People v. Jones

118 A.D.2d 86, 503 N.Y.S.2d 740, 1986 N.Y. App. Div. LEXIS 53716

Opinions

OPINION OF THE COURT

Sullivan, J.

Convicted of robbery in the first degree and sentenced as a persistent violent felony offender to 25 years to life, defendant seeks reversal and a new trial because of, inter alia, the allegedly improper admission in evidence of testimony regarding a woman’s skirt he was carrying when first encountered by police officers shortly after the robbery had occurred, as well as Trial Term’s refusal to suppress a blue jacket taken from him at the station house after his warrantless arrest at his apartment. Although we find that this evidence was properly received, we also conclude that if error were committed it was harmless even under the standard applied to constitutional error, since there is no reasonable possibility that its admission contributed to the conviction in view of the overwhelming proof of guilt. (See, Chapman v California, 386 US 18; People v Crimmins, 36 NY2d 230.)

The following account, which, except for defendant’s testimony and the evidence of the victim’s identification of his photograph, was repeated at trial, is derived from the record of the suppression hearing. On October 9, 1982, at 5:46 a.m., Officers Watson and O’Laughlin, on radio motor patrol, received a report that two Hispanic males were stripping an automobile in front of 600 Baychester Avenue, one of the buildings within the Co-op City area housing complex. They responded within minutes and observed defendant, a tall, heavy black man, who did not fit the description of either suspect, running from the entrance of 600 Baychester Avenue with something in his hand. Thinking that defendant might have been the victim of a crime, O’Laughlin shouted at him to stop. Defendant responded by accelerating his pace and dropping the object he was carrying. The officers exited their car and gave chase, with Officer Watson stopping to retrieve the object dropped by defendant, a skirt with two holes in it and a stain. O’Laughlin caught up to defendant and stopped him by threatening the use of his nightstick, while Watson, who assisted, drew his gun and ordered defendant to raise his hands. In response to the officers’ inquiries as to why he had dropped the skirt and run, defendant denied doing either. He told them that he was returning home from Harlem, where he had been gambling. At this point the officers observed a fresh cut on one of defendant’s knuckles. He explained that he had cut his hand earlier that day while working. After again denying that he had dropped the skirt, defendant was handcuffed and taken back to the patrol car.

After the arrival of the officers’ supervisor, Sergeant Hunt, he and O’Laughlin, believing that defendant had recently committed a crime, went into 600 Baychester Avenue to look “for a victim”. They found fresh blood on the floor of one of the elevators, but no victim, and spoke to two men who had heard a woman’s screams. After canvassing the building without any success, O’Laughlin dialed the telephone number which defendant had given and spoke to his girlfriend, who verified his name and address, but said that he had been home all night up until an hour earlier. Defendant was then released.

Later, while Officers Watson and O’Laughlin were completing the required police forms at the station house, they overheard another officer talking on the telephone to someone reporting a crime at 600 Baychester Avenue. Watson took the telephone and spoke to Allison Brown, who told him that she had been robbed and assaulted at a time which, he calculated, coincided with the officers’ observation of defendant running from the building. She described her assailant as a six-foot three-inch black man weighing approximately 260 to 280 pounds and wearing a blue jacket and pants. After speaking further to Brown at her apartment, Officers Watson and O’Laughlin, Sergeant Hunt, and two other officers proceeded to defendant’s apartment at 100 Alcott Place, also in Co-op City. Hunt, who did not testify at the suppression hearing, knocked on the door, identified himself as a police officer and spoke to defendant, who, by saying, "Okay, come in” or words to that effect, indicated that the officers could enter. They did and arrested defendant, who was taken to the station house and photographed. That same day, Ms. Brown identified defendant’s photograph from an array as the man who attacked her in the elevator. One month later she also identified him in a lineup.

Defendant testified, limiting his narrative to his arrest in his apartment. He had been lying in bed when he heard a knock on the door. He opened it and identified himself to the officers outside. When he turned away to comply with Sergeant Hunt’s request to turn on the lights, Hunt walked into the apartment. Watson and O’Laughlin also entered, and told him they were arresting him. When defendant went to his bedroom to get dressed, Officer Watson followed him in and told him to put on the same clothes, including the blue jacket he had worn earlier. The jacket was later taken from him at the station house and vouchered.

