Opinion
03662/07.
Decided June 1, 2009.
Assistant District Attorneys, Jevet Johnson and Heather Hatcher.
Defense Counsel, Arlen Yalkut.
On January 22, 2009, after a jury trial, defendant, Franklin Medina Gonzalez, was convicted of Criminal Possession of a Controlled Substance in the Second Degree (Penal Law § 220.18), Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16), Criminally Using Drug Paraphernalia in the Second Degree (Penal Law § 220.50) and Unlawful Possession of Marijuana (Penal Law § 221.05). Defendant was acquitted on the charge of Operating a Motor Vehicle while Under the Influence of Drugs (Vehicle and Traffic Law § 1192).
Defendant moves, pursuant to CPL 330.30(1), for a judgment setting aside the verdict, on the grounds that: (1) the arresting officer's testimony was perjured and (2) the People violated the holding in Brady v. Maryland, 373 US 83, 87-88 (1963), by failing to disclose, prior to the suppression hearing, photographic evidence harmful to the credibility of their main witness. In the alternative, defendant moves, pursuant to CPL 710.60(5), for a hearing on these issues.
FACTS
Prior to trial, defendant moved for an order suppressing physical evidence (including among other items, crack cocaine recovered from a patrol car and marijuana recovered from defendant's vehicle) and statements made to the police, on the ground that they were the fruits of an unlawful arrest.
On April 17 and 22, 2008, I conducted a Mapp/Huntley/Dunaway hearing. The People's sole witness, Police Officer Angel Rivera, testified that at 1:57 p.m. on August 24, 2007, while on traffic enforcement duty, he saw a Honda Accord with dark tinted windows traveling northbound on Webster Avenue in the Bronx. Rivera had been trained by the Highway One Division to spot excessively tinted car windows. The officer stated that the degree of tint is illegal if you cannot see the driver. Rivera also explained that the amount of light transmitted through a window can be measured by a portable "tint meter". The officer said that with respect to four-door sedans, New York State law requires a tint meter reading above 70% on all windows.
Rivera activated his emergency lights and pulled over the Honda. He approached the driver's side window where defendant was seated. The two conversed and Rivera made several observations which gave rise to probable cause to arrest defendant, including his failure to produce his license, registration and insurance on the officer's first request, the odor of marijuana emanating from the driver-side window, defendant's bloodshot, watery eyes and the smell of alcohol on his breath.
Rivera's tint meter test of defendant's car windows produced a reading of 34%. The officer issued defendant two summonses for unlawfully tinted windows, but did not record the 34% reading on the tickets.
When Rivera arrived at the precinct and opened the back door of the patrol car, he noticed bags of crack cocaine on the floor near defendant's feet. In defendant's vehicle, the officer found marijuana, ziplock bags and other items.
After the conclusion of the hearing, I rendered an opinion from the bench. Crediting the officer's testimony, I held that his observation of heavily tinted car windows gave rise to reasonable suspicion that defendant had committed a traffic infraction. I found that the stop was lawful and denied defendant's motion to suppress the physical evidence and statements.
Consistent with his hearing testimony, at trial Rivera stated that he stopped defendant's sedan after seeing excessively dark windows and that he later performed a tint meter test confirming his conclusion.
Also during the trial, the People turned over to the defense photographs of the Honda and the police vehicle. Prior to that, defendant was unaware of the existence of the pictures. During the cross examination of Rivera, defense counsel introduced the six photographs into evidence.
Defense Exhibit E is a photo of defendant's automobile, apparently taken from the vantage point of a photographer who pointed the camera directly at the driver-side window. Clearly depicted is the entire driver's seat, the console and a portion of the front passenger seat. Not only are the contours of the undulating seat cushion well defined, but minute details, such as tiny wrinkles in the upholstery, are plainly visible. Exhibit F, a frontal view of defendant's car, shot from at least 20 feet away from the windshield, captures the front passenger seat and a part of the driver's seat, including the curved segments of the leathery seat cushions. Exhibits A and B show the patrol car. Its windows appear at least as dark, if not darker, than the windows of defendant's sedan.
