Opinion
Docket No. D-3906/22
09-14-2022
In the MATTER OF ALFRED B., A Person Alleged to be a Juvenile Delinquent.
The Legal Aid Society, New York City (Heather Saslovsky of counsel), for respondent. Sylvia O. Hinds-Radix, Corporation Counsel, Family Court Division, New York City (Christina Laslo of counsel), for presentment agency.
The Legal Aid Society, New York City (Heather Saslovsky of counsel), for respondent.
Sylvia O. Hinds-Radix, Corporation Counsel, Family Court Division, New York City (Christina Laslo of counsel), for presentment agency.
Carol Goldstein, J. On March 18, 2022, in the early evening, at a corner in East Harlem, respondent Alfred B. and a companion were stopped by the police for jaywalking after they crossed the street against the light. When the officer asked respondent for ID, he responded that he was sixteen years old and did not have ID. He was cooperative and readily gave the officer his name, his father's name, and his address and repeatedly asked the officer to "check out" the information he provided. Nonetheless, without making any attempt to verify the information provided, the officer placed respondent in handcuffs and searched him for weapons and contraband. A firearm was recovered from respondent's jacket pocket.
The court suppresses the firearm because its recovery was a product of the officer's violation of CPL § 150.20. According to that statute, as amended in 2019, a summons or appearance ticket must be issued, in lieu of arrest, for a violation or a low-level crime where the accused makes his verifiable identity known to the officer. The court holds that where, as here, identification information is provided by the accused, the officer must take reasonable steps to verify that information before proceeding to make an arrest and, in the instant case, no such steps were taken.
Delinquency Petition
On May 27, 2022, a delinquency petition was filed in New York County Family Court against respondent charging him with acts constituting two counts of criminal possession of a weapon in the second degree, violations of Penal Law §§ 265.03(1)(b) and 265.03(3). The basis of the charges is that on March 18, 2022, Officer Lallit Beharry recovered a loaded firearm from respondent's jacket pocket. A Mapp hearing was held regarding the legality of the recovery of the firearm.
Respondent was initially charged as an adolescent offender in the Youth Part of New York County Supreme Court and on May 25, 2022, the matter was removed to family court.
Findings of Fact at Mapp Hearing
At the conclusion of the Mapp hearing, the court makes the following findings of fact based upon the testimony of Officer Beharry and his partner Officer Christian Rodriguez and a review of videos from officers’ body-worn cameras and from traffic cameras located on the corner where the events occurred:
On March 18, 2022, Officers Beharry and Rodriguez of the 23rd Precinct Neighborhood Safety Team were driving around the precinct on "special enforcement assignment." Officer Beharry described his duties that day in this manner: "We drive around the precinct and enforce summons, arrest, that kind of stuff." Officer Beharry was the recorder and Officer Rodriguez was the driver.
At approximately 6:25 p.m., the officers were driving west on East 115th Street, when Officer Beharry observed two African American young men cross the intersection of East 115th Street and Second Avenue against the light. The two young men then went into a store on the corner. Officer Beharry made a call to his sergeant and requested that he "come over" because he was "about to do a stop" of two individuals. He did not indicate that the stop was for jaywalking.
The police car pulled over and Officers Beharry and Rodriguez exited. According to Officer Beharry, it was his intention to charge the two young men with a violation of the jaywalking ordinance, 34 RCNYC 4-04(3)(c)(1). Officer Beharry confronted respondent, one of the two young men, as he and Jeffrey D., the other young man, were exiting the store. When Officer Beharry asked respondent if he had ID, respondent stated that he was sixteen years old and did not carry ID. He gave his name as Alfred B. and said that his father has the same name. When respondent gave his name, Officer Beharry recognized respondent from an "intel" (intelligence) flyer. Without being asked, respondent informed Officer Beharry that he lived at "833 Longfellow." During the encounter, respondent repeatedly asked Officer Beharry to verify the information he provided. He asked the officer to "look up his name right now" and to "check out" the information he gave.
While Officer Beharry was interacting with respondent, Officer Rodriguez confronted Jeffrey and asked if he had ID. Jeffrey answered that he was seventeen years old and did not have ID. He asked Officer Rodriguez if he wanted his name. Officer Rodriguez replied, "Nah."
