Police Encounters with the public 2

STATEMENT PURSUANT TO RULE 670.10.3(g)92)(viii):

460. A) There is not an order issued pursuant to CPL 460.50 that is outstanding in this case.
461. B) There are two (2) co-defendants in the trial court.

STATEMENT OF QUESTIONS PRESENTED

1. Should Defendant-Appellant’s trial have been severed from that of his co-defendants’?

Answer of the Court Below: No.

2. Was the stop of the vehicle in which Defendant-Appellant was a passenger lawful?

Answer of the Court Below: Yes.

3. Was there probable cause for the arrest of Defendant-Appellant?

Answer of the Court Below: Yes.

4. Was client’s statement to the police admissible into evidence?

Answer of the Court Below: Yes.

5. Was Defendant-Appellant’s jacket containing stolen property properly seized by police?

Answer of the Court Below: Yes.

6. Was the show-up identification of the Defendant-Appellant at the scene of the vehicle crash improperly suggestive?

Answer of the Court Below: No.

7. Was the photo array identification of Defendant-Appellant improperly suggestive?

Answer of the Court Below: No.

8. Assuming arguendo that the photo array was unduly suggestive, was there sufficient evidence from which it could be determined that the complainant/victim had an independent basis for identifying the Defendant-Appellant?

Answer of the Court Below: None.

9. Were the statements of a witness, and the complainant/victim, regarding pre-trial identifications, so unduly prejudicial to the Defendant-Appellant such that he was denied a fair trial?

Answer of the Court Below: No.

10. Was the Verdict Repugnant?

Answer of the Court Below: No.

11. Was the sentence rendered upon Defendant-Appellant inappropriate for the crime he was convicted of, given his criminal history?

Answer of the Court Below: No.

DIGEST OF ESSENTIAL FACTS:

On May 21, 2013, Yonkers Police Officer Diodati, on foot patrol along McLean Avenue in Yonkers, New York, was approached by George Redacted and told that an apparent robbery was taking place at the SUDS Car Wash, across the street. Officer Diodati responded to the car wash, spoke with witnesses, and immediately radioed a report of a gunpoint robbery with a preliminary description of the perpetrators.

While at the car wash doing his preliminary investigation, Diodati observed the owner of the car wash, Dennis Redacted, with his legs and wrists bound by duct tape, and tape partially covering his eyes. Officer Diodati ascertained that three male blacks had performed the robbery, that two of the males had guns, that one was very tall, all wearing white t-shirts, one with a Yankee cap and another with a red cap, and that they had fled the location on foot.

Yonkers Captain Butler was driving a marked police vehicle eastbound on McLean Avenue, towards the car wash, when he heard the radioed report and description. He activated his lights and siren, and began to respond while simultaneously looking for suspects matching the descriptions. Less than a minute after hearing Diodati’s description of the suspects the Captain observed a vehicle travelling in the opposite direction as his, within a quarter of a mile of the car wash, containing three male blacks who appeared to match said description. As he observed the suspects, according to the Captain’s testimony, the individuals appeared surprised and startled.

The Captain executed a U-turn in order to bring his vehicle into position behind the suspects’, at which time the suspects’ vehicle began to accelerate, and the Captain commenced a pursuit. The suspects’ vehicle made a left turn onto Central Park Avenue from McLean, and then entered the New York State Thruway (U.S. 87 North). The suspects’ vehicle then led multiple police vehicles on a high speed chase, at times exceeding 100 miles per hour, passing through toll booths until finally exiting the highway at the Ardsley Exit 7A. The suspects’ vehicle sped down the exit ramp from the highway, lost control, skidded across the intersecting roadway, Route 9A, and collided with the guardrail perpendicular to the exit ramp. The three suspects then exited their vehicle and fled on foot into a wooded are on the opposite side of the guardrail.

The driver of the vehicle crossed over the guardrail, and fled down a ravine to the Saw Mill River below. The two passengers exited the passenger side and fled several hundred feet along the roadway before they too crossed over the guardrail, and fled down the ravine to the river.

Police Officer Koch, who participated in the chase, safeguarded the suspects’ vehicle while other officers continued the foot pursuit. Through the windows of the suspects’ vehicle, Officer Koch testified that he observed in plain view a hand gun and a machine gun.

Police Officer Bladel, who participated in the chase, testified that he pursued the two passengers from the suspects’ vehicle, first with his police vehicle, and then on foot down the ravine, and across the river. One of the males, who was wearing a denim jacket during the initial foot chase, discarded the jacket before continuing to run up the hill on the opposite side of the river. Upon catching this male a violent struggle ensued. When the male was finally subdued and handcuffed, Officer Bladel began to “pat down” the male for weapons, at which time the male stated, “They are not on me, the guns are in the car.” Officer Bladel then recovered the denim jacket that had been discarded by this male, and observed a large sum of United States Currency wrapped in a blue bank-band inside a pocket of the jacket. This individual was returned to the scene of the crash of the suspects’ vehicle, where he was identified by Captain Butler as one of the individuals observed in the suspects’ vehicle just prior to the commencement of the pursuit.

Approximately ten (10) minutes had passed between the time that the Captain saw this individual flee into the wooded area, and the time that the Captain identified him as a participant in the chase. This individual was later identified as the Defendant-Appellant, Michael Redacted.

Later that same evening, Dennis Redacted, the owner of the car wash, met with Detective Higgins at the Yonkers P.D. Detective Division. Mr. Redacted was shown a photo array containing the Defendant-Appellant’s picture, identified it and circled it.

