Opinion
Indictment No. 70973-23
12-11-2023
People of the State of New York v. Antoine Favorite, Defendant.
People: Assistant District Attorney Amelia Catherine Digirolamo (Kings County District Attorney's Office) Defense Attorney: Nahal Batmanghelidj, Esq. (Legal Aid Society); Nicole Marie D'Orazio, Esq. (Legal Aid Society)
People: Assistant District Attorney Amelia Catherine Digirolamo (Kings County District Attorney's Office)
Defense Attorney: Nahal Batmanghelidj, Esq. (Legal Aid Society); Nicole Marie D'Orazio, Esq. (Legal Aid Society)
OPINION
HON. RAYMOND L. RODRIGUEZ, ACTING JUSTICE.
Defendant, Antoine Favorite, is charged with Criminal Possession of a Weapon in the Second Degree, in violation of New York Penal Law § 265.03(3).
On October 12, 2023, and October 13, 2023, this Court conducted Dunaway, Huntley, and Mapp hearings (Dunaway v. New York, 442 U.S. 200 [1979]; People v Huntley, 15 N.Y.2d 72 [1965]; Mapp v. Ohio, 367 U.S. 643 [1961]). The Dunaway hearing pertained to defendant's arrest for Criminal Possession of a Weapon in the Second Degree. The Huntley hearing pertained to oral statements allegedly made by defendant at the time of his arrest. The Mapp hearing pertained to firearms and other evidence recovered from the defendant's person.
The People called two witnesses at the hearing, Police Officer Oliver Vidal (hereinafter "Officer Vidal"), and Sergeant Steven Fursa (hereinafter "Sgt. Fursa") of the New York Police Department (hereinafter "NYPD"). The People also presented the body worn camera footage of Officer Vidal and Sgt. Fursa. Defendant did not call any witnesses. Based on the testimony of the witnesses and the evidence presented, the Court makes the following Findings of Fact and Conclusion of Law.
I. Findings of Fact
A. Testimony of Officer Oliver Vidal
Officer Vidal worked for the NYPD for approximately nine years. As of the date of the hearing, he was assigned as a field intelligence officer with the PSA1 precinct, in Brooklyn, New York, and had held that position for approximately two years. Prior to becoming a field intelligence officer, Officer Vidal was a public safety officer with PSA1. During his career he has made over twenty firearm related arrests and had assisted in approximately twenty firearm related cases where he was not the arresting officer. The Court finds his testimony to be credible and reliable.
On January 7, 2023, at approximately 4:15 p.m., Officer Vidal was monitoring a social media account of Antoine Favorite (hereinafter "defendant"), namely defendant's Snapchat account. Officer Vidal testified that he had been monitoring said Snapchat account for over a year, that his account was "friends" with defendant's account, and during that year he had observed over a hundred posts of photographs in which defendant's face was displayed. Officer Vidal testified that when a post is posted to a Snapchat story, the post is only visible for twenty-four hours before it disappears.
While monitoring the account on January 7, 2023, Officer Vidal observed a post of an individual wearing a black jacket, displaying the butt of what appeared to be a gun in the waistband area. The post was marked as having been posted twenty-one minutes prior. Officer Vidal testified that the individual's face was not visible in the post, and the race and gender of the individual could not be determined through the Snapchat post. Below the photograph was a caption, "When you see me don't run" followed by four bandaged emojis.
A photograph of this post was entered into evidence as People's Exhibit 1.
Officer Vidal testified that other than observing defendant's Snapchat for over a year, he also had in person interactions with defendant during that time. Specifically, Officer Vidal testified that he helped other officers place defendant under arrest and had seen him in person over twenty times prior to January 7, 2023. Based upon this, Officer Vidal testified that he believed the individual in the photograph to be defendant.
Officer Vidal testified that he understood the caption at the bottom of the photograph to mean, "if I have it on me if you come you might get, you might get bodied killed."
