Opinion
2019/0605
03-06-2020
The PEOPLE of the State of New York, Plaintiff, v. Kharye JARVIS, Defendant.
For the People: Kevin Sunderland, Esq. Assistant District Attorney SANDRA DOORLEY, ESQ. Monroe County District Attorney 47 S. Fitzhugh Street Rochester, New York 14614 For Defendant: Elizabeth Riley, Esq. Assistant Public Defender Jacqueline Grippe, Esq. Assistant Public Defender TIMOTHY P. DONAHER, ESQ. Monroe County Public Defender 10 N. Fitzhugh Street Rochester, New York 14614
For the People:
Kevin Sunderland, Esq.
Assistant District Attorney
SANDRA DOORLEY, ESQ.
Monroe County District Attorney
47 S. Fitzhugh Street
Rochester, New York 14614
For Defendant:
Elizabeth Riley, Esq.
Assistant Public Defender
Jacqueline Grippe, Esq.
Assistant Public Defender
TIMOTHY P. DONAHER, ESQ.
Monroe County Public Defender
10 N. Fitzhugh Street
Rochester, New York 14614
Charles A. Schiano, Jr., J.
Defendant Kharye Jarvis is charged by the above-referenced Indictment with Criminal Possession of a Weapon in the Second Degree, in violation of Section 265.03(3) of the Penal Law of the State of New York. Defendant moved for an order suppressing tangible evidence and statements made to police. The court granted a combined Mapp ( Mapp v. Ohio, 367 US 643 [1961] ) and Huntley ( People v. Huntley, 15 NY2d 72 [1965] ) hearing which was held on January 27th and 29th of 2020. Investigator Paul Dondorfer and Officers Timothy Kish and Matthew Williamson of the Rochester Police Department ("RPD") testified on behalf of the People. Defendant presented no witnesses. Following testimony, the Court permitted closing arguments/memorandum to be submitted.
For the reasons set forth below, defendant's motions are Granted.
Findings of Fact
On September 3, 2019, at 2:28 a.m., Officer Kish responded to a radio dispatch to Madison Street and West Main Street. His on board computer indicated that an anonymous caller reported a menacing involving, according to the caller, a green Honda Accord with a license plate number of JJP4270 at Madison Street and West Main Street. The caller indicated there were weapons and drugs in the car. Officer Kish report included DMV information that indicated the Honda Accord with licence plate number JJP4270 was gray.
Officer Kish was aware that the same anonymous caller (the call came from the same telephone number) made two prior calls involving the Honda Accord with licence plate JJP4270. The first 911 call came at 12:39 a.m. Officer Kish's CAD report via his on-board computer indicated the caller reported that persons were selling drugs from a green Honda Accord with a license plate of JJP4270 at West Broad Street and Exchange Boulevard. The caller reported that the vehicle was at that intersection two minutes prior, there was a white female and black male, and the male was yelling at another male and waiving something around. The caller also indicated this vehicle was going up and down Monroe / McDonald's "selling."
The second anonymous 91 1 call, from the same phone number, was received at 1 :18 a.m. This call also references a green Honda Accord, license plate number JJP4270 and the caller reported the Honda Accord located at Lamberton Park and West Main Street.
When Officer Kish arrived at West Main Street and Madison Street he did not see a vehicle matching the dispatch description and began to search the area. He proceeded north on Madison Street to Silver Street and then southbound on Rossenbach Place where, at 2:32 a.m., he encountered a gray Honda Accord, licence plate number JJP4270 going north on Rossenbach. Rossenbach is single lane street and, although it is not a one-way, it is not wide enough to permit two way traffic. Officer Kish testified that he activated his emergency lights and stopped his vehicle. The Honda Accord stopped. Officer Kish testified he did not see the Honda Accord commit a traffic infraction or observe any vehicle equipment violations. He testified he stopped the Honda Accord because its license plate matched the license plate reported in the three dispatches that night.
Officer Kish exited his patrol vehicle and approached the driver's side door of the Honda Accord. He saw three persons in the vehicle. A white female driver, a black male in the front passenger seat, and a black female in the rear passenger seat, who appeared to be asleep. Officer Kish asked the front seat occupants for identification, the driver was a Ms. Gordon. As Officer Kish spoke to them, Officer Williamson arrived on the scene and approached the front passenger side.