The Defendant-Appellant, and his co-defendants, were indicted for aiding and abetting, and acting in concert, on the following charges:

• Four counts of robbery in the first degree (PL 160.15[2][4]);
• One count of robbery in the second degree (PL 160.10[1]);
• Two counts of criminal possession of a weapon in the second degree (PL 265.03[3]);
• One count of criminal possession of a weapon in the third degree (PL265.02[3]);
• Four counts of grand larceny in the fourth degree (PL 155.30[1], [4], and [5]);
• Two counts of petit larceny (PL 155.25);
• Two counts of criminal possession of stolen property in the fourth degree (PL 165.42[2]);
• Three counts of criminal possession of stolen property in the fifth degree (PL 165.40).

On October 31, 2013, the Hon. Lester Adler, J.S.C., granted the Defendant-Appellant’s motions to the extent of ordering Mapp, Dunaway, Huntley, Wade and Sandoval Hearings. The preliminary hearings were held before the Hon. Barbara G. Zambelli, J.C.C., on February 24^th and 26^th, 2014. The following witnesses from the Yonkers Police Department gave testimony: PO Fitzpatrick, Det. Koch, Capt. Butler, PO Diodati, Det. Higgins, PO Bladel, PO Mahoney, PO Mirizio, PO Trojanowski, and Det. Fogarty.

By written decision dated March 31, 2014, Judge Zambelli made the following rulings relevant to the Defendant-Appellant:

1. Whether Captain Butler lawfully ordered the Defendant-Appellant’s vehicle to stop on McLean Avenue:

Judge Zambelli ruled that, when Captain Butler pulled behind the Defendant-Appellant’s vehicle with his lights and sirens activated, this constituted a seizure of the vehicle, notwithstanding the fact that the vehicle fled. Citing People v. May, 81 NY2d 725, and People v Ocasio, 85 NY2d 982, Judge Zambelli ruled that in order to be lawful, Captain Butler’s seizure of the Defendant-Appellant’s vehicle must have been “based on reasonable suspicion that the car’s occupants had been, are then, or are about to be engaged in criminal conduct” (Judge Zambelli’s Decision, dated 3/31/2014 [“Preliminary Decision”], page 90. In ruling this seizure lawful, Judge Zambelli reasoned as follows:

The police had a report of an armed robbery with a description from the owner and witnesses at SUDS of three male Blacks wearing white t-shirts, including one tall male black. Captain Butler observed three male blacks with one tall black driving the sedan on the same road as the location of the car wash less than a quarter of a mile away traveling in the opposite direction. The Captain made these observations less than fifteen minutes after the commission of the crime and less than three minutes after the transmission of the description of the suspects. The “startled, fearful” look od the driver who accelerated away from the marked police vehicle were further reason for the Captain to believe the occupants had engaged in the criminal activity at the car wash. Thus, the description of the perpetrators, the observations of the occupants of the vehicle, the temporal and geographic proximity of the occupants of the vehicle to the location of the crime, and the behavior of the driver provided reasonable suspicion justifying the police action at its inception and the ensuing chase.

(Preliminary Decision page 10).

2. Probable Cause to arrest the Defendant-Appellant:

Judge Zambelli ruled that the police had probable cause to arrest the Defendant-Appellant, reasoning as follows:

After the driver crashed the sedan into the guardrail on Route 9A in Ardsley all three occupants fled from the sedan wherein the police observed in plain view through an untinted window a machine gun on the back seat and a handgun on the floor of the front seat thereby establishing probable cause for the arrest of all the occupants.

(Preliminary Decision page 11).

3. Regarding the seizure of the denim jacket worn by Defendant-                                     Appellant:

In ruling that the denim jacket had been properly seized, Judge Zambelli ruled as follows:

Redacted intentionally abandoned the jacket while being lawfully pursued by the police. Hence, the jacket was lawfully recovered.

(Preliminary Decision page 11).

4. Regarding the inculpatory statement made by Defendant-Appellant:

In ruling that the Defendant-Appellant’s inculpatory statement was spontaneously volunteered, Judge Zambelli reasoned as follows:

While PO Bladel was effecting the arrest of Redacted, he patted down Redacted for weapons at his waistband. During the patdown and without any statement made by Bladel, Redacted blurted out, “They are not on me, the guns are in the car.” This statement was spontaneously volunteered and is thus admissible on the People’s case in chief.

(Preliminary Decision page 11).

5. Regarding the “Show Up” identification of Defendant-Appellant made by Captain Butler at the crash scene:

In ruling that the “Show Up” identification of the Defendant-Appellant, made by Captain Butler at the scene of the crash of the defendants’ vehicle, was lawful and not unduly suggestive, Judge Zambelli reasoned as follows:

The defendants were brought before Captain Butler at the Ardsley site to confirm that the three individuals were the three individuals Captain Butler had observed in the vehicle. The show up occurred at a place and time sufficiently connected and contemporaneous to the Captain’s observations of the observations of the occupants in the vehicle on McLean Avenue, the pursuit on the Thruway, and the pursuit at the Ardsley site so as to constitute the ordinary and proper completion of an integral police procedure and lent assurance that an innocent person was not being detained by reason of a mistaken arrest (citations omitted). Furthermore the show up occurred within ten minutes of the crash at the Ardsley site following the close pursuit and apprehension of each defendant by the police (citations omitted).

