Case No. 189:
Rebekah J. Pazmino, for appellant.
Lindsey Ramistella, for respondent.
Case No. 190:
Alan S. Axelrod, for appellant.
Lindsey Ramistella, for respondent.
This appeal calls upon us to apply settled law to the unique facts of a gunpoint robbery. We conclude that defendants Malik Howard (Howard) and Hilbert Stanley (Stanley) (collectively, defendants) were not deprived of effective representation at trial by, among other alleged omissions, counsel's failure to assert as an affirmative defense that one of two weapons allegedly displayed during the robbery "was not a loaded weapon from which a shot, readily capable of producing death or serious physical injury, could be discharged" (Penal Law § 160.15 ). We further conclude that record support exists for the lower courts' determination that the robbery victim's showup identification of defendants was proper.
The Robbery and its Aftermath
On April 21, 2006, just before 3:00 a.m., 38-year-old Domingo Lopez (Lopez), an immigrant from the Dominican Republic, was walking home from the restaurant where he worked as a waiter when a gray car approached him from behind, proceeding at a slow speed. He was on Claflin Avenue near 195th Street in the Bronx, a short distance from his apartment building. Lopez paid little heed to the car at first, assuming the driver was looking for a parking space. Suddenly, though, he became aware of movement, turned and saw two men, both black, rushing towards him. One, a heavyset man with dreadlocks, wore a striped polo shirt and emerged from the car's driver's seat. The other, armed with a gun and wearing a sweatshirt with a hood, got out of the front passenger seat. Lopez observed two other black men in the car's back seat, where they remained.
The two men who left the car cornered Lopez. The man with the gun stood in front of him, pressing the gun to his head and neck; the other man pushed up against him from behind. As Lopez later testified,
"[o]ne of them, the thinner one or the skinnier one he had a gun in his hand... [He] was telling me to close my eyes and was touching my face. He told me to put my back and I felt the other person was touching me with something else on my back. I don't know. I cannot say it if was a gun or something else."
Working together, the two men tugged at Lopez's pants, rifling his pockets and ripping the back one in the process. They took Lopez's wallet from his back pocket, and $60 from his front pocket. The wallet contained $400 and various documents, including Lopez's driver's license from the Dominican Republic and a learner's permit from New York State, a credit card and various identification cards. The night was clear and there was ambient light. Lopez got a good look at both robbers' faces.
After the robbers fled in the gray car, Lopez crossed the street to his apartment building and, upon reaching his residence, asked his teenaged stepdaughter to call 911. Lopez's native language is Spanish and, when he later testified through an interpreter, he characterized his command of English as "[a] little bit." His stepdaughter spoke Spanish and, apparently, much better English than he did.
Officer Judith Moreno and another uniformed police officer, responding to the 911 call, arrived at the scene of the robbery at roughly 3:00 a.m. to interview Lopez. The officers spoke English to Lopez, who communicated with them through his stepdaughter. Officer Moreno took handwritten notes, from which she later created a complaint report. This report included scant details about the robbers' appearance or the apparel they were wearing.
Lopez and his stepdaughter accompanied the officers as they drove around the area for awhile, looking for the robbers. When they did not spot them, Lopez and his stepdaughter returned home. In the meantime, the police broadcast a radio alert, reporting a gunpoint robbery at Claflin Avenue and 195th Street, which is in the 50th police precinct. The radio transmission, apparently based on the information given by Lopez through his stepdaughter to Officer Moreno, identified the suspects as four black males, armed and wearing hoodies, who escaped in a silver or gray late model car, possibly a Honda. 
Sergeant Edward Murphy and police officers Frank Burns and Brendan Owens, who were assigned to a police unit organized to combat street-level violence, were patrolling in the nearby 47th precinct when they heard the radio message about the Claflin Avenue robbery, sometime soon after 3:00 a.m. These officers, who wore plain clothes and drove an unmarked car, immediately drove to the vicinity of the robbery, and fruitlessly canvassed the area for the perpetrators for about 20 to 30 minutes before giving up and returning to the 47th precinct. Then, at about 4:15 a.m., while stopped at a red light at 236th Street and White Plains Road, traveling northbound, they saw a silver, four-door Pontiac facing them, heading south. This location is roughly five miles from the site of the robbery.
