People v. James

• Decision Date: 13 May 1985
• Citation: 489 N.Y.S.2d 527,111 A.D.2d 254
• Parties: The PEOPLE, etc., Respondent, v. Leroy JAMES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 527

489 N.Y.S.2d 527

111 A.D.2d 254

The PEOPLE, etc., Respondent, v. Leroy JAMES, Appellant.

Supreme Court, Appellate Division Second Department.

May 13, 1985.

Carol Mellor, New York City, for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Karen M. Wigle, Asst. Dist. Attys., and Kevin J. Bristow, of counsel), for respondent.

Before TITONE, J.P., and MANGANO, BROWN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered April 14, 1982, convicting him of robbery in the first degree, criminal possession of stolen property in the first degree, criminal use of a firearm in the first degree, and unauthorized use of a vehicle, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of defendant's motion to suppress evidence.

Judgment reversed, on the law, that branch of defendant's motion which sought suppression of complainant's showup identification granted, count four of the indictment charging defendant with criminal possession of stolen property in the first degree dismissed without prejudice to resubmit any appropriate charge to another Grand Jury (see People v. Mayo, 48 N.Y.2d 245, 422 N.Y.S.2d 361, 397 N.E.2d 1166), matter remitted to Criminal Term for a new hearing on the defendant's motion to suppress the identification testimony, and new trial ordered.

Based upon a review of the record of the suppression hearing, we conclude that the prosecution failed to meet its burden of coming forward with sufficient evidence to establish that the pretrial identification procedures utilized by the police were not violative of the defendant's constitutional rights (People v. Malinsky, 15 N.Y.2d 86, 91, 255 N.Y.S.2d 850, 204 N.E.2d 188; People v. Whitehurst, 25 N.Y.2d 389, 391, 306 N.Y.S.2d 673, 254 N.E.2d 905; People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709). On this point, it is significant that the prosecution failed to present any evidence as to the circumstances surrounding the complainant's initial encounter with and identification of the defendant in the back room of the precinct. Moreover, there is no basis in the record upon which to conclude that the precinct showup was either inadvertent or accidental (see Mock v. Rose, 6th Cir., 472 F.2d 619; People v. Gonzalez, 61 A.D.2d 666, 403 N.Y.S.2d 514, affd. 46 N.Y.2d 1011, 416 N.Y.S.2d 239, 389 N.E.2d 834; People v. Logan, 25 N.Y.2d 184, 193, 303 N.Y.S.2d 353, 250 N.E.2d 454, cert. denied 396 U.S. 1020, 90 S.Ct. 592, 24 L.Ed.2d 513). Thus, there must be a new trial because the out-of-court identification testimony should have been suppressed. A further hearing must also be held, unless waived by the defendant, with respect to the admissibility of the complainant's in-court identification of the defendant. Since the complainant did not testify at the suppression hearing, the trial court was unable to make a finding as to whether an independent basis existed for the complainant's in-court identification. Moreover, this court may not make a finding of independent source based upon the testimony adduced at trial (People v. Gonzalez, 55 N.Y.2d 720, 721-722, 447 N.Y.S.2d 145, 431 N.E.2d 630, cert. denied 456 U.S. 1010, 102 S.Ct. 2304, 73 L.Ed.2d 1306; People v. Dodt, 61 N.Y.2d 408, 417, 474 N.Y.S.2d 441, 462 N.E.2d 1159). Accordingly, a new suppression hearing should be held on this issue prior to trial (see People v. Dodt, supra, at 417-18, 474 N.Y.S.2d 441, 462 N.E.2d 1159).

We also conclude that there was insufficient proof that the value of the complainant's automobile at the time and place of the crime exceeded $1,500, the statutory minimum necessary to sustain a conviction for criminal possession of stolen property in the first degree (Penal Law § 165.50). Although defendant, in moving for a trial order of dismissal, did not specifically claim that the prosecution's proof of the vehicle's value was deficient (see People v. Stahl, 53 N.Y.2d 1048, 442 N.Y.S.2d 488, 425 N.E.2d 876; People v. Cona, 49 N.Y.2d 26, 33, n. 2, 424 N.Y.S.2d 146, 399 N.E.2d 1167) we are of the opinion that review of this issue is warranted, as a matter of law, because of a failure of proof as to an element of the crime (CPL 470.15).