(Preliminary Decision page 12).

6. Defendant-Appellant’s identification in a photo array:

In ruling that the photo array identification of the Defendant-Appellant was lawful and not unduly suggestive, Judge Zambelli reasoned as follows:

With regard to the photo arrays, photographs in a photo array do not have to be identical in appearance; they simply must resemble each other sufficiently so that defendant is not singled out (citation omitted). In this case, the differences in the individuals in the photo arrays were not so great as to indicate that the police were urging a particular selection (citation omitted). Moreover, there is no evidence that the police engaged in any improper conduct prior to the witness’ selection of the photo in the particular array.

(Preliminary Decision page 13).

The trial of the charges against the Defendant-Appellant was held on the following days in 2014: March 3, 6, 7, 10, 12, 13, 14, 17, 19, 20, 21, 24, 25, 26, and 27. On March 25^th, Judge Zambelli gave her initial charge to the jury. On March 26^th there were various exceptions to the charge put forth by counsel for the defendants, after which the judge reinstructed the jury regarding the robbery counts. The jury deliberated on March 26^th, and March 27^th, rendering their verdict on March 28^th.

The Defendant-Appellant was found guilty of the following charges:

• One count of Robbery in the second degree;
• Two counts of Grand Larceny in the fourth degree pertaining to Mr. Redacted’s credit cards;
• Two counts of Petit Larceny pertaining to Mr. Redacted’s portable phone and laptop;
• One Count of Criminal Possession of Stolen Property pertaining to the United States Currency found in the pocket of his denim jacket;
• Resisting Arrest.

The Defendant-Appellant was found not guilty of the following charges:

• Four counts of Robbery in the first degree predicated upon either the possession of a firearm, or the display of what appears to be a firearm;
• One Count of Grand Larceny predicated upon money that was taken from the cash register at the car wash.

On October 14, 2014, the Defendant-Appellant was sentenced to a Determinate Sentence fifteen (15) years on the top charge, with five years of post release supervision, and various sentences to the lesser offenses to run concurrent.

STATEMENT REGARDING NON-FRIVOLOUS ISSUES

Having reviewed the entire record and the applicable law, I have found no non-frivolous issues which can be raised on this appeal.

LEGAL ANALYSIS OF ISSUES

PRESENTED BY THE RECORD

One:

The Court Did Not

Improperly Fail

To Sever the Defendant-

Appellant’s Trial From

That of his

Co-Defendants

As set forth by the Court of Appeals in People v. Mahboubian, 74 NY2d 174, 184 (1989):

Severance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant’s guilt.

The Court of Appeals further stated:

The decision to grant or deny a separate trial is vested primarily in the sound judgment of the Trial Judge, and defendants’ burden to demonstrate abuse of that discretion is a substantial one. Moreover ”[w]here proof against the defendants is supplied by the same evidence, only the most cogent reasons warrant a severance.

Id., at 183.

In the instant case, in their omnibus motions, each co-defendant raised the issue of severance, and the applications were denied with leave to renew. At the end of the Preliminary Hearings, counsel for each co-defendant was queried regarding their intention to renew their applications for severance. First the attorney for co-defendant Redacted, then the attorney for co-defendant Redacted stated on the record that there was no Bruton issue, and that there was no antagonistic defense. When queried, counsel for the Defendant-Appellant concurred with co-counsel (Minutes of Preliminary Hearing dated 2/26/2014, page 350 [hereinafter “PH 2/26/2014, pg. 350”]). During jury selection, counsel for the Defendant-Appellant renewed his application for a separate trial, to which the Court below responded as follows:

This is a moot issue at this point. It was represented before jury selection that these defendants have a unanimity of purpose here, and that at this point nothing has changed, and their severance is denied.

(Minutes of Trial dated 3/3/2014, page 193-194 [hereinafter “T 3/3/2014, pg. 194”). Counsel for the Defendant-Appellant did not further object.

Conclusion

The Court did not improperly deny Defendant-Appellant’s application for a separate trial.

Two:

The Pursuit and Stop of the Vehicle

In Which Defendant-Appellant

Was a Passenger was Lawful

 In the case of People v. Martinez, 80 N.Y.2d 444, at 447 (1992), the Court of Appeals held:

Because the resulting infringement on freedom of movement is similar, both forcible stops and pursuits require the same degree of information to justify them.

Forcibly detaining someone, or pursuing them for the purpose of detaining them, results in a lesser interference with freedom than does an arrest. Consequently, we have held that the police may forcibly stop or pursue an individual if they have information which, although not yielding the probable cause necessary to justify an arrest, provides them with a reasonable suspicion that a crime has been, is being, or is about to be committed

The Court went on to state:

Reasonable suspicion represents that “quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand” (citing People v. Cantor, 36 N.Y.2d 106, 112-113 [1975]).

Id., at 448.

As stated by the Court below in her Consolidated Decision after Hearing, dated March 31, 2014, at page 10 (hereinafter “Decision after Hearing”):

The description of the perpetrators, the observations of the occupants of the vehicle, the temporal and geographic proximity of the occupants of the vehicle to the location of the crime, and the behavior of the driver provided reasonable suspicion justifying the police action at its inception and the ensuing chase.

Conclusion

The pursuit and stop of the vehicle in which the Defendant-Appellant was a passenger was lawful.

