On 10 November 1988, early in the evening, A New York City Police Officer and his partner, both assigned to the 34th Precinct, were on routine motor patrol, when they received a radio message directing them to the corner of 213th Street and Broadway, New York County.
As the officers were approaching the location, one of the officers saw one man holding another man, with a woman standing nearby.
A New York Criminal Lawyer said one of the men, informed the officer that, after he had heard a woman screaming, he saw the man, who he was now holding and who was later identified as the defendant, running from Inwood Park, carrying a brown pocketbook, and he responded by seizing and holding the defendant, while a bystander summoned the police. At that point, the man gave the officer a rubberized hammer handle, as well as the pocketbook, and he told the officer that he had taken both of those items from the defendant. Further, the man explained to the officer that the defendant had attempted to strike him with the hammer handle.
The aforesaid woman who was standing nearby told the officer that the defendant had punched her in the lip, grabbed her pocketbook inside the park and fled towards Broadway. Also, the victim informed the officer that the pocketbook, which they had recovered from defendant, belonged to her.
After listening to the statements, the officer arrested, handcuffed, and searched the defendant, who was subsequently transported to the 34th Precinct.
Meanwhile, in November 1988, a New York City Police Officer (or “investigating officer”) was assigned to the Robbery Identification Program (RIP), located at the 34th Precinct. On the evening of defendant’s arrest, he received a telephone call at his residence requesting him to return to the precinct since a person who had just been apprehended for a robbery appeared to fit a robbery pattern which he was investigating.
On or about 7 November 1988, three days before defendant’s arrest, the investigating officer’s pattern sheet, containing details of the robberies, was circulated to other precincts, and said sheet came to the attention of a New York City Police Detective (or “detective”) assigned to the Manhattan Robbery Squad.
The detective, after examining the pattern sheet, concluded that the pattern of park robberies committed in the 34th Precinct was very similar if not identical to several robberies committed in Central Park, which he was investigating.
Prior to defendant’s arrest, the detective contacted the investigating officer and advised him that there were similarities between the 34th Precinct robberies and the Central Park robberies.
On the evening of defendant’s arrest, at approximately 7:30 p.m., the investigating officer arrived back at the precinct in time to witness a Spanish speaking officer administer Miranda warnings to defendant in Spanish from a bi-lingual Miranda warnings form. A Westchester Criminal Lawyer said after defendant acknowledged receiving those warnings, the investigating officer, using the Spanish speaking officer as a translator, asked the defendant what happened with regard to the robbery that he was arrested for and defendant admitted that he robbed her, got nervous and scared, punched her and grabbed her bag.
Following defendant’s admission of committing the crime, the investigating officer Davis, together with other officers, arranged for a line-up to take place later that evening at the 34th Precinct.
Five stand-ins (fillers) were assembled, who resembled the defendant, in that they were of similar age, race, height, weight, facial hair and skin-tone. While three fillers had salt and pepper colored hair like defendant, two fillers had dark hair. And in view of the fact that defendant was clean-shaven at the time of his arrest, so were all the fillers. The defendant was given his choice of number and he chose to be number one.
Sometime after 11:00 p.m. that evening, fourteen victims, of the robberies set forth on the pattern sheet of the 34th Precinct, viewed the investigating officer’s line-up, and seven persons, were robbed as well as sexually abused, identified defendant as the robber.
Since the detective had been informed by the investigating officer that the defendant had been arrested and identified as the perpetrator of the 34th Precinct robberies, on the evening of 11 November 1988, in the offices of the Manhattan Robbery Squad, the detective arranged for the defendant to be part of a second line-up, which was to be viewed by victims of the Central Park robberies.
The detective directed the selection of the five fillers for that line-up.
Although the defendant was 41 years of age, the detective decided to use fillers whose ages ranged from 26 to 29. The detective reasoned that the age difference was not significant since some of the victims of the Central Park robberies had indicated that the perpetrator’s age was anywhere between twenty five and forty and the detective believed that defendant looked very young for his age. Further, while defendant appears to be a black Hispanic, the detective used fillers who did not have Latino-sounding names, since the appearances of those fillers indicated they could be black Hispanic or black.
Before the victims were allowed to view the six-person line-up, the defendant was given his choice of number and where he wanted to sit. Defendant selected number five and decided to sit between fillers numbered four and six.
Three Central Park victims who examined the line-up positively identified defendant as the robber while one identified defendant but later pointed to another one who also looked similar to her. One of the victims who positively identified defendant from the lineup has requested that all of the men in the line-up put on caps since the man he saw in the park had been wearing a cap.
Subsequently, two indictments were returned against defendant.
On 1 December 1988, the first indictment was filed and defendant was charged with committing the crimes of robbery in the first degree (twelve counts), attempted robbery in the first degree (four counts), sexual abuse in the first degree (two counts), attempted sodomy in the first degree, and coercion in the first degree.