At the close of the suppression hearing, defendant argued that the police officers’ initial stop of him, just because he was running, was improper. Thus, he claimed, his false denial of possession of the skirt could not justify the stop, which had already occurred. In any event, he added, that statement had to be suppressed as the product of questioning which had not been preceded by the administration of the Miranda warnings. Defendant also claimed that his warrantless arrest in his home was improper since exigent circumstances had not been shown and consent had not been given. Thus, he claimed, the blue jacket should also be suppressed as the fruit of that constitutional violation.

The court denied the motion to suppress in its entirety. Crediting the officers’ testimony, it found that once they observed the running defendant accelerate his pace and discard the skirt in response to their command to stop "[they] had 'reasonable suspicion’ for their pursuit of [him]”, and that after their retrieval of the skirt, they had justification for a "limited inquiry”. Moreover, the Miranda warnings were not required, because "defendant was not in custody but merely being detained for the sole purpose of inquiring into his suspicious conduct.” The court rejected defendant’s testimony and found his arrest lawful since he had knowingly and voluntarily consented to the officers’ entry into his home.

The court also ruled, on the People’s motion in limine, that it would permit them to offer, as evidence of consciousness of guilt, testimony regarding the skirt. It would not, however, permit the skirt itself to be admitted as physical evidence because of its "highly prejudicial” nature.

At the trial, Ms. Brown, an administrative assistant at an advertising agency and evening student at Hunter College, testified that on Friday evening, October 8, 1982, she accompanied her boyfriend to a discotheque. They left after a few hours and went to his apartment, where she stayed until about 5:00 a.m., when she summoned a taxicab and returned to her home at 600 Baychester Avenue.

Earlier, at about 4:30 a.m., Police Officers Barbara Bourne and Gloria Brown, who were attempting to notify a resident of 600 Baychester Avenue that someone had broken into his car, had observed defendant in the lobby of that building. He had opened the door for them with his key. The officers went about their business and did not see him again.

As Ms. Brown waited for the elevator in the brightly lit lobby of her building at about 5:45 A.M., she observed defendant, "a very big guy” wearing a blue jacket, a white shirt and blue pants, enter the building. He "looked like an out-of-shape football player [with] a big pot belly”. As he stood within two feet of her, she noticed that he had a mustache. When an elevator finally came, Ms. Brown entered, pressed the button for the thirteenth floor and stood in the back of the well-lighted car. Defendant entered, pressed the third-floor button, and stood directly in front of her facing the door.

When the elevator reached the third floor, defendant suddenly turned around and punched her in the face, causing her to fall, unconscious, to the floor. When she regained consciousness, she was covered with blood. Her purse, which had contained about $14, was missing. Unable to summon help, she went to her apartment, and was eventually taken to Montefiore Hospital where it was determined that she had suffered a fractured left cheekbone requiring surgery and the -placement of permanent wires in her jaw. Ms. Brown also suffered a cut eyebrow, a black eye and some chipped teeth. She still suffers from chronic pain in the left side of her face when it rains or any pressure is exerted in that area. Sometime after the crime, Ms. Brown discovered that the key to her apartment building opened the front door to 4 of the 5 buildings in her section of Co-op City, including defendant’s.

Defendant called two witnesses. One, a Pathmark Supermarket employee, testified that on October 6, 1982, three days before the robbery, defendant filled out an accident report which indicated that he had injured his thumb. The other, a Co-op City security officer, testified that his report of the incident described the perpetrator as a five-foot nine-inch man weighing 215 pounds, a description that Ms. Brown denied ever giving. Although the officer recalled speaking to her on the day of the incident, he could not remember her description of the assailant. He stated that when he conducts an interview he often asks the witnesses to compare the perpetrator to someone nearby.

It is hardly surprising, on the basis of such evidence, that defendant was convicted. Ms. Brown’s identification testimony alone provided overwhelming evidence of guilt. She had more than ample opportunity to observe the six-foot three-inch, 260-pound defendant in a deserted but well-illuminated lobby. Finding herself alone in the early hours of the morning, she apprehensively studied his every move, noting that he had entered her building with a key and that he pressed the third-floor button on the elevator. The concern which prompted Ms. Brown to study defendant so carefully before he turned and knocked her unconscious enabled her to remember not only his bulk but also that he was wearing a blue jacket and pants. Thus, Ms. Brown’s opportunity to observe defendant and the details of her description provided the jury with strong evidence of guilt.

