DECISION AFTER HEARING On October 18, 2018, and November 8, 2018, this Court conducted the following pretrial evidentiary hearings: Wade/Mapp/ Dunaway. The People called the following witnesses: Detective George Colby and Police Officer John Gill.The defense called no witnesses.NOW, upon due consideration of the evidence presented, and the arguments of counsel, the Court makes the following determinations.FINDINGS OF FACTDetective George Colby testified that he has worked for the Nassau County Police Department for twenty-one years and has been a detective since 2005. He is now assigned to the Gang Investigation Squad. On November 29, 2017, Det. Colby was assigned to investigate a robbery and an attempted car jacking that occurred that day at about 5:00 p.m. in the vicinity of 294 North Main Street, Freeport, New York. On that date he had occasion to speak to the complainant.Thereafter on January 2, 2018, Det. Colby, along with his partner, Detective Peter Sikinger, continued the investigation by meeting the complainant outside of his residence for the purpose of conducting a photographic identification procedure. The detective had compiled three different photo arrays wherein the target was placed in a different slot in each array. The arrays were then put into three separate manilla envelopes and sealed. When the detective met with the complainant he read instructions as to how the photographic procedure was to be conducted. Then, the complainant was asked to select one of the three envelopes. The purpose of conducting this type of blinded procedure is so that the complainant would randomly choose which array to observe. Once the complainant picked an array, the other two envelopes were sealed and placed in the detective’s case jacket.After the instructions were provided, the complainant opened the envelope, looked at the array and pointed to the person depicted in slot #1. He stated that “#1″ pulled a gun on him and smashed his car. This identification was memorialized in the paperwork. The Court notes that the detective identified the defendant, in court, as the person identified by the complainant in the photo array.On cross-examination, the detective testified that prior to the incident occurring, the complainant told him that did not know the perpetrator nor did he know his name. Although at the time the crime was committed, the perpetrator partially covered his face with a mask, the complainant was able to observe his eyes and his nose. He informed the detective that if he were to see him again he would recognize him and that he would never forget his face.Additionally on cross-examination, Det. Colby testified that the complainant relayed to him that a person nicknamed “Fudge” may be the perpetrator of the crime. The complainant had heard this information in the “streets.” The complainant did not identify the defendant as the perpetrator prior to receiving such information because he did not know who the defendant was. The photographs selected for the photo pack were compiled through the Rogues Gallery System using information of the nickname “Fudge” given by the complainant. Detective Colby testified that the computer system linked the defendant’s name with the alias “Fudge.” Therefore, a photograph of the defendant taken at the time of a prior arrest was utilized in the photo pack in which the complainant made a positive identification.Police Officer John Gill testified that he has been working for the Nassau County Police Department for eleven years. On January 3, 2018, at approximately 4:00 p.m., he was working within the confines of the First Precinct, in uniform, in a marked radio motor patrol vehicle when he received a radio run of a car involved in potential shots fired. He testified that he was in the vicinity of the alleged incident and proceeded to look for a white Honda Accord with a female driver and a male passenger. He spotted a vehicle fitting the description and pulled behind it. A male passenger exited the vehicle. Officer Gill radioed for assistance, whereupon, officers from the Freeport Police Department arrived and conducted a show up identification procedure with the alleged victim. The person identified by the alleged victim is also the defendant in the instant case. As a result of that identification procedure, Officer Gill placed the defendant under arrest. The defendant was patted down for weapons and then transported to the precinct for further processing. Recovered from the defendant at the precinct were two cell phones, a ski mask and money. Officer Gill further testified that the items were put to the side. On that same date, the defendant was arrested for the instant matter and it was Detective Colby’s decision to voucher the cell phones as evidence in connection with this case.CONCLUSIONS OF LAWWADE“It is firmly established in our jurisprudence that unduly suggestive pretrial identification procedures violate due process and therefore are not admissible to determine the guilt or innocence of an accused.” People v. Chipp, 75 N.Y.2d 327, 335, 552 N.E.2d 608, 612 (1990); see also, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926; People v. Blake, 35 N.Y.2d 331, 361 N.Y.S.2d 881, 320 N.E.2d 625; People v. Riley, 70 N.Y.2d 523, 522 N.Y.S.2d 842, 517 N.E.2d 520; People v. Adams, 53 N.Y.2d 241, 440 N.Y.S.2d 902, 423 N.E.2d 379). At a Wade hearing, the People have the burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure. The defendant bears the ultimate burden of proving that the procedure was unduly suggestive (see, People v. Berrios, 