After observing the Snapchat post, Officer Vidal testified that he notified the PSA1 public safety team. He testified that he informed them that he was watching defendant's Snapchat account and that he saw, "an individual on there with the butt of a gun into their waistband." After they arrived, at approximately 5:15 p.m., Officer Vidal and the public safety team canvassed Mermaid Avenue, an area often frequented by defendant. Specifically, they canvassed between West 32nd and West 33rd Street in Kings County. Officer Vidal was with Detective Brooks, Sergeant Fursa, Officer Marriott, and Officer Kulug. All the officers were in uniform and were equipped with body worn camera. During the canvas, Officer Vidal observed defendant inside of a deli located at 3222 Mermaid Avenue. Defendant was wearing a black jacket and sweatpants. Officer Vidal testified that he recognized the black jacket and sweatpants from the Snapchat post. When he observed defendant wearing the jacket and pants seen in the Snapchat post, Officer Vidal stopped the defendant and tried to place him under arrest. Officer Vidal testified that defendant became irate and refused to be placed in handcuffs, and that after he was placed under arrest, Sgt. Fursa recovered a gun from defendant's waistband area.
Officer Vidal identified defendant in court as the person he located inside said deli.
A photograph of the gun recovered was entered into evidence as People's Exhibit 2.
Officer Vidal testified that on January 7, 2023, during his interaction with defendant, he activated his body worn camera within seconds of the start of the interaction. During the struggle with defendant, Officer Vidal's body worn camera fell off his uniform onto the floor.
Officer Vidal's body worn camera footage was entered into evidence as People's Exhibit 3. Sergeant Fursa's body worn camera was entered into evidence as People's Exhibit 4. This was placed into evidence through Officer Vidal who is seen on the video.
During the struggle with the officers, defendant can be heard talking on the body worn camera. Officer Vidal testified that defendant was stating that he didn't have anything. When defendant was placed in handcuffs, other than the force used to place defendant in those handcuffs, Officer Vidal testified that he did not use any additional force. He also testified that no service weapons were ever pointed at defendant and no taser was deployed.
Upon arriving at Mermaid Avenue, Officer Vidal testified that he and the fellow officers immediately stopped defendant because they believed he may be in possession of a gun; Officer Vidal testified that they "did not want to take any chances."
B. Testimony of Sergeant Steven Fursa
Sgt. Fursa worked for the NYPD for approximately thirteen years. As of the date of the hearing, he was assigned to the Brooklyn South Narcotics Unit and had held that position for approximately five months. Prior to that assignment he was assigned to PSA1. There he spent one year on patrol and then was assigned to the public safety team. As a sergeant with PSA1 public safety, Sgt. Fursa's duties and responsibilities included handling quality of life issues such as people drinking and doing drugs or trespassing at NYCHA buildings, as well as people possessing firearms. During Sgt. Fursa's time with the NYPD, he had been involved in approximately thirty firearm related arrests. The Court finds his testimony to be credible and reliable.
On January 7, 2023, at approximately 5:15 p.m. Sgt. Fursa was canvassing and patrolling the area of Mermaid Avenue in Coney Island due to information he had received from social media that there was an individual in possession of a firearm. Sgt. Fursa testified that he had learned of this information from Officer Vidal; specifically, that Officer Vidal had informed Sgt. Fursa that there was a male wearing a black jacket with a hood, black fur trim, and dark grey sweatpants, that was in possession of a firearm in the waistband of his pants, at the center of the waistline. Sgt. Fursa testified that Officer Vidal had informed him that the name of the person he believed posted the image on social media was Antoine Favorite. Sgt. Fursa testified that he had received this information at approximately 4:00p.m. that afternoon on January 7th.
At approximately 5:15p.m. that day, while canvassing, Sgt. Fursa testified that he observed inside of 3222 Mermaid Avenue, a convenience store, a male matching the description, namely wearing a black jacket, black hood, black fur trim, and dark grey sweatpants. Sgt. Fursa testified that after stopping said individual, Sgt. Fursa observed a bulge dead center in the waistband of his pants. At that time, Sgt. Fursa was with four other officers, Officer Vidal, Detective Brooks, Officer Kulug, and Officer Marriott.
