People v. Peterkin

• Decision Date: 27 June 1989
• Citation: 151 A.D.2d 407,543 N.Y.S.2d 438
• Parties: The PEOPLE of the State of New York, Respondent, v. Anthony PETERKIN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 438

543 N.Y.S.2d 438

151 A.D.2d 407

The PEOPLE of the State of New York, Respondent, v. Anthony PETERKIN, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

June 27, 1989.

D. Klein, for respondent.

D.J. Sichenzia, Garden City, for defendant-appellant.

Before KUPFERMAN, J.P., and ROSS, MILONAS, ELLERIN and SMITH, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County (Rose L. Rubin, J.), rendered on April 3, 1987, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree and sentencing him, as a predicate felony offender, to an indeterminate term of imprisonment of from two and one-half years to five years, is affirmed.

Although there are instances when the testimony of the complaining or identifying witness might be necessary at a pretrial hearing, a defendant has no unqualified right to have that witness produced (People v. Blue, 31 N.Y.2d 1002, 341 N.Y.S.2d 453, 293 N.E.2d 827; People v. Monroe, 135 A.D.2d 741, 522 N.Y.S.2d 643; People v. Tweedy, 134 A.D.2d 467, 521 N.Y.S.2d 92; People v. Brown, 111 A.D.2d 928, 491 N.Y.S.2d 38; People v. Jackson, 108 A.D.2d 757, 484 N.Y.S.2d 913; People v. Ward, 95 A.D.2d 233, 465 N.Y.S.2d 556; People v. Inman, 80 A.D.2d 622, 436 N.Y.S.2d 63; People v. Sutton, 47 A.D.2d 455, 366 N.Y.S.2d 500). In that regard "[i]t is well settled that information provided by an identified citizen accusing another individual of the commission of a specific crime is sufficient to provide the police with probable cause to arrest" (People v. Hairston, 117 A.D.2d 618, 620, 498 N.Y.S.2d 161; see also People v. Hicks, 38 N.Y.2d 90, 378 N.Y.S.2d 660, 341 N.E.2d 227; People v. Ward, supra; People v. Crespo, 70 A.D.2d 661, 417 N.Y.S.2d 19).

In the present case, two police officers in a marked patrol car were approached by an identified individual who reported that he had just been robbed by some men and that one of them was in possession of a knife. The complainant provided a description of the two perpetrators and stated that they had fled in the direction of the subway station at 42nd Street near Third Avenue. Two transit officers standing near the token booth, who had recently observed two persons fitting the description furnished by the victim, searched the area and noticed defendant herein and his colleague on the shuttle platform. Following a patdown search, the two men were handcuffed with their hands behind their backs, and the complainant was brought over to identify them. They were thereafter placed under arrest and a more thorough search ensued. Credit cards and cash belonging to the complainant were recovered from defendant. At the pretrial hearing conducted in connection with the instant matter, all four officers involved in defendant's arrest took the stand. Although the two patrol officers could not recall the victim's description of the perpetrators' clothing, they testified that they related the information obtained from the complainant to the transit officers, and the latter did remember the details of the perpetrators' apparel. The evidence also demonstrated that defendant and his companion matched the description given by the complainant, who positively identified them both at a showup held within minutes of their being detained on the subway platform. Accordingly, the proof elicited at the hearing clearly established the existence of probable cause to arrest, and there was no reason to require that the complaining witness be produced, particularly since defendant does not challenge the sufficiency of the officers' information or claim that the victim's testimony would have been different in any respect from that of the officers. Thus, unlike the situation in People v. Havelka, 45 N.Y.2d 636, 412 N.Y.S.2d 345, 384 N.E.2d 1269, or People v. Ellis, 138 A.D.2d 325, 526 N.Y.S.2d 455, the officers who had actually received the complainant's information testified at the hearing and not merely the officer(s) who had acted on information transmitted by someone else.

The dissent contends that the Wade hearing in the instant matter should be reopened in order to enable the defense to call the complaining witness with respect to the assertion that the subway platform showup was unfair and prejudicial. However, the law mandates the production of eyewitnesses only where the evidence indicates that the pretrial identification was so inherently and impermissibly suggestive as to deny defendant the due process of law, and an independent basis for the witness' identification must be shown (People v. Tweedy, supra; People v. Jones, 112 A.D.2d 952, 492 N.Y.S.2d 467, lv. to app. den. 66 N.Y.2d 615, 494 N.Y.S.2d 1038, 485 N.E.2d 242; People v. Jackson, supra; People v. White, 102 A.D.2d 903, 477 N.Y.S.2d 485; People v. Sutton, supra ). Indeed, to hold otherwise would enable a defendant to subvert the purpose of a suppression hearing, which is to examine the legality of police conduct, and convert it into a vehicle for pretrial discovery by allowing him, in effect, to engage in an examination before trial.

In a Wade hearing, the People have the burden of establishing that the police utilized proper identification procedures, while the defendant must show that such procedures were so unduly suggestive that he was thereby deprived of due process (see People v. Rahming, 26 N.Y.2d 411, 311 N.Y.S.2d 292, 259 N.E.2d 727; People v. Logan, 25 N.Y.2d 184, 303 N.Y.S.2d 353, 250 N.E.2d 454). Accordingly, "it is only when the defense has established that a pretrial identification procedure was unduly suggestive, after the prosecution has met its initial burden of going forward to demonstrate reasonableness and the lack of suggestiveness, that evidence concerning an independent source for the in-court identification must be elicited from the complainant" (People v. Tweedy, supra, at 468, 521 N.Y.S.2d 92). Although it is conceivable that an eyewitness might be necessary under certain circumstances in order to show suggestiveness, in this case defendant failed to make any factual demonstration whatever that the identification procedure in question was inherently suggestive, and the hearing court appropriately declined to compel the production of the complainant (see People v. Tweedy, supra; People v. Jones, supra; People v. Jackson, supra; People v. White, supra; People v. Sutton, supra ). The absence of any impermissibly suggestive identification procedure in the instant case is in marked contrast to the situation in People v. Andriani, 67 A.D.2d 20, 414 N.Y.S.2d 159, cert. den. sub. nom. Boutureira v. New York, 444 U.S. 866, 100 S.Ct. 139, 62 L.Ed.2d 90, where there was secrecy surrounding the lineup, and People v. Martin, 35 A.D.2d 786, 315 N.Y.S.2d 201, in which the victim apparently made an identification after he had previously observed defendant in police custody. Finally, it should be noted that People v. Gilliam, 45 A.D.2d 744, 356 N.Y.S.2d 663, revd. on dissenting opinion, 37 N.Y.2d 722, 374 N.Y.S.2d 616, 337 N.E.2d 129, also cited by the dissent, concerns the failure to produce a witness at a trial, not a hearing, which is quite a different issue.

All concur except SMITH, J., who dissents in part in a memorandum as follows.

SMITH, Justice (dissenting in part).

I would adhere to a long-standing rule in this Department by holding the appeal in abeyance and remanding the matter to the trial court for a reopened Wade hearing at which the defendant is permitted to call the complaining witness to testify.

Following a Wade hearing and the denial of the defendant's motion to suppress identification testimony, the defendant pleaded guilty to attempted robbery in the second degree. At the time of the plea, defendant admitted that he and another person forcibly stole property from the complainant.

One of the grounds for defendant's appeal of the suppression ruling is a decision by the hearing court denying the defendant's repeated request to be permitted to call the complaining witness with respect to his assertion that a showup in the subway station where he was identified by the complaining witness was unfair and prejudicial. The defense counsel specifically...