The People of the State of New York, Plaintiff, v. Jermaine Dunbar, Defendant.

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Supreme Court, Queens County, New York.

The People of the State of New York, Plaintiff, v. Jermaine Dunbar, Defendant.

1217/2009

Decided: June 05, 2020

For the Defendant: Lori Zeno, The Queens Defenders, Queens, New York (Kenneth Deane, Esq., of counsel) For the People: Melinda Katz, District Attorney of Queens County (Sharon Brodt, Esq., and Jonathan Selkowe, Esq., of counsel)

Defendant Jermaine Dunbar has been convicted twice, after two jury trials, of robbery charges. The first judgment was reversed because the Appellate Division concluded, and the Court of Appeals later agreed, that certain statements defendant made after his arrest should have been suppressed. The second judgment is pending on direct appeal. In an interim decision and order, the Appellate Division agreed with the defendant's contention that his application to reopen the suppression hearing, made prior to his re-trial, should have been granted. As a result, the Appellate Division held the appeal in abeyance and remitted the matter to this Court "for a suppression hearing on issues raised as a result of newly discovered evidence"—namely, information from "an unidentified and anonymous bystander"—and, thereafter, to issue a report reconsidering "those branches of the defendant's omnibus motion which were to suppress physical evidence and identification evidence" (People v Dunbar, 178 AD3d 948, 948 [2d Dept 2019]). The remittal required the Court to assess the reliability and import of statements made to the police by a civilian eyewitness who made no attempt to hide his identity, but whose name and contact information the police never obtained due to the exigencies of a quickly unfolding investigation, and to distinguish those circumstances from those in which anonymous witnesses who insist upon anonymity provide tips to law enforcement. The Court, having held a hearing, concludes that the "newly discovered evidence" does not warrant suppression of either physical evidence or identification testimony.1

Procedural History

The Original Suppression Hearing, the Post-Hearing Disclosure of Newly Discovered Evidence and the Appellate Division's Remittal

On April 23, 2009, defendant was arrested and charged with attempting to rob Rapid Multi-Services (a business that, among other things, facilitated money transfers), with what appeared to be a handgun. Defendant was arrested within minutes of the attempted robbery, in a livery cab with New Jersey plates that was heading towards the Grand Central Parkway. On the floor beneath where defendant had been sitting in the backseat, police officers found a baseball hat, a striped shirt, and a BB gun. Defendant was identified as the perpetrator by the sole employee at Rapid Multi-Services who was present during the incident when she was brought to the scene of the car-stop for a show-up identification procedure.

Defendant was indicted for attempted second-degree robbery and other lesser related offenses. He moved, in an omnibus motion, to suppress the baseball hat, striped shirt, and BB gun, as well as identification testimony.

At the pre-trial hearing, the People called two police officers to describe the circumstances of defendant's arrest. The first, Police Officer Francis DiLiberto of the 115th Precinct, recounted that, on the afternoon of April 23, 2009, he was working, along with several partners, as part of a conditions unit. At around 12:40 p.m., when the officers were on Roosevelt Avenue, near 112th Street, they received a radio report of a gunpoint robbery in progress, at a location on 108th Street. The perpetrator was described as a black male, wearing a blue and white striped shirt, traveling in a "black livery with New Jersey plates."

The officers began to canvass the area for the vehicle. They made a right turn onto 114th Street and headed south towards 41st Avenue. At that location — six blocks from the scene of the reported robbery — DiLiberto saw a black livery car with New Jersey plates heading in the opposite direction. The officers turned on their lights and stopped the car. DiLiberto used the loudspeaker to order the two occupants — the driver and a passenger in the back seat (the defendant) — to put their hands up. Although the driver quickly complied, defendant did not. The officers got out of their van, approached the car with their guns drawn, removed both men and handcuffed them. On the floor of the car, beneath where defendant had been sitting, DiLiberto saw, in plain view, a Yankee hat, a blue and white striped shirt, and a black handgun. All of this had occurred, DiLiberto estimated, within about three minutes of receiving the radio run.

