People v. Howard

128 Misc. 2d 203, 489 N.Y.S.2d 686, 1985 N.Y. Misc. LEXIS 3332
CourtNew York Supreme Court
DecidedMay 14, 1985
StatusPublished
Cited by1 cases

This text of 128 Misc. 2d 203 (People v. Howard) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Howard, 128 Misc. 2d 203, 489 N.Y.S.2d 686, 1985 N.Y. Misc. LEXIS 3332 (N.Y. Super. Ct. 1985).

Opinion

OPINION OF THE COURT

Herman Cahn, J.

Should the identification testimony of a prospective witness be suppressed where, approximately 30 minutes after having her purse snatched, and after having been brought in a police car to a place approximately five blocks from the site of the incident, the victim is shown some of the proceeds of the robbery and asked whether she recognizes them, and then views two persons in the rear seat of another police car and is asked whether she recognizes either of them?

An indictment has been filed against the defendants accusing them of robbery in the third degree (Penal Law § 160.05), grand larceny in the third degree (Penal Law § 155.30 [5]), and criminal possession of stolen property in the first degree (Penal Law § 165.50).

Defendant Willie Howard (Howard), claiming that improper identification testimony may be offered against him, has moved [204]*204for an order excluding the identification testimony of Miriam Kaprow because of an improperly made previous identification of him by the prospective witness.

The People have the burden of going forward in the first instance to show that the pretrial procedure was permissible and proper. Defendant, however, carries the burden of demon-; strating that the evidence should be suppressed. If the pretrial procedures are shown to be improper and the pretrial identification evidence is suppressed, the People then have the burden of proving by clear and convincing evidence that the prospective in-court identification testimony, rather than stemming from the unfair pretrial confrontation, has an independent source.

A pretrial suppression hearing was held before me. From the testimony, I find the following facts:

On July 25, 1984, at approximately 5:25 p.m., Miriam Kaprow, while walking alone near the East Drive, in Central Park near 97th Street, was approached from behind by a man who came around in front of her and demanded her purse. She refused his demand, and began to run. He caught up with her, again demanding the purse. He then grabbed the purse; a brief tugging match ensued, after which he pulled it from her grip and fled.

Ms. Kaprow yelled for help. Police Officer Gillespie, who was on foot patrol in the park, heard Ms. Kaprow and immediately ran to her aid. He was told that she had just had her. purse snatched. He was also given a description of the perpetrator, and told the direction in which he had fled. Officer Gillespie put out a radio call stating that a purse snatching had just occurred at 97th Street on the East Drive. He left Ms. Kaprow and ran north on the East Drive in an attempt to find the perpetrator. He soon came upon a stopped car, the back door of which was open. The man inside said “Get in. They’re up here to the north, they’re driving northbound.” Officer Gillespie got into the car, which headed north. The driver told him that the car in which the presumed perpetrators had fled was a gray Toyota with New Jersey plates bearing the numbers 391. The officers put out a radio call with this information. Shortly afterwards, Officer Gillespie heard a radio transmission indicating that the car had been spotted going south on Fifth Avenue. At 105th Street, he left the vehicle and began walking back towards the complainant. (The name of the driver of the car who furnished the officer with the information was never obtained.) En route, he was met by another officer on a scooter, who then turned the scooter around and provided Officer Gillespie a ride back to Ms. Kaprow.

[205]*205When he arrived, another policeman was already on the scene. Shortly thereafter, a police car arrived. Ms. Kaprow and Officer Gillespie were taken to 96th Street and Lexington Avenue, arriving within 30 minutes of the incident.

While she was still in the police car, another policeman, Officer Foggy, approached her with a purse and certain other items and asked whether she recognized them. She promptly identified them as having just been taken from her during the robbery. Officer Foggy then told her he wanted her to look at someone. She left the vehicle, and walked slowly past another police vehicle, in the rear of which were seated the two defendants. Ms. Kaprow looked inside as she passed and told Officer Foggy that she recognized defendant Howard as the man who had robbed her.

Howard seeks to suppress testimony concerning this out-of-court identification, contending that the circumstances of the identification were unduly suggestive and hence that the identification was not reliable. While the identification procedures were not entirely free of suggestivity, under the circumstances, particularly the short amount of time that elapsed between the incident and the identification, the procedures employed were proper and the identification reliable.

Although the ideal practice, when feasible, is not to conduct a showup but, rather, to hold a lineup (People v Love, 57 NY2d 1023; People v Adams, 53 NY2d 241), under certain conditions, particularly in the interest of prompt identification, a showup is permissible and even advisable. (People v Love, supra; People v Adams, supra; People v Blake, 35 NY2d 331.) The closer in time and place to the scene of the crime, the less objectionable is the showup. (People v Love, supra.) Here, the identification occurred only (approximately) 30 minutes after the robbery and only 5 or 6 blocks from the scene. Showups under these conditions have consistently been upheld. (See, e.g., People v Love, supra; People v Smith, 38 NY2d 882; People v Logan, 25 NY2d 184; People v Cole, 100 AD2d 442; People v Reyes, 92 AD2d 837; People v Digiosaffatte, 63 AD2d 703.)

The complaining witness viewed Howard, and identified him while he was in custody, in a police car. In that situation, the police officers’ belief that one or both of the individuals in the car had committed the robbery was apparent. (See, People v Adams, supra; People v Dolphin, 77 AD2d 571.) This alone, however, does not negate the reliability of an otherwise proper showup, especially where, as here, no remarks are made by the officers to [206]*206exacerbate any potential suggestiveness. (People v Smith, supra, at p 882.)

A more serious question arises over the propriety, prior to the showup, of asking Ms. Kaprow whether she recognized certain articles which had been recovered from the suspects. This question appears to be one of first impression in New York.

Once Ms. Kaprow had identified the articles as her own, it required no great powers of logic to discern that the two individuals whom she was about to view were those from whom the articles had been taken. Hence, there is some danger that the ensuing identification was based to some degree upon reasoning rather than recognition. The court, in evaluating the reliability and admissibility of an identification, examines the witness’ recollection and recognition of an individual from the scene of the crime, based upon such factors as lighting conditions and the length of time the witness was able to view the perpetrator. A crime victim who is taken by the police to view certain individuals, or even to a police station to view a lineup, will deduce that the police believe they have found the perpetrator. It is probably evident to every victim in such circumstances that at least one of the people she is being asked to view is believed to be the perpetrator. Thus, although showing Ms.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Howard
162 A.D.2d 408 (Appellate Division of the Supreme Court of New York, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
128 Misc. 2d 203, 489 N.Y.S.2d 686, 1985 N.Y. Misc. LEXIS 3332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-howard-nysupct-1985.