People v. Williams
| Decision Date | 22 April 2015 |
| Docket Number | 2012-04761, Ind. No. 2315-10. |
| Citation | 7 N.Y.S.3d 434,127 A.D.3d 1114,2015 N.Y. Slip Op. 03390 |
| Parties | The PEOPLE, etc., respondent, v. Kermit WILLIAMS, appellant. |
| Court | New York Supreme Court — Appellate Division |
127 A.D.3d 1114
7 N.Y.S.3d 434
2015 N.Y. Slip Op. 03390
The PEOPLE, etc., respondent
v.
Kermit WILLIAMS, appellant.
2012-04761, Ind. No. 2315-10.
Supreme Court, Appellate Division, Second Department, New York.
April 22, 2015.
Robert C. Mitchell, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant, and appellant pro se.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), for respondent.
PETER B. SKELOS, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
Opinion
Appeal by the defendant from a judgment of the County Court, Suffolk County (Weber, J.), rendered May 8, 2012, convicting him of burglary in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress identification testimony, physical evidence, and his statements to law enforcement officials.
ORDERED that the judgment is affirmed.
On September 5, 2010, at approximately 10:49 p.m., a police radio broadcast reported a burglary in progress at a house on North Oregon Road in West Babylon. Police officers responding to the address saw two perpetrators fleeing out of the back door of the house. Upon conducting a security sweep of the premises, one of the officers found a loaded revolver on the steps leading to the basement. After securing
the gun, he broadcast over the radio that a gun had been recovered. Outside the house, the officers also found the 13–year–old complainant, who, upon arriving home that night and attempting to enter via the back door, had come upon three burglars. The burglars forced the complainant, at gunpoint, to lead them around the house, room by room, looking for money. The burglars left the complainant alone for a few moments and he ran outside. Eventually, he encountered the police and told them what happened.
The police officers were also advised over the radio that a black vehicle possibly involved in the burglary was parked at the corner of Phoenix Road and North Oregon Road. Approximately two minutes after that radio broadcast, two other officers arrived at that location. They observed codefendant Darrick Harrison sitting in a black Chrysler 300, with its lights off. When asked what he was doing in that area, Harrison
indicated that he was going to smoke marijuana while waiting for a friend. However, the officer questioning Harrison did not smell marijuana. The officers directed Harrison to get out of the vehicle. When Harrison exited the vehicle, he placed a cell phone on the roof of the vehicle. The cell phone rang repeatedly, but Harrison did not answer the phone. One of the officers asked Harrison whether he was going to answer the phone, and Harrison replied that the phone was not his. The officer then answered the phone and a male, who sounded as though he was out of breath, asked to be picked up on Straight Path near the Southern State Parkway. That area was in close proximity to the location of the burglary.
Another police officer was dispatched to the area of Straight Path near the Southern State Parkway. Upon arriving at that location, the officer observed the defendant walking southbound on Straight Path toward a parked vehicle. No one else was in the area. As the officer drove past the defendant, he saw the defendant turn his head to follow the police vehicle. The officer turned his vehicle around and saw the defendant, who appeared disheveled, get into the parked vehicle, which then drove away. After following the vehicle for several blocks, the officer stopped the vehicle.
Upon approaching the vehicle, the officer observed that the driver was calm and clean, while the defendant was sweaty and had a small amount of dirt on his shirt. The driver informed the officer that the defendant was an old friend who had called and asked to be picked up. The driver further advised the officer that he knew that something was wrong when the defendant called because the driver did not usually hear from the defendant, and the defendant had sounded out of breath. The officer then directed the defendant to get out of the vehicle.
The complainant was brought to the area for a showup identification. The defendant was arrested after the complainant identified him as one of the burglars who had entered the house. At the precinct station house, while being questioned by the detective assigned to the case, the complainant disclosed, for the first time, that the burglars' faces had been covered by masks during the entire incident.
The defendant correctly contends that the hearing court should have granted that branch of his omnibus motion which was to suppress the pretrial and in-court identification by the complainant. “The judicial toleration of promptly conducted at-the-scene showups rests on our objective that the police have reasonable assurances that they have arrested or detained the
right person” (People v. Duuvon, 77 N.Y.2d 541, 545, 569 N.Y.S.2d 346, 571 N.E.2d 654 ). Here, the hearing testimony
demonstrated not only that the perpetrators' faces were covered during the entire time the complainant was with them, but also that the only description the complainant had previously provided to the police was that the perpetrators were black males. Under these circumstances, it cannot be said that the complainant's pretrial and in-court identification of the defendant was not founded on the fact that the defendant was the only person standing in the street, in handcuffs, surrounded by the police with high-beam headlights shining on his face, during the showup proceeding (see People v. Underwood, 239 A.D.2d 366, 658 N.Y.S.2d...
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