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Defendant Claims Identification Process was Tainted


Early morning, Charles T. Williamson took his girlfriend, Inez Goodwin, to work at where Mr. Williamson also used to work. After Ms. Goodwin entered the building, Mr. Williamson saw her speaking with defendant, Delroy Bulgin. Mr. Williamson watched this conversation for about five minutes from less than 10 feet away and then he approached them to find out what was going on. Mr. Williamson also observed that Ms. Goodwin looked uncomfortable, as though she did not want to have any problems with defendant at her workplace. A New York Drug Crime Lawyer said that Mr. Williamson told defendant that he did not belong there and asked him to leave. Defendant kept saying that he just wanted five minutes to talk with Ms. Goodwin, but Mr. Williamson replied that there was nothing to talk about and he should leave.

The next day, at about 5:30 a.m., a Bronx Criminal Lawyer said that, defendant’s car crashed into Mr. Williamson and Ms. Goodwin’s minivan on Noble Avenue in the Bronx. Police Officer Shawn O’Dwyer and his partner, were in uniform in a marked police car on patrol in the 43rd Precinct at that time. As the officers were traveling westbound on Story Avenue, approaching the intersection of Noble Avenue, Officer O’Dwyer heard a loud bang to his left, which he thought might have been a car accident. He saw Mr. Williamson and Ms. Goodwin in a minivan at the corner of Story and Noble Avenues. Mr. Williamson flagged the officers down, leaning out of his window and pointing behind him, indicating to Officer O’Dwyer that something was going on.

Officer O’Dwyer drove southbound on Noble Avenue and saw a gray or silver Acura about one-half block away, being driven by defendant, backing up. Defendant’s car was the only car that Officer O’Dwyer saw driving on Noble Avenue at that time. Officer O’Dwyer immediately turned his lights on in order to stop defendant’s car and investigate what he had heard, but defendant put the car in drive and drove past the police car. Officer O’Dwyer then made a U-turn and followed defendant’s car northbound on Noble Avenue, approximately 15 feet behind the Acura. At the intersection of Noble and Story Avenues, defendant failed to stop at the stop sign and turned right onto Story Avenue. A New York Drug Possession Lawyer said the defendant proceeded eastbound on Story Avenue to the intersection of Story and Rosedale Avenues, where he failed to stop at a steady red traffic light and turned left onto Rosedale. Officer O’Dwyer was approximately 15 to 20 feet from defendant at this point, with both lights and sirens on. Officer O’Dwyer followed defendant’s car for a minute or two and never lost sight of it. Approximately two-tenths to two-thirds of a mile later, defendant pulled over at a 45 degree angle and exited the Acura. When defendant’s car stopped, Officer O’Dwyer saw damage to its left front quarter panel. Defendant was arrested without incident and transported back to the 43rd Precinct.

A Bronx Criminal Lawyer said that, as he was following defendant’s car, Officer O’Dwyer saw that it was pulling slightly to the left and handling poorly. He believed that defendant swerved to avoid hitting the police car as the Acura passed it on Noble Avenue, but he did not form an opinion as to whether defendant intentionally moved the car to the left or whether the pulling was the fault of the car itself. Office O’Dwyer described the traffic conditions as “light.” A Nassau County Drug Possession Lawyer did not recall seeing any other cars or pedestrians during his pursuit of defendant, and he was certain that there were no other cars on Rosedale Avenue. Defendant was traveling between approximately 20 and 30 miles per hour on Noble Avenue and later between 40 and 50 miles per hour. The speed limit on Story and Rosedale Avenues was posted at 30 miles per hour, and may have been 35 miles per hour on the Bruckner. Thereafter, Officer O’Dwyer learned that Mr. Williamson and Ms. Goodwin were at the precinct and he spoke with them. He learned that defendant had driven past them and brandished a knife toward Mr. Williamson from inside his car. Mr. Williamson had decided to drive to the precinct to avoid a confrontation and, while en route there, defendant hit Mr. Williamson’s car with his car. Officer O’Dwyer filled out a complaint report after speaking with Mr. Williamson and Ms.Goodwin, but did not conduct any identification procedure.

At some point, defendant was taken to Central Booking, where his photo was taken and saved to the NYPD’s computerized photo manager system. On the same day, Officer O’Dwyer, Mr. Williamson and Ms. Goodwin were at the complaint room of the District Attorney’s Office, because Officer O’Dwyer had not conducted any identification procedure, Detective Sharon Harvey from the 45th Precinct, who was at the complaint room on an unrelated matter, was asked to show a photo array to Mr. Williamson. A Queens Drug Possession Lawyer said the detective Harvey put the photo array in front of Mr. Williamson and asked him to indicate whether any photo was familiar to him. He identified defendant’s photo, which was No. 3, initialed and dated the array and wrote a brief statement on the document, “Stalking girlfriend and running us off road” Mr. Williamson testified unequivocally that he selected defendant’s photo because he recognized his face from their confrontation.

