People v. Kamenev

• Decision Date: 15 January 2020
• Docket Number: 2014–06293,Ind.No. 9122/11
• Parties: The PEOPLE, etc., Respondent, v. Dimitry KAMENEV, Appellant.
• Court: New York Supreme Court — Appellate Division

179 A.D.3d 837

118 N.Y.S.3d 47

The PEOPLE, etc., Respondent,

v.Dimitry KAMENEV, Appellant.

2014–06293

Ind.No. 9122/11

Supreme Court, Appellate Division, Second Department, New York.

Argued—February 4, 2019

January 15, 2020

Paul Skip Laisure, New York, N.Y. (Mark W. Vorkink of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.

RUTH C. BALKIN, J.P., SHERI S. ROMAN, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), rendered June 16, 2014, convicting him of murder in the second degree and criminal possession of a weapon in the second degree (two 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 lineup identification testimony and statements he made to law enforcement officials.

ORDERED that the judgment is reversed, on the law, those branches of the defendant's omnibus motion which were to suppress lineup identification testimony and statements he made to law enforcement officials are granted, and the matter is remitted to the Supreme Court, Kings County, for a new trial.

The defendant was charged with murder in the second degree and two counts of criminal possession of a weapon in the second degree arising from an incident on October 20, 2011, in which he allegedly shot and killed his ex-wife. The defendant moved, inter alia, to suppress lineup identification testimony and statements he made to law enforcement officials on October 24, 2011, on the ground that the police lacked probable cause to arrest him. After a hearing, the Supreme Court denied those branches of the defendant's omnibus motion, finding that the police had probable cause to arrest the defendant based upon "the independent police investigation of obtaining video recordings of defendant leaving his house shortly before the shooting, as well as the eyewitnesses' description and identification of defendant from a photographic image taken from one of the videos." Following a jury trial, the defendant was convicted of murder in the second degree and two counts of criminal possession of a weapon in the second degree.

Initially, the defendant failed to preserve for appellate review his challenge to the legal sufficiency of the evidence (see CPL 470.05[2] ; People v. Hawkins , 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes , 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's identity as the perpetrator beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson , 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo , 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero , 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

However, we disagree with the Supreme Court's finding that the police had probable cause to arrest the defendant, and the court should have granted those branches of the defendant's omnibus motion which were to suppress lineup identification testimony and statements he made to law enforcement officials. " ‘Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed’ by the suspected individual" ( People v. Moziy , 167 A.D.3d 655, 656, 89 N.Y.S.3d 3, quoting People v. Bigelow , 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 ). However, probable cause "does require more than mere suspicion," and "[c]onduct which is equally susceptible to innocent or culpable interpretation cannot give rise to probable cause" ( People v. Thompson , 132 A.D.2d 719, 720, 518 N.Y.S.2d 197 ; see People v. Vandover , 20 N.Y.3d 235, 237, 958 N.Y.S.2d 83, 981 N.E.2d 784 ).

Contrary to the Supreme Court's finding, no evidence was presented at the hearing that the defendant was identified "from a photographic image taken from one of the videos." Detective John Kenney testified that a witness provided a description of the person she had seen holding a gun after shots were fired, including that the person was riding a bicycle. Kenney indicated that the witness was shown a photograph taken from a video recorded outside a restaurant near the scene of the crime, and that the witness identified the person depicted in the photograph as the individual she had seen holding a gun. Kenney also testified that another witness identified the person depicted in that photograph as the individual he had seen riding a bicycle after hearing the gunshots. However, no testimony was elicited that the person depicted in the photograph was identified as the defendant. Further, Detective Patrick Henn testified that another video was recorded across the street from the...