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Court Confirms Probable Cause for Defendant’s Arrest


In the early morning hours of May 11, 2004, near Sheridan Avenue in Brooklyn, the man accosted the woman, grabbed her around the neck, pointed a knife at her, and demanded money. When she told him that she had none, he pulled her into a nearby yard and raped her at knifepoint. A New York Sex Crimes Lawyer said approximately one week after the sex crime, the complainant woman identified the man in a lineup, the fairness of which has never been challenged. The grand jury returned an indictment charging the man with rape in the first degree, sex abuse in the first degree, sexual misconduct, attempted robbery in the first degree, two counts of assault in the second degree, two counts of assault in the third degree, and criminal possession of a weapon in the fourth degree. He sought suppression of the woman’s potential identification testimony on the ground that, prior to the lineup, the police lacked probable cause to arrest him for the criminal acts committed against the woman.

At the hearing, two retired detectives who had been assigned to the Special Victims Squad testified for the court; the man offered no evidence. The detectives testified that they were assigned to the investigation of the criminal acts. A New York Sex Crimes Lawyer said that two days after the incident, one of the detectives interviewed a person who had been working as a security guard in the vicinity of the incident on the date and at the approximate time it occurred. He told detective that he had seen a man in the area whom he recognized as someone who lived in his neighborhood and had played on the basketball team in a school. The man matched the general description of the assailant provided by the complainant woman. The witness accompanied the detective to a school and looked through three or four school yearbooks. In the 2002 yearbook, he came upon the man’s photograph, pointed to it and identified the man.

A Nassau County Sex Crimes Lawyer said as a result of that identification, the other detective put out what is called an inquiry card with reference to the man, that if he’s stopped, apprehended or identified, the detective’s office would be notified. On May 18, 2004, only one week after the sex crime, the detective was notified that the man was arrested in Queens. The detective had the man transported to Brooklyn and, when he arrived, his supervisor arrested him for the rape. He arranged for the man to stand in a lineup, and had the complainant brought to the precinct station house. She viewed the lineup and identified the man as her attacker.
At the conclusion of the hearing, defense counsel conceded that the lineup itself was not unduly suggestive. Nevertheless, he argued that the identification evidence should be suppressed because discrepancies in the physical descriptions of the perpetrator undermined any probable cause the detectives had to arrest the man and place him in a lineup.

On the day after the Supreme Court denied suppression of identification testimony, the man agreed to plead guilty to rape in the first degree in exchange for a promised determinate sentence of nine years of imprisonment. A Queens Sex Crimes Lawyer said that during the course of the ensuing plea allocution, the Supreme Court advised the man of the terms of its sentencing commitment, and briefly explained that he would be waiving his right to appeal, as he will be pleading guilty to rape in the first degree, with a promised sentence of nine years. There’s a period of something called post release supervision that follows it and there are a couple of fines to waive off $270, but that will come out of inmate funds. There’s a waiver of the right to appeal and that means that the conviction is final and that there is not a higher court that the man can take it too.

Although the man was asked directly by the Supreme Court whether he understood the nature of the waiver of the right to appeal, the man instead responded by asking the Supreme Court a question about the mandatory fees that would be imposed upon him as a result of his conviction. The man did not acknowledge in any manner that he understood the nature of the waiver. After both the Supreme Court and defense counsel attempted to clarify the fee issue, the Supreme Court asked the man whether he understood the explanation, and he replied yes. The man further stated, in response to the Supreme Court’s inquiry, that although he had previously been confined to a hospital for mental illness, he now felt well psychologically. At the conclusion of the plea allocution, the Supreme Court asked whether a written waiver of the right to appeal had been signed, and defense counsel handed the Supreme Court a waiver form, stating that the man had executed the waiver form, and that counsel had witnessed it.
On appeal, the man contends that his waiver of the right to appeal is not enforceable because the Supreme Court provided virtually no explanation regarding the waiver and took no measures to ensure that he, a first felony offender with a history of mental illness, understood it and was validly waiving his right to appeal.

