AD1 order dated June 23, 2011, affirming judgment of conviction. Decision below: 85 A.D.3d 612, 926 N.Y.S.2d 463. Lippman, Ch.J., granted leave June 8, 2012.

ISSUES PRESENTED: (1) Whether, although the defendant’s arrest was initially without probable cause, the victim’s lineup ID was based upon "intervening probable cause" and was attenuated from the initial arrest. (2) LaFontaine issue where AD affirmed based upon "fellow officer rule." (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)

ISSUES PRESENTED: (1) Whether, although the defendant’s arrest was initially without probable cause, the victim’s lineup ID was based upon "intervening probable cause" and was attenuated from the initial arrest. (2) LaFontaine issue where AD affirmed based upon "fellow officer rule." (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)

Issue before the Court: Whether the connection between the defendant’s illegal arrest and the subsequent lineup identification was sufficiently attenuated as to dissipate the taint of the wrongful arrest — a pretext arrest based on the defendant’s supposed disorderly conduct when the police really suspected him of a robbery for which they did not yet have probable cause.

Held: As there was record support for the Appellate Division’s determination of attenuation, a majority of the Court (Judge Pigott authoring the decision) affirms. The police had information that had been gathered before the illegal arrest tying the defendant to the robbery, and, although the arrest was illegal, there was record support that they acted in good faith on the prior information and did not exploit the illegal arrest. In a dissent authored by Judge Lippman in which Judge Rivera joined, the dissenters find no intervening event to provide attenuation. "The illegal arrest was the very event that facilitated the arresting officer’s acquisition of information tying Mr. Jones to the robbery." The dissenters find the Appellate Division’s finding of "good faith" particularly "troubling."

CAL Observes: Both the majority and the dissent set forth detailed accounts of the facts, although their interpretations plainly differ. Had there been no dissent, that might not have been the case; one could easily imagine a memorandum affirmance on the ground of mixed question with little discussion of the facts. The attention this 4^th Amendment case garnered, and the dissent’s willingness to call it as it saw it, should encourage defense lawyers to seek Court of Appeals relief even in so-called mixed question cases.