The second officer who provided information about defendant's arrest was Detective Peter Linke of the 110th Precinct. On the afternoon of the robbery, Linke testified, he was assigned to a plainclothes anti-crime unit. He was working with three partners, in an unmarked car.

When Linke received a radio transmission of an armed robbery in progress (involving a black male perpetrator wearing a striped shirt, traveling in a livery cab with New Jersey plates), he and his partners headed towards the scene. But they were redirected when they heard that a suspect had been stopped. When they arrived at 114th Street, defendant was being removed from a black car and placed in handcuffs.

During Detective Linke's cross-examination, it became apparent that defense counsel knew that the complaining witness from Rapid Multi-Services (Anunciacion Betancourt) was not the source of the information about the livery cab with New Jersey plates. In fact, during a sidebar discussion, defense counsel told the judge that she "[had] the 911 tape and [Betancourt] didn't say anything about that." Linke, however, could not clarify the issue; he acknowledged that he did not know who had provided the description of the vehicle.

The issue of who provided the police with the information about the vehicle in which defendant fled from the scene of the attempted robbery was not resolved by the court (McGann, J.) at the suppression hearing. In its decision and order denying suppression of the evidence recovered from the car and testimony concerning the show-up identification that occurred shortly after the stop, the court held that the unattributed radio transmissions amounted to reasonable suspicion.

Defendant was convicted after trial in 2010. On appeal, the Appellate Division reversed the judgment, holding that inculpatory statements defendant made at Queens Central Banking should have been suppressed (People v Dunbar, 104 AD3d 198, 207-214 [2d Dept 2012]). The Court of Appeals affirmed that determination (People v Dunbar, 24 NY3d 304, 316 [2014]).

When defendant's retrial was about to commence, in the summer of 2016, the prosecutor revealed seemingly new information about why the livery cab with New Jersey plates was stopped. Then-Sergeant Aaron Edwards  2 — who had responded to the scene of the robbery, spoken with Betancourt, and then brought her to the location where the livery cab had been stopped for a show-up — had a vague recollection of the source of the description of the car. According to the prosecutor, Edwards believed that either Betancourt, or a bystander translating for Betancourt (who spoke Spanish), or the bystander independently, had provided the information.

In light of this development, defense counsel moved to re-open the suppression hearing (see CPL 710.40 [4]), contending that, if the description of the car came from an "anonymous" or "unknown" source, an Aguilar-Spinelli inquiry into the witness's reliability and basis of knowledge (which was not engaged in by the hearing court) would be necessary (Spinelli v United States, 393 US 410 [1969]; Aguilar v Texas, 378 US 108 [1964]. After a lengthy discussion, the court (Lopez, J.) denied the motion.

Defendant was convicted after his second trial as well, and he appealed again to the Appellate Division, which agreed with his claim that the suppression hearing should have been reopened based on the prosecutor's representations regarding Edwards' limited recollection of how he learned about the livery cab with New Jersey plates. The court reasoned that "[t]he information that the livery car description came from an unidentified and anonymous bystander would have affected the earlier suppression determination by placing squarely before the court questions regarding the identity and reliability of the person who described the livery car" (People v Dunbar, 178 AD3d 948, 950 [2d Dept 2019], citing, among other cases, Florida v J.L., 529 US 266 [2000]). The court further found that, "because [Edwards] did not previously testify in the case, [this information] could not have been discovered with due diligence by the defendant" prior to the resolution of the original suppression motion (Dunbar, 178 AD3d at 950).

The Re-opened Suppression Hearing

At the reopened suppression hearing, the People called one witness, Captain Aaron Edwards of the 7th Precinct in Manhattan. The defense did not call any witnesses, but introduced into evidence an excerpt from the retrial transcript during which, as recounted above, the prosecutor suggested that Edwards could not recall the precise source of the information about the livery cab.

