People v. Todd, 2015–877 N CR.

• Decision Date: 30 November 2017
• Docket Number: No. 2015–877 N CR.,2015–877 N CR.
• Citation: 72 N.Y.S.3d 518 (Table)
• Parties: The PEOPLE of the State of New York, Respondent, v. Norman TODD, Appellant.
• Court: New York Supreme Court — Appellate Term

72 N.Y.S.3d 518 (Table)

The PEOPLE of the State of New York, Respondent,

v.Norman TODD, Appellant.

No. 2015–877 N CR.

Supreme Court, Appellate Term, Second Dept., 9 and 10 Judicial Dist.

Nov. 30, 2017.

Nassau County Legal Aid Society (Jeremy L. Goldberg, Argun M. Ulgen of counsel), for appellant.

Nassau County District Attorney (Andrea DiGregorio, Mary Faldich of counsel), for respondent.

PRESENT: ANTHONY MARANO, P.J., BRUCE E. TOLBERT, JERRY GARGUILO, JJ.

Appeal from a judgment of the District Court of Nassau County, First District (Martin J. Massell, J.), rendered March 18, 2015. The judgment convicted defendant, upon a jury verdict, of stalking in the fourth degree ( Penal Law § 120.45[1] ). The appeal brings up for review the denial, after a hearing (Douglas J. Lerose, J.), of the branches of defendant's omnibus motion seeking to suppress his statement to the police and identification testimony.

ORDERED that the judgment of conviction is reversed, on the law, and the matter is remitted to the District Court for a new trial.

An information, dated January 21, 2013, charged defendant with stalking in the fourth degree under Penal Law § 120.45(1). The factual part of the information alleged, in pertinent part, that, at about 4:50 p.m. on October 22, 2012:

"Defendant Norman Todd placed the victim in a state of fear and alarm at her place of employment which is the McDonalds restaurant located at 1050 Front Street Uniondale. Your deponent states [that] part of the victim's job description is working at the drive up window. The defendant engaged the victim in conversation by stating you are so beautiful, you are my fantasy, I fantasize about you and the things I would do to you.' Your deponent states after seeing the defendant she recognized him [as] someone who frequently comes to that McDonalds when she is working. Your deponent further states, while the victim was walking home from work on a Saturday or Sunday in July 2012 the defendant jumped out of some bushes on the corner of Chester [Street] and Oakley [Street in] Uniondale startling her. He then stated to your victim I watch you walk home from work and why don't you come with me.'

On [December 28, 2012] the defendant did return to the McDonalds drive up window he saw that the victim was working at the first window where he paid for his order, the victim saw the defendant pull up [and] she recognized him and backed away from the window in an attempt not to be seen by the defendant. Your deponent further states the defendant then pulled his vehicle forward to the second window to pick up his food where he engaged in a conversation with [a male co-worker]. The witness stated the defendant said You should hit that' as he referred to the victim. Your deponent states the defendant then stated to [the] witness no really you should f*ck that' again referring to [the] victim. The defendant refused to leave the drive up window, he again asked [the] witness are you going to?' still referring to the victim.

Your deponent states the defendant's actions placed the victim in grave fear of physical injury that she had to change her name tag on her uniform so the defendant doesn't know her first name.

The above is based on information and belief the source of said information being the supporting depositions of the victim, the witness, [a] secured video surveillance of the defendant, the statement of admission of the defendant and your deponent's investigation."

The video referenced in the information depicts defendant at the McDonald's drive-thru window on October 22, 2012. It is undisputed that the video contains no sound.

On October 22, 2012, the victim provided a supporting deposition, which, in pertinent part, states as follows:

"I was working at the drive-thru, when an unknown male black, late 40's, 6'3?, gray beard and glasses pulled up for his order in a dark colored SUV and stated you are so beautiful, you are my fantasy. I fantasize about you & the things I would do to you,' I was very scared at this point. The man [then] took his order [and] drove away. The car behind him heard the conversation and wrote down the license plate of the subject vehicle. It is [New York plate] FSW5272 which is a 2012 Honda Pilot, gray. After seeing this man [and] speaking to him, I remember seeing him often at the McDonald's. I also remember on a Saturday or Sunday in July seeing this man. I was walking home from work when this man came out of the bushes and began to wave at me and said I watch you walk home from work' and why don't you come [with] me.' Also, for the last few months, an unknown male has called McDonalds numerous times asking when I am working, what days [and] times [and] other things about me. My manager at the McDonalds is aware of the situation."

