People v. Davis

2023 NY Slip Op 50470(U)

The People of the State of New York, v. Travis Davis KABAL REYES, Defendants.

Index No. 6815-2019

Supreme Court, Kings County

March 31, 2023

Unpublished Opinion

For the People: Assistant District Attorney Steven Bravo, Kings County District Attorney's Office, 350 Jay Street Brooklyn, NY 11201

For the Defendant Travis Davis: Justin Bonus, 118-35 Queens Blvd., Suite 400 Forest Hills, NY 11375

For the Defendant Kabal Reyes: Douglas Rankin, 175 Pearl Street Ste 215, Brooklyn NY 11201

Jane C. Tully, J.

The defendants are charged with attempted murder in the second degree and other related charges. The defendants move to suppress identification evidence. On February 23, 2022 November 21, 2022, and February 21, 2023, this Court conducted a combined Dunaway/Wade hearing. The People called four witnesses: Lieutenant Jaclyn Keane Detective George Harvey, Detective Armando Saitta, and Police Officer Christopher Lillis. Counsel for the defendant Davis called Police Officer Alexander Bido as a witness. At the conclusion of the hearing, the Court heard oral arguments from Counsel for the defendant Reyes. The People and Counsel for the defendant Davis submitted written arguments.

Based upon the credible testimony, the applicable law, oral arguments, and a review of papers submitted by the parties the Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

Lieutenant Jaclyn Keane has been employed with the NYPD for 13 years. On October 30, 2019, Lieutenant Keane was assigned to the 79th precinct, as a patrol supervisor. At approximately 10:12 am, Lieutenant Keane was in uniform and a marked police vehicle, with Police Officer Ardolino, when there was a ShotSpotter activation at 170 Madison Street, in Brooklyn. Lieutenant Keane responded to 170 Madison Street in less than five minutes, where she observed police officers standing around shell casings and noticed construction workers on the scene. Lieutenant Keane also observed a double-parked vehicle with a shattered passenger front side window, and a bullet hole in the passenger front door, in the same vicinity as the shell casings. The construction workers pointed out the complainant, identified as Mekhi Murray. Mr. Murray informed Lieutenant Keane that the construction workers were moving a dumpster when a driver in a dark grey Honda started honking and yelling. Mr. Murray told the driver to calm down and the driver told Mr. Murray to "remember his face," and drove down Madison Street. Mr. Murray informed Lieutenant Keane that the driver returned on foot with a second individual. Mr. Murray stated that the individuals shot at him multiple times and ran down Madison Street, in the same direction that he had observed the grey Honda drive before the shooting. Mr. Murray described the driver of the grey Honda and the first shooter as an African American male wearing a grey hoodie with "bushy hair." Mr. Murray described the second shooter as a darker skin African American male wearing a "green camo [camouflage] hoodie or jacket." The incident occurred in the daytime, and it was bright and clear. Mr. Murray told Lieutenant Keane that he would be able to identify the shooters. Mr. Murray stated that the shooters' faces were not covered, that he saw the shooters' faces, and nothing obstructed his view of the shooters. Lieutenant Keane admitted that she did not ask Mr. Murray to describe the facial features of the shooters. Mr. Murray did not inform Lieutenant Keane that the shooters had beards. Mr. Murray did not describe the height of the shooters. Lieutenant Keane did not ask Mr. Murray how long the interaction between him and the shooters lasted. However, Lieutenant Keane testified that the shooters were close enough to Mr. Murray that when they pointed the firearms at him, Mr. Murray told the shooters "That doesn't make you tough, shoot." After speaking with Mr. Murray, Lieutenant Keane transmitted a description of the shooters and the grey Honda over the police radio. Shortly thereafter, Lieutenant Keane received a call from Sergeant Xylas, who informed her that police officers stopped an African American male wearing a green camouflage hoodie, matching the description of the second shooter at Tompkins and Hancock Avenues, a few blocks from the scene. Lieutenant Keane invited Mr. Murray to conduct a showup identification. On the way to Tompkins and Hancock Avenues, Lieutenant Keane received a second radio notification that a vehicle matching the description of the grey Honda was observed at 244 Madison Street, a block from the scene, and in the same direction that Mr. Murray had observed the shooters flee. Lieutenant Keane took Mr. Murray to 244 Madison Street, where Detective Small informed Lieutenant Keane that he had observed an individual taking the plates off the grey Honda, after hearing a description of the vehicle over the radio. While seated in the backseat of the police vehicle, Mr. Murray identified the grey Honda as the vehicle in question. Lieutenant Keane then took Mr. Murray to Tompkins and Hancock Avenues, where she observed a "male black with a green camo jacket" standing with police officers. Mr. Murray did not identify the man as having been involved in the incident, stating that the second shooter had "darker skin" than the individual that had been stopped by the police. Lieutenant Keane then took Mr. Murray back to the scene to speak with the detectives. Lieutenant Keane also informed Detective George Harvey that Mr. Murray identified the grey Honda. At some point, the grey Honda was transported to the 79th precinct.