Three:

There Was Probable

Cause to Arrest

Defendant-Appellant

 In the case of People v. DeBour, 40 N.Y.2d 210 (1976), the Court of Appeals stated:

(A) police officer may arrest and take into custody a person when he has probable cause to believe that person has committed a crime, or offense in his presence (CPL 140.10).

As stated by the Court below in her Decision after Hearing, page 11,

After the driver crashed the sedan into the guardrail on Route 9A in Ardsley all three occupants fled from the sedan wherein the police observed in plain view through an untinted window a machine gun on the back seat and a handgun on the floor of the front seat thereby establishing probable cause for the arrest of all the occupants.

In her Decision after Hearing, at page 12, the Court below held:

The weapons in the vehicle were in plain view and therefore lawfully recovered (See, People v. Singleteary, 35 N.Y.2d 528).

However, there was a discrepancy between Detective Christian Koch of the Yonkers P.D., who testified at the Preliminary Hearing that he responded to the Ardsley crash site and observed, in the front passenger compartment of the vehicle on the floor, a clothing store bag with a handgun protruding from it (PH 2/24/2014, pg. 60), and Police Officer Michael Burlingham, of the Yonkers P.D. Crime Scene Unit, who testified under cross examination that the handgun that was recovered in the front passenger compartment of the vehicle was found inside a closed bag.    After the trial, a motion to set aside the verdict was submitted by counsel for the Defendant-Appellant based in part upon this discrepancy in the testimony of Detective Koch and that of P.O. Burlingham. This discrepancy was raised by the Defendant-Appellant during his sentencing as a reason why he believed he did not get a fair trial.

However, as pointed out by the Court, it was not disputed that the machine gun was in plain view on the back seat of the vehicle. Thus, even if the bag containing the handgun had been closed, the machine gun would have provided probable cause to search the entire vehicle, and the handgun would have been lawfully seized.

Furthermore, the Defendant-Appellant was not found guilty of possession of either of the firearms.

Finally, as to the probable cause to arrest the Defendant-Appellant, as already oted, the Defendant-Appellant was observed in a vehicle containing individuals who matched a description radioed by another police officer in close temporal and geographic proximity to the scene of the crime. Said vehicle then led police on a high speed chase, lost control and crashed, at which time the Defendant-Appellant was observed exiting the vehicle, led the police on a lengthy foot chase, and then violently resisted arrest. Thus, independent of the firearms observed inside the vehicle, the police had probable cause to arrest Defendant-Appellant at the time that they actually apprehended him. (See People v. Fields, 171 A.D.2d 244 [1^st Dept. 1991]).

Conclusion

The police had probable cause to arrest the Defendant-Appellant.

Four:

Defendant-Appellant’s

Statement to the Police

Was Admissible into Evidence

 According to Police Officer Shane Bladel, who testified at both the Preliminary Hearing and the Trial, after a lengthy foot pursuit, and a violent struggle with the Defendant-Appellant, as the officer attempted to pat-down the Defendant-Appellant for weapons, the Defendant-Appellant spontaneously uttered: “They are not on me, the guns are in the car,” (PH 2/24/14, page 170).

In the case of People v. Kaye, 25 N.Y.2d 139, at 144 (1969), the Court of

Appeals stated:

Absent interrogation, Post-miranda decisions have consistently held that volunteered or spontaneous statements made by suspects who were plainly in custody and had not been given the Miranda warnings are admissible.

In the case of People v. Maerling, 46 N.Y.2d 289, 302-303 (1978), the Court

of Appeals stated:

To come within the rule of (People v. Kaye), the spontaneity has to be genuine and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed.

In the case at bar, the Defendant-Appellant uttered the statement while in custody, but as a lengthy foot pursuit and violent physical struggle were just concluding, and without any inquiry having been made by the arresting officer. Accordingly, the Judge below correctly found the statement to have been “spontaneously volunteered and…thus admissible on the People’s case in chief” (Decision After Hearing, page 11).

Conclusion

Defendant-Appellant’s statement regarding the guns being in the car was properly admitted into evidence.

Five:

Defendant-Appellant’s Jacket

Containing Stolen Property

Was Properly Seized by Police

 On February 24, 2014, during the Preliminary Hearing, P.O. Shane Bladel testified on direct as follows:

Q:      Now officer, when you got down, I guess, through the wooded area where the river begins, did you still see both of these guys?

A:      I did.

Q:      Do you recall how they were dressed generally, these guys?

A:      Yes. White T-shirt, one had denim jacket on, jeans.

Q:      Both white T-shirts?

A:      Yes.

Q:      And one had a denim jacket?

A:      Rights.

Q:      So when you got down there towards the river, what did you and your partner do?

1. They jumped in the river, I followed after; I jumped in. Both males reached the other side. I saw one male go right, the other male go up a hill, throw down the denim jacket, and I proceeded toward the male going up the hill, that threw the jacket.

(PH 2/24/2014, pg. 165-166).

Q: And the jacket that you mentioned, the jeans jacket that had been thrown down, did there come a point in time that you made your way back over to where the jacket was located?

A: Yes. After I handed custody of him over to another officer, I went back down secured the jacket until CSU arrived.

(PH 2/24/2014, pg. 171).

Q: The jacket itself, what is in the pocket there officer?

A: It’s a decent sum of money.

Q: And there appears to be something that’s kind of blue there, do you recognize that?

A: Yes. It’s a blue band that’s normally wrapped around an amount of dollars, whether it’s a hundred or a thousand dollars, normally used for businesses and banks.