On January 21, 2013, the victim's coworker signed a supporting deposition, which, in pertinent part, states as follows:

"On Friday, December 28, 2012, I was working at my job at McDonalds [at] the drive through window. My coworker ... was ... working the other window. I noticed that [she] had backed away from her window. As a car pulled up it was [a] black SUV. The guy who was driving was a dark skinned male black with a grey and black beard. He was wearing glasses. I was working fast because the drive up was very busy. I gave the guy his food and he said you should hit that' as he [referred] to [the victim] at the other window. No really you should f*ck her.' The guy would not pull away from the window. He stayed there and I closed the window. When I looked back he was still at the window. I ... already gave him his food. I opened the window and he said are you going to' again [referring] to [the victim]. He just was staring at me. He was creepy. I wanted him to leave because the line was getting longer. I said to him alright [yeah, yeah] as I tried to brush him off so he would leave. He finally left the drive up window. I told [the victim] what he said [and] she looked afraid. She said that's the guy who has been stalking me. She then called her mother. The guy is tall and about 50 years old."

As part of an omnibus motion, defendant moved to suppress his statement to the police and the victim's identification testimony. The District Court granted pretrial Huntley, Dunaway, Wade and Sandoval hearings. Defendant's motion also sought to dismiss the information, together with the supporting depositions, as facially insufficient. In an order dated July 16, 2013, the District Court (Martin J. Massell, J.) denied the branch of defendant's motion seeking to dismiss the information. The court determined that the "information gives the defendant notice that he is charged with engaging in a course of conduct directed at the complainant and that the alleged conduct was likely to cause reasonable fear of harm."

At the suppression hearing, a Nassau County police detective testified that he had become involved in a stalking investigation when a young female and her mother had come to the precinct to report the offense. She told the detective that, while she was working at the McDonald's drive-thru window on October 22, 2012, a male drove up "and stated some inappropriate thing to her that placed her in fear for her safety." She remembered him "from past incidents from being a customer and also from an incident that happened when she was walking home from work." The man had previously "stepped out of some bushes and stated to her, [']I watch you walk home from work every day. Why don't you come with me .['] " The man came back to the McDonald's drive-thru in December. He passed her window and didn't say anything to her. He went to the next window and spoke to her coworker. She described the man as a black male, approximately six feet three inches tall, in his late 40's, with a gray beard, wearing a baseball hat. The victim provided the detective with the license plate number of the vehicle driven by the perpetrator, which she had received from a motorist that was on the line at the McDonald's drive-thru window. The detective determined that the vehicle was a Honda Pilot, which was parked at a home in Uniondale. He also received a video taken on October 22, 2012, from the manager of the McDonald's. The video contained no sound. The person driving the Honda Pilot in the video matched the description of the perpetrator that had been provided by the victim.

The detective went to the address in Uniondale approximately 20 times in an attempt to locate the perpetrator. The Honda Pilot, bearing the same license plate number, and a 2008 black Ford Edge were parked at the address. At approximately 1:05 p.m. on January 21, 2013, the detective and his partner went to the address. A man, who matched the description of the perpetrator and was subsequently identified as defendant, exited the house, entered the black Ford Edge, and drove away. He saw defendant's eyes in the rear view mirror. Defendant's driving became "a little more erratic and his speed picked up." Defendant made a U-turn in a shopping center parking lot, and then made a left turn out of the parking lot, while failing to yield to, and cutting off, a vehicle that was in front of him. The detective turned on his lights and sirens, and attempted to perform a motor vehicle stop. Defendant drove back to the house in Uniondale, where he stopped and was arrested. Defendant was transported to the precinct.

The detective then prepared a photo array. Defendant's photograph was obtained from the Department of Motor Vehicles. A computer provided "a selection of people who have similar features." The detective has the ability to delete "the ones that are way off." At 3:21 p.m. on January 21, 2013, the detective and his partner went to the victim's home, interviewed her, and showed her the photo array. The detective used the array even though some of the photographs of the individuals were of different sizes, some had different hairlines and types of facial hair, and the backgrounds were different. The victim...