People v. Mais

• Decision Date: 30 March 2010
• Citation: 71 A.D.3d 1163,897 N.Y.S.2d 716
• Parties: The PEOPLE, etc., appellant, v. Donovan MAIS, respondent.
• Court: New York Supreme Court — Appellate Division

897 N.Y.S.2d 716

71 A.D.3d 1163

The PEOPLE, etc., appellant,

v.Donovan MAIS, respondent.

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

March 30, 2010.

Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel), for appellant.

James D. Licata, New City, N.Y. (Lois Cappelletti of counsel; Alan Williams and Bryan Duroy on the brief), for respondent.

REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and SHERI S. ROMAN, JJ.

Appeal by the People, as limited by their brief, from so much of an order of the County Court, Rockland County (Bartlett, J.), dated March 2, 2009, as, after a hearing, granted those branches of the defendant's omnibus motion which were to suppress physical evidence, identification testimony, and his statements to law enforcement officials.

ORDERED that the order is modified, on the law and on the facts, (1) by deleting the provision thereof granting that branch of the defendant's omnibus motion which was to suppress the showup identification and substituting therefor a provision denying that branch of the motion, (2) by deleting the provision thereof granting that branch of the defendant's omnibus motion which was to suppress his statements to the police at the station house and substituting therefor a provision denying that branch of the motion, (3) by deleting the provision thereof, in effect, granting that branch of the defendant's motion which was to preclude the People from introducing evidence in their case-in-chief that the defendant told Police Officer Manzella that he did not come from a house and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from.

Contrary to the determination of the County Court, Police Officer Manzella, who had received a radio report of a burglary, possessed the requisite reasonable suspicion to stop and detain the defendant for a showup identification. "Where a police officer has reasonable suspicion that a particular person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person" ( People v. Hollman, 79 N.Y.2d 181, 185, 581 N.Y.S.2d 619, 590 N.E.2d 204; see CPL 140.50[3]; People v. Hicks, 68 N.Y.2d 234, 242, 508 N.Y.S.2d 163, 500 N.E.2d 861). Officer Manzella testified that he encountered the defendant two blocks from the location of the alleged burglary within an hour of its occurrence, and that the defendant matched the physical description given by the complainant with regard to the perpetrator's race, gender, height, build, and age. Accordingly, given the matching general description and the defendant's temporal and spacial proximity to the crime scene, a brief detention for a showup was permissible to confirm or dispel the suspicion that the defendant had committed the crime ( see People v. Hines, 46 A.D.3d 912, 913, 848 N.Y.S.2d 349; People v. Bennett, 37 A.D.3d 483, 484, 829 N.Y.S.2d 206; People v. Quinones, 45 A.D.3d 874, 874-875, 847 N.Y.S.2d 145, affd. 12 N.Y.3d 116, 879 N.Y.S.2d 1, 906 N.E.2d 1033, cert. denied --- U.S. ----, 130 S.Ct. 104, 175 L.Ed.2d 31; People v. Nicia, 32 A.D.3d 543, 544, 819 N.Y.S.2d 842).

However, although the detention was justified, the subsequent frisk, which occurred before the showup was conducted, was not. At the hearing, Manzella failed to articulate any fact or circumstance which would support a reasonable suspicion that the defendant was armed ( see People v. Stevenson, 7 A.D.3d 820, 821, 779 N.Y.S.2d 498; see also People v. Batista, 88 N.Y.2d 650, 655, 649 N.Y.S.2d 356, 672 N.E.2d 581; cf. People v. Zingale, 246 A.D.2d 613, 667 N.Y.S.2d 300). Notably, when Manzella was asked on cross-examination if he frisked the defendantbecause he thought he was armed, Manzella replied, "I was not sure, but for mysafety and everybody else he was frisked." Manzella offered no testimony that, for example, the defendant acted furtively ( see People v. Dobson, 41 A.D.3d 496, 838 N.Y.S.2d 128), that he reached toward his rear waistband ( see People v. Doe, 236 A.D.2d 621, 622, 653 N.Y.S.2d 701), or that he had a bulge under his clothing characteristic of a weapon ( see People v. Henderson, 26 A.D.3d 444, 446, 809 N.Y.S.2d 567), nor was there evidence that the alleged crime involved a weapon ( see People v. Johnson, 244 A.D.2d 573, 665 N.Y.S.2d 678). Accordingly, the small flashlight recovered from the defendant's pocket was properly suppressed. The People's alternative argument, that the flashlight inevitably would have been discovered through normal police procedures, is without merit, as the inevitable discovery doctrine does not apply to primary evidence ( see People v. Stith, 69 N.Y.2d 313, 320, 514 N.Y.S.2d 201, 506 N.E.2d 911; People v. Lindsey, 13 A.D.3d 651, 652, 787 N.Y.S.2d 385).

Next, we disagree with the County Court's finding that the showup identification was unduly suggestive. Although showup procedures are generally disfavored, they are permissible when they are spatially and temporally proximate to the commission of the crime and not unduly suggestive ( see People v. Berry, 50 A.D.3d 1047, 1048, 856 N.Y.S.2d 228; see also People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611, cert. denied --- U.S. ----, 130 S.Ct. 739, --- L.Ed.2d ----). Here, the showup was spatially and temporally proximate to the commission of the crime, as it was conducted two blocks from the location of the alleged home invasion, within an hour after it was reported ( see People v. Gonzalez, 57 A.D.3d 560, 561, 868 N.Y.S.2d 302). Moreover, neither the conduct of the police, nor the illumination used to facilitate the identification, rendered the identification impermissibly suggestive ( see People v. Duuvon, 77 N.Y.2d 541, 545, 569 N.Y.S.2d 346, 571 N.E.2d 654; People v. Guy, 47 A.D.3d 643, 850 N.Y.S.2d 476; People v. Gonzalez, 57 A.D.3d at 561, 868 N.Y.S.2d 302; see also People v. Siler, 45 A.D.3d 1403, 844 N.Y.S.2d 823)....