People v. SmithPeople v. Smith
Decided and Entered: July 16, 2020
Calendar Date: June 10, 2020
Before: Garry, P.J., Clark, Mulvey, Aarons and Colangelo, JJ.
Dana L. Salazar, East Greenbush, for appellant.
Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman Jr. of counsel), for respondent.
Garry, P.J.
Appeal from a judgment of the County Court of Rensselaer County (Young, J.), rendered December 3, 2014, convicting defendant upon his plea of guilty of the crimes of robbery in the second degree, petit larceny and criminal possession of a weapon in the fourth degree.
In June 2014, defendant and two others were arrested following the robbery of a convenience store in the City of Troy, Rensselaer County. Defendant was charged with robbery in the second degree, petit larceny and criminal possession of a weapon in the fourth degree. Defendant moved to suppress a showup identification and certain evidence found in the vehicle in which he was a passenger at the time of his arrest. Following County Court‘s denial of this motion, defendant pleaded guilty to the crimes as charged, but did not waive his right to appeal. Defendant was sentenced as a second felony offender to a prison term of seven years to be followed by five years of postrelease supervision for the robbery conviction, and to concurrent terms of one year for his other convictions. Defendant appeals.
During the suppression hearing, an officer (hereinafter the responding officer) with the City of Troy Police Department testified that he responded just after midnight to a 911 call from a convenience store on Pawling Avenue. Upon his arrival, he spoke with the store clerk, who reported that, a few moments earlier, a male and female had entered the store, pushed her to the ground, and demanded that she open the safe. She gave detailed descriptions of the height, build and clothing of both individuals. Among other things, she stated that both individuals were wearing sweatshirts with the hoods up and had something covering their faces. The store clerk described their clothing, stating that the female‘s sweatshirt was dark-colored and the male‘s was gray. The responding officer also spoke with two customers who had arrived outside the convenience store during the robbery. The customers stated that the suspects wore “gray[-]colored clothing” and headed toward Plum Avenue after exiting.
Shortly after the robbery, a passerby telephoned the convenience store and spoke with the responding officer. The passerby stated that he saw two individuals “run out of the
A second police officer (hereinafter the second responding officer) also went to the convenience store, spoke with the store clerk, and radioed an updated description of the suspects to other officers. He viewed surveillance video footage that showed the male suspect wearing clothing corresponding with the store clerk‘s description, including a gray jacket with black trim. On cross-examination, the second responding officer stated that he had a telephone conversation with the police sergeant who ultimately detained defendant.1 He acknowledged that in this conversation he had provided the sergeant with a different description of the male suspect‘s race and skin color than he had first provided over the radio.
The sergeant testified that, upon learning of the robbery, he drove downtown based on his belief that the vehicle containing the suspects was heading in that direction. At approximately 12:20 a.m., he noticed a “tan, beige or champagne[-]colored Ford Taurus, four-door sedan, early 2000s,” carrying three occupants. The sergeant followed the vehicle as it “closely matched the description” of the vehicle that had been seen leaving the convenience store. He informed dispatch of his intent to stop the vehicle, but the vehicle pulled over before he could do so. The sergeant activated his emergency lights and approached the vehicle. The sergeant testified that, at this time, he did not think the vehicle‘s occupants were the robbery suspects due, in part, to inconsistencies relative to the skin color and racial identity with the initial descriptions of the perpetrators that had been communicated. However, upon approaching the vehicle, the sergeant saw defendant in the front passenger seat and observed that, although defendant‘s race differed from the descriptions that he had received, defendant‘s general appearance otherwise corresponded with that information, specifically including the description of his clothing;
Approximately an hour later, the second responding officer escorted the store clerk to the area where defendant was being detained to conduct a showup identification. This officer testified that he took a specific route while driving the store clerk to the area to minimize opportunities for her to see police officers before the identification. When the vehicle in which the store clerk was riding arrived, defendant was standing approximately 25 feet in front of a police vehicle, with his hands cuffed behind his back. Defendant was illuminated by a spotlight and was standing between two police officers. After viewing defendant, the store clerk said that his clothes and build were “very similar” to those worn by one of the suspects, but that she was not “a hundred percent sure” because the suspect‘s face had been covered. The store clerk positively identified the female suspect, stating, “That‘s definitely her.”
As defendant asserts, there were inconsistencies between the sergeant‘s observations of defendant and the descriptions that he had been provided relative to the male suspect‘s race and skin tone. However, the rest of the information about the male suspect‘s height and build, the detailed description of his clothing, and the description of the vehicle in which the male suspect had reportedly left the scene were nonetheless adequate to provide the sergeant with reasonable suspicion that defendant was one of the individuals involved in the robbery. Thus, a brief detention for the purpose of “confirm[ing] or dispel[ling] suspicion quickly” was justified (People v Hicks, 68 NY2d at 242; see People v Ford, 110 AD3d 1368, 1371 [2013], lv denied 24 NY3d 1043 [2014]; People v Rose, 72 AD3d 1341, 1344-1345 [2010], lv dismissed 16 NY3d 745 [2011]; People v Nesbitt, 56 AD3d at 818; People v Bennett, 189 AD2d 924, 925 [1993]).
To the extent that defendant also challenges his arrest, an arrest “requires probable cause to believe that the person to be arrested has committed a crime” ( People v Rose, 155 AD3d 1322, 1323 [2017], lv denied 31 NY3d 986 [2018]). As stated above, although the store clerk positively identified the female suspect, she could not identify defendant with the same level of certainty. However, upon review, we agree that the sergeant‘s observations of defendant and the previously-discussed information provided by the store clerk, the customers and the passerby provided officers with “knowledge of facts and circumstances sufficient to support a reasonable belief that an offense ha[d] been . . . committed” and that defendant was the perpetrator (People v Stroman, 106 AD3d 1268, 1269 [2013] [internal quotation marks and citations omitted], lv denied 21 NY3d 1046 [2013]; see People v Oliver, 191 AD2d 815, 816-817 [1993]). Accordingly, as “great weight is accorded the trial court‘s determination at a suppression hearing and, absent a basis in the record [before us] for finding that the court‘s resolution of credibility issues was clearly erroneous,” we decline to disturb County Court‘s determination (People v Rudolph, 170 AD3d 1258, 1259 [2019], lv denied 34 NY3d 937 [2019]; accord People v Williams, 25 AD3d 927, 928 [2006], lv denied 6 NY3d 840 [2006]).
Contrary to defendant‘s assertions, the showup identification was not improper. “Generally, a showup identification is permissible if reasonable and not unduly suggestive. The necessary reasonableness is
Clark, Mulvey, Aarons and Colangelo, JJ., concur.
ORDERED that the judgment is affirmed.