The prosecution must establish the market value of the stolen property at the time and place of the crime or the cost of replacement within a reasonable time thereafter (Penal Law § 155.20). The only trial testimony on value was that of the complainant, who stated that he purchased the subject 1975 Chevrolet Impala for $2,600, approximately one year before the robbery and that he used this car as a "gypsy cab". The price paid for the vehicle is some proof of value and, under certain circumstances, it may suffice to establish value (see People v. Carter, 19 N.Y.2d 967, 281 N.Y.S.2d 365, 228 N.E.2d 415; People v. Supino, 64 A.D.2d 720, 407 N.Y.S.2d 537; cf. People v. Kirnon, 39 A.D.2d 666, 667, 332 N.Y.S.2d 74, affd. 31 N.Y.2d 877, 340 N.Y.S.2d 183, 292 N.E.2d 319). For example, where the cost of the automobile is substantially above the monetary value prescribed by the applicable penal statute and other facts adduced at trial, such as the description of the condition of the property at the time of the theft and the period of time which elapsed between the date of purchase and the date of the theft, negate the possibility that the vehicle's market value has significantly depreciated, there exists sufficient evidence from which the jury could infer, beyond a reasonable doubt, that the market value of the car at the time and place of the theft was in excess of the statutory minimum necessary to sustain a conviction (see People v. Supino, supra ). However, the evidence elicited at this trial is inadequate to establish such an inference (see People v. Clark, 91 A.D.2d 1102, 458 N.Y.S.2d 360). Since the evidence was insufficient to support a conviction for criminal possession of stolen property in the first degree, the defendant, under double jeopardy principles, may not be retried for this offense.

Cognizant that the People, of late, have been remiss in their duty to prove value within the meaning of Penal Law § 155. 20(1) we admonish District Attorneys to proffer proof, at trial, of the market value of the stolen merchandise at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime.

We have reviewed the defendant's other contentions and find them to be without merit.

MANGANO, BROWN and RUBIN, JJ., concur.

TITONE, J.P., concurs in the reversal of the judgment, granting that branch of defendant's motion which sought suppression of complainant's showup identification, and ordering a new hearing and trial, but dissents from the dismissal of count four of the indictment charging defendant with criminal possession of stolen property in the first degree, with the following memorandum:

The doctrine of stare decisis compels me, as a Justice of an intermediate appellate court, to follow precedents established by the Court of Appeals, our court of last resort (see Hutto v. Davis, 454 U.S. 370, 375, 102 S.Ct. 703, 706, 70 L.Ed.2d 556; Rivera v. Berkeley Super Wash, 44 A.D.2d 316, 322, 354 N.Y.S.2d 654, affd. 37 N.Y.2d 395, 373 N.Y.S.2d 39, 335 N.E.2d 275; cf. Mountain View Coach Lines v. Storms, 102 A.D.2d 663, 664-665, 476 N.Y.S.2d 918). It does not, however, deprive me of my First Amendment right to register protest and set forth the basis of my disagreement in the hope of persuading "Higher Authority"--be it the Court of Appeals, the Legislature or the United States Supreme Court--why that precedent should be overturned (Witkin, Manual on Appellate Court Opinions, §§ 88, 91; cf. People v. Belge, 41 N.Y.2d 60, 62, 390 N.Y.S.2d 867, 359 N.E.2d 377; People v. Mackell, 40 N.Y.2d 59, 64-65, 386 N.Y.S.2d 37, 351 N.E.2d 684 ). ¹ This is such a case.

As the majority notes, the identification procedures employed in this case were improper and violative of defendant's constitutional rights. Nonetheless, if there was an independent source for the identifications, the in-court identification would not be tainted and the invalidity of the identification procedures would not dictate a reversal (see United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149; People v. Ramos, 42 N.Y.2d 834, 397 N.Y.S.2d 375, 366 N.E.2d 76; People v. Ballott, 20 N.Y.2d 600, 606, 286 N.Y.S.2d 1, 233 N.E.2d 103; People v. Mayers, 100 A.D.2d 558, 473 N.Y.S.2d 263; cf. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377).

Unfortunately, no finding of an independent source was made by Criminal Term presumably because the victim did not testify at the pretrial suppression hearing. Ordinarily, we could make appropriate factual findings on appeal (e.g., People v. Acosta, 74 A.D.2d 640, 425 N.Y.S.2d 40; People v. Cruz, 65 A.D.2d 558, 408 N.Y.S.2d 964; People v. Thomas, 58 A.D.2d 899, 397 N.Y.S.2d 8). The difficulty here is that People v. Dodt, 61 N.Y.2d 408, 417, 474 N.Y.S.2d 441, 462 N.E.2d 1159, and People v. Gonzalez, 55 N.Y.2d 720, 447 N.Y.S.2d 145, 431 N.E.2d 630, compel us to be blind to the victim's trial testimony. We cannot sustain a suppression ruling on that basis.

In my view, Dodt and Gonzalez are wrong. Since Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, was decided in 1925 it has been, in former Chief Judge Friendly's words, "settled law" in the Federal courts that a suppression ruling "can be supported by evidence which was adduced at trial even though this was not presented at the pretrial suppression hearing" (United States v. Canieso, 470 F.2d 1224, 1226 see also United States v. Vargas, 633 F.2d 891, 895, n. 6 United States v. Bolin, 514 F.2d 554, 557 3 La Fave, Search and Seizure: A Treatise on the Fourth Amendment § 11.7 ). ² Most ...