28 N.Y.2d 361, 321 N.Y.S.2d 884, 270 N.E.2d 709). ” Where suggestiveness is shown, it is the People’s burden to demonstrate the existence of an independent source by clear and convincing evidence. Absent some showing of impermissible suggestiveness, however, there is no burden upon the People, nor is there any need, to demonstrate that a source independent of the pretrial identification procedure exists for the witness’s in-court identification.” People v. Chipp, supra at 613.Applying the above principles to the case at bar, the Court finds that the People have met their burden of establishing the reasonableness of the police conduct and the lack of any undue suggestiveness. Defense counsel’s contention that the identification procedure was tainted because the complainant worked as a confidential informant is totally without merit. Any contact law enforcement had with the complainant on matters not relating to the instant case is not germane to the issue of suggestiveness as defense counsel mistakenly argues in his memorandum of law, and is collateral to the issues at bar. The credible testimony of Det. Colby revealed that the complainant did not receive any benefit from participating in the prosecution of this case. (Hearing minutes, p. 58, ll. 20-25) Additionally, the detective credibly testified that through his investigation he learned that the parties did not know each other prior to the incident; that the identity of the perpetrator became known to the complainant from someone in the “streets”; that the complainant relayed the nickname of the alleged perpetrator to the detective; that the detective searched the Rogues Gallery System for a person who matched the nickname: that the defendant matched that person; that the defendant’s photo from a prior arrest was used in the photo array; that a blinded procedure was used to conduct the photo array; that the complainant positively identified the defendant as being the perpetrator without any coercion, force or suggestiveness on the part of law enforcement.In arguing that the identification procedure was unduly suggestive, defense counsel mistakenly asserts that the only evidence connecting the defendant to the crime is the “questionable one-witness identification that occurred months after the incident.” He further argues, “[T]he most glaring part of the purported identification is the fact that it is based upon rumors and innuendo stemming from information that the complainant obtained from a street source that Detective Colby states he refused to reveal” (Defendant’s Memorandum of Law p. 6).While the accuracy of a one-witness identification may be an issue for a jury to decide, it has no bearing on whether the police arranged identification procedure was unlawfully conducted. For the purposes of this hearing, it is of no relevance from where the complainant received information. He indicated to the police that he would never forget the perpetrator’s face and, ultimately he was able to make a positive identification through a blinded procedure.Defense counsel questioned Det. Colby extensively about the information he received from the complainant regarding a description of the perpetrator prior to defendant’s arrest. The complainant indicated that during the commission of the crime, he observed the perpetrator’s eyes and nose. Again, defense counsel’s line of questioning is appropriate for a trial jury to assess the accuracy of the identification. It does not go to whether the identification procedure was conducted in an unduly suggestive manner.Accordingly, since the defendant failed to sustain the ultimate burden that the identification procedure was unduly suggestive, the witness may make an in-court identification of the defendant at the time of trial.DUNAWAYCriminal Procedure Law §140.10(1)(b) states, in pertinent part, that a police officer may arrest a person for a crime without a warrant of arrest when he has reasonable cause to believe that such person committed such crime, whether in his presence or otherwise. It is well settled that “reasonable cause” is not proof beyond a reasonable doubt or even evidence sufficient to warrant a conviction (See, People v. Hill, 146 AD2d 823y (3rd Dept. 1989)). It is information which would lead a reasonable person who possesses the same expertise as the officer to conclude, under the circumstances, that crime is or was committed, and that it is more probable than not that the defendant was the person who committed the crime in question (See, People v. McRay, 51 NY2d 594 (1980); People v. Graham, 211 AD2d 55 (1st Dept. 1995), lv den. 86 NY2d 795 (1995)).The Court finds that the People have met their burden to support a finding of probable cause to arrest the defendant in the instant action. The court makes this finding based upon the detective’s investigation that a crime had been committed and upon the positive identification of the defendant by the complainant pursuant to the photo array procedure. The Court took into account the credible testimony of Det. Colby as to how the procedure was conducted and finds that it was conducted in a lawful manner.Defense counsel’s assertion that “the very basis to arrest Mr. Baldwin was the product of hearsay stemming from an unknown source from the street” wholly misconstrues the facts adduced at this hearing (See, Defendant’s Memorandum of Law p. 7). On cross-examination, defense counsel asked Det. Colby whether the photo pack was compiled based upon hearsay information from the street that the complainant received. He replied, “Yes, a lot