(PH 2/24/2014, pg. 172).

In her Decision after Hearing, the Court below held:

Redacted intentionally abandoned the jacket while being lawfully pursued by the police. Hence, the jacket was lawfully recovered.         

 In the case of People v. Leung, 68 N.Y.2d 734, 736 (1986), the Court of Appeals held:

Given that the initial approach and the subsequent pursuit and detention of defendant constituted legitimate, justifiable police conduct, manifestly the recovery of the gun discarded during flight was also lawful.

In the case of People v. Boodle, 47 N.Y.2d 398, 404 (1979), the Court of Appeals considered a fact pattern in which the defendant was unlawfully seized by police, and then abandoned incriminating evidence. In holding that the abandoned evidence was admissible, the Court ruled as follows:

We conclude that defendant in seeking to rid himself of the weapon, did not respond directly to the illegal police action…Rather than a spontaneous reaction to a sudden and unexpected confrontation with the police, the defendant’s attempt to discard the revolver was an independent act involving a calculated risk.

*        *        *        *        *        *        *        *

We conclude that although the time was brief, the defendant had had time enough to reflect and formulate a strategy for ridding himself of the incriminating evidence.

In the case at bar, as set forth above, the police had probable cause to arrest the Defendant-Appellant at the time that he abandoned the denim jacket based upon the presence of a firearm in a vehicle that the Defendant-Appellant was observed exiting and fleeing from, thus there was no illegal police seizure of the Defendant-Appellant. Assuming arguendo that the Defendant-Appellant was unlawfully seized at the time he discarded the jacket, it is clear that, occurring as it did late in an extensive police chase, the Defendant-Appellant’s abandonment of said jacket was an “independent act involving a calculated risk,” and not “a spontaneous reaction to a sudden and unexpected confrontation with the police.”

Conclusion

The denim jacket, and the proceeds of the crime contained inside the pocket thereof, were properly admitted into evidence.

Six:

The Show-Up

Identification of the

Defendant-Appellant to

Captain Butler, At the

Vehicle Crash Site

Was Not Improper

 As stated by the Court below in her Decision after Hearing, page 12:

The defendants were brought before Captain Butler at the Ardsley site to confirm that the three individuals were the three individuals Captain Butler had observed in the vehicle. The show up occurred at a place and time sufficiently connected and contemporaneous to the Captain’s observations of the occupants in the vehicle on McLean Avenue, the pursuit on the Thruway, and the pursuit at the Ardsley site so as to constitute the ordinary and proper completion of an integral police procedure and lent assurance that an innocent person was not being detained by reason of a mistaken arrest. (See People v. Wharton, 74 N.Y.2d 921, 922-23 [1989]). Furthermore the show up occurred within ten minutes of the crash at the Ardsley site following the close pursuit and apprehension of each defendant by the police (See, People v. Duuvon, 77 N.Y.2d 541 [1991]).

In the case of People v. Wharton, 74 N.Y.2d 921, 922-923(1989), the Court of Appeals held as follows:

We conclude that the trial court did not err by denying defendant’s motion for a Wade hearing. It is not disputed that the identification was made by a trained undercover officer who observed defendant during the face-to-face drug transaction knowing defendant would shortly be arrested.

*        *        *        *        *        *        *

 The viewing by this trained undercover narcotics officer occurred at a place and time sufficiently connected and contemporaneous to the arrest itself as to constitute the ordinary and proper completion of an integral police procedure. Additionally, as we have observed in this kind of situation, it lent assurance that an innocent person was not being detained by reason of a mistaken arrest.

(Emphasis added).

In the case of People v. Duuvon, 77 N.Y.2d 541, 544-545 (1991), the Court of Appeals held as follows:

The circumstances of the show up identification of defendant by the employee in this case are within the permissible boundaries of the governing legal principles. The show up identification was made upon defendant’s return to the robbery scene approximately two minutes after his arrest, three to four minutes after the commission of the crime, and literally around the corner from the arrest scene. This was one unbroken chain of events–crime, escape, pursuit, apprehension and identifications–all within minutes and within a New York City block and a half.

Conclusion

The show up identification of the Defendant-Appellant, at the crash site of the vehicle in which Defendant-Appellant was a passenger during the high speed vehicle chase, and from which the Defendant-Appellant was observed fleeing, which occurred shortly after the Defendant-Appellant was forcibly apprehended after resisting arrest, was not improper.

Seven:

The Photo Array

Identification of

Defendant-Appellant

Was Not Improperly

Suggestive

 

At the Preliminary Hearing, Detective Daniel Higgins, of the Yonkers P.D. Detective Division, testified to the circumstances whereby the complainant/victim, Dennis Redacted, identified the Defendant-Appellant from a photo array. In said testimony, Detective Higgins set forth the following testimony:

• He showed Dennis Redacted three separate photo arrays, each one containing a photo of one of the three criminal defendants, one of whom was the Defendant-Appellant;
• Each of the photo arrays was shown in the same fashion: handed to the complainant/victim in a manila envelope;
• As he handed Mr. Redacted the manila envelopes containing the photo arrays, Detective Higgins explained that there would be a photo array inside of six people, the suspect may or may not be in the photo array, and that he should take into consideration that the pictures could be taken from a different date and time, that the lighting could affect the shadows of the picture, and he should take his time and accurately pick a suspect if he can identify one;
• The Detective was alone in the room with Dennis Redacted as he showed him the photo arrays;
• The photo arrays were prepared by Detective Didio, also of the Yonkers P.D. Detective Division, from the Yonkers P.D. data base;
• Dennis Redacted looked at each of the photo arrays for approximately one minute, before identifying one of the pictures in each photo array as one of the suspects in the robbery of his car wash;
• On each of the photo arrays, in compliance with the instructions of Detective Higgins, Dennis Redacted marked the photos in the photo arrays that he identified as belonging to the three suspects who robbed his car wash.
• One of the photos identified by Dennis Redacted was that of the Defendant-Appellant.