While the officer was on the stand examining the picture of the Honda, he testified that he "was able to see into the vehicle" and that he could "clearly see the seat". When looking at the photograph of the police vehicle, Rivera stated that its windows contained no tint other than "something black around here[,] the small window".
LAW
It is lawful for an officer to stop an automobile for a Vehicle and Traffic Law infraction such as excessively tinted windows. People v. Osborne, 158 AD2d 740, 741 (3rd Dept. 1990); People v. Cross, 17 Misc 3d 1109 (A) (Sup Ct 2007); Vehicle and Traffic Law § 375 (12-a)(b).
The degree of suspicion required to justify a routine traffic stop for a potential violation of the Vehicle and Traffic Law is minimal. "All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity. It is enough if the stop is based upon specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion'". People v. Ingle, 36 NY2d 413, 420 (1975) ( quoting Terry v. Ohio, 392 US 1, 21); Osborne, 158 AD2d at 741.
At a suppression hearing, the People have the burden of going forward to establish the legality of an officer's conduct. People v. Berrios, 28 NY2d 361, 367-368 (1971). An officer's testimony that the window tint is too dark to identify the driver is sufficient to establish reasonable suspicion to conduct a vehicle stop based on a traffic violation. Osborne, 158 AD2d at 741-742.
Under CPL 330.30(1), a trial court may set aside a verdict if there are grounds in the record which, if raised on appeal, would require a reversal or modification of the judgment as a matter of law. The power granted a trial judge, however, is far more limited than that of an intermediate appellate court. People v. Carter, 63 NY2d 530, 536 (1984). The appellate court is authorized to review both questions of law and fact (CPL 470.15, [3]), and to reverse or modify a judgment when the verdict is against the weight of the evidence (CPL 470.15), or "[a]s a matter of discretion in the interest of justice" (CPL 470.15, [6]). A trial court, however, has no authority to set aside a verdict based on a reassessment of the facts. In deciding a CPL 330.30(1) motion, a trial judge is limited to determining whether the trial evidence was legally sufficient to support the verdict. CPL 470.15(4)(b); Carter, 63 NY2d at 536; People v. Echevarria, 233 AD2d 200, 202 (1st Dept. 1996).
Intentionally perjured testimony or testimony that otherwise lacks credibility, rises to the level of "legal insufficiency" only where such testimony can be found to be so unworthy of belief as to be "incredible as a matter of law". People v. Adams, 272 AD2d 177, 178-179 (1st Dept. 2000) ( citing People v. Carthrens, 171 AD2d 387, 392 [1st Dept. 1991]). Testimony is incredible as a matter of law when it is "manifestly untrue, physically impossible, contrary to experience, or self-contradictory". People v. Davis, 240 AD2d 309, 309 (1st Dept. 1997) ( citing People v. Garafolo, 44 AD2d 86, 88 [2d Dept. 1974]).
A court may not use evidence presented at trial to contradict evidence given at a pre-trial hearing. People v. Gonzalez, 55 NY2d 720, 721-722 (1981). Nor may a trial court conduct new hearings on an issue raised for the first time in a CPL 330.30(1) motion, because this provision limits judicial inquiry to matters on the record. See People v. Wolf, 98 NY2d 105, 119 (2002) (trial court not permitted to consider whether the People violated their Rosario obligation, an issue outside the record which was raised by defendant for the first time in a CPL 330.30(1) motion).
Under certain circumstances, a Brady violation may also constitute grounds for setting aside a verdict pursuant to CPL 330.30(1). The Due Process Clauses of the Federal and State Constitutions guarantee a criminal defendant the right to discover favorable evidence in the prosecution's possession material to guilt or punishment. People v. Bryce, 88 NY2d 124, 128 (1996); Brady v. Maryland, 373 US 83, 87-88 (1963). The People's duty to disclose such evidence extends beyond that which is exculpatory; it encompasses evidence that could be used to challenge the credibility of a crucial prosecution witness. People v. Baxley, 84 NY2d 208, 213 (1994); Giglio v. United States, 405 US 150, 154-155 (1972).
