PEOPLE v. PETILLO (2022)

A Mapp/Huntley/Dunaway/Wade hearing was held before this Court on April 19, 2022, May 3, 2022, and June 9, 2022. The People called five witnesses at the hearing: Police Officer Andre Perez, Sergeant Charles Dever, Detective Carmelo Stracuzzi, Detective Michael Perez, and Detective Mark Santiago. The Court credits each of their testimony. This decision summarizes the testimony below, as the Court's findings of fact, and constitutes the Court's conclusions of law.

Findings of Fact

On July 1, 2020, Sergeant Charles Dever, a detective with the 110th Precinct Detective Squad, began investigating a fatal shooting that took place the previous night near the corner of 41st Avenue and Warren Street in Queens. While there were no eyewitnesses to the shooting, Sergeant Dever and several other officers recovered surveillance video of the shooting from several nearby houses. The video depicted two individuals chasing Dante Santillan, the victim of the shooting. The first individual, later identified as defendant Joshua Petillo, was wearing a blue durag, a white t-shirt, gray sweatpants, and beige workboots. The second individual, later identified as defendant Kevin Guerra, wore a camouflage hoodie, dark shorts, and white socks with black flip-flops. The videos showed defendants exit a dark SUV and chase the victim on foot. Defendant Petillo then extended his arm and shot the victim with a handgun.

Sergeant Dever learned that, approximately forty minutes prior to the shooting, there was a fight, which involved the victim's brother, at a deli ten blocks away from the location of the shooting. In surveillance video obtained by the police, Kevin Guerra was observed at the deli forty minutes prior to the shooting and ten minutes after the shooting, while Joshua Petillo was observed at the deli ten minutes after the shooting. The clothing of both defendants was identical to the clothing they were wearing in the surveillance video of the shooting. In addition, the video from the deli showed the defendants exiting a dark SUV.

On July 8, 2020, Sergeant Dever, accompanied by Detective Shaquan Harvin, met with a confidential informant (hereinafter referred to as “Witness B”). Sergeant Dever showed Witness B approximately ten photographs of individuals obtained from the deli surveillance video, including a still image of defendant Petillo. Witness B said he recognized the image of defendant Petillo as someone from the neighborhood who frequented the deli. Based on the information obtained from this interview, Sergeant Dever created a photo array featuring defendant Petillo.

On July 20, 2020, Sergeant Dever asked Detective Carmelo Stracuzzi to administer the photo array to Witness B. Detective Stracuzzi received no information or details about the case and did not know who the suspects were. Sergeant Dever gave him an envelope containing the photo array, an instruction sheet, and a list of standard follow-up questions. They drove in an unmarked police car to meet with Witness B. Sergeant Dever exited the vehicle and walked away while Detective Stracuzzi administered the photo array to Witness B in the car. After reading the instructions to Witness B, Detective Stracuzzi showed them the photo array. Witness B unequivocally identified defendant Petillo as someone with whom they were familiar and noted that they saw him in the deli after the shooting.

Based on the photo array identification and the surveillance videos, the 110th Precinct Detective Squad issued an investigation card (“I-Card”) for Joshua Petillo which indicated that there was probable cause to arrest him in relation to the homicide case.

Defendant Petillo was arrested on July 27, 2020 by Detective Michael Perez of the NYPD Warrant Section Regional Task Force. Detective Perez had received the I-Card issued by the 110th Precinct for defendant on or about July 20 and spoke with Sergeant Dever about the case. Detective Perez also learned that defendant frequented a deli in Brooklyn and observed defendant enter that deli at noon on July 27. Defendant exited the deli, got into a car with a female passenger, and drove around for several minutes before stopping. Detective Perez, along with several other police officers, approached the vehicle and identified themselves as police. As they pulled defendant out of the car and handcuffed him, Detective Perez noticed a cell phone in plain view in the center console of the car. He asked the female in the passenger seat whose phone it was, and she responded that it belonged to defendant. Detective Perez picked up the phone and transported it, along with defendant, to the 110th Precinct.

Sergeant Dever and Detective Shaquan Harvin brought defendant to the precinct interview room at around 3:50 p.m. After offering defendant water and cigarettes, they read Miranda warnings to him, and he stated that he would answer questions. After approximately forty minutes, defendant began to cry and the detectives stopped questioning him. They brought him water and cigarettes and left him alone for approximately forty-five minutes. At no point during the questioning did the detectives make any threats or promises to defendant or use any physical force. At around 5:15 p.m., when the detectives returned to the interrogation room, defendant asked them: “You already knew it was me?”