Sgt. Fursa identified the defendant in open court as the individual just described.
After observing the bulge in defendant's waistband, Sgt. Fursa testified that he frisked the defendant because he matched the description of the person they were looking for and the bulge was in the same place that the firearm was observed on the social media post. Upon frisking the bulge, Sgt. Fursa testified that he felt a hard object, an L-shaped handle and slide consistent with a firearm. Upon feeling the object Sgt. Fursa then tried to remove it from defendant's waistband at which time, defendant tried to run out of the store. All five officers attempted to stop defendant from leaving, and they all fell to the ground together. Once on the ground, defendant reached into his pants in the direction of the firearm. Sgt. Fursa testified that he instructed defendant to get his hands out of his pants. Defendant was handcuffed, flipped to his right side, and Sgt. Fursa reached into defendant's underwear and pulled out the firearm. Sgt. Fursa testified that the gun had moved down into defendant's underwear from his waistband during the struggle on the floor. Sgt. Fursa testified that the color of defendant's underwear from which he recovered the firearm was consistent with the color of the fabric observed in People's Exhibit 1, the photograph of the Snapchat post. Sgt. Fursa described the recovered firearm as a small, black, automatic handgun, not much bigger than the size of his hand.
Sgt. Fursa testified that while defendant was being stopped, and once he was on the ground, he was saying that he did not have a firearm. Sgt. Fursa testified that he was not asking the defendant any questions while this was happening; that the only thing he said to defendant during that exchange was to get his hands out of his pants.
On cross examination, Sgt. Fursa testified regarding his body worn camera footage. Specifically, that upon arriving on scene he and Officer Marriott walk into the convenience store, past the defendant, and that Sgt. Fursa did not recognize the defendant until Officer Vidal walked in after them and stopped the defendant. Sgt. Fursa testified that prior to this date he had never met defendant. On the body worn camera, Sgt. Fursa can be seen apologizing to Officer Vidal, stating in sum and substance, "Yo V I apologize he looks very different in person."
Sgt. Fursa testified that upon entering the location, Officer Vidal was the first to take action, the first to stop defendant by placing his hands on him and holding his wrist. At that point, Officer Vidal was in front of Sgt. Fursa and Sgt. Fursa had to get around Officer Brooks to face the defendant who was stopped. Sgt. Fursa testified that within two seconds of Officer Vidal taking hold of defendant Sgt. Fursa observed the bulge in defendant's pants. Upon viewing the body worn camera, Sgt. Fursa testified that from the stop, to when Sgt. Fursa made contact with defendant, was approximately eight seconds.
II. Conclusions of Law
A. Search and Seizure of Property on Defendant's Person
Dunaway, Mapp, and Huntley hearings were conducted by the Court. Before this Court can determine the issues of probable cause to arrest and voluntariness of statements made, the Court must first determine the legality of the initial stop of the defendant, as the arrest of defendant and the subsequent statements made, stem from the gun recovered after the officers physically stopped defendant from exiting 3222 Mermaid Avenue and then frisked and searched his person.
i. Standing
A Mapp hearing was conducted to determine whether evidence was unlawfully seized and should be suppressed. As a threshold matter, defendant has the initial burden to prove a legitimate expectation of privacy in the place or item searched to establish standing (People v. Rodriguez, 69 N.Y.2d 159 [1987]). Defendant is not required to testify in order to meet this burden and in fact, defendant may rely on the evidence presented by the People in their direct case (People v. Gonzalez, 68 N.Y.2d 950, 1002 [1986]).
