People v. Simpson

• Citation: 174 A.D.2d 348,570 N.Y.S.2d 810
• Parties: The PEOPLE of the State of New York, Respondent, v. Timilo SIMPSON, Defendant-Appellant.
• Decision Date: 06 June 1991
• Court: New York Supreme Court Appellate Division

Page 810

570 N.Y.S.2d 810

174 A.D.2d 348

The PEOPLE of the State of New York, Respondent, v. Timilo SIMPSON, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

June 6, 1991.

Before SULLIVAN, J.P., and ROSENBERGER, KUPFERMAN, ASCH and KASSAL, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Howard E. Bell, J.), rendered June 21, 1989, convicting defendant, upon a jury verdict, of robbery in the second degree and sentencing him, as a persistent violent felony offender, to an indeterminate term of imprisonment of from seven and one-half to fifteen years, reversed, on the law and the facts, defendant's motion to suppress any out-of-court identification evidence is granted and the matter is remitted for a new Wade hearing to determine whether an independent source exists for any in-court identifications of defendant and a new trial.

Defendant and a co-defendant were indicted for the crime of robbery in the second degree. At the Dunaway/ Wade hearing conducted before trial, Police Officer Carl Columbia testified that he saw defendant and Michael Hobday at 5:25 P.M. on June 4, 1988 while he was stationed at Platform 6 of the Canal Street subway station. The men drew the uniformed officer's attention because he had received a radio run earlier in the day with regard to a robbery that had occurred at 10:45 A.M. at the Chambers Street station. The report described the perpetrators of that robbery as a white male, over six feet tall, wearing dark clothing and a black male, approximately 40 years of age. Columbia became suspicious because the description matched defendant and Hobday and because the two men broke eye contact with him, sat down on a bench and glanced in his direction.

Columbia called his command district to get an update on the description of the robbery suspects and was told that the black suspect was short and that the white male might be Hispanic. The precinct did not know if the suspects had been armed. Columbia testified that he thought it was "possible" that defendant and Hobday were the perpetrators and requested back-up assistance. He then stopped them and without any inquiry, directed them to stand up and put their hands against the wall. When they asked what was going on, Columbia told them that they fit the description of perpetrators of a robbery. He then frisked defendant and recovered a hypodermic syringe. Defendant was placed under arrest and was later identified by the complainant at a lineup.

The Supreme Court concluded that defendant's arrest was based on probable cause and that the lineup was not unduly suggestive. Defendant's motion to suppress any out-of-court identification evidence was, therefore, denied. After trial, defendant was convicted of robbery in the second degree.

We agree with defendant that Officer Columbia lacked probable cause to arrest him and that any evidence of the lineup identification must be suppressed as fruit of the poisonous tree.

The prosecution had the burden of establishing probable cause for defendant's arrest after he moved to suppress the complainant's lineup identification as the fruit of his unlawful arrest (People v. Dodt, 61 N.Y.2d 408, 474 N.Y.S.2d 441, 462 N.E.2d 1159; People v. Berrios, 28 N.Y.2d 361, 321 N.Y.S.2d 884, 270 N.E.2d 709). In order to establish probable cause, the People must introduce facts and circumstances, including the description upon which the police acted which, when viewed together, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense has been or is being committed and that the person arrested was the perpetrator. (People v. Dodt, supra; People v. White, 117 A.D.2d 127, 503 N.Y.S.2d 59, app. denied, 68 N.Y.2d 818, 507 N.Y.S.2d 1036, 499 N.E.2d 885).

"A police officer may have probable cause to effect a warrantless arrest where he observes a suspect in proximity to the scene of the crime and to the time of its commission, and the suspect's appearance matches a sufficiently detailed and particular description of the perpetrator which has been received by the officer (see, e.g., People v. Mercado, 117 AD2d 627 ; People v. Chamberlain, 114 AD2d 966 ; People v. Arnette, 111 AD2d 861, 862 ). However, a description which is meager and lacking in specificity may be insufficient, without more, to establish probable cause to arrest (see, e.g., People v. Riddick, 110 AD2d 787 ; People v. Lane, 102 AD2d 829 , appeal dismissed 63 NY2d 865 [482 N.Y.S.2d 271, 472 N.E.2d 47]; People v. Gordon, 87 AD2d 636 " (People v. White, supra at 131, 503 N.Y.S.2d 59; and see, People v. Lee, 126 A.D.2d 568, 511 N.Y.S.2d 27).

While probable cause was established for defendant's arrest for a series of robberies in People v. Polk, 166 A.D.2d 177, 560 N.Y.S.2d 428, app. denied, 76 N.Y.2d 1023, 565 N.Y.S.2d 774, 566 N.E.2d 1179, despite a lapse of almost two days from the date of the commission of the last robbery to defendant's arrest, in that case the officers were provided with a more detailed description of Polk and his cohort than that provided of defendant and Hobday. Polk and his partner matched the description and were spotted in the precise location of the most recently reported robbery. The police had also noticed that the cohort had been in the station for two hours and had placed himself out of view of other passengers.

The officers then approached and inquired as to the reason for Polk's and the other man's presence at the station. The cohort's responses were inconsistent and did not satisfactorily establish a reason for his presence in the station for two hours. When asked for identification, he produced a meal ticket from a shelter with someone else's name on it. Because Polk and the other man became agitated during the questioning, the officer frisked the other man and recovered a weapon. The officers had previously received information that the perpetrators of the robberies had used or threatened the use of weapons.

Unlike the situation in Polk, the initial description received by Officer Columbia of the perpetrators of the Chambers Street station robbery, which occurred some six hours before he observed defendant and Hobday at the Canal Street station, was too general, vague and stale to render it more probable than not that they were the individuals who committed the robbery (People v. White, supra ). Nor did the addition of the updated information he received from his command provide the requisite specificity.

The actions of defendant and Hobday, in breaking eye contact with the officer, sitting on the bench and then in glancing in his direction, were neither suspicious nor even particularly unusual (People v. Corrado, 22 N.Y.2d 308, 292 N.Y.S.2d 648, 239 N.E.2d 526, rearg. denied, 23 N.Y.2d 921, 298 N.Y.S.2d 1028, 246 N.E.2d 170; cf. People v. Polk, supra). While an officer is entitled to draw on his expertise as a criminal investigating officer, he may not draw the inference of criminality when others would not (People v....