Moreover, Ms. Brown’s identification testimony was corroborated by circumstantial evidence. The two different sets of police officers observed defendant at the crime scene, both before and immediately after the robbery. Ms. Brown’s observation of defendant using a key to enter her building curiously matched that of Police Officers Bourne and Brown, who, earlier that morning, saw him use a key to enter the same building, in which he did not reside. Similarly, the officers’ observation of defendant running from the building immediately after the crime further corroborated her testimony. The fresh cut on his knuckles was also consistent with Ms. Brown’s testimony that the perpetrator knocked out some of her teeth. Finally, that defendant, a man of noticeably distinct physical stature, was attired in the precise clothing Ms. Brown said that her assailant was wearing, and that he lived in a neighboring building, the front door to which could be opened by the same key as opened the front door of Ms. Brown’s building, serves to render the jury’s verdict unassailable, even absent the evidence defendant alleges was improperly introduced.

In any event, the suppression court properly found that the police officers were justified in stopping and seizing defendant eliciting his name, address and explanation of his whereabouts without first giving him the Miranda warnings and, in light of his consent to their entry into his home, in subsequently arresting him there.

The initial encounter between defendant and Officers Watson and O’Laughlin came when, at 6:00 in the morning, they observed him, unknown object in his hand, running from the lobby of a building where two men were standing. When the officers asked defendant to stop, which they had the right to do since, in believing that he might have been a crime victim, they had an objective, credible reason for approaching him to ask for information (see, People v De Bour, 40 NY2d 210, 223; cf. People v Howard, 50 NY2d 583), he began to run faster and then disposed of the object he was carrying, hardly the actions of an early morning jogger or a harried commuter. Thus, while at the outset the officers could do no more than approach defendant to request information, a request he could concededly ignore (People v Howard, 50 NY2d, at p 586), his subsequent actions became more suspicious and raised the level of permissible police intrusion.

Unlike Howard (supra) where the defendant’s abandonment of a bag he was carrying was compelled by the police officers’ illegal pursuit of him, here, defendant dropped the skirt as soon as the police requested him to stop. Only then did the officers give chase. Nor did they handcuff defendant until they discovered that the object he discarded was a woman’s skirt with holes in it. Thus, this case is more readily analogous to People v Medina (107 AD2d 303), where the defendants dropped stolen articles they had been carrying as soon as two undercover officers identified themselves. As the court there found, the officers were exercising their common-law right of inquiry and not acting in a threatening manner when they first approached. Thus, the stolen property was abandoned before any arrest occurred. That is precisely the situation here.

Defendant argues that even if the police had a right to stop him, they were required to give him the Miranda warnings before questioning him about the skirt or his activities that morning. Questions asked of a suspect in an ongoing criminal investigation that are designed to clarify the situation rather than to coerce a statement are not considered part of the interrogation process to which Miranda v Arizona (384 US 436) is applicable. (People v Huffman, 41 NY2d 29, 34.) Such was the case here. Alerted to the possibility that a crime had been committed, the officers were entitled to question defendant, whose conduct had generated a reasonable suspicion warranting his detention for further investigation. We are unaware of any constitutional requirement that every investigatory inquiry must be prefaced by the Miranda warnings.

Aside from his argument that the skirt should have been suppressed as part of the "fruits” of a constitutional violation, defendant also maintains that the trial court abused its discretion, even though it refused to admit the skirt in evidence, by permitting testimony, over objection, that, while being pursued by the police, he dropped the skirt, and later denied doing so when confronted by the officers who had witnessed his actions. In our view, the probative impact of defendant’s evasive actions in disposing of the skirt outweighed any possible extrinsic prejudice from the introduction of such testimony.

Defendant suggests that his behavior in discarding the skirt in response to a police confrontation was not probative since the skirt was never connected to the robbery. Although a nexus was never established, evidence of defendant’s flight from the victim’s apartment house within minutes of the crime was, in any event, relevant on the question of guilt, as were his false denials about discarding the skirt. The relevancy of the latter piece of evidence is, of course, limited to consciousness of guilt, admittedly a probatively weak species of evidence. (People v Moses, 63 NY2d 299, 308.) Like all circumstantial evidence, it is, by itself, insufficient to sustain a conviction unless it is inconsistent with every reasonable hypothesis but guilt. (People v Gates, 24 NY2d 666, 669; People v Wachowicz, 22 NY2d 369, 372.) Its admissibility, however, is not subject to any such restriction. All that need be shown is that the evidence is relevant, that is, "that it tend[s] to convince that the fact sought to be established is so”. (People v Yazum, 13 NY2d 302, 304.) "That it is equivocal or that it is consistent with suppositions other than guilt does not render it inadmissible” (supra, p 304, citing 1 Wigmore, Evidence §§ 31, 32 [3d ed]). Nor is there any requirement that the evidence offered to demonstrate a consciousness of guilt be referrable only to the crime charged. (See, People v Moses, 63 NY2d, at p 308; see also, People v Yazum, 13 NY2d, at p 304.) In any event, the People had a right to produce evidence justifying the officers’ conduct in chasing defendant, since they were responding to a radio report of automobile stripping, not robbery. In this regard, it should be noted, defense counsel, in effect, argued in summation that defendant was stopped solely because he was a black man. Thus, defendant’s flight from the building with something in his hands, which turned out to be a skirt with two holes in it, was an integral part of the narrative.