Conclusions of Law

A. Legality of Defendant's Arrest

The police have probable cause to arrest an individual when they have “information sufficient to support a reasonable belief that an offense has been [committed] or is being committed or that evidence of a crime may be found in a certain place.” People v Jones, 202 AD3d 821, 825 [2d Dept 2022]. While mere suspicion or conduct equally susceptible to innocent or culpable interpretation is not sufficient, probable cause does not require proof beyond a reasonable doubt. People v Guthrie, 25 NY3d 130, 133 [2015]; People v Alexander, 200 AD3d 790 [2d Dept 2021], lv denied 37 NY3d 1159 [2022]; People v Kamenev, 179 AD3d 837 [2d Dept 2020], lv denied 35 NY3d 1027 [2020]. A “witness's identification of [a] defendant at a photographic array furnishe[s] probable cause for his arrest.” People v Ballinger, 62 AD3d 895 [2d Dept 2009], lv denied 13 NY3d 794 [2009]; People v Pena, 95 AD3d 541 [1st Dept 2012]; People v Walton, 309 AD2d 956 [2d Dept 2003].

Considering the totality of the circumstances (People v Geddes, 171 AD3d 1210 [2d Dept 2019], lv denied 33 NY3d 1069 [2019]), the photo array identification of defendant and the defendant's appearance in the deli and shooting surveillance videos, along with the “circumstantial evidence linking defendant to the scene of the crime,” established probable cause for his arrest. People v Johnson, 195 AD3d 526, 526 [1st Dept 2021], lv denied 37 NY3d 1097 [2021]; see also People v Tyler, 201 AD3d 1371, 1372 [4th Dept 2022], lv denied 38 NY3d 1010 [2022]; People v Jackson, 168 AD3d 473, 473-74 [1st Dept 2019]; People v Young, 152 AD3d 981 [3d Dept 2017]; People v Bethune, 65 AD3d 749 [3d Dept 2009].

Under the fellow officer rule, “an arresting officer is deemed to act with probable cause when making an arrest at the direction of another law enforcement officer who has the requisite probable cause.” People v Rosario, 78 NY2d 583, 588 [1991]; People v Mortel, 197 AD3d 196 [2d Dept 2021], lv denied 37 NY3d 1097 [2021]. In this case, the 110th Precinct Detective Squad issued an I-Card informing Detective Perez, who eventually arrested defendant, that probable cause existed to arrest defendant in relation to the homicide. In addition, Sergeant Dever spoke with the detective prior to July 27, 2020 to confirm that there was probable cause to arrest defendant. This was sufficient to establish that the arresting officer acted with probable cause in arresting defendant. People v Mcullin, 201 AD3d 574, 575 [1st Dept 2022], lv denied 38 NY3d 1009 [2022]; People v Wayman, 188 AD3d 538, 539 [1st Dept 2020], lv denied 36 NY3d 1124 [2021]; see also People v Hightower, 176 AD3d 865 [2d Dept 2019]. Accordingly, the Court concludes that defendant's arrest was valid.

B. Suppression of Statements

When a defendant is the subject of a custodial interrogation by the police, it is beyond well-settled that the police must administer Miranda warnings to the defendant. People v Paulman, 5 NY3d 122 [2005]; see also Miranda v Arizona, 384 US 436 [1966]. Miranda rights can be waived by the defendant provided that such waiver is made “knowingly, intelligently, and voluntarily.” People v Stevens, 203 AD3d 1181 [2d Dept 2022]. Such a waiver is determined “upon an inquiry into the totality of the circumstances surrounding the interrogation, including an evaluation of the defendant's age, experience, education, background, and intelligence.” People v Santos, 112 AD3d 757, 758 [2d Dept 2013]. However, if the defendant unequivocally requests the assistance of counsel, the police may not question the defendant outside the presence of counsel. People v Dawson, 38 NY3d 1055 [2022].

In this case, the detectives read Miranda warnings to defendant. He stated that he understood his rights and then freely agreed to answer questions. He never asked to speak to a lawyer. The detectives did not pressure or coerce defendant to waive his rights (People v Herring, 189 AD3d 1614 [2d Dept 2020], lv denied 36 NY3d 1097 [2021]) and there is no evidence that defendant, under all the circumstances, failed to understand the nature of his waiver. People v Thomas, 22 NY3d 629 [2014]; People v Humphrey, 176 AD3d 1101 [2d Dept 2019], lv denied 34 NY3d 1129 [2020]. Accordingly, defendant's statements to the police during the interrogation are not subject to suppression.

