People v. London

• Decision Date: 09 October 1986
• Citation: 124 A.D.2d 254,508 N.Y.S.2d 262
• Parties: The PEOPLE of the State of New York, Respondent, v. Willie J. LONDON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 262

508 N.Y.S.2d 262

124 A.D.2d 254

The PEOPLE of the State of New York, Respondent, v. Willie J. LONDON, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 9, 1986.

Robert D. Cook, Kingston, for appellant.

Michael Kavanagh, Dist. Atty. (Joan Lamb, of counsel), Kingston, for respondent.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.

MAHONEY, Presiding Justice.

Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered December 6, 1983, upon a verdict convicting defendant of the crime of murder in the second degree.

On March 8, 1983, Peter Ferraro, with his girlfriend, Abby Citron, and another friend, Denise Ruzzo, went to a restaurant in the City of Kingston, Ulster County, for dinner. At approximately 10:00 P.M., a black male wearing a three-quarter length tan coat entered the restaurant, approached Ferraro's table, took a sawed-off shotgun from under his coat and shot Ferraro in the chest. The assailant left the restaurant. Ferraro was dead.

The following day, Citron picked out a picture of defendant from a photo array at the Kingston Police Department and identified him as Ferraro's assailant. On the same day, defendant's girlfriend, Tina Liebel, went to the District Attorney's office where she stated that she knew who shot Ferraro and that she had the weapon. She then took detectives to the apartment she shared with defendant and gave the officers oral permission to search the premises. The detectives found a sawed-off shotgun with two slugs in it, a rope that Liebel said defendant used as a sling to carry the gun and a three-quarter length tan coat. Defendant was arrested and charged with criminal possession of a firearm.

On March 9, 1983, at a lineup at the Ulster County Police Department, Citron positively identified defendant as Ferraro's assailant. Ruzzo also viewed the lineup but she did not identify defendant as the assailant. At a later Grand Jury hearing, Ruzzo identified defendant and stated that she did not earlier identify him because she did not want to get involved and feared for the safety of her young daughter.

Thereafter, defendant was indicted and charged with murder in the second degree. Defendant chose to proceed pro se. After a suppression hearing, County Court refused to suppress the identification testimony of Citron and Ruzzo and, further, found that Liebel had authority to consent to the search of the apartment she shared with defendant and did, in fact, freely and intelligently give her consent to the search. Accordingly, County Court refused to suppress the physical evidence the police seized at the apartment.

At trial, the People introduced the testimony of Citron and Ruzzo establishing that defendant entered the restaurant on March 8, 1983 and shot Ferraro in the chest with a sawed-off shotgun and then exited the restaurant. The People also introduced the sawed-off shotgun, rope sling and a three-quarter length tan coat found in the apartment defendant shared with his girlfriend. Additionally, the People proved that the slug removed from Ferraro's body was fired from the shotgun found at defendant's apartment. The jury found defendant guilty of murder in the second degree and defendant was sentenced to an indeterminate term of imprisonment of 25 years to life. This appeal ensued.

Defendant's contention that the physical evidence seized from his apartment should have been suppressed is without merit. Where the People rely on consent to justify an otherwise unlawful police intrusion, they bear the "heavy burden" of establishing that such consent was freely and voluntarily given (People v. Zimmerman, 101 A.D.2d 294, 295, 475 N.Y.S.2d 127; see, People v. Gonzalez, 39 N.Y.2d 122, 128, 383 N.Y.S.2d 215, 347 N.E.2d 575). That was not a difficult burden for the People to sustain in this case. The issue of whether consent to search was voluntary is a question of fact to be determined from the totality of the circumstances (see, People v. Boylan, 111 A.D.2d 928, 491 N.Y.S.2d 37). Here, defendant's live-in girlfriend was not under arrest or in custody. She was fully cooperative and, in fact, called the police, stated she knew who shot Ferraro and that she had the gun. She accompanied the police to the apartment and, not only freely, but almost enthusiastically, gave her consent to search. Finally on this point, while it is true that there is no evidence that Liebel was ever advised that she could refuse to consent to the search, such advice is not mandatory (see, Schneckloth v. Bustamonte, 412 U.S. 218, 248-249, 93 S.Ct. 2041, 2058-2059, 36 L.Ed.2d 854; People v. Kuhn, 33 N.Y.2d 203, 209, 351 N.Y.S.2d 649, 306 N.E.2d 777).

Defendant's next contention is that it was error for the police to have used in the photo array a mugshot of him taken as a result of an arrest in 1982 for burglary, a crime for which he was acquitted. We disagree. Even assuming that the police illegally retained defendant's photograph in violation of CPL 160.50, a subsequent identification of defendant in a later offense would not be suppressed simply because the illegally retained photograph was used. CPL 160.50 was not designed to immunize a defendant from the operations of a law enforcement official's investigatory display of a photograph.

Next, defendant challenges the in-court identification of him on the ground that the pretrial lineup was improper because there was no indictment or information pending against him (see, CPL 240.40 ). We disagree. While at the time defendant was ordered to be present for a lineup he was not the subject of an indictment or information charging him with murder, it is well settled that nontestimonial evidence may be obtained from a criminal suspect who has not been charged with a crime provided the People establish probable cause that the suspect has committed the crime, that there is a "clear indication" that relevant material evidence will be found, and that the method used to secure such evidence is safe and reliable (Matter of Abe A., 56 N.Y.2d 288, 291, 452 N.Y.S.2d 6, 437 N.E.2d 265). Here, it cannot be denied that the People had "probable cause" to believe defendant had murdered Ferraro. Defendant's girlfriend had voluntarily told police that she believed that defendant had shot someone. Next, the police had recovered a tan trench coat matching the description of the coat worn by Ferraro's assailant and a sawed-off shotgun from defendant's apartment. There was no error in conducting the lineup identification.

Turning to defendant's contention that County Court committed reversible error by failing to require the People to turn over to him all Grand Jury testimony and by not providing him with a copy of certain witnesses' Grand Jury testimony prior to their testimony at trial, we find that defendant failed to demonstrate that the People withheld any exculpatory evidence. While we recognize that the People have an ongoing duty to disclose to the defense any exculpatory material (see, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215) and that a failure to properly disclose will result in a reversal of conviction if such evidence is material...