest did not violate Payton.
Detective Chmil testified that Detective Barba and his partner, Detective Scarcella, were "the assigned detective[s]" in charge of investigating the shooting. Detective Chmil testified that Crosson went to the police precinct to look at photographs on August 13, 1991—the same day as the shooting. Detective Chmil put together a series of six photographs to show Crosson. When he was asked how he chose the photographs that he showed to Crosson, Detective Chmil testified: "I just opened the drawer which contained about 5, 6 hundred color photos and just randomly picked out 6 photos." Detective Chmil further testified that he intentionally put the defendant's photograph in the middle.
Detective Chmil testified that he spoke to Crosson before he assembled the photographs, but that Crosson was not present when the six photographs were selected. Detective Scarcella was present with Detective Chmil in the detective squad office when the photographic array was shown to Crosson. No other police officers were present at that time.
Detective Chmil handed Crosson the six color photographs in "looseleaf" form, and asked Crosson if he recognized anyone....
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