People v. Ortiz

• Decision Date: 21 October 1997
• Citation: 686 N.E.2d 1337,90 N.Y.2d 533,664 N.Y.S.2d 243
• Parties: , 686 N.E.2d 1337, 1997 N.Y. Slip Op. 8601 The PEOPLE of the State of New York, Respondent, v. Enrique ORTIZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 243

664 N.Y.S.2d 243

90 N.Y.2d 533, 686 N.E.2d 1337, 1997

N.Y. Slip Op. 8601

The PEOPLE of the State of New York, Respondent, v. Enrique ORTIZ, Appellant.

Court of Appeals of New York.

Oct. 21, 1997.

Allen Fallek and Daniel L. Greenberg, New York City, for appellant.

Robert M. Morgenthau, District Attorney of New York County, New York City (Ellen Sue Handman and Eleanor J. Ostrow, of counsel), for respondent.

OPINION OF THE COURT

WESLEY, Judge.

Defendant Enrique Ortiz was convicted of two counts of attempted murder and one count each of criminal possession of a weapon in the second and third degrees for shooting at two New York City Police Officers outside of an apartment building in Manhattan in the early morning hours of March 22, 1993. The two officers who were the intended victims of the attack were brought back to the apartment building after seeking treatment at a hospital, and identified defendant as the perpetrator. The Appellate Division affirmed defendant's conviction, holding that, since the identification procedure was conducted in close geographic and temporal proximity to the crime, the procedure, which it characterized as a showup, was proper.

On appeal, defendant contends that the trial court erred in refusing to suppress the trial identification testimony of the two officers because the People did not present any evidence at the suppression hearing to establish that the identification procedure that was employed was not unduly suggestive. Because no evidence whatsoever was offered as to the circumstances of the identification procedure itself, we hold that the People failed to meet their burden of coming forward with evidence that the procedure was not unduly suggestive. We therefore reverse defendant's conviction and remit for a new trial, to be preceded by an independent source hearing.

Officers Colon and Sullivan were on patrol in the vicinity of 78 Ellwood Avenue when they received a radio dispatch to assist an ambulance that had been called to the area. Upon arriving at the scene and being advised of a possible disturbance in the building, the officers heard gunshots and went to investigate. The officers saw a man, later identified at trial as defendant, just outside the apartment. As they approached the building, the man began shooting at them; Colon returned the fire. At the end of the ten-second exchange, the man fled into the building.

Few details of this initial confrontation were brought out at the identification hearing. Neither Colon, Sullivan nor any other witness present at the time defendant was initially identified was called by the People to testify. The only witness who did testify at the hearing was Officer Reardon, who arrived with his partner, Officer Almodovar, shortly after the initial confrontation.

According to Reardon's hearing testimony, shortly after he arrived at the scene, the four officers went looking for the perpetrator. While Sullivan held a man who had come out of the building, Reardon, Colon and Almodovar entered the building, and observed seven to ten male teenagers in the lobby. After Almodovar told Reardon that he had seen one of the people in the lobby come out of an apartment down the hall, Reardon knocked on the door of the apartment; a woman answered. The officer questioned her concerning whether she had heard any disturbances outside her apartment, and in the process saw a man run from one room of the apartment to another. Reardon and Almodovar then entered the apartment and found defendant lying in bed; he did not appear to be sleeping and was breathing heavily and perspiring. Eventually defendant was taken to the lobby, where he was placed with two other unidentified men. Upon reentering the apartment, Reardon found a pistol on the ground outside the window of the room from which defendant had been running.

By this time, other officers had arrived, and Colon and Sullivan had been taken to the hospital. Defendant was placed in handcuffs, and waited in the lobby with several uniformed police officers for Colon and Sullivan to be brought back to the scene for identification. The suppression court found that the identification procedure occurred between one-half hour and one and one-half hours after the shooting. ¹ While Officer Reardon was able to testify with regard to the conditions under which defendant was initially apprehended and questioned in the apartment building, he did not actually observe the showup. In fact, Reardon had left the building prior to Colon and Sullivan being brought back to the scene. He saw the two officers approaching from down the street as he was exiting the building.

At the close of the hearing, defense counsel moved to suppress the identification of defendant, arguing that the People had failed to meet their initial burden of proving that the showup was proper, and pointing particularly to the absence of any proof from any witness who had actually seen Colon and Sullivan pick out defendant. The trial court rejected this argument, holding that the showup was permissible since it was proximate in time and place to the crime and the Appellate Division affirmed. We now reverse.

Initially, we reject the People's contention that defendant's argument is unpreserved. At the close of the hearing, defendant objected that the People had failed to meet their burden of proof on the issue of the propriety of the showup, and later...