(PH 2/24/2014, pgs. 28 – 42).

In the case of People v. Lee, 96 N.Y.2d 157, 163 (2001), the court of Appeals held:         

Although there were slight differences among the six photographs that comprised the array, all of the persons depicted were similar in appearance. We conclude that the subtle differences in the photographs, including the arrest plates, were not “sufficient to create a substantial likelihood that the defendant would be singled out for identification” (citation omitted).

In the case of People v. Quinones, 5 A.D.3d 1093, (4^th Dept. 2004),

lv denied 2 NY 3d 646, the Court held:

(T)he identification procedure was not unduly suggestive because of the differing skin tones of the subjects depicted in the photo array (citation omitted). In any event, the subjects depicted in the photo array are sufficiently similar in appearance so that the viewer’s attention is not drawn to any one photograph in such a way as to indicate that the police were urging a particular selection (citation omitted).

In her Decision after Hearing, the Court below held:

With regard to the photo arrays, photographs in a photo array do not have to be identical in appearance; they simply must resemble each other sufficiently so that defendant is not singled out (People v. Lee, 96 NY2d 157, 163). In this case, the differences in the individuals in the photo arrays were not so great as to indicate that the police were urging a particular selection (See, People v. Quinones, 5 A.D.3d 1093, lv denied 3 N.Y.3d 646). Moreover, there is no evidence that the police engaged in any improper conduct prior to the witness’ selection of the photo in the particular array.

Conclusion

 There is no evidence that the photo array identification of the Defendant-Appellant by the complainant/victim was unduly suggestive such that the complainant/victim should have been precluded from identifying the Defendant-Appellant inside the court room during the trial.

Eight:

Assuming Arguendo

That the Photo-Array

Was Unduly Suggestive,

There is Sufficient Evidence

From Which It Could Be

Determined That the

Complainant/Victim Had

An Independent Basis

For Identifying the

Defendant-Appellant

 The Complainant/Victim testified that he observed a “third person” during the robbery, later identified as the Defendant-Appellant, as follows:

Q: By the way, could you see at all after they had put the tape over your eyes?

A: Yes, there was a little slit, so I could, when I was in my chair, I could look up, and that’s how I knew the third guy had entered the office at some point.

Q: The third guy came in?

A: Yes.

Q: How do you know the third guy came in?

A: Because I heard a third voice, and also, I saw the third guy through the slit.

(T 3/7/2014, pg. 700).

Furthermore, the Complainant/Victim testified that, prior to the robbery, he encountered the Defendant-Appellant and his co-defendants in the rear of his car wash, engaged them in an approximately thirty second conversation, and was capable of providing a fairly detailed description of the individuals he spoke to (T 3/7/2014, pg. 678 – 684). The Complainant/Victim testified to a second conversation with two of the individuals who ultimately robbed his car wash, one of whom may have been the Defendant-Appellant (T 3/7/2014, pg. 686).

This testimony of the Defendant-Appellant was substantially corroborated by the testimony of the co-defendant Joseph Redacted, who took the stand and testified that he, the co-defendant Marc Redacted, and the Defendant-Appellant had engaged the Complainant/Victim in conversation at the car wash at least two times prior to the robbery (T 3/24/2014, pgs. 2003 – 2004).

Finally, Police Officer Jimmy Diodati, who was the first officer to respond to the car wash moments after the robbery, obtained a description of “three black males, white T-shirts, one had a Yankee hat and one had a red cap on.” (PH 2/26/14, pg. 274; T 3/6/2014, pg. 484). This description was derived from Dennis Redacted and George Redacted who was an eyewitness who happened onto the scene of the robbery while it was in progress. However, at trial George Redacted testified that he was only able to identify co-defendant Redacted, that he only saw one other perpetrator inside the car wash and was unable to describe him, and didn’t see the third perpetrator (T 3/7/2014, pgs. 631-632). It was later ascertained that the two other car wash employees, Redacted Redacted, and Redacted Franco, who were present when P.O. Diodati ascertained his initial description of the perpetrators, did not observe the robbery and could not identify anyone from photo arrays that were shown to them by police (T 3/24/2014, pgs. 1958 – 1970). Thus, it is clear from the record ; that the initial descriptions of the perpetrators that were broadcast to police units moments after the robbery occurred were derived from the observations of the perpetrators by Dennis Redacted.

In People v. Garcia, 682 N.Y.S.2d 54 (2^nd Dept. 1998), 1998 N.Y. Slip Op. 10,488, this Court held that, when faced with an improper police-arranged identification procedure:

The People are required to establish by clear and convincing evidence that any in-court identifications of the defendants by the complaining witnesses are derived from a source independent of the illegal police activity (citations omitted). Among the factors to be considered are the opportunity for the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of the prior description, the level of certainty demonstrated at the prior identification, and the time between the crime and the identification (Citations omitted).

