People v. Hughes

287 A.D.2d 872, 732 N.Y.S.2d 122, 2001 N.Y. App. Div. LEXIS 9981
Appellate Division of the Supreme Court of the State of New York·Decided October 25, 2001·Published·Cited by 13 cases

Opinion

—Cardona, P. J.

Appeal from á judgment of the County Court of Albany County (McGill, J.), rendered May 12, 1997, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree (two counts) and criminal trespass in the second degree.

Defendant was indicted for the crimes of robbery in the first degree, robbery in the second degree, burglary in the first degree, two counts of criminal possession of a weapon in the second degree and burglary in the second degree stemming from alleged home invasions which occurred in the City of Albany on May 14, 1996. Following the denial of his suppression motions, defendant proceeded to trial and, at the close of the People’s case, County Court partially granted defendant’s motion for a trial order of dismissal (CPL 290.10 [1]). Finding the evidence insufficient to establish the element of forcible [873]*873stealing, the court dismissed both robbery counts. The court also dismissed the charge of burglary in the second degree finding the element of intent to commit a crime lacking, but submitted to the jury criminal trespass in the second degree as a lesser included offense. The jury returned verdicts of guilty in reference to the two counts of criminal possession of a weapon in the second degree and criminal trespass in the second degree. County Court sentenced defendant to concurrent prison terms of 3 to 6 years upon his convictions for criminal possession of a weapon in the second degree and a concurrent one-year jail term upon his conviction for criminal trespass in the second degree.

Defendant contends that County Court erred in denying his motion to suppress his oral statements and the victim’s trial identification testimony as fruits of an illegal pursuit and arrest (see, Dunaway v New York, 442 US 200) and, further, because the in-court identification was tainted by an unduly suggestive at-the-scene showup.

Evidence adduced at the suppression hearing revealed that on May 14, 1996 at approximately 10:30 p.m., Albany Police Officer Jeffrey Roberts received two radio calls. The first indicated a burglary in progress at 309 Second Street, and the second advised the involvement of two persons with guns at that location. Roberts and his partner responded and the victim, Howard Sullivan, told Roberts that two persons entered his apartment, one of whom he knew by his first name, Anthony, and his street name, “Dog Pound.” Sullivan further indicated that Dog Pound held two handguns to his head and demanded, “what’s up with the cash?” He described Dog Pound as a black male approximately six feet in height with a thin build dressed in a black hooded sweatshirt and camouflage pants. Sullivan stated that the pair left the apartment and then the scene on bicycles. Roberts put the information on the air and gave it to other officers who arrived at the scene.

Albany Police Officer Mark Leonardo testified that he heard a radio transmission from another officer in “foot pursuit” of a suspect described as a black male, wearing a black coat, black “hoodie,” i.e., hooded sweatshirt, and green “camos.” He also heard the names Dog Pound and Anthony Hughes transmitted. Leonardo, who knew defendant from the streets and a previous arrest, came upon him and gave chase on foot. Leonardo eventually lost sight of defendant at the rear of 10 Lexington Avenue. Within two minutes, Leonardo heard a radio transmission for a burglary in progress at 10 Lexington Avenue. Responding to that call, Leonardo was admitted to the second [874]*874floor residence and told by the residents that there was someone in the rear bedroom who did not belong there. Upon entering the bedroom, he found defendant in a closet. He was handcuffed, placed into a police vehicle and transported back to 309 Second Street, which was around the corner — seconds away — from where he was apprehended. Just prior to the drive back to 309 Second Street, Leonardo administered Miranda warnings to defendant who indicated that he understood them; defendant, however, was not questioned. Upon arrival at 309 Second Street, Leonardo escorted defendant to another police vehicle in which Sullivan was seated. Defendant, at that point, was identified by Sullivan.

Defendant was thereafter taken to the police station where he was arrested and processed. Upon learning of defendant’s presence at the police station, Albany Police Detective Anthony Ryan, who had a warrant for defendant’s arrest, took him to his office for booking on the warrant. After Ryan confirmed with defendant that he was given Miranda warnings, he discussed several topics with him. At one point, Ryan asked defendant whether the Berretta nine millimeter weapon was the same one used by another individual in an earlier shooting. Defendant responded by nodding yes. Ryan then asked defendant if the police had all the guns of the Orange Street Boys and defendant answered in the affirmative. The entire conversation lasted about 10 or 15 minutes.

Initially, we find that the broadcasts of the burglary, defendant’s name and nickname as a suspect, and his physical description, coupled with Leonardo’s personal knowledge of defendant, his observations of him in proximity to the crime scene and . defendant’s immediate flight upon Leonardo’s approach, were sufficient to support a reasonable belief that defendant had committed a crime (see, CPL 140.10; People v Bigelow, 66 NY2d 417, 423). Armed with probable cause, Leonardo’s pursuit and subsequent seizure of defendant were justified (see, People v Howard, 50 NY2d 583, 586, cert denied 449 US 1023; People v De Bour, 40 NY2d 210, 223), as was his transportation back to the scene of the crime for the showup identification (see, People v Brnja, 50 NY2d 366, 372).

Regarding the propriety of the showup, the People introduced evidence through the testimony of Leonardo and Roberts. Although defendant was handcuffed when Sullivan observed him, a practice which is disfavored because of its inherent suggestiveness (see, People v Duuvon, 77 NY2d 541, 545), we do not find the showup impermissibly suggestive by that alone (see, People v Lewis, 277 AD2d 603, 606, lv denied 95 NY2d [875]*875966). Moreover, because the showup was “conducted in close geographic and temporal proximity to the crime” (People v Ortiz, 90 NY2d 533, 537) under circumstances which were “not so unnecessarily suggestive as to create a substantial likelihood of misidentification” (People v Duuvon, 160 AD2d 653, affd 77 NY2d 541), we find that it was reasonable and not unduly suggestive.

Turning to the propriety of defendant’s oral statements, we note that defendant was not prejudiced by these statements since they were never introduced at trial. County Court struck Ryan’s testimony before he could relate defendant’s oral statements to the jury. In any event, were we to address that issue, we would find, for the reasons set forth above, that they were not the product of an illegal pursuit and arrest, nor were they involuntarily made within the meaning of CPL 60.45.

With regard to Ryan’s trial testimony, defendant also claims that County Court erred when it denied his motion for a mistrial after Ryan, who had just begun his testimony, stated that he had a warrant for defendant’s arrest. While the remark was prejudicial, we find that the court’s action in striking all of Ryan’s testimony and its prompt and clear curative instruction were sufficient to dispel the prejudice.

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People v. Hughes, 287 A.D.2d 872, 732 N.Y.S.2d 122, 2001 N.Y. App. Div. LEXIS 9981 (N.Y. Ct. App. 2001).

287 A.D.2d 872 (People v. Hughes) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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