of times that’s how photo packs are made from information.” (See, hearing minutes p. 41 ll. 19-23) Although complainant was given information from a person in the “streets” as to the possible identity of the perpetrator, the defendant was properly arrested subsequent to the complainant positively identifying him in the photo array. It should be noted, again, that the complainant indicated to the police that he did not know the perpetrator prior to this incident.Further, defense counsel wrongly asserts that the Court must apply the Aguilar-Spinelli test by stating “…the source of the identification information triggers the satisfaction of the Aguilar-Spinelli test for the warrantless arrest that is the product of hearsay information.” (See, Defendant’s Memorandum of Law p. 7) After analyzing defense counsel’s argument as set forth in his Memorandum of Law several times, although unclear, the Court believes he is contending that the reliability and basis of knowledge of the “street” informant must be tested. If so, this assertion is a total misapplication of the law. Here, the police did not rely on hearsay information obtained from the “street” informant to effectuate the arrest. Probable cause was established when the eye-witness/complainant who had personal knowledge of the incident picked the defendant out of the photo array, not when the police gained information from the complainant that a person nicknamed “Fudge” committed the crime.Then it appears that defense counsel argues that the information obtained from the complainant himself must pass the requirements of the Aguilar-Spinelli test. He states, “…they fail to recognize that the police based their probable cause on an untrustworthy witness who refused to provide them with details about the rumors he obtained from some source on the street.” (See, Defendant’s Memorandum of Law p. 9) The Court finds that the trustworthiness, believability, and accuracy of the complainant’s identification is the ultimate issue for the jury to decide. (See, People v. Hinds, 40 AD2d 786; People v. Dukes, 97 AD 2d 445).The Court disagrees with defense counsel’s contention that “…the basis for probable cause was hearsay or street rumors told to and relied upon by the complainant who refused to provide any further details where the Court could rule out taint as a matter of law.” (See, Defendant’s Memorandum of Law p. 10) On this record, it is clear that the credible evidence shows that on November 29, 2017, the date of the incident, the complainant told the detective that he had an opportunity to observe the perpetrator’s eyes and nose, and that he would never forget his face.Assuming arguendo that a person from the “street” did in fact show the complainant a photograph of the defendant and implored him to pick the defendant out as the perpetrator from the photo array, this scenario does not taint the identification procedure nor negate probable cause as a matter of law as defense counsel intimates. In People v. Marte, 12 NY3d 583 (2009), the Court of Appeals stated:We held in People v. Adams, 53 N.Y.2d 241, 440 N.Y.S.2d 902, 423 N.E.2d 379 [1981] that evidence of an unnecessarily suggestive police-arranged identification of a criminal suspect must be suppressed as a matter of state constitutional law. We hold today that no similar per se rule applies to an identification in which the police are not involved. While suggestiveness originating with private citizens can create a risk of misidentification, that risk does not justify an automatic, constitutional rule of exclusion. Id. at 585.The Court further held:No authority in our Court, and none in the United States Supreme Court, gives any support to defendant’s theory that rules authorizing suppression of eyewitness evidence tainted by suggestion should be applied when the suggestion did not come from law enforcement. Supra. at 587 — 88.See also, People v. Williams, 139 AD3d 885, where the Appellate Division, Second Department held: “Where the conduct of private citizens is alleged to have resulted in a suggestive identification procedure, no ‘per se’ constitutional rule of exclusion applies.” Id.In light of all of the above, the Court finds that there existed probable cause to arrest the defendant in the instant action.MAPPThe Court finds that on January 3, 2018, Officer Gill made a lawful arrest of the defendant, on an unrelated charge, based upon information he obtained from the radio communication he received when he was on patrol. During the arrest processing, the officer recovered certain property from the defendant, namely two cell phones.Detective Colby arrived at the precinct in connection with the case at bar. At that juncture, pursuant to a lawful arrest in this case, the cell phones were vouchered as evidence. Defense counsel misinterprets the testimony by arguing that the property was recovered in connection with a separate matter. On this record, it is clear that Det. Colby was intimately involved in the arrest processing of the defendant and that the cell phones were seized as per his direction based upon probable cause.Therefore, defendant’s application to suppress physical evidence is denied.Accordingly, it isORDERED, that defendant’s application to suppress identification evidence is DENIED; and it is furtherORDERED, that defendant’s application to suppress physical evidence is DENIED.The foregoing constitutes the opinion, decision and order of the Court. All applications not specifically addressed herein are denied.IT IS SO ORDEREDDated: December 13, 2018Mineola, New York