As set forth above, the Complainant/Victim had ample opportunity to observe the Defendant-Appellant both prior to, and during the robbery, the time between the crime and the initial description provided to P.O. Diodati was very brief, and the description was detailed and accurate.

Conclusion

For all of the reasons set forth above, if the Photo-Array is found to have been unduly suggestive, there is nonetheless sufficient evidence from which it could be determined that the Complainant/Victim had an independent basis for identifying the Defendant-Appellant.

Nine:

The Statements

Of a Witness, and the

Complainant/Victim,

Regarding Pre-Trial Identification,

Were Not So Unduly Prejudicial

To the Defendant-Appellant

That He Was Denied a Fair Trial

There were two incidents during the trial, both of which occurred on March 7, 2014, in which witnesses made statements that were potentially prejudicial to the Defendant-Appellant regarding the issue of identification.

The first incident occurred as follows: On Friday, March 7, 2014, at page 610 of the Trial Transcript, the Assistant District Attorney related to the court and defense counsel an incident in which, during the lunch break, he was addressed by a juror who asked him the spelling of his name. The A.D.A. addressed the juror firmly and informed him that they were not permitted to speak. It was decided that when the jurors came back into the court room, each of the defense counsel and the A.D.A. would state their name, and in the case of defense counsel, it would be stated whom they represent. This was done in the presence of the prosecution witness George Redacted (T 3/7/2014, pgs. 610-613).

Redacted was a soap salesman who walked into the car wash in the middle of the robbery, and interacted with the co-defendant Redacted. During his direct testimony, Redacted was asked the following questions and gave the following responses:

Q: So tell us what happened next?

A: Well, I walk in looking for Denny (Dennis Redacted), and I saw the two individuals there, and I ask one of them where was Denny, and one of them answer me, he say, well, I’m looking for him too.

Q: Can you describe the person that you’re speaking with at that time?

A: Mr. Joseph Redacted.

(T 3/7/2014, pg. 616).

During cross examination by defense counsel for co-defendant Redacted, Redacted was asked the following questions and gave the following responses regarding his interaction with Redacted inside the car wash:

Q: And when you ran out, that was the last that you saw of that guy, correct?

A: Yes.

Q: And you never saw him again that day, correct?

A: No.

Q: Yes, you never saw him again, correct?

A: Yes.

(T 3/7/2014, pg. 642).

Q: When I introduced myself in front of, before we started, you heard me say Robert Schneider, attorney for Joseph Redacted, correct?

A: Yes.

(T 3/7/2014, pg. 644).

The prosecutor then made an objection to the effect that Redacted’s attorney created a misimpression upon the jury that the only time the witness Redacted had previously seen Redacted was during the robbery, that the witness learned Redacted’s name in the interim, and for the first time matched the name with the co-defendant when the attorney, sitting next to Redacted, identified himself and the person he represented (T 3/7/2014, pgs. 649 – 659). The Court attempted to correct the misimpression by allowing the prosecutor to ask the following question and illicit the following response:

Q: Mr. Redacted, isn’t it a fact, sir, that you learned the name was Joseph Redacted after identifying him on a previous occasion, and that’s how you learned that his name was Joseph Redacted?

A: Yes.

(T 3/7/2014, pg. 660).

The second incident occurred during the testimony of the Complainant/Victim, Dennis Redacted. On Friday, March 7, 2014, at page 710 of the Trial Transcript, Redacted gave the following unresponsive answer to a question posited by the Assistant District Attorney:

Q: Now, other than the police officers who first came in, did other police officers arrive there to, what they call, process the scene?

A: Yeah, all the sudden the place was crawling with, you know, people, law enforcement types of all types. From the uniformed guys to the, I suppose, the detectives, to the crime unit people, so yeah, there was –

Q: And were you there for some of that?

A: I was there, I think I was there probably, because I didn’t go down to the station house to look at identification mugshots –At the mention of the word “mugshots” all defense counsel objected, the objections were sustained, and the statement was stricken from the record (T 3/7/2014, pg. 710).

On the following Monday, March 10, 2014, counsel for the Defendant-Appellant made an application for a mistrial based upon the misimpression created by counsel for co-defendant Redacted, the statement regarding “mugshots” made by Redacted, and the Court’s attempts to correct them with the jury.

Testimony of prior identifications made from photographs has long been held inadmissible, for fear of creating the prejudicial impression on the jury that the photograph itself is evidence of the defendant’s prior contact with law enforcement authorities, (See Muldoon, Handling a Criminal Case in New York, §9:232 [2007]; People v. Cioffi, 1 N.Y.2d 70 [1956]). However, “such testimony may be appropriate when introduced to remedy some misapprehension created by the defense upon cross-examination”, People v. Jackson, 240 A.D.2d 680 (2^nd Dept. 1997).

In the case at bar, the statement by Redacted involved a co-defendant, and might have had limited impact, if any, upon the Defendant-Appellant. The statement by Redacted was general and vague, and did not include any assertion that a photograph of the Defendant-Appellant was involved, or identified by the witness.

Conclusion

The inappropriate statements of Redacted, and the Complainant/Victim, regarding identification were not so unduly prejudicial to the Defendant-Appellant

that he was denied a fair trial.

Ten

The Verdict

Is Not Repugnant

The Defendant-Appellant was found not guilty of four counts of Robbery in the First Degree, predicated upon the possession and display of firearms. Defendant-Appellant’s co-defendants were each found guilty of all of these charges.

