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Decided on December 18, 2009
Supreme Court, Kings County

3297-08
For the People: Hon. Charles J. Hynes, District Attorney, Kings County, Assistant District Attorney Wynton Sharpe, of counsel
For Defendant Mankhar: David Epstein, Esq.
For Defendant Maragh: Steven Banks, Esq., The Legal Aid Society, New York, Cedric Gayle, Esq.,
of counsel

Joseph Kevin McKay, J.

INTRODUCTION
This decision follows the Court's Decision and Order of August 26, 2009, in which the Court suppressed the show-up identifications of defendants by the complaining witness and ordered an independent source hearing. That hearing was held on October 27, 2009 and completed on November 23, 2009. The evidentiary record consists of the testimony of the complaining witness Kevin Chen ("Chen") and a stipulation that the transcript of his Grand Jury testimony (at pp. 5-6) of April 2, 2008 was accurate. The earlier Wade hearing held on August 25, 2009 and the Court's subsequent findings and conclusions made on the same date will also be considered.
Defendants Mankhar and Maragh (who voluntarily absented themselves from the courtroom during the hearing), along with one other, were arrested on March 28, 2008, charged with and subsequently indicted for an acting in concert robbery in the first degree and related counts for a knife-point robbery of property from Chen that same morning.
FINDINGS OF FACT
I find that the complainant, now an 18 year-old college student, was sincerely attempting to be truthful in giving his testimony, but I must also take into account questions about his accuracy, [*2]reliability and memory, to be discussed later in this opinion.
At about 9:30 a.m. while walking to Morrow High School on Avenue M (near Coney Island Avenue) in Kings County, carrying his book bag and his Sidekick phone and listening to his iPod with earphones, Chen saw a group of approximately four to six young males across the street at least 60 or more feet away from him. He did not recognize any of them at that time. One ["the first
person"][FN1] of them approached him and asked him if he knew a certain person at Morrow school, whom he denied knowing. Chen kept walking and then heard running behind him. He turned
around and saw a "second" male [FN2] with a doo rag over his face running after him, so Chen also ran.
The second person grabbed Chen, threw him to the ground and demanded whatever was in his pockets. Then the first person came back and displayed a knife, and the second person took Chen's Sidekick from his pocket and punched him in his left cheek at or just below his eye, causing
swelling which lasted for days. These two ran in an opposite direction when a "third" person [FN3] walked up to Chen and took the headphones belonging to Chen's stolen iPod. The third person, whose face was not covered, started running away with the first two. Chen saw a fourth person in the street whom he did not pay attention to, but who was walking up and down and looking around during the robbery, leading him to believe he was acting as a lookout. This fourth person later ran off with the others. Chen called him Francois during the hearing but changed it to Daniel. Although Chen believed that he recognized Daniel from his school, from this record I am sure he did not know his name and never had any interaction with him before this incident. He stated he saw him "Probably two times. Not a lot, two times a month." (Hearing Transcript, October 27, 2009 at 9.) According to a stipulation, however, he testified in the Grand Jury that he saw him once. While it appears from a few questions on cross-examination that there was some school inquiry made concerning defendant Daniel Mankhar, tending to show that the "fourth" person did go to Chen's school, neither side offered any evidence about how Chen learned defendant's name or what inquiry, proceeding or action, if any, took place in the school.
At the end of this entire incident, which he said only lasted a matter of seconds, Chen, who [*3]was suffering from scrapes or cuts to his elbow and knee and had a swollen left eye, got up from the ground and was approached by an unidentified woman who called 911 for him and gave him the phone for him to speak directly with the 911 operator. The audiotape of that call was destroyed, admittedly the responsibility of the police and prosecutor, not due to inaction by the defense. Chen could not recall what he said to the 911 operator. The earlier Wade hearing testimony led me to find that the 911 call caused central to transmit a radio run of "a robbery in progress" by six male blacks all wearing black jackets and black skull caps, two of whom were tall and two short. (See Hearing Transcript, August 25, 2009 at 121). Even this general information did not