Officer Burns observed Howard, who was a front-seat passenger, and Stanley, the car's driver, holding bottles of beer. The police made a U-turn and drove up behind the Pontiac. When Officer Burns saw Howard drinking from the bottle, Sergeant Murphy, who was driving, put on the dash lights, signaling defendants to pull over and stop, which they did, followed by the police. As Officer Burns approached the passenger side of the Pontiac, he saw Howard reach down underneath his seat and he smelled marijuana. Officer Burns asked Howard "if there was anything inside the vehicle, " and Howard replied that "he had a nickel bag for personal use, " which Officer Burns understood to mean a $5 bag of marijuana. Officer Burns asked Howard to step out of the car, walk to the rear and stand near the bumper.
Meanwhile as Sergeant Murphy approached Stanley, the driver, he saw an open container of beer and, like Officer Burns, smelled marijuana. Sergeant Murphy directed Stanley to exit the vehicle and step to the rear. Both defendants stayed there with Officers Burns and Owens while Sergeant Murphy searched the interior of the car. He recovered two beer bottles and, from between the car's center console and driver's seat, a plastic wallet insert containing a driver's license and various other items of identification for Domingo Lopez of Claflin Avenue in the Bronx.
Sergeant Murphy, now strongly suspecting that defendants were involved in the Claflin Avenue robbery, handed the wallet insert to Officer Burns, and directed Officers Burns and Owens to return defendants to the vehicle. Sergeant Murphy then contacted the 50th precinct to see if the victim could be brought to White Plains Road. At the same time, Officers Burns and Owens searched the car's trunk, where they found a black knapsack. Officer Owens opened the knapsack, and discovered a large bag of marijuana and a black imitation pistol.
Lopez received a telephone call from a police officer with the 50th precinct at about 4:00 a.m. or 4:15 a.m., asking him in Spanish if he would go with the police "to see if two people were there, " which he understood to mean the "ones that robbed [him]." A police officer picked up Lopez and his stepdaughter. They conversed in Spanish about the robbery, but did not speak to the officer while on the way to White Plains Road. When Lopez arrived at this destination at about 4:59 a.m., he became "very animated" when he saw Howard, explaining to Officer Burns that the "little guy, the little guy, he had the gun." Lopez observed defendants from 15 to 20 feet away. Their hands were behind their backs, and Lopez believed them to be handcuffed. Howard was wearing a hooded sweatshirt, and Stanley, a striped shirt. Speaking through his stepdaughter, Lopez identified Stanley and Howard as the men who had robbed him.
The Charges and the Suppression Hearing
On May 2, 2006, the grand jury indicted defendants for first-degree robbery (two counts) (Penal Law § 160.15), second-degree robbery (Penal Law § 160.10), third-degree robbery (Penal Law § 160.05), fourth-degree grand larceny (Penal Law § 155.30), fourth-degree weapon possession (two counts) (Penal Law § 265.01), unlawful possession of an air-pistol or rifle (New York City Administrative Code § 10-131 [b] ), fourth-degree criminal possession of marijuana (Penal Law § 221.15), and unlawful possession of marijuana (Penal Law § 221.05). At the ensuing suppression hearing in March 2008, Stanley's attorney argued to Supreme Court that there was no justification for the showup because of the absence of temporal or spatial proximity to the crime, exigent circumstances or an unbroken chain of events. He maintained that the showup was unduly suggestive, the traffic stop had been pretextual and the vehicle search was unjustified. Howard's attorney echoed these arguments.
By decision and order dated April 7, 2008, Supreme Court denied defendants' suppression motion. The judge concluded that the People had met their burden to establish the validity of the stop, based on the observed violation of the open container law (NYC Admin Code § 10-125), and the legality of the search, in view of the officers' detection of the odor of marijuana. Further, he rejected defense counsels' challenge to the temporal proximity of the showup procedure, citing People v Wells (221 A.D.2d 281 [1st Dept 1995], lv denied87 N.Y.2d 978  [a two-hour time lapse between the robbery and showup does not compel a conclusion of invalidity]). Supreme Court considered it a matter ...