C. Suppression of Identification Evidence

When a defendant seeks to suppress identification evidence, the People bear the initial burden of “establishing the reasonableness of the police conduct and the lack of any undue suggestiveness.” People v Sosa-Marquez, 177 AD3d 1003, 1004 [2d Dept 2019]. Once the People meet this burden, the defendant “bears the ultimate burden of proving that a pretrial identification procedure was unduly suggestive.” People v McDonald, 138 AD3d 1027, 1028 [2d Dept 2016]. A photo array is unduly suggestive if “some feature or characteristic of one of the depicted individuals is so unique or distinctive that it draws the viewer's attention to that photograph, thereby indicating that the police have selected that particular individual.” People v Bowman, 194 AD3d 1123, 1126 [3d Dept 2021], lv denied 37 NY3d 963 [2021].

While the various persons included in a photo array must be sufficiently similar in appearance to the defendant (People v Lago, 60 AD3d 784 [2d Dept 2009]), there is no requirement that they be “nearly identical in appearance” to the defendant. People v Chipp, 75 NY2d 327, 336 [1990]; see also People v Staton, 28 NY3d 1160 [2017] [photo array was proper although defendant was older than other fillers]; People v Linear, 200 AD3d 1498 [3d Dept 2021], lv denied 38 NY3d 951 [2022] [photo array was proper even though defendant was the only bald person featured]; People v Marryshow, 162 AD3d 1313 [3d Dept 2018] [photo array was not suggestive despite differing skin tones of the persons featured]; People v Quintana, 159 AD3d 1122 [3d Dept 2018] [photo array was not unduly suggestive even though defendant's neck tattoo was partially visible]. Finally, it is well settled that a photo array identification is not rendered constitutionally invalid simply because the identification is made by a confidential informant. See, e.g., People v Winters, 196 AD3d 847 [3d Dept 2021], lv denied 37 NY3d 1030 [2021]; People v Quintana, 159 AD3d 1122, 1126 [3d Dept 2018]; People v Casanova, 152 AD3d 875, 877 [3d Dept 2017]; People v McDonald, 110 AD3d 1490, 1490 [4th Dept 2013]; People v Moshier, 110 AD3d 832, 832 [2d Dept 2013]; People v Cruz, 89 AD3d 1464 [4th Dept 2011].

The Court concludes that the photo array procedure was not unduly suggestive, as “nothing about defendant's [appearance] was likely to unduly draw the viewer's attention to his photo or indicate that he was the perpetrator of the charged crimes.” People v Serrano, 173 AD3d 1484, 1487 [3d Dept 2019]. The photo array displayed to Witness B featured individuals similar in age and general physical characteristics to those of the defendant and were not exhibited to the witness in a suggestive manner. See People v Richardson, 200 AD3d 984 [2d Dept 2021], lv denied 38 NY3d 930 [2022]; People v Bell, 188 AD3d 904 [2d Dept 2020], lv denied 36 NY3d 1049 [2021]. This is especially so since the detective who conducted the photo array procedure had no information concerning details or the suspects of the investigation. See People v Pleasant, 149 AD3d 1257 [3d Dept 2017]. Accordingly, since the photo array procedure was not unduly suggestive or likely to taint the witness's identification testimony, the Court declines to suppress the identification testimony.

To the extent that defendant argues that the July 8 photo identification procedure itself was unduly suggestive or rendered the photo array procedure unduly suggestive, those arguments are without merit. On July 8, Sergeant Dever showed Witness B images of ten individuals, one at a time, from the deli surveillance video to see whether Witness B recognized anyone. Nothing in the record suggests that Sergeant Dever engaged in any conduct to single out the image of defendant for identification or “exposed the witness to defendant's identity in an unduly suggestive manner.” People v Marshall, 26 NY3d 495, 506 [2015]. Contrary to defendant's assertion, this is not a case where the identifying witness was shown only a single photograph of defendant. See, e.g., id. at 499; People v Rodriguez, 79 NY2d 445, 447 [1992]; People v Wheeler, 201 AD3d 960 [2d Dept 2022]; People v Francis, 190 AD3d 566 [1st Dept 2021], lv denied 36 NY3d 1097 [2021]; People v Thornton, 236 AD2d 430 [2d Dept 1997]. Finally, the July 20 photo array procedure was not rendered unduly suggestive by the July 8 photo viewing. The photo array was shown to Witness almost two weeks after the initial photo identification procedure and used a different image of defendant from the July 8 viewing. See People v Greene, 87 AD3d 551 [2d Dept 2011], lv denied 19 NY3d 864 [2012] [“Two separate showings of a suspect's picture in successive photographic arrays are not per se impermissibly suggestive, particularly where, as here, a different photograph of the defendant was used”]; People v Dunlap, 9 AD3d 434, 435 [2d Dept 2004]. Accordingly, there is no basis to suppress the photo identification procedure or the photo array identification.