There is no question that defendant has standing to contest the search and recovery of the gun from his own person.
ii. De Bour Analysis
In a Mapp hearing, the People have the initial burden of going forward with credible evidence tending to show the legality of the police conduct which led to the recovery of the property (People v. Berrios, 28 N.Y.2d 361 [1971]). In determining the admissibility of evidence seized from a defendant, the Court must consider the full extent of the conduct between the police officer and defendant during the time in which the evidence was seized. Here, the Court must first determine the propriety of the stop of defendant inside of 3222 Mermaid Avenue. This consideration is one that focuses on both fact and law. In People v. De Bour, 40 N.Y.2d 210 [1976], the Court of Appeals outlined the procedure in which Courts must consider the lawfulness of police-citizen encounters. The Court of Appeals established four levels of street encounters between police officers and citizens. Each level articulates the necessary circumstances to justify specific officer authority and action.
Level one is predicated on an objectively credible reason not indicative of criminality. Under level one, the encounter between the officer and the citizen must be brief and non-threatening (People v. Hollman, 79 N.Y.2d 181 [1992]). There should be no indication of harassment or intimidation by the officer (id). The interaction cannot cause the citizen to reasonably believe that they are suspected of a crime, no matter how calm and polite the officer's tone may be (id). Any request for information must be supported by an objective credible reason, not necessarily indicative of criminality (id).
Level two is the common law right of inquiry that is predicated on a founded suspicion of criminality. This level authorizes the officer to ask pointed questions that would reasonably lead a person to believe that he/she is suspected of a crime (Hollman at 185). At this level, the officer can request permission to search (id. at 181 ). Questions can be more extended and accusatory and focus on possible criminality (id).
Level three is predicated on a reasonable suspicion of criminal activity, permitting an officer to stop and frisk the individual if the officer is fearful of a weapon (Terry v. Ohio, 392 U.S. 1 [1968]). An officer has reasonable suspicion if there is a "quantum of knowledge sufficient to induce an ordinary prudent and cautious man under the circumstances to believe criminal activity is at hand" (People v. Cantor, 36 N.Y.2d 106, 112-13 [1975]). In order to justify the intrusion, "the officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion. Vague or unparticularized hunches will not suffice." Cantor at 113.
See also People v. Dantzler, 208 A.D.3d 590, 591 [2022]; People v. Bowers, 148 A.D.3d 1043 [2017].
Level four is predicated on probable cause that a crime has been, is being, or is going to be committed. Under level four, the officer has the authority to arrest the individual and conduct a full search incident to a lawful arrest (De Bour at 223).
After observing the above described post on defendant's Snapchat account and arriving at 3222 Mermaid Avenue, Sgt. Fursa testified that the first officer to recognize defendant was Officer Vidal. When the officers arrived at the location, Sgt. Fursa walked right past defendant who was making his way out of the store. Sgt. Fursa was followed by Officer Vidal, who immediately recognized defendant, and placed his hands on defendant to detain him in the store.
Officer Vidal testified that upon arriving at 3222 Mermaid Avenue, approximately an hour after observing the Snapchat post on defendant's account , Officer Vidal recognized defendant and observed him to be wearing the same jacket and sweatpants that the individual in the Snapchat post was wearing. Officer Vidal testified that based upon this observation, he stopped the defendant.
The photograph was posted approximately twenty-one minutes prior to Officer Vidal viewing it, thus Office Vidal stopped defendant approximately an hour and twenty minutes after the photograph was posted.