The written waiver signed by the accused man recited that he had been advised by the Supreme Court and by his attorney of the nature of the rights he was giving up, and explained that the right to appeal included the right to prosecute the appeal as a poor person, the right to have an attorney assigned in the event the man was indigent, and the right to submit a brief and/or argue before an appellate court any issues relating to the man’s conviction and sentence. The Supreme Court did not engage in a detailed inquiry of the man but instead, explained the waiver of the right to appeal in an extremely perfunctory manner. Indeed, the Supreme Court merely stated that the conviction is final, that there is not a higher court he can take it to. While a detailed written waiver can supplement a trial court’s on-the-record explanation of what a waiver of the right to appeal entails, and clarify possible ambiguities in that explanation, the execution of a written waiver does not, standing alone, provide sufficient assurance that the man is knowingly, intelligently, and voluntarily giving up his or her right to appeal as a condition of the plea agreement.

Furthermore, despite the fact that the subject waiver form stated that it was signed after the Supreme Court advised the man of the nature of the rights he was giving up, there is no indication in the record that it was indeed the case. Rather, it appears that the man signed the written waiver prior to the commencement of the plea proceeding. Finally, in evaluating whether the record is sufficient to demonstrate a knowing, intelligent, and voluntary waiver of the right to appeal, it cannot be overlooked that, at the time he entered his plea, the 23-year-old man had never previously been convicted of a felony, and that he suffered from mental illness to such a severe degree that the prosecution was delayed on several occasions because of findings that he was unfit to proceed. Additionally, nowhere in the record did the man explicitly state that he waived his right to appeal. Considering all of these circumstances, it cannot be concluded that the man understood the implications of the waiver of the right to appeal, and voluntarily agreed to it. Accordingly, the waiver is unenforceable.

In the absence of a knowing, intelligent, and voluntary waiver of the right to appeal, the man retains his right to challenge the denial of suppression of the woman’s lineup identification as the fruit of an illegal arrest. Turning to the merits, the man’s contention that the hearing record is inadequate to establish his arrest was supported by probable cause.

It is axiomatic that an officer may only seize and take into custody an individual when the officer has probable cause to believe that the person has committed a crime. While probable cause does not require the same quantum of proof necessary to support a conviction, it does require the existence of facts and circumstances which, viewed together, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense has been or is being committed, and that the defendant committed or is committing that offense.

In concluding that the man’s arrest was supported by probable cause, the Supreme Court stated that the criminal acts took place at the apartment complex, and the individual was seen right where the event happened. The Supreme Court also emphasized that one person recognized the man as someone who used to play basketball.

Contrary to the Supreme Court’s determination, the evidence that the man was seen near the security booth of a large apartment complex, in the vicinity of the location where the rape occurred, did not rise to the level of probable cause. It is well settled that the mere presence of an individual at a scene of criminal activity without any other indicia of criminal activity is insufficient to establish probable cause. There was no additional indication of criminal activity beyond the man’s presence in the vicinity of the crime scene. There was no detailed description of the perpetrator, and no evidence that the man matched the general description given by the woman except for race and height. While the complainant woman did indicate that the perpetrator was wearing dark clothing, a hooded sweatshirt, and a do-rag, the record is devoid of any indication of what the man was wearing when the security observed him near the security booth.

Moreover, the prosecutor elicited no testimony that the accused man was engaged in any type of furtive or suspicious conduct when the security man saw him near the security booth. Further, while the crime took place late at night, there is no evidence that the grounds surrounding the apartment complex were deserted or that the man was the only individual in the vicinity. On the poorly developed record the prosecution sustained its burden of establishing probable cause.

Since the man’s arrest was unlawful, any testimony that the woman identified him in a lineup should have been suppressed as the fruit of illegal police conduct. Accordingly, we vacate the man’s plea of guilty, and remit the matter to the Supreme Court, Kings County, for further proceedings, including a hearing to determine whether an independent source exists to support an in-court identification of the man by the complainant woman.

Since the crime was committed prior to the effective date of the amendment to Penal Law providing for the imposition of a supplemental sex offender fee, the fee should not have been imposed upon the accused man. Thus, in the event that the man is resentenced, the supplemental sex offender fee should not be imposed.

Our life is an everyday struggle. Struggle to live, survive and be safe. If you find yourself taken sexually advantaged off by others, feel free to consult a Kings County Sex Crime Lawyer together with the Kings County Criminal Attorneys from Stephen Bilkis and Associates.

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