Trial court should have re-opened suppression hearing where the civilian witness testimony at trial contradicted police officer's suppression hearing testimony on facts critical to "custody" determination
People v Velez, 2007 NY Slip Op 01160 [available here]
Police responding to a radio report of a "suspicious person" encountered a man meeting the broadcast description; the man was stopped, and a showup identification was subsequently conducted. The arresting officers testified at the suppression hearing, and described a cordial initial encounter. Here is how the suppression testimony came in:
[The arresting officer] stopped [defendant], identified himself as a police officer, and told him that he was investigating an incident that had happened down the street. He asked the defendant to sit down and bear with him for a few minutes. According to [the officer], the defendant was cooperative and caused the detective no concern for his own safety. The defendant sat down and [the officer] made "small talk" with the defendant. He was not handcuffed, and nothing was taken from him. [The officer] then heard over the radio that Sergeant Kreso was on his way to the location with two witnesses.
When Kreso arrived at the scene, he pulled his vehicle up to within 15 or 20 feet of the defendant. One of the witnesses got out of the car, and Kreso nodded his head, signaling to Benash that the witnesses had identified the defendant. Benash asked the defendant to lie on his stomach, placed him in handcuffs, and frisked him. From a pouch near the defendant's waist, police officers recovered two boxes containing jewelry and World War II medals, as well as an envelope with currency. After he was placed under arrest and the property was recovered from him, the defendant reportedly blurted out that the money belonged to a friend and the jewelry belonged to his girlfriend. The property in fact proved to be the fruits of two burglaries [...].
(Velez, 2007 NY Slip Op 01160.)
Based on this testimony, the suppression court held that the showup identification of defendant provided the police with probable cause for arrest. (Id. at __.)
At trial, the civilian witnesses who identified defendant at the showup testified. They told a slightly different version of the showup identification procedure. Both witnesses said that the police already had defendant on the ground and were handcuffing him when the showup identification procedure was conducted. Defense counsel asked the trial court to reopen the suppression hearing; the trial court refused.
The Second Department reversed. " [T]he court has the discretion to re-open a suppression hearing if the defendant proffers new facts, which could not have been discovered with reasonable diligence before the determination of the motion, and which are pertinent to the suppression issue." (Id. at __.) The eyewitness testimony "went to the heart" of the probable cause issue--if believed, the civilian testimony established that the defendant was taken into custody before the showup identification procedure (and thus, before probable cause existed for defendant's arrest). (Id. at __.) Further, while the "defendant here certainly could be presumed to know the conduct of the police in placing him on the ground, handcuffing him, and searching him," the Second Department would not draw the "further inference . . . that he knew whether the conduct had preceded or followed one officer's signal to another that an identification had actually been made." (Id. at __.) Defense counsel tried to track down and interview the eyewitnesses prior to the suppression hearing; he could not find one, and the other refused to talk to him. (Id.) Since a defendant does not have an absolute right to subpoena suppression witnesses and the police officer's testimony gave no reason to believe the eyewitnesses would offer any noncumulative evidence, "the defendant cannot be penalized for failing to do what the law would not have allowed him to do." (Id. at __.)
Undercover officer's "unparticularized testimony" insufficient to justify closing courtroom
People v Baldomero, 2007 NY Slip Op 01132 [available here]
At a drug trial involving an undercover drug buy, the People asked that the courtroom be closed for the testimony of the undercover officer. The trial court agreed and allowed the undercover officer to testify in a closed courtroom; the Second Department reversed and ordered a new trial. After noting the applicable standard--"the People 'must first assert that a substantial probability of prejudice to a compelling interest will result from an open proceeding,' and then establish 'a nexus between the particular overriding interest asserted and open-court testimony' in the particular case." (Baldomero, 2007 NY Slip Op 01132.) At the hearing to determine if the courtroom should be cosed, "the undercover testified that he no loner operated in the specific area . . . where the alleged sale took place, but that he planned to return there as an undercover officer at an unspecified time '[i]n the future.'" (Id. at __.) Not enough, said the Second Department--"[s]uch unparticularized testimony fell short of meeting 'Waller's demanding first prong' of an 'overriding interest that is likely to be prejudiced' by open-court testimony." (Id.) Since "the unjustified closure of the courtroom during testimony at a criminal trial is not subject to the harmless error rule", the Second Department granted a new trial in spite of the overwhelming evidence of defendant's guilt. (Id. at __.)