Detective Harvey has been a member of the NYPD for 28 years and is assigned to the 79th precinct detective squad, where he investigates shootings and homicides. On October 30, 2019, Detective Harvey was notified by patrol officers that a shooting had taken place at 170 Madison Street, at around 10:00 am. Detective Harvey and his partner Detective Lambert responded to the scene, where he spoke to the complainant, Mekhi Murray. Mr. Murray informed Detective Harvey that he was working at a construction site, unloading a dumpster when a driver of a grey Honda started beeping his horn. Mr. Murray told the driver to relax, and the driver became irate, told Mr. Murray to "remember his face" and then drove off. Mr. Murray informed Detective Harvey that he was sitting in his car eating breakfast when the driver of the grey Honda tapped on the passenger side window and was holding a firearm in his hand. Mr. Murray also observed a second man holding a firearm. Detective Harvey does not recall whether Mr. Murray described that the shooters had facial hair. While at the scene, Detective Harvey also spoke with Lieutenant Keane who informed him that the police recovered the grey Honda, down the block on Madison Street. Detective Harvey returned to the 79th precinct, where he observed that the Honda had been transported to the precinct. Detective Harvey admitted that he did not know how the vehicle got to the precinct. Detective Harvey looked inside the cupholder in the center console of the grey Honda and recovered a New York State identification card bearing the name and photo of Travis Davis, and a New Jersey driver's license bearing the name and photo of Kabal Reyes. Detective Harvey could not recall whether the identification cards were vouchered, or whether steps were taken to preserve the identification cards. Detective Harvey could not locate the defendants' identification cards in his files. A photocopy of the original photocopy of the defendants' identification cards was introduced into evidence, as People's Exhibit 1. On October 31, 2019, Detective Harvey created two photo arrays, one for each defendant. With respect to the defendant Davis, Detective Harvey entered the defendant's NYSID number into the NYPD photo manager system, which generated thousands of photos matching the general characteristics of the defendant. Detective Harvey explained that he selected five photos of individuals with the same hair, skin tone, and eyes similar to the defendant to create the photo array, and the computer randomly placed the defendant in the number two position. Detective Harvey could not find a photo of the defendant Reyes in the photo manager system, so he entered the details of the defendant's appearance from the driver's license photo in the system to find photos of individuals with similar characteristics. The system generated thousands of photos. Detective Harvey explained that he selected five photos of individuals with similar characteristics and selected the defendant to be in the number five position on the photo array. Detective Harvey then invited Mr. Murray to the precinct to view the photo arrays. Detective Harvey did not take part in identification procedures with Mr. Murray. When Mr. Murray arrived at the precinct, Detective Harvey brought Mr. Murray to Detective Armando Saitta to administer the photo arrays.

Detective Saitta has been a member of the NYPD for 20 years and is currently assigned to the 79th precinct, where he investigates arsons, homicides, shootings, and stabbings. On October 31, 2019, Detective Harvey asked Detective Saitta to administer two double-blind photo arrays with Mr. Murray. Detective Saitta had not met or spoken to Mr. Murray before that day. Detective Saitta was not involved in the investigation and did not know any details about the case. Detective Saitta was not familiar with the defendants and did not know the name of the defendants. Detective Harvey handed Detective Saitta closed manila folders, which contained the photo arrays, previewing instructions, and viewing reports. Detective Saitta did not look inside the manila folders before administering the photo arrays....