The Court finds, based upon the totality of the circumstances, that Officer Vidal had reasonable suspicion to believe that criminality was afoot, specifically that defendant possessed a gun. While the Snapchat post did not show the individual's face, only a torso, the post did reveal that the individual displaying the butt of a gun was wearing a black jacket with a silver zipper and a fur hood. The post was posted to a Snapchat account that Officer Vidal knew belonged to defendant. He knew this based upon the fact that his account was "friends" with defendant's account, and he had been monitoring defendant's Snapchat account for over one year. Officer Vidal testified that during that year he had observed over a hundred posts in which defendant had posted photographs showing his face. Additionally, the post contained a caption stating, "When you see me don't run" followed by six bandage face emojis. The Court finds that the use of the word, "me" in the caption indicates that the defendant, whose Snapchat account it is, and thus who is likely the person creating the post, is claiming the individual in the photograph as himself. Additionally, Officer Vidal testified that he understood the caption at the bottom of the photograph to mean, "if I have it on me if you come you might get, you might get bodied killed," which led him to believe that what he was observing in the individual's waistband was in fact a gun. He further testified that during his career he had made approximately twenty firearm arrests and assisted in twenty firearm arrests; based upon his experience with firearms, Officer Vidal recognized the butt of the firearm in the photograph.
Notably, the existence of the Snapchat post alone is not enough for reasonable suspicion to stop or frisk the defendant. It is clear, based upon how Snapchat and other social media mediums work, that a photograph could have been posted to Snapchat in either real time or from defendant's camera roll. Based on the photograph itself, one has no way of knowing when the photograph was taken. More was needed to stop the defendant.
Upon arriving at 3222 Mermaid Avenue, just over an hour after the photograph had been posted, Officer Vidal testified that he observed the defendant wearing the same clothes worn by the individual in the Snapchat post. This observation, in conjunction with the recency of the post, the post being on defendant's own Snapchat account, with a caption referring to the individual as "me," all lead to the conclusion that the photograph was taken and posted in real time, and raise the encounter to level three, reasonable suspicion.
In People v. Pruitt, 158 A.D.3d 1138, 1139 [2018], the Fourth Department found, "[b]ased upon the totality of the circumstances, including the short period of time between the 911 call reporting a female with a handgun and the arrival of the police officer at the reported location, defendant's presence at that location, and the officer's observations that defendant's physical characteristics and clothing matched the description of the suspect, the officer was 'justified in forcibly detaining defendant in order to quickly confirm or dispel [his] reasonable suspicion of defendant's possible [possession of a weapon]'. Even assuming, arguendo, that the 911 call to which the officer was responding was made by an anonymous caller, we conclude that 'the information provided by the caller was sufficiently corroborated to provide reasonable suspicion.'"
See also People v. Argyris, 24 N.Y.3d 1138, 1140-41 [2014] ("The police had reasonable suspicion to stop defendants' vehicle based on the contents of a 911 call from an anonymous individual and the confirmatory observations of the police. Specifically, because sufficient information in the record supports the lower courts' determination that the tip was reliable under the totality of the circumstances, satisfied the two-pronged Aguilar-Spinelli test for the reliability of hearsay tips in this particular context and contained sufficient information about defendants' unlawful possession of a weapon to create reasonable suspicion, the lawfulness of the stop of defendants' vehicle is beyond further review."); People v. Douglas, 254 A.D.2d 367 [2nd Department 1998] ("the police had reasonable suspicion to stop the defendant based on the totality of the circumstances, including a radio transmission providing a general description of the perpetrator and the location of the burglary, the defendant's presence at the scene of the crime carrying a large suitcase, the short passage of time between a telephone call to the 911 emergency number and the defendant's presence at the location of the crime, and the arresting officer's observation of the defendant, who matched the radio-transmitted description."); People v. Rapley, 292 A.D.2d 469, 469 [2nd Department 2002] ("A police detective received a telephone call from a woman he knew, who told him that two men were threatening her son, and that one of them had a gun in his boot. She provided a description of the two men. Thus, when the detective and his partner arrived at the scene within a matter of minutes, they properly stopped and frisked the defendant and his companion, who matched the description of the two men given by the citizen informant, and recovered a handgun."); People v. Richardson, 194 N.Y.3d 157, 158 [2nd Department 2023] ("in light of the evidence demonstrating that the defendant matched the general description of the perpetrator who had menaced another person with a gun that was broadcast over the police radio, along with the defendant's temporal and spatial proximity to the scene of that incident, the police had reasonable suspicion to stop and frisk the defendant.")