The Defendant-Appellant was found guilty of Robbery in the Second Degree, presumably on the theory that he was aided in the robbery by his two co-defendants. Defendant-Appellant was found guilty of two counts of Grand Larceny in the Fourth Degree, along with his co-defendants, predicated upon his theft of credit cards; two counts of Petit Larceny, along with his co-defendants, predicated upon his theft of a portable phone and a laptop computer; and one count of Criminal Possession of Stolen Property, along with his co-defendants, predicated upon the United States Currency found in the pocket of his denim jacket. Finally, the Defendant-Appellant was found guilty of Resisting Arrest.

In the case of People v. Tucker, 55 N.Y.2d 1 (1981), the Court of Appeals held as follows:

The critical concern is that an individual not be convicted for a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all. Allowing such a verdict to stand is not merely inconsistent with justice, but is repugnant to it.

The genesis of repugnancy problems lies in the submission to the jury of alternative theories of guilt, in the form of different counts, based upon the same evidence. The problem often occurs when the jury convicts the defendant on one count and acquits on another, but the verdicts are illogical when viewed in light of the proof adduced. The difficulty stems from the jury’s implicit finding that the essential elements of one crime were proven, while one or more of the same elements were not proven for the other crime.

Based upon the definition of repugnancy set forth by the Court of Appeals in Tucker, Id., there is no repugnancy in the verdict set forth for the Defendant-Appellant in this case.

Conclusion

Defendant-Appellant’s verdict is not repugnant.

Eleven:

The Sentence

Rendered Upon

Defendant-Appellant

Is Not Inappropriate

To the Crime He

Was Convicted Of,

Given His Criminal History

 The Defendant-Appellant was convicted of Robbery in the Second Degree, a Class “C” Violent Felony, and was a second violent felony offender (see PH 2/26/2014, pg. 306, and Minutes of Sentencing, dated October 14, 2014, pages 2- 11). Accordingly, the Defendant-Appellant could appropriately have been sentenced to a Determinate Sentence of seven (7) to fifteen (15) years. Thus, the judge was within her discretion in sentencing the Defendant-Appellant to a Determinate Sentence of fifteen (15) years, plus five (5) years of post release supervision, with sentences on the lesser charges to run concurrent.

Conclusion

The Defendant-Appellant’s sentence is not inappropriate.

REQUEST TO BE RELIEVED

It is respectfully requested that I be relieved as counsel for Defendant-Appellant.

STATEMENT REGARDING

COMMUNICATION WITH,

AND SERVICE UPON

DEFENDANT-APPELLANT

On July 25, 2016, I sent Defendant-Appellant a letter summarizing my review of the record of his case. On November 30, 2016, I sent Defendant-Appellant a copy of this brief with a cover letter. Said letter and brief were sent to the Defendant-Appellant via United States Mail. In the letter, I stated that I could not find any non-frivolous or meritorious issues to support an appeal.

I explained to the Defendant-Appellant that if he disagreed with my analysis of his case, he retains the absolute right to continue with his appeal, and that I would not communicate anything to the Court of a derogatory nature about him or his case. However, I stated that I would be compelled to notify the Court of the result of my analysis and findings, and would seek to be withdrawn as his counsel. I provided the case citation for Anders v. California, 386 U.S. 738 (1967), and explained that pursuant to its protocol, it would remain the decision of the Court, and not me, whether his appeal has any merit. I advised him of his right to file a pro se supplemental brief, and receive a copy of the minutes of his hearing, and that he may exercise his right by advising the Appellate Division in writing of his intention to do so within thirty (30) days of the date on the cover letter. I provided Defendant-Appellant with the mailing address of the Appellate Division, Second Department as follows:

Appellate Division, Second Department

45 Monroe Place

Brooklyn, NY 11201

Lastly, I urged Defendant-Appellant to contact me if he had any questions, or issues he wished to discuss. A copy of the letter together with an Affirmation of Service is attached as Exhibit A.

SERVICE UPON

THE TRIAL COURT

An Affirmation of Service dated May 22, 2015, attesting to the service of the following documents are attached as Exhibit B:

1. a) A copy of the Decision & Order of the Appellate Division, Second Judicial Department, Case No. 2014-10596, filed on January 30, 2015, with Notice of Entry;
2. b) A Notice of Appearance;
3. c) A Subpoena Duces Tecum for the Complete Original File of Defendant-Appellant’s arrest and trial, to be delivered to the Appellate Division, Second Judicial Department.

SERVICE UPON

THE DISTRICT ATTORNEY

An Affirmation of Service attesting to the service of a copy of this brief together with the copy of the transcript that I received from the clerk of the trial court, upon the offices of the District Attorney, Westchester County, is attached as Exhibit C

CERTIFICATION OF COMPLIANCE

Pursuant to Rule 670.10.3(f)

MICHAEL F. DAILEY, an attorney duly licensed to practice under the laws of the State of New York, does hereby certify, pursuant to the rules of this Court, that the heretofore produced Brief was prepared on a computer, the typeface is Century, the point size is 14, the line spacing is double except for quotations and headings, and the word count as per my processing system used to prepare the brief is 7,704.

Dated: November 30, 2016

___________________________

Michael F. Dailey

Attorney for Defendant-Appellant

One Riverdale Avenue

Suite One, Mailbox Eleven

Bronx, New York 10463

(718)543-0100