D. Suppression of Physical Evidence

Although the Court of Appeals has held that “[a]ll warrantless searches presumptively are unreasonable per se” (People v Jimenez, 22 NY3d 717, 721 [2014]), the Court has also long instructed that “[it] is, of course, lawful to search a person incident to his arrest.” People v Perel, 34 NY2d 462, 466 [1974]; People v Troiano, 35 NY2d 476, 478 [1974] [“so long as an arrest is lawful, the consequent exposure to search is inevitable”]; People v Weintraub, 35 NY2d 351, 354 [1974]. Thus, as long as police have probable cause to arrest the defendant, a search of the defendant's person incident to arrest is permissible. People v Julien, 201 AD3d 948, 950 [2d Dept 2022], lv denied 38 NY3d 951 [2022]; People v Harlow, 195 AD3d 1505, 1507 [4th Dept 2021], lv denied 37 NY3d 1027 [2021]; People v Foster, 153 AD3d 853, 854 [2d Dept 2017].

However, the scope of such a search is not unlimited and “must be limited to the arrestee's person and the area from within which he might gain possession of a weapon or destructible evidence.” People v Blasich, 73 NY2d 673, 678 [1989]; People v Knapp, 52 NY2d 689, 694-95 [1981] [the law allows a “limited search of the arrestee's person and the area within his immediate control to take place then and there”]; Weintraub, 35 NY2d at 354 [“The authority to search being clear, it includes those personal effects of the arrestee that are ‘ready to hand’ ”]. An additional factor to be considered is whether the items seized incident to arrest were in plain view or were discovered by the police due to “rummaging” or “independent investigative inquiry.” Knapp, 52 NY2d at 695; People v Payne, 233 AD2d 787, 787-88 [3d Dept 1996].

In this case, the Court has already found that probable cause existed to arrest defendant and that the arrest was lawful. Detective Perez, even before he pulled defendant out of the car to be handcuffed, noticed a cell phone in the center console of the car next to where defendant had been sitting. The cell phone was in plain view and was visible from outside the car. In addition, Detective Perez did not rummage through the vehicle, open any closed compartments or containers, or search under the seat. The cases cited by defendant in support of his argument (See, e.g., People v Torres, 74 NY2d 224 [1989]; People v Dessasau, 168 AD3d 969 [2d Dept 2019]; People v Hackett, 47 AD3d 1122 [3d Dept 2008]) are inapposite, as those cases dealt with searches of a defendant's vehicle where the police lacked probable cause to arrest the defendant. Here, the detective had probable cause to arrest defendant and can hardly be said to have performed an unreasonable search of the vehicle. Rather, he seized, incident to a lawful arrest, a cell phone in open view that had been, just seconds before, in defendant's grabbable area. Therefore, the cell phone is not subject to suppression.

Finally, the Court notes that defendant's cell phone would also be admissible under the automobile exception to the warrant requirement. It is well settled that, where the police “have validly arrested an occupant of an automobile, and they have reason to believe that the car may contain evidence related to the crime for which the occupant was arrested or that a weapon may be discovered they may contemporaneously search the passenger compartment” of the vehicle. People v Blasich, 73 NY2d 673, 678-79 [1989]; People v Yancy, 86 NY2d 239 [1995]; People v Galak, 81 NY2d 463 [1993]; People v Green, 100 AD3d 654 [2d Dept 2012], lv denied 20 NY3d 1011 [2013]; People v Henderson, 57 AD3d 562 [2d Dept 2008], lv denied 12 NY3d 925 [2009]. Here, the police had probable cause to arrest defendant in relation to the shooting homicide and thus had ample reason to believe that the automobile contained evidence related to the crime (i.e., defendant's cell phone or the firearm used to shoot the decedent). The fact that defendant may have been handcuffed at the time the phone was seized does not affect the analysis because the automobile exception, as the Appellate Division has noted, allows a search of the car even if the defendant has been removed from the car and taken into police custody. People v Dixon, 107 AD3d 530 [1st Dept 2013], lv denied 21 NY3d 1041 [2013]; Green, 100 AD3d at 655-656; People v Myers, 303 AD2d 139 [2d Dept 2003], lv denied 100 NY2d 585 [2003]. In any event, the search performed by the officer in seizing a cell phone in the center console was minimal at best. The cell phone, as noted above, was in plain view and the detective did not search any closed containers or under the seats. For these reasons, the police properly seized defendant's cell phone pursuant to the automobile exception to the warrant requirement.

Accordingly, defendant's motions to suppress statements, identification testimony, and physical evidence are denied.

This constitutes the decision and order of the Court.

The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.

Cassandra M. Mullen, J.