PEOPLE v. DAVID BROWN

Monday, February 11, 2002

Supreme Court

Bronx County

CRIMINAL TERM, PART 25

Justice Seewald

PEOPLE v. DAVID BROWN ” Defendant, indicted for robbery in the first degree (PL ?§160.15[4]) and other related crimes, moves to suppress the complainant’s identification testimony and a gray jacket seized by the police from inside his apartment. Following a Wade/Payton/Mapp hearing conducted by this Court on January 22 and 23, 2002, defendant’s motion is denied in its entirety.

The People presented the three witnesses who testified at the hearing, Detective Ernestine Vincente-Cruz, Police Officers Edwin Vargas and Russell Gandt. Their testimony, discussed below, was completely credible and rendered in a straightforward manner.

Shortly after midnight, on March 13, 2001, Detective Vincente-Cruz interviewed the complainant, Mr. Anthony Blackwell (hereinafter “complainant”), at the 40th Precinct. The complainant told the detective that he had been robbed at gunpoint by two male blacks, who stole one hundred dollars from him. ¹ One perpetrator was described by the complainant as being 5 feet, 8 inches tall, weighing between 160 to 180 pounds, and between 25 to 30 years old.

Detective Vincente-Cruz then had the complainant view photographs on a computer monitor. She had told him “that he was going to view a series of photos, and the[re] might be somebody he recognizes or there might not be someone he recognizes [from] these photos” (HT, 33). As explained by the detective, six photos would appear on the screen at the same time ” three photos on top, three underneath. ² The photos did not display their names ” only their “ NYSID” numbers.

When the complainant ” who had operated the computer monitor himself ” finished viewing a group of six photos, he pushed a button and the next group of six photos would then appear on the screen. The detective, meanwhile, worked at her desk nearby, leaving the complainant alone at the machine.

After operating the computer monitor for approximately fifteen to twenty minutes ” and viewing about 100 photographs, covering about 18 to 19 pages on the computer ” Detective Vincente-Cruz heard the complainant exclaim “ [t]his is one of the guys that robbed me at gunpoint” (HT,31). The detective, who was still working at her desk, came over and jotted down the “NYSID” number beneath the photograph identified by the complainant. The name matching the “NYSID” number and photograph (People’s exhibit #1 in evidence), according to the detective’s subsequent investigation, was David Brown ” the defendant.

Officer Vargas testified that, on March 13, 2001, at about 12:45 in the morning, he and his partner, Officer Gandt, were working in plainclothes, in an unmarked vehicle, when they received a radio call from the sergeant to return to the precinct and take the complainant on a canvass. Officer Gandt had learned from either a fellow officer (Larsen) or the complainant that the alleged robbery had recently occurred, at 12:01 A.M., in the lobby of 673 East 173rd Street, and that the perpetrators had taken his money and house keys. The complainant had told Officer Vargas that two individuals robbed him at gunpoint, while he was selling videotapes

After initially canvassing the area of the crime scene ” without success ” the complainant directed the officers to 169 Cypress Avenue, telling them that one of the perpetrators lived there. Officer Vargas further testified that the complainant said “ he [the complainant] sold him tapes before at the location” (HT,40), “* * * that he dealt with the individual before, selling him tapes and stuff” (HT,58-59). Officer Gandt testified that “the complainant stated to us that he knew that the person who robbed him lived in that building” (HT,83), that he had witnessed him walking his dogs in front of the building ” a couple of times over the previous three or four months. ³

The two officers and the complainant arrived at 169 Cypress Avenue around 1:00 in the morning. Not seeing anyone outside, the officers and the complainant alighted from their vehicle and approached the lobby, which was well lit. As they were about a foot away from the lobby door, which contained a glass window, Officer Vargas, who was walking along side the complainant, saw two individuals inside the lobby looking out the window of the lobby door. One of the men was standing to the left of Officer Vargas, the other to his right. At that point, the complainant, according to both officers, exclaimed “*** there he is right there” (HT,42), pointing to the suspect who was standing to the left of Officer Vargas, according to this officer’s testimony” (HT,44). ⁴

Officer Vargas then tried to gain access to the building by pulling the lobby door open, but was unable to do so. At that moment, Officer Vargas saw the individual pointed out by the complainant run into the elevator, losing sight of him as the elevator door closed. The suspect “was a male black, wearing a gray denim jacket” (HT,47). The other male black ” who was not identified by the complainant ” ran toward a staircase and also disappeared. At that time ” at about 1:05 ” Officer Gandt, who had heard Officer Vargas yelling “ open the door” and then call for backup as he [Vargas] began to go around the rear, successfully opened the lobby door. ⁵ Officer Gandt had also observed the suspect entering the elevator, in addition to seeing the other male black flee into an adjacent stairway.

