People v. Jones
| Decision Date | 19 June 2019 |
| Docket Number | Ind. No. 8099/13,2015–10141 |
| Parties | The PEOPLE, etc., Respondent, v. Richard JONES, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Paul Skip Laisure, New York, N.Y. (Lauren E. Jones of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jill Oziemblewski of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Michael A. Gary, J.), rendered October 1, 2015, convicting him of robbery in the first degree (two counts) and robbery in the second degree (three counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress in-court identification evidence and, in effect, to suppress evidence that he was identified from a cell phone video.
ORDERED that the judgment is modified, on the law and the facts, (1) by vacating the conviction of robbery in the first degree under count one of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment, and (2) vacating the conviction of robbery in the second degree under count two of the indictment and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, that branch of the defendant's omnibus motion which was, in effect, to suppress evidence that he was identified from a cell phone video is granted, and a new trial is ordered on count two of the indictment charging the defendant with robbery in the second degree.
The defendant was indicted in a single indictment on charges stemming from two robberies involving two different complainants, Steven Fisher and Clayton Alfred. The defendant, acting in concert with at least one other individual, allegedly robbed Fisher outside of Fisher's apartment building on September 4, 2013. During the robbery, the defendant allegedly threatened Fisher with a taser. The defendant, acting in concert with at least one other individual, allegedly robbed Alfred in the vestibule of Alfred's apartment building on September 5, 2013. During the robbery, the defendant allegedly injured Alfred using a taser.
At a pretrial suppression hearing, a detective testified that during his investigation of the Fisher robbery, the landlord of Fisher's apartment building gave the detective a cell phone that the landlord found in front of the building. The detective looked through the phone. Thereafter, he conducted two photo identification procedures with Fisher using the photo manager computer system. Fisher viewed the defendant's photograph during one of the procedures, but he did not identify anyone. The detective then showed Fisher the cell phone, told Fisher that it was recovered from the scene of the robbery, and asked if it was his. Fisher responded that the cell phone was not his. The detective had Fisher view videos that were saved on the cell phone, one of which portrayed a male tasing an individual who was sleeping on a staircase. Fisher identified the male who was seen in the video using a taser as one of the individuals who robbed him.
The detective testified that he submitted a still photograph of the male with the taser from the video to a facial recognition software program, which matches photographs to the photographs of criminal offenders that are stored in a database. The defendant was a match for the male depicted in the still photograph. The detective produced a photo array, which contained six photographs, including the same photograph of the defendant that Fisher had previously viewed in the photo manager system. Fisher identified the defendant in the photo array as one of the individuals who robbed him. Approximately a week later, Fisher identified the defendant in a lineup as the individual with the taser who robbed him.
In an omnibus motion, the defendant moved, inter alia, to suppress Fisher's lineup identification and, in effect, to suppress any evidence demonstrating that Fisher identified the defendant from the cell phone video. The Supreme Court, inter alia, granted that branch of the defendant's omnibus motion which was to suppress Fisher's lineup identification and directed an independent source hearing. However, the court denied that branch of the defendant's motion which was, in effect, to suppress the evidence that Fisher identified the defendant as the male in the cell phone video, finding that the identification did not occur during a police-arranged identification procedure.
Prior to trial, the Supreme Court determined that it would not permit the People to introduce the video from the cell phone into evidence. However, the court permitted the People to introduce into evidence a still photograph taken from the cell phone video of the male with the taser, which did not depict the taser in his hands, as well as testimony regarding that photograph.
At trial, the superintendent of Fisher's apartment building testified that shortly after the robbery occurred, he found a cell phone outside of the building. According to the superintendent, he called Fisher to see if the cell phone was his, and Fisher replied that it was not. The detective testified that the superintendent gave him the cell phone, and the detective then "conducted an investigation into the cell phone and recovered three photographs." According to Fisher, the detective showed him a few "images" from the cell phone, and Fisher recognized the defendant from one photograph as the individual who threatened him with the taser during the robbery. The photograph was admitted into evidence.
The defendant contends that the People failed to establish, beyond a reasonable doubt, his guilt of robbery in the first degree as to Alfred under count seven of the indictment because there was legally insufficient evidence to establish that the taser used against Alfred was a "dangerous instrument" ( Penal Law §§ 160.15[3] ; 10.00[13]; see Penal Law § 10.00[10] ). Viewing the evidence in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish that the taser was a dangerous instrument (see People v. MacCary , 173 A.D.2d 646, 570 N.Y.S.2d 322 ; cf. People v. Hall , 18 N.Y.3d 122, 936 N.Y.S.2d 630, 960 N.E.2d 399 ). Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt as to that count was not against the weight of the evidence (see People v. Richard , 30 A.D.3d 750, 817 N.Y.S.2d 698 ). However, we find that the verdict of guilt on count one of the indictment, charging the defendant with robbery in the first degree as to Fisher, was against the weight of the evidence (see generally People v. Romero , 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ). Therefore, the conviction under that count and the sentence imposed thereon must be vacated, and that count of the indictment must be dismissed.
We disagree with the Supreme Court's determination denying that branch of the defendant's omnibus motion which was, in effect, to suppress evidence that Fisher identified the defendant from the cell phone video. "[U]nduly suggestive pretrial identification procedures violate due process and therefore are not admissible to determine the guilt or innocence of an accused" ( People v. Chipp , 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608 ; see People v. Busano , 141 A.D.3d 538, 539, 36 N.Y.S.3d 149 ). "Review of whether a pretrial identification procedure is unduly suggestive is subject to a well-established burden-shifting mechanism" ( People v. Holley , 26 N.Y.3d 514, 521, 25 N.Y.S.3d 40, 45 N.E.3d 936 ). At the first step, the People must meet only their "initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness" ( People v. Chipp , 75 N.Y.2d at 335, 553 N.Y.S.2d 72, 552 N.E.2d 608 ), which is a "minimal" burden of "production" ( People v. Ortiz , 90 N.Y.2d 533, 538, 664 N.Y.S.2d 243, 686 N.E.2d 1337 ; see People v. Holley , 26 N.Y.3d at 526–527, 25 N.Y.S.3d 40, 45 N.E.3d 936 [Abdus–Salaam, J., concurring] ). ( People v. Holley , 26 N.Y.3d at 521, 25 N.Y.S.3d 40, 45 N.E.3d 936 ). In other words, "[w]hile the People have the initial burden of going forward to establish ... the lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive" ( People v. Chipp , 75 N.Y.2d at 335, 553 N.Y.S.2d 72, 552 N.E.2d 608 ; see People v. Holley , 26 N.Y.3d at 521, 25 N.Y.S.3d 40, 45 N.E.3d 936 ).
Here, contrary to the Supreme Court's finding, the procedure employed by the detective in showing Fisher the cell phone videos was a police-arranged identification procedure, even though the police did not arrange the content of the videos on the phone. The procedure by which Fisher viewed the videos occurred at the "deliberate direction of the State," and not as a result of mere happenstance ( People v. Dixon , 85 N.Y.2d 218, 223, 623 N.Y.S.2d 813, 647 N.E.2d 1321 ). The People failed to meet their initial burden of establishing the reasonableness of the police conduct and the lack of any undue suggestiveness created by the video identification procedure. By showing Fisher the cell phone and telling him that the phone was recovered from the scene of the robbery, the detective suggested that the phone may belong to one of the perpetrators of the robbery. One of the videos portrayed an...
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