Defendant is charged with several white collar crimes such as, Criminal Contempt in the First Degree, Criminal Contempt in the Second Degree, Criminal Mischief in the Second Degree, two counts of Menacing in the Second Degree, Unlawfully Fleeing a Police Officer in a Motor Vehicle in the Third Degree, two counts of Criminal Possession of a Weapon in the Fourth Degree, Reckless Endangerment in the First Degree, and Reckless Driving.

Defendant moved to suppress the complainant’s identification of him as the perpetrator, both as the tainted fruit of an unlawful arrest and because the identification is not reliable because it is the product of an unnecessarily suggestive identification procedure.

Defendant argues that he was unlawfully arrested, and that the arrest photo used in the photo arrays was the “fruit” of the unlawful arrest. This unlawful “fruit” was not attenuated by probable cause that Officer O’Dwyer obtained from further investigation following defendant’s arrest. Moreover, Mr. Williamson’s observation of defendant at the precinct, was an unnecessarily suggestive identification procedure that tainted the witness’s ability to make a reliable identification from the photo array later that same day, because the show-up itself was unnecessarily suggestive, because the photo in the array showed defendant in the same clothing as he was wearing when he was brought into the precinct in handcuffs, surrounded by police, and because Mr. Williamson was continuously with Ms. Goodwin at the precinct. He also concedes that there is no evidence that Mr. Williamson gave the police a description of him including his clothing as a significant factor. Finally, defendant argues that Mr. Williamson’s subsequent viewings of PX 3 and PX 2 at ADA Torres’s office, were unnecessary identification procedures that also tainted his ability to make a reliable in court identification

The People argued that there are no grounds to suppress identification testimony. They argue first that the arrest was based on probable cause, because Officer O’Dwyer saw defendant drive over the speed limit and commit a number of traffic infractions. Even if there were no probable cause to arrest on these bases, Officer O’Dwyer subsequently obtained probable cause to arrest defendant after interviewing Mr. Williamson and Ms. Goodwin at the precinct, which attenuated the photo used in the photo spread from any illegality in the arrest. Further, the witness’s observation of defendant at the precinct was not a police-arranged identification procedure. As to the identification from the photo array, there was no evidence that defendant’s clothing played any role in it; rather, Mr. Williamson recognized defendant’s face. Indeed, according to the People, the identification from the photo array was merely confirmatory, because Mr. Williamson had already pointed out defendant to the police on the street in an identification that was not police-arranged.

A Queens Drug Possession Lawyer said the issue here is whether defendant is entitled to the suppression of the complainant’s identification testimony on the ground that the photo in the photo array that was used in charging him of several white collar crimes, was the fruit of the officer’s unlawful arrest.

The Court in deciding the case held that, at a suppression hearing, it is the People’s burden to demonstrate the legality of the police conduct in the first instance, but defendant bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him and that the police lacked probable cause to arrest him. It is undisputed that Office O’Dwyer was justified in stopping defendant’s car after he saw defendant commit several traffic infractions. So, clearly he had probable cause to see he committed a traffic infraction. Indeed, the Robinson Court clearly held that a police officer who can articulate credible facts establishing reasonable cause to believe that someone has violated a law has established a reasonable basis to effectuate a stop.

While conceding the legality of the stop, however, the Court said that, the defendant challenges the propriety of his full-blown arrest. Defendant argues that Officer O’Dwyer had no information about his alleged criminal conduct towards Mr. Williamson and Ms. Goodwin at the time of the arrest, and therefore did not have probable cause to arrest him for criminal contempt, menacing or reckless endangerment with respect either to the alleged car accident or to the alleged confrontation of the day before. Thus, according to defendant, Officer O’Dwyer should have given him a summons for the traffic infractions and let him go. Because traffic infractions are not supposed to yield “fruits,” it is obvious that, except in the rarest instances, there can be no fruits of such infractions, no arrest photo should have been taken, and no photo array prepared with it. Although defendant concedes that Officer O’Dwyer’s intervening interview with Mr. Williamson and Ms. Goodwin at the precinct gave the officer probable cause of a different nature to believe that he actually committed the white collar crime as opposed to a traffic infraction, that nevertheless, that photo identification procedure and identification by Mr. Williamson of Mr. Bulgin, is fruit of that unlawful arrest.

