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Criminal Court, City of New York.

The PEOPLE of the State of New York, Plaintiff, v. Ilya MAGIDENKO, Defendant.


Decided: March 16, 2018

Michael E. McMahon, District Attorney, Staten Island (Andrew Farrell of counsel) Legal Aid Society, New York City (Maria Campbell of counsel)

A Wade–Dunaway hearing was held before this Court on February 21, 2018. Sergeant Anthony Demonte was the only person testifying. Based on his credible testimony, the court makes the following findings of fact and conclusions of law.

Findings of Fact

At the time of the alleged crime (May 9, 2017) and showup (May 10, 2017), Sergeant Demonte was assigned to the 123rd precinct as an SCO supervisor.

On May 9, 2017, a female complainant walked into the 123rd precinct to report an incident of sexual abuse that took place on the beach at the vicinity of Sprague Avenue and Surf Avenue. She spoke with Police Officer Bungay and Sergeant Demonte. She stated that a male in his eighties, wearing a wool-type fishermen jacket, who spoke with a heavy Russian accent approached her, grabbed her by the shoulder, pulled her straight towards him and grabbed her breasts. She told the police that she has seen this person on different occasions on the beach typically at around 10:00am. She stated, however, that she didn't personally know him.

The next day, May 10, 2017, at around 10:00am, Sergeant Demonte and Sergeant Assante, in plainclothes, drove to the vicinity of Sprague Avenue and Surf Avenue near the Conference Beach House in Richmond County. At that location, they saw a man fitting that description on the beach in an area closest to Sprague Avenue and Surf Avenue. They approached him and engaged in a casual conversation unrelated to the alleged criminal incident. They noticed he had a heavy Russian accent and was wearing a jacket that fit the description of the jacket given by the complainant.

Sergeant Demonte then left the beach and went to pick up the complainant at her residence. He picked her up and drove her to the location. He told her that he was taking her there to look at the location. As they pulled up to the location, and from about two car lengths away, the complainant stated that the man on the beach who was with the other sergeant, was the guy who touched her yesterday. At that point, Sergeant Demonte exited the vehicle and told his partner that the defendant had been positively identified.

Conclusions of Law

Probable cause to arrest does not require the same level of proof necessary to support a conviction (see People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ). Probable cause requires “the existence of facts and circumstances which, viewed together, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense has been or is being committed, and that the defendant committed or is committing that offense” (People v. Gray, 92 A.D.3d 892, 938 N.Y.S.2d 633 [2d Dept. 2010], lv dismissed 19 N.Y.3d 864, 947 N.Y.S.2d 412, 970 N.E.2d 435 [2012];  see People v. Bigelow, 66 N.Y.2d at 423, 497 N.Y.S.2d 630, 488 N.E.2d 451). There was probable cause to arrest the defendant. The police went to the scene of the alleged crime at the time when the complainant thought, based on prior experience, the defendant would be there. On the beach they saw a person meeting the description given to them a day before (see People v. Williams, 273 A.D.2d 79, 709 N.Y.S.2d 72 [1st Dept. 2000], lv denied 95 N.Y.2d 940, 721 N.Y.S.2d 616, 744 N.E.2d 152). They also heard his Russian accent. The totality of the description and the place and time is sufficiently specific to provide the police with probable cause to arrest defendant (see People v. McKethan, 225 A.D.2d 800, 640 N.Y.S.2d 570 [2d Dept. 1996], lv denied 88 N.Y.2d 938, 647 N.Y.S.2d 172, 670 N.E.2d 456).

In a police arranged identification procedure—a showup—the defendant was identified.

It is well settled that showup identifications while strongly disfavored, are permissible if exigent circumstances require immediate identification (People v. Rivera, 22 N.Y.2d 453, 293 N.Y.S.2d 271, 239 N.E.2d 873 [1968];  People v. Johnson, 81 N.Y.2d 828, 595 N.Y.S.2d 385, 611 N.E.2d 286 [1983] ), or when they are spatially and temporally proximate to the commission of the crime and not unduly suggestive (see People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611 [2003];  People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337 [1997];  People v. Duuvon, 77 N.Y.2d 541, 543, 569 N.Y.S.2d 346, 571 N.E.2d 654 [1991] ).

In People v. Howard, 22 N.Y.3d 388, 981 N.Y.S.2d 310, 4 N.E.3d 320 (2013), among the issues between the Court's majority and the dissent was whether the Court had adopted a bright-line of two hours of separation between the crime and the showup in determining whether the showup was proper. Although the Court would not adopt the two-hour rule, it is hard to imagine that the Court of Appeals would allow a showup more than 24 hours as “temporally proximate to the commission of the crime” except in a confirmatory identification where the witness sufficiently knew the defendant.

Under these circumstances, an appropriately conducted lineup was required (Johnson, 81 N.Y.2d at 831, 595 N.Y.S.2d 385, 611 N.E.2d 286).

Accordingly, the defendant's motion to suppress the showup identification is granted.

Because the complainant did not testify at the hearing, an independent source hearing is ordered prior to trial to determine whether an independent source exists to support an in-court identification of the defendant by the complainant (see People v. Haskins, 137 A.D.3d 1298, 29 N.Y.S.3d 409 [2d Dept. 2016] ).


Gerianne Abriano, J.

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