The two officers and the complainant then entered the elevator. The complainant, according to Officer Vargas, directed them to the 15th floor. “We went up to the 15th floor; he directed me to the apartment on the 15th floor” (HT,47). In this regard, Officer Gandt testified that once they had entered the lobby, “*** the complainant stated that the guy who robbed me lives in Apartment 15A” (HT, 85-86).

Upon reaching the 15th floor, Officer Gandt knocked on the door of Apartment 15A “and stated Police Department, Mr. Brown[ ⁶], are you in there, open up the door. I heard people moving around inside the apartment, I heard people speaking in a low tone of voice” (HT,86). Officer Vargas also testified that he, too, heard “whispers in the background” (HT, 48) emanating from the apartment, as well as a dog barking.

Asked why he was looking to gain access to the apartment at that point, Officer Gandt replied “[b]ecause the conditions of the crime that was committed, being that the suspect was armed and the fact that we heard voices and rustling around inside the apartment, I had concern that maybe people were being held inside against their will at gunpoint; maybe that was the reason why they were not opening the door” (HT,87).

Meanwhile, backup officers arrived, including the precinct commander, a lieutenant and sergeant, as well as a Special Operations Supervisor. Officer Vargas told the sergeant “[t]hat the complainant knows the [perpetrator], he knows where he lives” (HT,63). According to Officer Gandt, the senior officers made a decision to alert the Emergency Service Unit (“ESU”), which arrived about thirty to forty minutes after Officer Gandt had initially knocked on the apartment door.

After being briefed by supervising officers, an ESU officer knocked on the door and “said Police Department, Mr. Brown; are you in there? Open the door. Open the door. Someone open up the door. No one opened up the door. At that time, they forcibly took the door down” (HT,88), which had occurred at approximately 2:05 A.M.

Moments later, Officer Gandt heard the ESU supervisor say that it was clear to enter the apartment, while observing ESU officers bring out a suspect in handcuffs. The suspect ” the defendant ” was the individual that both officers ” Vargas and Gandt ” had earlier seen flee into the elevator.

The complainant, meanwhile, along with Officers Vargas and Gandt, had been standing down the hall, around a corner, about ten feet away, as previously instructed by ESU. Once ESU had the situation safely under control, the complainant began to approach the apartment. At that time, he had the opportunity to view the handcuffed defendant, who was in the custody of ESU officers and being led out of the apartment into the hallway. Upon seeing the defendant, the complainant stated “that’s him, that’s the guy who robbed me” (HT,91), according to the testimony of both officers.

While Officer Vargas remained outside the apartment ” and other officers brought the complainant back to the precinct ” Officer Gandt entered the apartment. Inside, the officer saw three individuals ” two females and one male. He believed that the two females were related to the defendant, one being his mother, the other his sister. He also thought that the male was either the defendant’s uncle or the mother’s boyfriend. In any event, Officer Gandt sought their written permission to search the apartment, as he wanted to look for the money and keys taken from the complainant, as well as weapons.

Consequently, Officer Gandt requested the three people in the apartment to sign a written document entitled “Consent To Search Affidavit” (People’s exhibit ###2, 3 and 4 in evidence). ⁷ These individuals, who were not in handcuffs or otherwise restrained, thereupon affixed their signatures to the consent forms. A sergeant and lieutenant, who were also present, then affixed their signatures, as witnesses, on the documents as well. In summary, the consent affidavits recited that Officer Gandt is authorized “to search all communal areas, including bathroom, living room and kitchen, bedrooms”. In addition, each signatory “* * * AFFIRM[ED] THAT THIS CONSENT IS GIVEN FREELY AND NOT UNDER DURESS ON THIS DATE 3/13/01 AT 0230 AM”.

Officer Gandt testified that the defendant’s mother pointed to an area which she stated was his room. The officer went in and subsequently retrieved a gray jacket ⁸ and a strong box containing a heavy object. ⁹