People v. Luis, 2007 NY Slip Op 50643(U) (N.Y. Dist. Ct. 4/3/2007)
| Decision Date | 03 April 2007 |
| Docket Number | 2006NA009371. |
| Citation | 2007 NY Slip Op 50643 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, v. JOSE LUIS, Defendant. |
| Court | New York District Court |
Attorneys for the Defendant: Law Offices of Christian S. Alfaya, P.C.
On March 29, 2007 a Wade, Dunaway and Huntley hearing was scheduled pursuant to an order of this court (Gianelli, J.) dated January 25, 2007.
At the commencement of the hearing, the People and defense counsel stipulated that the statements allegedly made by the Defendant would not be used at trial and that they would proceed with the Wade hearing only.
The People have the initial burden of presenting clear and convincing evidence demonstrating the reasonableness of the police conduct and that the pre-trial identification was not unduly suggestive. People v. Rahming, 26 NY2d 411, 311 NYS2d 292 (1970); People v. Ortiz, 90 NY2d 533, 664 NYS2d 243 (1997). If that burden is met, the Defendant has the burden to prove, by a fair preponderance of the evidence, that the pre-trial identification was unduly suggestive. People v. Chipp, 75 NY2d 327, 553 NYS2d 72 (1990), cert. den. 498 U.S. 833, 111 S.Ct. 99 (1990). If the Defendant establishes that the pre-trial identification was unduly suggestive, the prosecution must be given the opportunity to provide clear and convincing evidence that there was an independent source for the identification, to establish the admissibility of an in-court identification. U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926 (1967); People v. Ballot, 20 NY2d 600, 286 NYS2d 1 (1967); People v. Young, 7 NY3d 40, 817 NYS2d 576 (2006).
In an attempt to meet its initial burden, the People called Police Officer Michael Collins and Police Officer Nicholas Alvarado to testify. The Defendant did not call any witnesses. After listening to their testimony and observing their demeanor, the court finds the officers' testimony to be credible.
The Defendant is charged with forcible touching, pursuant to Penal Law § 130.52. It is alleged that on April 16, 2006, at approximately 3:10 a.m., the Defendant, while riding as a passenger in a taxi cab traveling eastbound on Front Street in Uniondale, New York, did intentionally and for no legitimate purpose forcibly touch the complainant, Aleah Jones. ("Aleah"). It is further alleged that shortly following this incident the cab dropped the Defendant in the vicinity of 1130 Myron Avenue, Uniondale, New York and drove the complainant to her home, at 728 Macon Place, Uniondale, New York. The complainant and her mother, Rene Jones ("Rene"), then called the police.
Officer Collins testified that on April 16, 2006 he was working a shift that had begun at 7:00 p.m on April 15, 2006 and ended at 5:00 a.m. on April 16, 2006. He was alone, in uniform operating a marked radio motor patrol ("RMP") vehicle. At approximately 3:56 a.m. Officer Collins received a routine radio call to respond to the complainant's home, which he did. At that time, Aleah told him of the alleged incident. While at the Jones' home Officer Collins spoke to the taxi cab driver, on the telephone, and was advised that the man in the cab was to be dropped off at 1130 Myron Street in Uniondale, New York and was actually dropped off at the corner of Myron Street and Manor Parkway. Officer Collins then asked the complainant and her mother to ride with Officer Alvarado, who had arrived at their home, to 1130 Motor Parkway, Uniondale, New York to see if she could identify the individual Aleah claimed to have touched her. According to Officer Alvarado, he told the complainant that the officers would knock on the door of the premises and if anyone she recognized as the person who touched her in the taxi came out she should let them know.
Both officers testified that Aleah and her mother traveled with Officer Alvarado to 1130 Myron Street, while Office Collins traveled in his own vehicle. Both officers indicated that when they arrived at the subject address, in addition to themselves, a Sargent and other officers were present. Officer Collins parked his vehicle approximately thirty (30') feet from the door of the premises, while Officer Alvarado parked his vehicle, in which the complainant and her mother were sitting, approximately forty (40') to fifty (50') feet from the house. Both officers described the lighting in the area as good; there was a street light on the corner, a light on the house at the door, and Officer Alvarado had the spot light of his vehicle trained on the door.
At the location, the complainant and her mother remained in the back seat of Officer Alvarado's vehicle. While Officer Collins went to the door, Officer Alvarado positioned himself at the side of the house, ten (10') to fifteen (15') feet from his RMP, and the other officers at the scene were either standing with Officer Collins or had gone around to the rear of the house.
Officer Collins then knocked on the door, which was answered by a man who he identified as "Ellio." When Ellio came out of the house, Officer Alvarado returned to his RMP to see if the complainant recognized him. She did not. Officer Alvarado then gave Officer Collins the "thumbs down" signal; and, Officer Collins asked Ellio if there were any other males in the house. A second gentleman, who Officer Collins identified as "Freddie", then came out of the house. Officer Alvarado again returned to his vehicle, where the complainant again indicated that she did not recognize this individual, which Officer Alvarado again signaled to Officer Collins. The Defendant then exited the house, at which time, according to Officer Alvarado, the complainant indicated, "Yes, that's him, that's him." Officer Alvarado then flashed his lights to indicate to Officer Collins that a positive identification had been made. This identification occurred at approximately 4:55 a.m.
At this time, there were four (4) to five (5) people from the house standing on the porch at the door. Officer Collins testified that his gun was in his holster and his handcuffs where in their holder. Officer Collins also testified that he did not have any conversation with the Defendant, as the Defendant did not speak English. According to Officer Collins, aside from Ellio's wife, all of the occupants of the house, who were standing on the porch at the time of the identification, where Hispanic males.
After the Defendant was identified, he was placed under arrest, handcuffed and place in Officer Collins' RMP. Officer Alvarado returned to his RMP, wrote up a statement regarding the identification for the complainant and her mother to sign and drove them home.
The purpose of Wade Hearing is to "test identification testimony for taint arising from official suggestion during police-arranged confrontations between the defendant and an eyewitness' (People v. Gissendanner, 48 NY2d 543, 552, 423 NYS2d 893, 399 NE2d 924; People v. Newball, 76 NY2d 587, 591, 561 NYS2d 898, 563 NE2d 269)" People v. Dixon, 85 NY2d 218, 623 NYS2d 813 (1995); see also: People v. Rush, 239 AD2d 526, 658 NYS2d 256 (2nd Dept. 1997); People v. Vera, 235 AD2d 509, 653 NYS2d 360 (2nd Dept. 1997)
Identification procedures have been determined to be unduly suggestive when they "create a substantial likelihood that the defendant would be singled out for identification." People v. Chipp, supra .; People v. Lee, 96 NY2d 157, 726 NYS2d 361 (2001) "Generally, a showup identification will be inadmissible when there was no effort to make the least provision for a reliable identification and the combined result of the procedures employed establish that the showup was unduly suggestive' (People v. Adams, 53 NY2d 241, 249, 440 NYS2d 902, 423 NE2d 379)." People v. Riley, 70 NY2d 523, 522 NYS2d 842 (1987)
Show-up identifications are disfavored, having been found to be suggestive by their very nature, People v. Ortiz, 90 NY2d 533, 664 NYS2d 243 (1997); People v. Wharton, 74 NY2d 921, 550 NYS2d 260 (1989); yet, ...
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