The situation here is distinguishable from this court’s decision in People v Rivera (88 AD2d 892 [as police officers approached defendant, who had just been pointed out to them as a perpetrator of a robbery that had occurred within past 5 to 10 minutes, he threw away a bag, which, when retrieved, contained a watch that was not the victim’s. Held: error to allow evidence of bag throwing incident, even though jury told to disregard the testimony that the bag contained a watch]), upon which the dissent relies, since it was not defendant’s possession of the skirt or even his discarding of it that was used as evidence of guilt, but rather his false denial that he had thrown it away. Thus, unlike Rivera, the so-called uncharged crime was not, itself, offered as evidence of guilt. Trial Term was quite explicit in that regard, ruling that the testimony about the skirt was part and parcel of defendant’s false disclaimers, which were sufficient to suggest a consciousness of guilt. Thus, the testimony about the skirt was relevant to show that defendant, fleeing from the crime scene, gave a false answer to a legitimate police inquiry.

Moreover, any prejudice from the testimony concerning the skirt was de minimis. No evidence was adduced connecting it to any other crime; nor should we necessarily conclude that the jury might have speculated that defendant was involved in some other criminal activity that morning. It should be noted that Officer Watson’s testimony that he initially suspected that defendant may have raped someone was brought out on cross-examination. Although Trial Term should have charged the jury, as requested, on the weakness of evidence of consciousness of guilt, any error was rendered harmless by the overwhelming proof of guilt. Clearly, Ms. Brown’s positive in-court and pretrial lineup identification of defendant and her opportunity to observe his distinct features, corroborated by defendant’s false tales of his whereabouts that evening, permitted the jury no choice but to convict.

Defendant also argues that the blue jacket recovered should have been suppressed as the product of an unlawful arrest because the police illegally entered his home to arrest him. Absent exigent circumstances or consent, a warrantless entry into the home for the purpose of effectuating an arrest is constitutionally proscribed. (Payton v New York, 445 US 573.) Since, however, as the suppression court found, defendant consented to the officers’ entry, their warrantless entry into his home was proper. Contrary to defendant’s argument, the People did satisfy the "heavy burden” imposed on them of showing that he voluntarily consented to their entry (cf. People v Dodt, 61 NY2d 408, 417; People v Gonzalez, 39 NY2d 122, 128). Although not totally dispositive, an important factor in determining whether consent is voluntarily given is whether the defendant is in custody at the time consent had been given (supra, at p 129). Here, defendant was in his own apartment when the police asked to speak with him. No threats were made. The officers did not have their guns drawn. Nor is it likely that defendant, who had already that morning issued false statements to the police, would be susceptible to having his will overborne. Indeed, it appears that defendant’s answer, "Okay, come in”, in response to Sergeant Hunt’s inquiry was more likely the product of calculation than awe. Having already been released once by the same officers, he, no doubt, had every reason to believe that he could talk his way out of another confrontation by conversing with them. While the People would have been better served if Sergeant Hunt had testified at the suppression hearing, his absence is only one factor for this court to consider. And although the People’s evidence was flatly contradicted by defendant, the suppression court found him to be unworthy of belief. On such evidence, even without Sergeant Hunt’s testimony, we cannot conclude that the suppression court’s finding of consent was not factually supported. Thus, the court properly denied suppression of the blue jacket.

In any event, even if error was committed in admitting the jacket, such error was harmless in light of the People’s proof. Officers Watson and O’Laughlin testified that defendant was wearing a blue jacket and pants at the time they observed him running from Ms. Brown’s apartment building, thus confirming that defendant was wearing a blue jacket at about the time of the robbery. That basically was the function of offering the jacket in evidence.

We have considered defendant’s other contentions and find that they are without merit.

Accordingly, the judgment of the Supreme Court, Bronx County (George D. Covington, J.), rendered February 16, 1984, convicting defendant of robbery in the first degree and sentencing him as a persistent violent felony offender to an indeterminate term of imprisonment of from 25 years to life should be affirmed.