The Court held that, the commission of traffic infractions coupled with flight from the police has been held to justify a full-blown arrest. The Court denied the Motion to suppress physical evidence, because police had to chase suspect as he fled at speeds of 30 to 70 miles per hour for three to five minutes after they attempted to stop his vehicle for driving without headlights, and then chased him on foot, officers were not required to issue summons and release defendant. Contrary to his claim, the evidence at the hearing clearly established that defendant, who was the only other driver on Rosedale Avenue, deliberately failed to stop despite police lights and sirens, although, contrary to the People’s argument, there was no evidence at the hearing that he also attempted to flee on foot after his car was stopped. Based on the foregoing analysis, the Court holds that the police could lawfully arrest defendant under these circumstances, rather than issuing a summons.

Yet, even if the arrest for the series of traffic infractions was lawful under the facts here, must the photo of defendant taken later that same day be suppressed as a “fruit” of the arrest? Recognizing that the legislature never intended that those who commit traffic infractions or fail to appear in court after receiving a traffic summons be treated as a common criminal to be booked, photographed, fingerprinted and jailed. For the reasons that follow, the Court holds that the photo used in the photo array need not be suppressed.

The record establishes that after defendant was arrested, he was transported by Officer O’Dwyer to the 43rd Precinct. Thereafter, Officer O’Dwyer learned that both Charles Williamson and Inez Goodwin were at the precinct and spoke with them. Mr. Williamson informed Officer O’Dwyer that he and Ms. Goodwin were on their way to work when defendant drove past them in his car and brandished a knife at Mr. Williamson. Mr. Williamson decided to drive to the precinct to avoid a confrontation with defendant and, while en route there defendant hit Mr. Williamson’s car with his car. This information was entirely unrelated to defendant’s various traffic infractions. Accordingly, the creation and use of defendant’s photograph is not the suppressible fruit of his arrest for a series of traffic violations, as the photo was fully attenuated from the initial arrest by the intervening probable cause. The Court holds that the police were justified in creating a photo array and showing it to Mr. Williamson.

While the photo array need not be suppressed, however, the Court is constrained to hold that, the accidental precinct show up must be suppressed. The Court held that, this viewing of defendant, as he was being taken a holding cell inside the 43rd Precinct, and before the police had probable cause to arrest him for menacing, was clearly the “fruit” of his arrest for the traffic infractions.

Even though the accidental precinct show up must be suppressed on other grounds, the Court must also determine whether it was unduly suggestive and therefore whether it tainted the subsequent identification from the photo array. For the reasons that follow, the Court holds that it did not. The fact that Mr. Williamson observed defendant, who was in handcuffs, being brought into the 43rd Precinct by police officers does not render the identification unduly suggestive, where, as here, the identification was clearly spontaneous, was not police-arranged, and was untainted by any untoward police conduct. Even as a question of federal due process, the fact that a defendant was handcuffed and surrounded by police officers when identified by a witness does not, without more, constitute unnecessarily suggestive circumstances. Accordingly, the fact that the “show up” here may have occurred by happenstance rather than premeditated police design does not change the due process analysis. Thus, relying on Richardson, defendant argues that the Court must analyze the precinct show up to determine whether it created a substantial likelihood of irreparable misidentification, despite the fact that it may have been accidental and not police-arranged. Defendant argues that, under the five-factor test of the accidental precinct showup was unduly suggestive and tainted Mr. Williamson’s ability to make a reliable identification from the photo array. This Court disagrees.

The five factors that must be considered in balancing the suggestiveness of the procedures against evidence of reliability are: the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Conducting this analysis here, the Court holds that the accidental precinct show up did not taint the identification from the photo array later that evening. There is no evidence that Mr. Williamson hesitated before he selected defendant’s photo from the array, and the better part of twelve hours passed between the show up at the precinct and the photo array at the complaint room. Under the totality of the circumstances here, Mr. Williamson’s identification of defendant from the photo array was reliable, despite any suggestiveness that might have resulted from his seeing defendant under arrest at the precinct. Mr. Williamson had had a good opportunity to see defendant the day before and saw him again at the time of the car crash. While there is no evidence about his degree of attention during the second encounter, his degree of attention was high during the first encounter. The time between these two encounters and the identification from the photo array was relatively short, and the witness was very certain about the identification. Approximately 16 months after the show up and photo identification, and over five months before the instant suppression hearing, Mr. Williamson identified defendant again without any hesitation from photo arrays during trial preparation.

Moreover, under the totality of the circumstances, the Court holds that these identifications were also reliable. For all of these reasons, the Court holds that there is no substantial likelihood of an irreparable misidentification by Mr. Williamson. Accordingly, there is no need to conduct an independent source hearing.

Accordingly, the Court ordered that the defendant’s motion to suppress the accidental precinct show up is granted, but his motion to suppress the photo array and in-court identification is denied.

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