Officer Beharry testified that respondent was not aggressive and that nothing about his encounter with respondent made him afraid, Respondent did not curse or threaten the officer, nor did he try to assault the officer. The court viewed the video from the officers’ body-worn cameras and observed no aggressive words or actions on the part of respondent.
At this point, Officer Beharry's sergeant had arrived on the scene with his partner Officer Patron Zeqiri. There were thus now four officers on the scene and coincidentally, there were two additional officers directly across the street who were not involved in this incident.
The sergeant's name was not given at the Mapp hearing.
Officer Beharry placed handcuffs on respondent in preparation for taking him to the precinct to verify his identity. Officer Beharry then searched respondent for weapons and contraband and recovered a loaded .25 caliber firearm from respondent's jacket pocket.
While respondent was being handcuffed and searched, Officer Rodriguez handcuffed and searched Jeffrey. No weapons or contraband were recovered. Jeffrey was then taken to the precinct, where he was given a more intensive search and still no weapons or contraband were found. Jeffrey's identity was verified, and he was issued a summons for jaywalking, directing that he appear in criminal court at a specific date and time.
Prior to placing respondent in handcuffs, Officer Beharry made no effort to verify any of the information that respondent had provided. Although respondent told Officer Beharry that he was sixteen, and thus a juvenile, the officer did not ask for a parent's phone number so he could call and verify respondent's identity. Nor did Officer Beharry call the precinct so that respondent's name, date of birth and address could be verified through a computer check. Officer Beharry also did not ask one of the other three officers present at the scene to assist in verifying respondent's identity. Officer Beharry acknowledged that, while at the scene, he could have called respondent's parents or asked someone at the precinct to run a computer check on respondent.
When the court inquired as to why a pedigree check was not conducted at the scene, Officer Beharry replied:
Like get his full date of birth and call his parents and all of that on the scene? At the time of the stop being there we didn't want, like, a crowd to form. Like any kinds of things could happen. It's safer for us to conduct a pedigree check back at the precinct.
Notably, there was no testimony that a crowd gathered on the street during the eight minutes between the stop and respondent being placed in a police car. Moreover, the videos from the body-worn cameras of Officers Behari and Rodriguez did not reveal a crowd forming or any unsafe conditions at the scene.
While Officer Beharry's body-worn camera was not operating during the entire encounter, Officer Rodriguez’ body-worn camera was operational throughout the incident.
The traffic videos from the corner of East 115th Street and Second Avenue at the time that respondent and Jeffrey were observed jaywalking reveal a number of other safety issues that were not addressed by Officers Beharry and Rodriguez. These include a motor scooter driving on the sidewalk, a motorized wheelchair traveling in the street against traffic, and a delivery truck parked in such a manner as to partially block the pedestrian crosswalk.
After his arrival at the precinct, respondent gave his name to Officer Raymond Chung. Officer Chung "ran" respondent's name on the computer and called respondent's mother, thereby verifying respondent's identity. Respondent was arrested for possession of a weapon but was never given a summons for jaywalking.
Closing Arguments
In closing arguments, respondent's counsel argued that Officer Beharry's action in placing respondent under arrest for the noncriminal traffic infraction of jaywalking was unreasonable. Moreover, the arrest violated CPL § 150.20, as recently amended. Counsel argued that under CPL § 150.20, where an individual is charged with a violation or a low-level crime, he must be afforded an opportunity to make his verifiable identity known before he may be arrested, rather than being given a summons or an appearance ticket. Respondent gave his name, his age, his father's name, and his address and moreover, Officer Beharry recognized respondent from an intel flyer. Nonetheless, respondent was arrested. Counsel noted that CPL § 150.20 does not require the production of a photographic identification for a person to identify himself.
A summons issued by a police officer for an individual to appear in a local criminal court at a designated future time in connection with his alleged commission of an offense constitutes an appearance ticket (see CPL § 150.10[1] ).
Defense counsel further contended that the stop was pretextual and that the enforcement of the jaywalking ordinance was merely an excuse for the police to conduct a stop and frisk. Counsel conjectured that the actual purpose of the Neighborhood Safely Enforcement Team was to target young African American men. Counsel noted that there were other safety issues occurring at the same time as respondent and Jeffrey were stopped for jaywalking and that these safety concerns were not addressed by the officers. Counsel emphasized that whatever the actual reason for the stop, the requirements of CPL § 150.20 had to be followed and the police failed to do so.
