People v. Harrell

• Decision Date: 11 July 1991
• Citation: 574 N.Y.S.2d 624,151 Misc.2d 803
• Parties: The PEOPLE of the State of New York, v. Waking HARRELL and Michael Julius, Defendants.
• Court: New York Supreme Court

Page 624

574 N.Y.S.2d 624

151 Misc.2d 803

The PEOPLE of the State of New York, v. Waking HARRELL and Michael Julius, Defendants.

Supreme Court, Criminal Term Bronx County, Part 46.

July 11, 1991.

Robert T. Johnson, Dist. Atty. (Patricia Carroll, Asst. Dist. Atty.), for the People.

Steven Kessler, New York City, for Waking Harrell.

Theodore Green, New York City, for Michael Julius.

PHYLIS SKLOOT BAMBERGER, Justice:

The defendants are charged with robbery in the first degree, attempted robbery in the second degree, grand larceny in the fourth degree, and criminal possession of stolen property in the fifth degree. Their omnibus motions requested Wade hearings arguing that the identifications of them made by the two complainants were suggestive. Witnesses at the hearing were Detective Thomas Casey and the complainant, Joakima Artis. The People were given the opportunity to call the eyewitness, Ilene Brown, but she did not appear in court and the hearing was closed without her testimony. The motion is denied because no police arranged procedure was used, the identifications did not take place in unduly suggestive circumstances, and Artis knew the defendants.

Testimony

On May 2, 1990, Detective Casey was assigned to investigate a robbery committed by six or seven people that occurred on April 26, 1990. In the course of his investigation, he spoke with Joakima Artis and Ilene Brown. They informed Casey that although they did not know the names of the people who had robbed them, they knew the people from the neighborhood and knew they hung out at one of the pizza shops on Castle Hill Avenue. Artis testified to how she knew the defendants. She said that she dated Amir Douglas, ¹ and that one day, about a year prior to the robbery, she was at a pizza shop with Douglas. Douglas spoke with the defendants and a person named Phillip Goodlet while she waited at the counter for her pizza. She looked around the shop and saw both defendants at the pizza shop for between five and fifteen minutes at a distance of six feet. She saw defendant Harrell at an angle. She also testified she had never spoken with either defendant, but had seen them five to ten times in a group of boys in the Castlehill projects, and that she was at the projects when she dated Douglas. Artis also testified that Brown lived in the project and dated Goodlet.

On May 2, 1990, in a telephone conversation, Casey made an appointment with Artis and Brown to pick them up and take them to the pizza shop to determine if they were able to identify anybody. Later that day, Casey took Artis and Brown to the pizza store designated by them. Casey had never seen the defendants before, either in person or in photo, did not know defendants' names, and did not know they were involved in the robbery, and did not know if they matched the descriptions of the robbers given earlier. On the way he told Artis and Brown they would all walk into the pizza shop, and they were to let him know if they saw anyone who took part in the robbery.

At about 5:50 p.m., Casey, his partner James Smith, Artis and Brown arrived at the pizza shop. There were no other police units at the scene, and Casey testified he did not want to create a commotion inside.

Artis and Brown entered the long and narrow shop. Artis went in first; Brown was slightly behind Artis, at her shoulder. The detectives were behind them. There were more than fifteen people in the shop. The video games were midway down the store on the left side and opposite the counter. Seven or eight people surrounded the video game and the defendants were standing there. Casey said Julius and Harrell were next to each other. Without any suggestion from the detectives, Artis on her own went over to the group of boys to see if any of them were involved. Artis and Brown said nothing as they walked into the store, before the identification or as it was made. Harrell was playing the video game and Julius was standing there with his profile in view and he turned directly toward Artis. Artis, disagreeing with Casey said that there were several people between Harrell and Julius. She saw Harrell first in profile and then he turned full face. Julius also turned and faced her. Almost immediately, at a distance of two to three feet, Artis pointed to the defendants with her finger and said "that's one and that's one." Brown agreed, saying "yes those are the ones."

The defendants were told they were under arrest. Artis and Brown left the shop followed by the detectives with the defendants.

On the way out, Brown identified Phillip Goodlet, who was sitting at the counter. Artis testified she did not see Phillip when she entered because he was facing the counter and she could not see his face. Goodlet was brought out of the shop with the defendants.