Similarly, in the case before this Court, when viewing the totality of the circumstances the Court finds that the officer was justified in restraining defendant to quickly confirm or dispel his reasonable suspicion that defendant possessed a gun. While Pruitt deals with a 911 call and the present case deals with a Snapchat post, the same principles apply. Officer Vidal observed a photograph on defendant's Snapchat account indicating that defendant was carrying a gun and a caption on the post in which defendant intimated that the person in the photograph was himself. Upon observing the defendant, a short while later in the same clothes seen in the photograph, Officer Vidal was able to reasonably infer that the photograph was taken and posted on the same day and was permitted to briefly detain the defendant to confirm or deny that defendant had a gun. This was a rapidly developing situation, and the officer's actions were necessary to ensure officer and public safety. The Court finds that under these circumstances, the officer's brief detainment of defendant was lawful and that the detention was a 'minimally intrusive means of investigation likely to confirm or dispel suspicion quickly" (People v. Hicks, 68 N.Y.2d 234, 242 [1986]). The officers had level three, reasonable suspicion, to detain and frisk, and therefore defendant's motion to suppress the gun is denied.
See also People v. Christopher, 21 A.D.3d 425 [2005].
B. Probable Cause for Arrest of Defendant
While a defendant has the ultimate burden of proving the illegality of police conduct, the People have the initial burden to introduce evidence that credibly establishes either a lawful rationale for the conduct of the police, or some other basis for averting suppression. (People v. Berrios, 28 N.Y.2d 361, 367 [1971]). Additionally, the People have the burden to establish that the police had probable cause to arrest defendant (People v. Wise, 46 N.Y.2d 321[1978]). Probable cause exists when the facts and circumstances within an officer's knowledge are sufficient to believe that a defendant has committed an offense (People v. Oqden, 36 N.Y.2d 382 [1975]).
Here, within seconds of defendant's detention, Sgt. Fursa testified that he observed a bulge in the center waistband of defendant's pants, consistent with the location of the butt of the gun in the Snapchat photograph. The Court having already determined that there was reasonable suspicion to stop and frisk the defendant, finds that Sgt. Fursa's subsequent frisk of defendant to be lawful. After frisking the defendant Sgt. Fursa testified that he felt an L-shaped handle and slide consistent with a gun. Upon making this observation, Sgt. Fursa had probable cause to arrest defendant and fully search the defendant. Sgt. Fursa testified that when he attempted to remove the object from defendant's waistband, a struggle ensued leading all parties to fall to the ground. Sgt. Fursa was ultimately able to recover the gun from defendant's underwear. The Court finds that the officers had probable cause to arrest the defendant.
See People v. Rivera, 14 N.Y.2d 441, 463 [1964], "From the time the policeman, in the process of frisking defendant, touched the object, inferred by him correctly to be a gun, there was probable cause to arrest defendant and to proceed at once further to invade his clothing and take the gun."
C. Statements Made By Defendant
The People have the burden of proving beyond a reasonable doubt that statements made by the defendant were voluntary. The Court must examine the totality of the circumstances surrounding the statement to determine whether or not the People have met that burden. Here, Sgt. Fursa testified that while defendant was being stopped, and once he was on the ground, he made statements, in sum and substance, that he did not have a gun. Sgt. Fursa testified that he was not asking the defendant any questions while this was happening; that the only thing he said to defendant during that exchange was to get his hands out of his pants. Upon review of the evidence, the Court finds that this statement by defendant constitutes a spontaneous utterance, not the result of interrogation or its functional equivalent, and thus was made voluntarily.Accordingly, the Court denies defendant's motion to suppress the statements.
See People v. Holland, 48 N.Y.2d 861 [1979].
See People v. Anderson, 42 N.Y.2d 35 [1977].
Based upon the facts established at the hearing and detailed above, the Court denies defendant's motion to suppress the evidence and statements made by defendant.
This constitutes the Opinion, Decision, and Order of this Court.