The presentment agency argued that the police acted properly in taking respondent into custody. They observed respondent and Jeffrey jaywalking, a violation of RCNYC 4-04(3)(c)(1), and the police may arrest an individual for a violation, including a traffic infraction, that occurs in their presence. Moreover, the police were justified in handcuffing and taking respondent into custody when he could not produce a photo ID and it was proper to conduct a "safety search" of respondent before placing respondent in the patrol car. According to the presentment agency, when a photo ID is not produced, CPL § 150.20 imposes no obligation on the police to make any attempt to verify the identity of an accused prior to handcuffing and frisking him or her.
Conclusions of Law
In analyzing this case, a number of statutes and a traffic ordinance come into play. Jaywalking, a violation of 34 RCNYC 4-04(3)(c)(1), is a traffic infraction. Pursuant to PL §§ 10:00 (1) & (2) and VTL § 155, a traffic infraction, although not criminal, is an offense. Pursuant to CPL § 140.10(1)(a), an officer may arrest an individual for an offense that occurs in his presence. Pursuant to PL § 30(3)(b), youth who are sixteen and seventeen years old are criminally responsible for committing traffic infractions, thus the criminal procedure law, including CPL § 140.10 (1)(a), is applicable.
For this reason, the court rejects respondent's argument that FCA § 305.2 precludes the arrest of respondent, a sixteen-year-old, for a traffic infraction.
Based on the above statutes and the jaywalking ordinance, it would appear that an officer may arrest a sixteen-year-old for jaywalking, where, as here, it occurred in his presence, were it not for CPL § 150.20. Pursuant to a 2019 amendment, CPL § 150.20 requires a police officer to issue an appearance ticket (also called a summons) in lieu of arrest for offenses and low-level crimes under circumstances which are described below.
Prior to the amendment, CPL § 150.20 provided that under certain circumstances, an officer "may," not must, issue an appearance ticket, instead of effectuating an arrest.
CPL § 150.20 subs. (1)(a) provides that whenever a police officer is authorized to arrest an individual pursuant to CPL § 140.00 without a warrant for an offense other than a class A, B, C, or D felony (or certain enumerated offenses, not applicable here), the officer "shall instead issue and serve upon such person an appearance ticket" (emphasis added).
The officer is not required to issue an appearance ticket if the person has one or more outstanding criminal or superior court warrants or has failed to appear in court proceedings in the last two years (see CPL § 150.20 [1] ([b]) [i] & [ii]).
However, CPL § 150.20 subsection (1)(b)(iii) provides that the requirement that an individual be issued an appearance ticket rather than being subjected to an arrest, does not apply if "the person has been given a reasonable opportunity to make their verifiable identity and a method of contact known, and has been unable or unwilling to do so." The subsection further provides that for the purposes of determining identity, an officer may rely on "various factors, ... including but not limited to personal knowledge of such person, such person's self-identification, or photographic identification." The statute specifically provides: "There is no requirement that a person present photographic identification in order to be issued an appearance ticket in in lieu of arrest where the person's identity is otherwise verifiable." The statute goes on to state that a government issued identification of various kinds "shall be accepted as evidence of identity, which the officer must accept." Regarding the identity verification requirement in CPL § 150.20(2)(b)(iii), the prosecution contends that if the accused cannot produce a government ID, nothing more is required of the police before they may make an arrest. The court disagrees.
The court holds that when presented with an accused who, although lacking a photo ID, is cooperative and provides information regarding his identity, the officer may not immediately take that person into custody. Rather, the officer must first make reasonable attempts to verify the identity of the accused based upon the information provided. Indeed, the prosecutor's position that a photo ID must be presented is in direct conflict with the statement in subs. (1)(b)(iii) that "[t]here is no requirement that an accused present photographic identification in order to be issued an appearance ticket in lieu of arrest" (emphasis added).