Captain Edwards testified that, in April of 2009, he was a Sergeant with the 110th Precinct. On April 23, 2009, he was assigned to "supervise patrol functions," which consisted of "responding to serious incidents," among other things. His partner was Police Officer LaRosa. Both officers were in uniform and traveling in a marked patrol car.

At around 12:30 p.m., Edwards received a radio transmission from central dispatch reporting a "1030," a robbery in progress at a commercial location, at 40-20 108th Street. Edwards and his partner arrived at the location about a minute later. They were the first officers at the scene. "[P]erhaps two or three people [were] in the street" when Edwards and LaRosa arrived. A Hispanic male — who spoke English — was trying to get their attention either by "waving" or "flailing his arms as in come to me." Either way, "what he was doing was trying to get [Edwards] to approach him." Aside from the fact that he was a Hispanic male, Edwards could not recall any other details regarding the informant, such as his age, physical characteristics, or what he was wearing.

The Hispanic man approached the police car. He was, in Edwards' opinion, "excited." He was "speaking fast" and appeared "eager to share [some] information." He gave Edwards "a description of a vehicle" — a livery taxi with yellow license plates (which Edwards inferred meant New Jersey plates, since, in 2009, New York plates were white) — "and a direction of flight" — southbound on 111th Street from 41st Avenue. Edwards relayed this information, which he considered reliable, to the central dispatcher.

Edwards and his partner then turned their attention to finding the victim of the reported robbery. About a minute later, they did so. She was inside of 40-20 108th Street. After speaking with the complainant, Officer LaRosa put some additional information over the police radio. Meanwhile, Edwards had received word that a vehicle matching the description provided by the informant had been stopped by other officers, about three or four blocks away.

At that point — about two to three minutes from when they had arrived at the scene — Edwards and LaRosa brought the complainant to the location where the livery cab had been stopped, for a show-up identification procedure. The officers had no further communication with the Hispanic male, since their priority was positively identifying the perpetrator of the attempted robbery. In other words, they never got the informant's name or contact information.

Discussion

As the initial hearing judge correctly recognized, the police may conduct an investigatory stop of a vehicle if they have reasonable suspicion that its occupants have either engaged, are presently engaged, or are about to engage, in criminal activity (see People v William II, 98 NY2d 93, 98 [2002]). Reasonable suspicion is "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand" (People v White, 136 AD3d 846, 847 [2d Dept 2016] [alteration in original; internal quotation marks omitted] ).

In New York, it is well settled that the question of whether a hearsay tip establishes probable cause permitting a search or an arrest requires "the application of a two-pronged test: Courts must evaluate both the basis of the informant's knowledge and the reliability or veracity of the informant himself" (People v Argyris, 24 NY3d 1138, 1141—42 [2014] [Smith, J., concurring] ). This so-called Aguilar-Spinelli test, whose name derives from two United States Supreme Court cases from the 1960s (see Spinelli v United States, 393 US 410 [1969]; Aguilar v Texas, 378 US 108 [1964]), differs from the Supreme Court's current probable cause jurisprudence, which entails a more flexible, totality-of-the-circumstances approach to such determinations (Argyris, 24 NY3d at 1142 [Smith, J. concurring]; see Illinois v Gates, 462 US 213 [1983]).

Although Aguilar-Spinelli unquestionably applies in the context of anonymous-tip-based probable cause assessments, the Court of Appeals has not resolved whether it also applies to investigatory vehicle stops, which, as mentioned, only require reasonable suspicion, when the impetus for the stop is an anonymous 911 call (or some other form of anonymous tip). In Argyris, the issue was squarely presented to the Court, but instead of resolving it, the Court simply held that regardless of whether "a totality of the circumstances test or the Aguilar-Spinelli standard" was applied, the reasonable suspicion analysis was the same: two of the vehicle stops under review were lawful, but the third was not (Argyris, 24 NY3d at 1140-1141).

