Santucci v. Andrews

• Decision Date: 18 January 1983
• Citation: 117 Misc.2d 616,458 N.Y.S.2d 1007
• Court: New York Supreme Court
• Parties: In the Matter of John J. SANTUCCI, as District Attorney of Queens County, Petitioner, v. Thomas ANDREWS a/k/a Jamal Hakeem, Respondent.

Page 1007

458 N.Y.S.2d 1007

117 Misc.2d 616

In the Matter of John J. SANTUCCI, as District Attorney of Queens County, Petitioner, v. Thomas ANDREWS a/k/a Jamal Hakeem, Respondent.

Supreme Court, Criminal Term Queens County, Part C1.

Jan. 18, 1983.

John J. Santucci, Dist. Atty. by Steven Lipton, Asst. Dist. Atty., Kew Gardens, for petitioner.

Ceasar Cirigliano, Legal Aid Soc. by Robert Baum, Forest Hills, for respondent.

MEMORANDUM

CORNELIUS J. O'BRIEN, Justice.

This is an application by the District Attorney of Queens County, proceeding by order to show cause, on notice to defense counsel, for an order compelling respondent to stand in a lineup.

The respondent, Thomas Andrews, presently incarcerated in Rikers Island on an unrelated charge, was tentatively identified by photograph on August 13, 1982, by one Eddie DeRose as one of the persons who robbed him while displaying what appeared to be a shotgun, at a Shopwell supermarket located at 75-55 31st Avenue in Queens County. On September 2, 1982, one Kenny Anderson photographically identified respondent as "one of the persons who forcibly stole a sum of United States currency from him on July 18, 1982, at the same location".

The People contend that if this court directs that the respondent stand in a lineup, it should also rule that not only is he to be viewed by DeRose and Anderson but also by all other witnesses to the crimes, whether they tentatively identified him from photos or not. Additionally, since the respondent is a "suspect" in several other crimes, the People claim that witnesses to these other crimes, who presumably have not tentatively identified the respondent, should also be permitted to view him.

According to the People, the important issue as to whether a person who can properly be compelled to stand in a lineup in a case where probable cause has been established, can also be viewed by witnesses in other cases where he is merely a suspect, has never been addressed by the New York courts. Citing Adams v. United States, 399 F.2d 574 [D.C.Cir.1968], United States v. Stevenson, 443 F.2d 661 [D.C.Cir.1979] and United States v. Anderson, 490 F.2d 785 [D.C.Cir.1974], it is claimed that once probable cause is established permitting a lineup, the respondent may be "viewed by witnesses in other cases in which [he] might be involved" (United States v. Stevenson, supra, p. 662) as long as he is a suspect in those other cases.

Unfortunately, for the People's position, it would seem clear that while the New York courts have not squarely faced this issue before, they have addressed it inferentially nonetheless. In the recently decided case of Matter of Walter Pidgeon v. Rubin 80 A.D.2d 568, 435 N.Y.S.2d 763 [Feb. 1982] the Appellate Division, Second Department, citing Matter of District Attorney of Kings County v. Angelo G., 48 A.D.2d 576, 371 N.Y.S.2d 127; Matter of Merola v. Fico, 81 Misc.2d 206, 365 N.Y.S.2d 743; People v. Mineo, 85 Misc.2d 919, 381 N.Y.S.2d 179 and People v. McClain, 88 Misc.2d 693, 389 N.Y.S.2d 976 stated that "it has been consistently held by the courts of this state" that a suspect incarcerated on an unrelated charge cannot be made to stand in a lineup unless he has been given proper notice in an application spelling out probable cause for the granting of the relief sought (Matter of Walter Pidgeon, supra, 80 A.D.2d 568, 435 N.Y.S.2d 763).

Still more recently in Matter of Abe A., 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265 [June 1982], the Court of Appeals, after indicating that holdings in other jurisdictions allowing the seizure of an individual on a "standard below that of probable cause to arrest" are not "constitutionally firm", held that absent exigent circumstances such a seizure can never be allowed on less than probable cause (Abe A., supra, 295, 452 N.Y.S.2d 6, 437 N.E.2d 265).

Matter of Abe A. (supra), although it involves a court order for the taking of a blood sample, is clearly applicable to lineups as well. Judge Fuchsberg cites Matter of...