People v. Smoot
| Decision Date | 28 September 1995 |
| Citation | 634 N.Y.S.2d 367,166 Misc.2d 862 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Terrence SMOOT, Defendant. |
| Court | New York Supreme Court |
Martin Marshak, Brooklyn, New York, for Terrence Smoot, Defendant.
Mara Sibley, Assistant District Attorney, Charles J. Hynes, District Attorney, of County of Kings, Brooklyn, New York, for Plaintiff.
Defendant Terrence Smoot is charged with the intentional murder of one Thomas Singletary. Defendant Smoot was granted a combined Dunaway-Huntley-Wade hearing which was conducted by the Court. The People called four witnesses: Detective Paul Capellini, Detective Thomas Deutsch, Detective Raymond Anderson, and Kevin Fields. The defense called no witnesses. Based upon the credible testimony of record, the Court makes the following findings:
FINDINGS OF FACT
On October 29, 1994 at approximately 4:00 P.M., Thomas Singletary was shot and killed during a dispute at a dice game in the lobby Two participants in the dice game, Michael Woolerey and Selwin Foster were separately shown one six person photo array at 11:50 P.M. on October 29, 1994 and 12:35 A.M. October 30, 1994 respectively. Only the front and profile of each person's head was displayed in the array. Michael Woolerey picked out defendant's picture and commented, "That's the guy who killed my man Biz." Foster, who withdrew from the dice game prior to the shooting, picked out the defendant's picture as a participant in the game and referred to him as "Smooth", whom he knew from hanging out in the "projects". The picture of the defendant was one taken during a prior arrest that resulted in the charges being dismissed.
of 108 Kingsborough Third Walk in Kings County.
Kevin Fields knew the defendant since they were both about 13 or 14 years old in junior high school. For years they saw each other five to seven days a week. They were close friends, knew each other's family and had been in each other's houses on many occasions. Fields indicated to the police that the defendant lived in the 1400's at St. Marks Avenue in Brooklyn. He also stated that Terrence Smoot was known as "Smooth" in the neighborhood.
Approximately three surveillance sites were observed on a few dates between October 29 and December 24, 1994. Defendant's residence at 1434 St. Marks Avenue and defendant's girlfriend's residence believed to be at 341 Kingsborough Third Walk were two of the premises observed. On December 24, 1994, at 7:00 A.M., a surveillance site was set at 395 Nostrand Avenue based on an anonymous call that the defendant was staying with his named girlfriend at that location. The police were looking for a Terrence Smoot or "Smooth" described as a male black, 5'8"' and 140 pounds. In addition, the members of the surveillance team had viewed a photo of Terrence Smoot.
At approximately 1:20 P.M. on December 24, 1994, one member of the plain clothes surveillance team, Detective Lieutenant Luis Gonzalez, radioed a transmission that he had observed a male black wearing a tan colored snorkel coat with the hood pulled tightly across his face exiting 395 Nostrand Avenue. The subject then almost immediately returned inside that location. Ten minutes later a male fitting the description given by Lieutenant Gonzalez exited the subject premises and went to a telephone booth across the street at the corner of Nostrand and Putnam Avenues. The detectives' suspicions were aroused at the manner in which the hood was closed as it was a particularly warm day for late December. Detective Capellini and two other detectives drove the 150 feet from where they were parked to the corner of Nostrand and Putnam.
The two other detectives positioned themselves behind the phone booth while Detective Capellini exited the van and walked around the booth where the person was standing and talking. The person in the snorkel jacket turned to Detective Capellini and asked whether the detective wanted to use the phone. Detective Capellini then asked the subject to remove his hood. When the subject complied, the detective was convinced that the person before him was the same person that he had seen in the photo, one Terrence Smoot. The defendant was asked to step into the van and he was asked his name. The defendant stated that his name was John Jones and that he lived at 395 Madison Avenue. Detective Capellini radioed Detective Lt. Gonzalez who arrived at the scene with a photo of the defendant. After a further visual comparison was made, the defendant was placed under arrest.
A few hours after his arrival at the precinct, the defendant was given Miranda warnings by Detective Deutsch. Defendant signed an acknowledgement that his rights were read to him. The defendant was then asked whether he wanted anything to eat or drink. The defendant was then interviewed by Detectives Deutsch and Anderson, and the defendant after a short period of time, gave a statement which was committed to a writing by Detective Deutsch, read back to the defendant and then signed by him.