The Second Department, for its part, has not shared the Court of Appeals' indecisiveness about whether Aguilar-Spinelli applies to reasonable suspicion determinations. Both before and after the Argyris decision, the Second Department has held that it does not (see, e.g., People v Legette, 244 AD2d 505, 507 [2d Dept 1997] [the Aguilar—Spinelli test "need not be satisfied where the necessary predicate for justifying the police action under review is the less demanding standard of reasonable suspicion"] ); People v Cruz, 137 AD3d 1158, 1159 [2d Dept 2016] ["(T)he People did not have to satisfy the basis-of-knowledge prong of the Aguilar—Spinelli test. Instead, they were required to meet the less demanding reasonable suspicion standard."] ); People v Stevens, 171 AD3d 1106, 1107 [2d Dept 2019] [same] ).

But whatever ambiguity may exist in this area of the law, the thornier probable cause and reasonable suspicion issues that can arise from anonymous tips are simply not present here. To begin, the initial police response in this case was set in motion not by an anonymous 911 caller or an otherwise unidentified tipster. It was prompted, instead, by Ms. Betancourt, who called 911 and reported an attempted robbery at her place of employment. This fact alone meaningfully distinguishes this case from cases like Argyris, 24 NY3d at 1144, or Florida v J.L., 529 US at 268, in which anonymous 911 callers were the impetus for police action, or Illinois v Gates, 462 US at 225, in which an anonymous letter to the police led to the investigation of the Gateses on the suspicion that they were dealing drugs. Certainly those types of scenarios give rise to "concern[s] about the use of information from . . . anonymous tipsters[ ] as a basis for police intrusions because of the ease with which anonymity [can] [enable] false reporting" (Argyris, 24 NY3d at 1170 [Rivera, J., dissenting] ). Here, however, there was seemingly little risk that Betancourt was falsely reporting an attempted robbery (see Florida v J.L., 529 US at 270 [observing that a known informant "can be held responsible if her allegations turn out to be fabricated"] ).

Nor, for that matter, was the Hispanic male informant who spoke with Sergeant Edwards "anonymous" in the way that has troubled courts in this context. True, the informant never gave the police his name or contact information. But it seems reasonable to assume that, had the exigencies of the situation not taken the officers away from the scene of the crime so quickly, he readily would have done so. Indeed, nothing about the informant's actions — flagging down the police to provide them with information, in the middle of the day, on a public street — implied any interest in anonymity. And that, in itself, supplies a compelling basis for concluding that the information he conveyed was trustworthy. Indeed, Captain Aaron Edwards observed during his testimony that, in his considerable experience as a police officer, when someone approaches the police and volunteers "real-time information," the information tends to be "authentic" and "true."

Notably, Justice Kennedy, made an observation along the same lines in the concurring opinion he authored in Florida v J.L. He stated that, "[i]f an informant places his anonymity at risk, a court can consider this factor in weighing the reliability of the tip" (Florida v J.L., 529 US at 276 [Kennedy J, concurring] ). And he went on to offer a hypothetical scenario, which was not dissimilar from what occurred in this case, "where a tip might be considered anonymous but nevertheless sufficiently reliable to justify a proportionate police response" — namely, "when an unnamed person driving a car the police officer later describes stops for a moment and, face to face, informs the police that criminal activity is occurring" (id.).

The reason that a "proportionate police response" is warranted in this sort of situation is that not all "anonymous" witnesses should be treated with the same heightened level of skepticism; there are, in other words, varying degrees of anonymity. An individual who provides face-to-face information to the police may well believe that the police will later be able to identify him, even if he is not immediately asked to provide his name. And "[i]t is the tipster's belief in anonymity, not its reality, that will control his behavior" (Navarette v California, 572 US 393, 409 [2014] [Scalia, J., dissenting] [emphasis in original; internal quotation marks omitted] ). Here, the informant likely expected that the police would ask for his name, and was perhaps surprised they did not, given his apparent eagerness to provide them with information. But regardless of whether he ultimately had to disclose his identity, the reasonable belief that he would be required to do so would have served as a substantial deterrent against providing false information.

