People v. Moore

• Decision Date: 06 September 1983
• Citation: 96 A.D.2d 1044,466 N.Y.S.2d 456
• Parties: The PEOPLE, etc., Respondent, v. Levie MOORE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 456

466 N.Y.S.2d 456

96 A.D.2d 1044

The PEOPLE, etc., Respondent, v. Levie MOORE, Appellant.

Supreme Court, Appellate Division,

Second Department.

Sept. 6, 1983.

William E. Hellerstein, New York City (Claudia C. Conway, New York City, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Lucille DiBello and Mary Brienza, Asst. Dist. Attys., Brooklyn, of counsel), for respondent.

Before MANGANO, J.P., and O'CONNOR, WEINSTEIN and BRACKEN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered February 27, 1980, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of so much of defendant's motion as was to suppress certain statements and identification testimony.

Judgment reversed, on the law and the facts, motion to suppress granted as to defendant's statements and the identification testimony of Errol Nichols and Arthur Thelwell and new trial ordered.

We find that Sergeant Thomas Anderson was "interrogating" defendant when he arrested him, placed him in custody, and informed him that he had been implicated in the robbery for which his three codefendants had been arrested. Therefore, his statement, made in response to the sergeant's comment, was not spontaneous, and complete Miranda warnings were required. (See People v. Rivers, 56 N.Y.2d 476, 453 N.Y.S.2d 156, 438 N.E.2d 862; People v. Lanahan, 55 N.Y.2d 711, 447 N.Y.S.2d 139, 431 N.E.2d 624; People v. Lucas, 53 N.Y.2d 678, 439 N.Y.S.2d 99, 421 N.E.2d 494; People v. Bryant, 87 A.D.2d 873, 449 N.Y.S.2d 314, affd. 59 N.Y.2d 786, 464 N.Y.S.2d 729, 451 N.E.2d 476.) While Sergeant Anderson informed defendant of his rights, and defendant indicated that he understood them, Anderson did not ask defendant whether he wished to waive those rights and make a statement without the presence of counsel. Accordingly, and under the circumstances of this particular custodial interrogation, defendant did not make a knowing, intelligent and voluntary waiver of his rights, and his first statement must be suppressed. (See People v. Campbell, 81 A.D.2d 300, 440 N.Y.S.2d 336; People v. Vigliotti, 75 A.D.2d 859, 427 N.Y.S.2d 839; People v. Norris, 75 A.D.2d 650, 427 N.Y.S.2d 442; People v. Schroder, 71 A.D.2d 907, 419 N.Y.S.2d 611). His second statement, made several hours later, in response to direct questioning by Sergeant Anderson, and not preceded by any Miranda warnings, must also be suppressed. (See People v. Chapple, 38 N.Y.2d 112, 378 N.Y.S.2d 682, 341 N.E.2d 243; People v. Jones, 87 A.D.2d 761, 449 N.Y.S.2d 56; People v. Johnson, 79 A.D.2d 617, 433 N.Y.S.2d 477; People v. Newson, 68 A.D.2d 377, 417 N.Y.S.2d 264.)

We find that the circumstances under which Errol Nichols saw defendant in police custody at Kings County Hospital, while not due to any police misconduct, were so inherently suggestive as to undermine the reliability of his subsequent lineup identification of defendant. (See People v. Adams, 53 N.Y.2d 241, 440 N.Y.S.2d 902, 423 N.E.2d 379; Green v. Loggins, 9th Cir., 614 F.2d 219; Jackson v. Fogg, 2 Cir., 589 F.2d 108; United States v. Ballard, 534 F.Supp. 749.) In light of Nichols' exceedingly brief opportunity to observe the robber at the time of the robbery, and the alcohol and marijuana which he had consumed beforehand, we also find that the People failed to prove by clear and convincing evidence that Nichols had a sufficient opportunity to observe the robber at the time of the crime to allow him to make an in-court identification untainted by the suggestion which influenced his lineup identification of defendant, and he should not have been allowed to identify defendant in court. Accordingly, that identification must be suppressed. (See People v. Rahming, 26 N.Y.2d 411, 311 N.Y.S.2d 292, 259 N.E.2d 727; People v. Ballott, 20 N.Y.2d 600, 286 N.Y.S.2d 1, 233 N.E.2d 103.)

We find, further, that Arthur Thelwell's explanation for his "mistake" in failing to identify defendant when he first viewed the...