Later that evening Michael Woolerey observed a line-up at the precinct and identified the defendant who was placed in the number five position at his own request. The persons
participating in the line-up consisted of six black males described as follows:
Number Height Weight Age
1 5'7" 140 30
2 5'9" 137 40
3 5'9" 190 25
4 5'11" 140 29
5 5'7" 145 21 (Defendant)
6 5'9" 165 37
The fillers were obtained from a local men's shelter. All participants were seated during the line-up and wore surgical masks over their heads as hoods. There was no contact between the defendant and Mr. Woolerey at the precinct prior to the line-up. On December 29, 1994, Kevin Fields viewed one photo of the defendant and identified him as Terrence Smoot.
The defendant seeks, inter alia, to suppress the identification testimony of Michael Woolerey and his statement as the fruit of an unlawful stop and arrest. The Court must first determine what level of interference was involved when Detective Capellini approached the defendant and requested or asked that he remove his hood.
It is undeniable that based on the statements of Kevin Fields, Michael Woolerey, and Selwin Foster as well as the identifications of the defendant in a photo array made by the latter two constituted probable cause to arrest the defendant.
Thus, on December 29, 1994, the police were staking out the premises at 395 Nostrand Avenue looking for a particular person named Terrence Smoot. The defendant was not stopped, nor was his movement interfered with as he was already stopped while making a call in the phone booth. See People v. Ocasio, 201 A.D.2d 15, 614 N.Y.S.2d 506; People v. Fabian, 178 A.D.2d 544, 577 N.Y.S.2d 643; People v. Elsberry, 157 A.D.2d 848, 550 N.Y.S.2d 426; and People v. Mallet, 164 Misc.2d 1009, 627 N.Y.S.2d 248.
The police, looking to arrest Terrence Smoot, saw a person emerge from the premises under surveillance and then almost immediately return. That person was wearing a snorkel coat with the hood pulled tight almost completely covering the subject's face. This extreme covering of the head and face was deemed suspicious as the temperature was particularly warm for a day in late December. The question to be decided is whether Detective Capellini's request of the defendant to remove his hood constituted a first level intrusion, namely a request for information regarding identity or a second level intrusion, namely a common law inquiry. 1 People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562; People v. Hollman, 79 N.Y.2d 181, 581 N.Y.S.2d 619, 590 N.E.2d 204. A request for information regarding identity or destination need be supported only by objective credible reason not necessarily indicative of criminality. A common law inquiry must be supported by a founded suspicion that criminality is afoot. People v. De Bour, supra 40 N.Y.2d at 219, 386 N.Y.S.2d 375, 352 N.E.2d 562; People v. Reyes, 83 N.Y.2d 945, 946, 615 N.Y.S.2d 316, 638 N.E.2d 961; People v. Bora, 83 N.Y.2d 531, 611 N.Y.S.2d 796, 634 N.E.2d 168; People v. Hollman, supra 79 N.Y.2d at 189-190, 581 N.Y.S.2d 619, 590 N.E.2d 204; People v. Moore, 47 N.Y.2d 911, 419 N.Y.S.2d 495, 393 N.E.2d 489.
This Court in deciding this issue has considered the content, nature and number of the questions asked. People v. Hollman, supra at 192, 581 N.Y.S.2d 619, 590 N.E.2d 204. The verbal interaction was commenced by the defendant who asked whether Detective Capellini wished to use the phone. The detective identified himself as a police officer and asked the defendant to remove his hood. The nature and content of the sole question asked prior to defendant's removal of his hood may not rise to an encounter of harassment or intimidation. Although it appears that the defendant did not know of the presence of the two detectives behind the phone booth [see People v. Mallet, supra ], the mere presence of more than one police officer at the scene does not automatically convert a request for information to a common law inquiry, see People v. Hollman, supra at 186, 581 N.Y.S.2d 619, 590 N.E.2d 204. Thus, the removal of defendant's hood was a voluntary act and not a submission to authority. People v. Reyes, 83 N.Y.2d 945, 615 N.Y.S.2d 316, 638 N.E.2d 961. A reasonable person would have believed that he was free to walk or even to run away or to refuse to comply with the detective's request. People v. Howard, 50 N.Y.2d 583, 430 N.Y.S.2d 578, 408 N.E.2d 908; People v. Holmes, 81 N.Y.2d 1056, 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396; People v. Martinez, 80 N.Y.2d 444, 447-448, 591 N.Y.S.2d 823, 606 N.E.2d 951; People v. Hicks, 68 N.Y.2d 234, 240, 508 N.Y.S.2d 163, 500 N.E.2d 861.
The discussion, however, does...
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