Other factors, aside from the informant's relative lack of anonymity, supported the officers' conclusion that his information was reliable. Face-to-face interactions, of course, allow the police to meaningfully assess an informant's credibility. And this is true even when the informant is never identified (see, e.g., People v Miles, 210 AD2d 353, 353 [2d Dept 1994] [noting the significance of information provided by an unidentified citizen informant "during a face-to-face encounter with a police officer in the immediate vicinity of a crime scene" in reasonable suspicion analysis]; People v Heidt, 95 AD3d 1234, 1235 [2d Dept 2012] [same in the context of probable cause analysis]; People v Castro, 115 AD2d 433, 435 [1st Dept 1985] ["(u)nlike an anonymous faceless telephone tipster, the instant informant communicated his tip in a face-to-face meeting with experienced officers . . . who had an opportunity to evaluate his reliability on the basis of appearance and demeanor"] ), aff'd, 68 NY2d 850 [1986]); People v DeJesus, 169 AD2d 521, 522 [1st Dept 1991] ["(e)ven in instances where the informant is unidentified(,) where the police have had a face-to-face confrontation with the informant, and have had an opportunity to evaluate his or her reliability, such information, while not rising to the level of probable cause, may provide the reasonable suspicion necessary for a stop and frisk"] ). Here, the informant's proactive provision of "real-time" information coupled with his demeanor — his excitement, manifested through his quick speech — suggested that his information was firsthand  3 (otherwise, he presumably would have been more subdued) and that his story was not fabricated (cf. People v Cummings, 31 NY3d 204, 209 [2018] [excited utterances, "as the impulsive and unreflecting responses of the declarant to (a) startling event, . . . possess a high degree of trustworthiness"] [internal quotation marks omitted] ). Accordingly, it was reasonable for the police to determine that he was credible.

For all of these reasons, the Court finds that the information provided by the informant was reliable. And, given that, the reasonable suspicion analysis is straightforward. When the police encountered the vehicle in which defendant was a passenger, traveling north on 114th Street, near the intersection of 41st Avenue, at around 12:43 p.m., they knew that minutes earlier, an armed robbery had reportedly occurred just a few blocks away. The officers also had reliable information that the perpetrator — a black male, wearing a blue and white striped shirt — had fled in a car that fit the description of the livery cab driving in their direction. The cab was, moreover, traveling in a direction that was consistent with the direction of flight Captain Edwards had relayed to the central dispatcher. The totality of this information was more than sufficient to justify the stop of the cab so that the officers could investigate further (see People v Carlos, 139 AD3d 1080, 1081 [2d Dept 2016]).

The police, thereafter, had the authority to order the cabdriver and defendant out of the vehicle (People v Robinson, 74 NY2d 773, 775 [1989]). And then, given the nature of Betancourt's allegations, along with defendant's refusal to comply with the officer's directions to put his hands up, it was reasonable for the police to approach the cab with their guns drawn "out of a justifiable concern for their safety" (Argyris, 24 NY3d at 1165 [Abdus-Salaam, J., concurring] ). Once Officer DiLiberto saw, in plain view (see Dunbar, 104 AD3d at 216-217), a striped shirt and a black handgun on the floor of the backseat, beneath where defendant had been sitting, there was probable cause to arrest him — which was solidified once Betancourt positively identified defendant in a show-up procedure. The police action taken was, in short, lawful in all respects. There is no basis, then, to suppress the physical evidence recovered from the cab or testimony concerning the show-up identification procedure.