Here, respondent was cooperative and neither aggressive nor threatening. Upon being stopped, he immediately made his identity known to the officer. He readily gave his name, and without being asked, gave his age, his address, and his father's name. Respondent asked the officer to "look up" his name and to "check out" the information he provided. Respondent could do no more. It was now up to the officer to verify the information provided. However, Officer Beharry took no steps to do so before placing respondent in handcuffs.
Significantly, Officer Beharry acknowledged that there were ways he could have verified the information respondent gave, while still at the scene. He could have called respondent's parent or called the precinct for an officer to do a pedigree check on the computer. Notably, these were the ways in which respondent's identity was later verified at the precinct. The court finds that the reasons Officer Beharry gave for not verifying respondent's identity at the scene were contrived and are not credited by the court. Officer Beharry claimed that he was concerned about a crowd gathering. However, the court watched the videos from the officers’ body-worn cameras which captured the entire encounter and a crowd never gathered. The officer did not point to any other specific safely concern. Notably, there were at least four officers at the scene who could have stepped in and kept order if a safety issue were to have arisen.
Moreover, the officer recognized respondent from an intel flyer, and this provided an additional means of verifying respondent's identity (see CPL § 150.20 [1][b][iii] providing that one of the various factors upon which an officer may rely in determining a person's identity is the officer's "personal knowledge" of the accused).
Accordingly, the court finds that CPL § 150.20 was violated when respondent was placed in handcuffs. The court notes that this violation was particularly egregious because respondent was charged with the most minor, non-criminal traffic infraction.
Because the handcuffing of respondent was unlawful, the firearm subsequently recovered from respondent's pocket during an ensuing search for weapons and contraband, was the product of the initial illegality and must be suppressed (see Wong Sun v. United States , 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 [1963] ). Since the sole charges in the petition are two counts of criminal possession of a weapon and the weapon, namely the firearm, is suppressed, the petition is dismissed.
The court now turns to respondent's contention that the stop for jaywalking was pretextual. The court finds this argument to be persuasive for the following reasons: First, there were more serious traffic infractions occurring at the time respondent and Jeffrey were jaywalking, and these infractions were not addressed by the officers. Second, it was unlikely that Officer Beharry would call his sergeant to provide backup if his only motivation was to issue summonses for jaywalking. Third, neither Officer Beharry nor Officer Rodriguez showed any interest in verifying the identity of respondent or Jeffrey before they were handcuffed and taken to the precinct. Indeed, when Jeffrey asked Officer Rodríguez if he wanted to know his name, the officer told Jeffrey that he did not. It is hard to escape the conclusion that the officers’ goal was to frisk the two young men, rather than issuing them summonses for jaywalking.
However, that a stop is pretextual does not render the ensuing search and arrest unlawful. In Whren v. United States , 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the Supreme Court held that if a police officer has probable cause to detain a person for a traffic violation, that the officer may have had, in actuality, a different motivation for the stop does not render the stop violative of the Fourth Amendment. In People v. Robinson , 97 N.Y.2d 341, 741 N.Y.S.2d 147, 767 N.E.2d 638 (2001), the Court of Appeals adopted the Whren holding as a matter of state law. Accordingly, this court is not considering the likely pretextual nature of the stop of respondent as a factor in suppressing the firearm. The firearm is being suppressed because its recovery was a product of a CPL § 150.20 violation. Nonetheless, the court does not approve of the police bypassing the stop and frisk law by using a jaywalking violation as an excuse to perform a frisk. The court hopes that by insisting that the police give anyone accused of jaywalking a fair opportunity to identify himself and have his identity verified before being handcuffed and searched, there would be a disincentive for the police to improperly utilize the jaywalking ordinance to conduct a stop and frisk.
Jaywalking is ubiquitous, particularly in Manhattan. If, as respondent strongly suggests, the jaywalking ordinance is being selectively enforced in a discriminatory manner, such that certain racial and ethnic groups are disproportionately stopped by the police for jaywalking, it is cause for great concern. As the Court of Appeals declared in Robinson (351-352), regarding certain groups being disproportionally stopped by the police, "Discriminatory law enforcement has no place in our law." The court hopes that the New York City Police Department will closely examine its policies regarding when and under what circumstances the jaywalking ordinance is to be enforced in order to avoid its discriminatory use.
The above constitutes the decision and order of the court.