On 19 April 1989, the second indictment was filed and defendant was charged with committing the crimes of robbery in the first degree (two counts), and attempted robbery in the first degree (three counts).
Defendant entered pleas of not guilty to both indictments, and his counsel moved to suppress, inter alia, defendant’s statements made to the police and all identification testimony.
Thereafter, in May and June 1989, inter alia, a combined Huntley and Wade hearing were held.
Several New York City police officers and detectives, as well as a robbery victim, testified for the People.
The defense did not present any witnesses at the hearing.
Subsequent to the receipt of the evidence, Criminal Term found that the arrest of defendant for the robbery was based upon probable cause. Further, Criminal Term found the People’s hearing witnesses to be credible.
Criminal Term found the second line-up to be neither suggestive nor violative of the defendant’s right to due process. The detective followed correct procedures in assembling the line-up, and there is no Constitutional requirement that a defendant in a line-up must be surrounded by people nearly identical in appearance. Much weight is to be accorded to the determination of the suppression court with its peculiar advantage of having seen and heard the witnesses.
Shortly before the trial was to begin, defendant, after consulting with counsel, pleaded guilty to committing the crime of robbery in the first degree (four counts), in full satisfaction of the twenty count indictment, 1st indictment, and of the five count indictment, 2nd indictment. He pled guilty to two first degree robbery counts under each indictment.
On 17 October 1989, defendant was sentenced, as a predicate felon, to indeterminate concurrent prison terms of from seven to fourteen years on two counts contained in the 1st indictment, and from six to twelve years on two counts contained in the 2nd indictment, with the latter sentence to run consecutively to the first sentence. Pursuant to that judgment, defendant is currently incarcerated.
Defendant appeals the decision.
The defendant’s first contention is that the second line-up was improperly suggestive since race and age differences between the defendant and the fillers combined to focus undue attention on him in the lineup.
The fundamental issue involved in ascertaining the validity of a lineup identification concerns undue suggestiveness which is determined by considering the totality of the circumstances surrounding the lineup.
It is well established in law that there is no requirement that a defendant in a lineup be surrounded by people nearly identical in appearance.
When a Court evaluates the fairness of a line-up, some of the factors to be considered are physical characteristics of the subject such as skin color, height, weight, clothing, hairstyle, age, and whether the subject is clean-shaven or has facial hair.
Differences between a defendant and the fillers do not make a line-up suggestive, unless those differences were highlighted in the description by the victims of the perpetrator.
Upon the court’s examination of the photographs of the subject second line-up of the detective indicates many similarities between the defendant and the fillers, in that every participant had dark skin, had dark short head hair, all appeared slimly-built, and height differences were minimized by having them seated.
In view of the fact that the Central Park victims did not have an agreement on the perpetrator’s race or age, in that some indicated it was black, some indicated it was a Hispanic, and some of the victims indicated that the perpetrator’s age was anywhere between twenty five and forty, the court does not find that the detective’s use of dark skinned fillers whose ages were between 26 and 29 made that line-up unduly suggestive, since neither the perpetrator’s race or age were highlighted in those victims’ descriptions.
The court finds that the 2nd line-up did not create a substantial likelihood of irreparable misidentification. The fill-ins for the lineup were sufficiently similar in appearance to the defendant such that the viewer would not have been oriented toward selecting the defendant as a participant in the crimes charged.
In fact, one of the victims who had a four minute encounter with defendant testified that the most significant factor in her identification of defendant as the perpetrator was neither race nor age, but the fact that she would not make an identification until, at her request, the detectives had the men in the line-up put on baseball caps where she then selected the defendant. Clearly, age and race of the defendant did not single him out from the other participants.
Moreover, another victim identified defendant from the line-up.
Further support for the conclusion that the line-up was not unduly suggestive is from the fact that another one of the victims could not make a positive identification since she was not sure between the defendant and one other person from the lineup. The witness stated that they both looked similar to her.
In conclusion, based upon the records and the court’s examination of the photographs of the line-up, the hearing court properly concluded that under the totality of the circumstances the pretrial lineup conducted was not unduly suggestive.
Next, the defendant’s second contention is that the judgment should be reversed and leave granted to withdraw the plea, on the ground that Criminal Term allegedly coerced him to plead guilty, by threatening to sentence defendant to a much higher sentence, if he proceeded to trial and was convicted.
Since defendant neither moved to withdraw his plea before sentencing nor raised that issue in a motion, pursuant to Criminal Procedure Law, to vacate judgment, he has failed to preserve such claim for appellate review.
Moreover, the court’s examination of the record indicates no reason to review the issues in the interest of justice. The court finds that the defendant’s plea of guilty was freely, voluntarily and knowingly given.
Accordingly, the judgment of conviction upon defendant’s plea of guilty is affirmed.
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