None of defendant's contrary contentions compels a different conclusion. Defendant argues, for example, that the police could not act on the Hispanic male's information about the livery cab because (at least as far as Captain Edwards was able to remember over a decade after their exchange) the informant did not explicitly link the car to the attempted robbery. Edwards, in fact, did not indicate that the informant said anything about a robbery at all. But given the informant's proximity to the scene of the robbery, within minutes of it being reported, and his excited state, it was certainly reasonable for Edwards to assume that the vehicle the informant described was connected to the incident. Indeed, it cannot be an uncommon occurrence that an individual sees someone flee from a scene under suspicious circumstances, but did not witness the fleeing individual commit a crime — while the witnesses to the crime were unable to see how the perpetrator fled. And it would be hugely detrimental to effective law enforcement to hold that in such a scenario, the police cannot act on information provided by the witnesses to the suspect's flight simply because those individuals cannot also say that they saw the suspect commit a crime. Fortunately, that is not the state of the law (see, e.g., People v White, 289 AD2d 116, 116 [1st Dept 2001]).

Defendant also makes much of the fact that Edwards and his partner never obtained the informant's name or contact information. But as already explained, the informant was not "anonymous" in any way that undermined the reliability of the information he provided; instead, the exigencies of a quickly unfolding investigation prevented the police from learning the informant's identity and how to contact him in the future.

Defendant's main argument, though, is that Captain Edwards' account of his interaction with the Hispanic informant was tailored to address the issues raised by the Appellate Division's remand order. More specifically, defendant asserts that, since Edwards seemingly could not recall the source of the information about the livery cab prior to defendant's retrial in 2016, it is unbelievable that he was able to recall who provided him with that information now, nearly four years later. The Court disagrees.

The Court finds that Captain Edwards was an exceedingly credible witness. He came across to the Court — through his demeanor and the nature of his responses — as someone who was trying earnestly to provide accurate testimony about an event that occurred over ten years ago. Indeed, throughout his testimony, Edwards openly acknowledged the limitations of his recollection of his encounter with the informant, as well as the fact that he had no contemporaneous notes that could jog his memory. He admitted, for example, that he had no memory of the informant's physical appearance, or even where the alleged robbery occurred. Along the same lines, Captain Edwards conceded he was unable to recall whether the vehicle description he put over the police radio — the livery cab with New Jersey license plates — was expressly communicated to him by the informant, or whether he had extrapolated the description from other things the informant said. None of this is consistent with the behavior of a witness who was trying to tailor his testimony. Quite to the contrary, it reflects Edwards' candor and forthrightness, because he must have realized that certain aspects of his testimony could have cast doubt on the most critical parts of his account, and, by extension, the legal position of the prosecutor.

Aside from the Court's positive assessment of Captain Edwards' credibility, the fact is that the essential components of his account were corroborated by the recording of the radio run, which provides another, more objective basis for deeming him credible. On that recording, Edwards can be heard relating to the dispatcher the description of the vehicle and its direction of flight. But, also, as the People point out, while Edwards was transmitting this information, a voice can be heard in the background of the recording, which tends to substantiate the presence of the informant. The Court, in short, finds Captain Edwards to have been credible in all respects.

In sum, the Court concludes that the evidence presented at the re-opened suppression hearing does not provide a basis for suppressing tangible or identification evidence. This constitutes the decision and order of the Court.

Dated: June 5, 2020

JOSEPH A. ZAYAS, J.S.C.

FOOTNOTES

1.   The Court's decision was rendered on June 5, 2020. The Appellate Division subsequently affirmed defendant's conviction, finding, inter alia, that the motion to suppress was properly denied (People v Dunbar, — AD3d —, 2020 NY Slip Op 07089 [2d Dept 2020]). This version of the decision has been edited for publication.

2.   Edwards was a Lieutenant at the time of the retrial.

3.    See People v Letriz, 103 AD3d 446, 446 (1st Dept 2013) (unidentified informant's "agitated demeanor" during face-to-face encounter with the police supported the inference that he was providing them with first-hand information).

Joseph A. Zayas, J.

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