Brady "does not require that disclosure be made at any particular point in the proceedings, only that it be made in time for the defense to use it effectively". People v. Sutherland, 219 AD2d 523, 524 (1st Dept. 1995), lv denied 87 NY2d 908 (1995); People v. White, 178 AD2d 674, 675 (2d Dept. 1991), lv denied 79 NY2d 1009 (1992). Where the prosecution is in possession of material evidence which, if disclosed, could affect the ultimate decision on a suppression motion, the failure to disclose that evidence denies defendant due process of law. People v. Geaslen, 54 NY2d 510, 516 (1981).
A Brady error is not a windfall for the defense, however, where the defendant knows the information at trial and has the opportunity to seek a remedy, but fails to do so. People v. Brown, 67 NY2d 555, 559 (1986); People v. Johnson, 303 AD2d 208, 208-209 (1st Dept. 2003). If the defendant chooses not to pursue a trial remedy upon learning of the violation, the issue is unpreserved. Sutherland, 219 AD2d at 524. A post-verdict CPL 330.30 motion alleging a Brady violation for the first time is, within the meaning of CPL 470.05(2), untimely and insufficient to preserve a question of law for the trial court's review.
A trial court may grant the defendant's request to reopen a suppression hearing pursuant to CPL 710.40(4), if new evidence becomes available before or during trial. The right to a CPL 710.40(4) motion is considered waived, however, when the defendant learns of important new evidence but fails to request to reopen the hearing, or seek any other remedy, at that time. Brown, 67 NY2d at 559; People v. Cordero, 227 AD2d 290, 291 (1st Dept. 1996). The CPL does not provide for post-trial renewal of a suppression motion.
DISCUSSION
Defendant argues that the verdict must be set aside on the grounds that: (1) the photographs of the Honda and the patrol car demonstrate that Rivera's testimony is not credible and (2) the People committed a Brady violation, by failing to turn over the pictures prior to the commencement of the suppression hearing.
The photos contradict the officer's description of both vehicles and cast serious doubt on his credibility. How is it that Rivera could not see defendant through the "highly tinted windows", yet small details of the upholstery — such as wrinkles in the leather — are visible in these pictures? How is it that the officer's car windows, which he testified had no tint, appear to be as dark, if not darker, than defendant's allegedly excessively tinted windows? The potential impeachment value of the photographs is obvious and the prosecution erred in not disclosing them beforehand. People v. Williams , 7 NY3d 15 , 19 (2006).
With respect to this Brady violation, defendant also erred by waiting until after trial to attempt to remedy the wrong. Defendant could have moved to reopen the suppression hearing, pursuant to CPL 710.40(4), when he learned that the pictures existed. Had he chosen that path, I would have granted the application and reopened the hearing. Instead, defendant decided to introduce the photos at trial for consideration by the jury. Defendant's post-verdict CPL 330.30(1) motion does not preserve this question of law. People v. Albert, 85 NY2d 851, 853 (1995). Moreover, CPL 330.30(1) limits the trial court's inquiry to matters on the record. Wolf, 98 NY2d at 119.
Defendant waived his right to a hearing on these issues, when he made the strategic decision not to move to reopen the hearing or seek any other remedy at the time he found out about the pictures. See CPL 710.40(4); Brown, 67 NY2d at 559; People v. Washington, 304 AD2d 480 (1st Dept. 2003).
The most effective use of the photographs would have been at the suppression hearing. Without having reopened the hearing to afford both parties an opportunity to explore the discrepancies between the officer's testimony and the pictures, it would be improper for me to reconsider my decision on defendant's pre-trial suppression motion. The photos presented during trial cannot now be used to contradict Rivera's hearing testimony. Gonzalez, 55 NY2d at 721-722. Notwithstanding the obvious differences between what is shown in the pictures and what the officer said, there may be plausible explanations, such as lighting conditions, which might account for the inconsistencies. The jury examined the photos during their deliberations. I cannot now determine that the pictures conclusively demonstrate that Officer Rivera's testimony was so unbelievable as to be incredible as a matter of law.
Accordingly, defendant's motion to set aside the verdict is denied.