As they stepped out of the shop Casey asked Artis and Brown if the two people being held were those involved in the robbery. Casey wanted to be sure he had brought the right people from the store because he had been behind Artis and Brown during their identifications and there were several people at the video game. Artis and Brown reaffirmed their identifications. The defendants and Goodlet were put against the window of the shop with their backs to the street. They were frisked and then handcuffed together. Other police officers arrived and the defendants were recuffed separately.

Findings and Conclusions

1. There Was No Police Arranged Identification Procedure

Counsel argued that testimony about the identifications of the defendants as well as any in-court identification by Artis and Brown should be suppressed because the identifications were the result of police arranged procedures that were suggestive. The police arranged procedures were asserted to have begun when Detective Casey took Artis and Brown in a police car to the pizza shop, allowed them to enter the shop together and then permitted them to remain together as the identifications were made. To support its position, the defense cites People v. Newball, 76 N.Y.2d 587, 561 N.Y.S.2d 898, 563 N.E.2d 269 (1990), although just how Newball supports the position is never articulated.

There is no opinion that explicitly sets out the factors to be considered in determining whether a police arranged identification procedure has taken place. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967 1972, 18 L.Ed.2d 1199 (1967), spoke of the "practice of showing suspects singly to persons for the purpose of identification." United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967), described the procedure as a "confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence." The phrase that has frequently appeared in New York cases is "police-arranged confrontations between a defendant and an eyewitness ... for the purpose of establishing the identity of the criminal actor." People v. Gissendanner, 48 N.Y.2d 543, 552, 423 N.Y.S.2d 893, 399 N.E.2d 924 (1979); People v. Decker, 134 A.D.2d 511, 521 N.Y.S.2d 98 (2d Dept.1987); People v. Medina, 111 A.D.2d 190, 488 N.Y.S.2d 819 (2d Dept.1985); In re Leo T., 87 A.D.2d 297, 299, 451 N.Y.S.2d 147 (1st Dept.1982).

Traditionally, police arranged confrontations were lineups and showups, United States v. Wade, 388 U.S. at 229, 87 S.Ct. at 1933, and their photographic analogues, photo arrays and single photographs. Sobel, Eyewitness Identification § 1.2 (Clark Boardman 1989). There are three characteristics common to all of these procedures, and, not coincidentally, these three elements are consistent with the efforts set out above to define a police arranged procedure. The three characteristics are that (1) the police initiate a confrontation between two people; (2) one of them is a person known, believed, or suspected by the police to have committed a crime; and (3) the other person is known by the police to have been a victim or an eyewitness to a crime. Although this formulation is not expressly stated in the precedents, the case law supports the conclusion that a police arranged confrontation occurs only when all three factors are present. Of course, the issue of what is police arranged arises only if there is some sort of police involvement; where there is no police action of any kind in making the identification, there is no police arrangement. E.g., People v. Whisby, 48 N.Y.2d 834, 424 N.Y.S.2d 344, 400 N.E.2d 286 (1979); People v. Darnell, 146 A.D.2d 583, 536 N.Y.S.2d 505 (2d Dept.), lv. denied, 73 N.Y.2d 976, 540 N.Y.S.2d 1010, 538 N.E.2d 362 (1989); People v. Hunter, 173 A.D.2d 321, 575 N.Y.S.2d 460 (1st Dept.); People v. Cortes, 173 A.D.2d 319, 575 N.Y.S.2d 660 (1st Dept.). What is of concern is how to determine if police involvement necessarily means a police arranged procedure.

Where the police, by their conduct, have created the conditions for the confrontation with the purpose of having the known suspect and the known witness meet, there is a police arranged confrontation. Without this purposeful conduct, there is no such confrontation; the viewing is merely inadvertent. People v. Gonzalez, 61 A.D.2d 666, 403 N.Y.S.2d 514 (1st Dept.1978), aff'd, 46 N.Y.2d 1011, 416 N.Y.S.2d 239, 389 N.E.2d 834 (1979) (observation of defendant by complainant at the precinct while complainant was being interviewed and defendant was outside is not unlawful because the police were not at fault and the sighting was unavoidable); People v. Edwards, 160 A.D.2d 722, 553 N.Y.S.2d 798 (2d Dept.) (valid identification made by victim studying photographs at precinct when defendant is brought in; the presence of victim was unknown to arresting officer, who caught defendant after a high speed chase), lv. denied, 76 N.Y.2d 855, 560 N.Y.S.2d 995, 561 N.E.2d 895 (1990); People v. Diaz, 155 A.D.2d 612, 547 N.Y.S.2d 667 (2d Dept.1989) (police tried to avoid having victim see the defendant, but were not successful); People v....