comport with the physical characteristics or clothing description of the two defendants [FN4] who were actually stopped and held by the police for the show-up at a nearby subway stop, which identifications were suppressed by the Court's Decision and Order of August 26, 2009. Before Chen made the show-up identifications the police told him they had caught the guys who robbed him, and he expected to see the robbers. (Hearing Transcript, October 27, 2009 at 34).
DISCUSSION AND CONCLUSIONS OF LAW
Notwithstanding Chen's sincerity and the difficult position anyone would be in when victimized suddenly by a group the way he was, the multitude of discrepancies, inconsistencies, uncertainties and lack of memory, compounded by poor police work (as found in the August 25,
2009 hearing) cannot be ignored. Measured against the prosecution's required standard of clear and convincing evidence to prove there was and is an adequate source for Chen's identifications of these two defendants independent of the show-up,[FN5] I conclude that the People's proof falls short.
Chen had a fleeting opportunity to observe his assailants [FN6] and, according to police, he initially gave very general descriptions, which differed from the appearance and clothing of these defendants. Moreover, Chen could remember none of the details of his descriptions to 911. See the Court's findings of fact after the Wade hearing (Hearing Transcript of August 25, 2009 at 121). Further, I am inferring that the audiotape of the 911 call, which the police and prosecution failed to preserve and produce, would not support the People's position on this issue.
Chen's confusion about the names of those arrested is understandable, but the least the Court should expect is that the prosecution offer evidence to explain clearly and convincingly how Chen was ultimately able to put together names, faces and roles for these defendants, and that it was done in a non-suggestive way. Chen could not remember anything about that subject at all, and the police were no help either. For example, the prosecutor argued that defendant Mankhar was known to Chen [*4]from school and he knew his name to be "Daniel," but it is perfectly clear from Chen's testimony that he did not know his name - - from school or anywhere else - -until some time after the arrest, that he never had any interaction with him and that he testified in the Grand Jury that he saw him once in school. Again, when and how he put a name to a face and to the role he played as the alleged "lookout" remains a mystery, and, given the confused record as a whole, I am unwilling to assume it was done in a proper and non-suggestive way by the police.
In summary, I conclude that the People have failed to prove independent source by clear and convincing evidence and I therefore suppress any potential in-court identifications of defendants by complainant Chen at trial. Defendants' motions are GRANTED.
IT IS SO ORDERED.
ENTER,
J.S.C.
Footnotes
Footnote 1: Chen testified that he learned the name of the first person to be Francois, but it has never been shown how Chen put the name together with what that person did in this case. Later, on re-direct examination Chen said that Calvin was first and Francois was second. (See Hearing Transcript of October 27, 2009 at 48). This caused much confusion for Chen and the Court. Calvin Chapman was arrested with the two defendants now before the Court, but Francois was arrested at a later time and was charged separately with participation in these crimes. He is not now before this Court.
Footnote 2: Chen testified that he learned the name of the "second" male to be Calvin, but how he learned that remains a mystery and Chen himself could remember no details about that. See also
n.1 supra.
Footnote 3: Chen named this "third" person "Chadwick." He was described as having braids and being somewhat fat. The Hearing Court observed that while defendant Chadwick Maragh was probably a few pounds heavier than co-defendant Mankhar, he is by no means fat. It was not established what his weight was at the time of arrest, nor how Chen learned his name.
Footnote 4: Three were stopped: "Calvin" Chapman (who was also indicted, but is not now before this Court) and the two defendants who are the subject of this hearing, designated by Chen as persons "three" and "four."
Footnote 5: See Manson v Brathwaite, 432 US 98, 114-115 (1977); Neil v Biggers, 409 US 188, 199-200 (1972); United States v Wade, 388 US 218, 241 (1967); People v Adams, 53 NY2d 241, 251 (1981); People v Thomas, 51 NY2d 466, 474-475 (1980).
Footnote 6: The Court recognizes that observation of a perpetrator even for a matter of mere seconds can in appropriate cases satisfy "independent source." People v. Hyatt, 162 AD2d 713 (2d
Dept 1990), lv denied 76 NY2d 987 (1990).

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