As Officer Williamson observed the male passenger getting his driver's license from his wallet standing at the "B" post of the Honda Accord on the passenger side, he leaned forward to look into the front passenger compartment using his flashlight. In doing so, he spotted what appeared to be the barrel of a gun between the legs of the male in the front passenger seat. Both Officer Kish and Williamson drew their weapons.
The male in the front passenger seat was taken out the vehicle and a hand gun was found on the front passenger seat. The male was identified by his driver's license as Kharye Jarvis. Officer Kish and Officer Williamson identified defendant, Kharye Jarvis, in court as the male in the front passenger seat of the Honda Accord.
The body worn camera ("BWC") footage of Officers Kish and Williamson, print outs of the CAD reports, and audio of the radio dispatches, were submitted into evidence for the Court's review.
Subsequently, Investigator Paul Dondorfer interviewed defendant in an RPD interview room on the fourth floor of the Public Safety Building. The interview was audio and video taped. A copy of the audio/video was submitted into evidence for the Court's review.
Investigator Dondorfer read Miranda rights and warnings to defendant verbatim from RPD form #1 185, which was submitted into evidence. Defendant indicated that he understood his rights and agreed to speak to investigators. Investigator Dondorfer testified that he believed defendant was not under the influence of any drugs or alcohol and defendant indicated that he was not. There were no threats, promises or coercion applied by police and defendant was not denied food, water or use of a bathroom. Defendant did not request that interview terminate and did not request counsel.
Conclusions of Law
On motion to suppress evidence, the People bear the initial burden of going forward with evidence tending to demonstrate a lawful rationale for police conduct, and the defendant has the ultimate burden of proving a lack of legal basis for the police action by a preponderance of the evidence ( People v. Berrios, 28 NY2d 361, [1971] ). Here, the People were unable to demonstrate a lawful rationale for the seizure of the vehicle in which defendant was a passenger.
"[I]n evaluating the legality of police conduct, [a court] must determine whether the action taken was justified in its inception and at every subsequent stage of the encounter" ( People v. Howard, 129 AD3d 1654 [4th Dept 2015] [quotations omitted]; People v. De Bour, 40 NY2d 210, 215 [1976] ). The Court of Appeals has set forth a framework of "four levels of police-citizen encounters and the attendant, escalating measures of suspicion necessary to justify each" ( People v. Garcia, 20 NY3d 317, 322 [2012] ; People v. De Bour, 40 NY2d 210 ; People v. Hollman, 79 NY2d 181 [1992] ). "If a police officer seeks simply to request information from an individual, that request must be supported by an objective, credible reason, not necessarily indicative of criminality [level one]. The common-law right of inquiry, a wholly separate level of contact, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion [level two]. Where a police officer has reasonable suspicion that a particular person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person [level 3]. Finally, where the officer has probable cause to believe that a person has committed a crime, an arrest is authorized [level four]" ( People v. McIntosh, 96 NY2d 521, 525 [2001] [internal quotations omitted][emphasis supplied] ).
"The police may lawfully stop a vehicle when they have probable cause to believe that the driver of [a vehicle] has committed a traffic violation, and they may lawfully stop a vehicle when there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime" ( People v. White, 27 AD3d 1181, 1182 [4th Dept 2006] [citations and quotations omitted] ). Here, Officer Kish testified that he activated his emergency lights and the suspect vehicle stopped. This is a traffic stop, a seizure of the vehicle, and the People so concede in their post-hearing summation and argument (see People v. White, 27 AD3d at 1182 )
"Although a radioed tip may have almost no legal significance when it stands alone, ... when considered in conjunction with other supportive facts, it may thus collectively, although not independently, support a reasonable suspicion justifying intrusive police action" ( People v. Williams, 136 AD3d 1280, 1282-1283 [4th Dept 2016], lv denied 27 NY3d 1141 [2016], 29 NY3d 954 [2017] ). That is, an anonymous 911 tip, if sufficiently corroborated, can provide reasonable suspicion for a stop ( People v. Jeffery, 2 AD3d 1271, 1272 [4th Dept 2003] ).
In this case, the 91 1 caller, over the course of three calls, reported the make, model, license number and what he thought was the color of the vehicle. Further, it was reported that the vehicle contained a white woman and black male, and described the black male as arguing with another male while waving an unknown object around, and that drugs were being sold out of the car. Officer Kish encountered a vehicle within a few minutes of the last call matching the make, model and license plate of the vehicle described in the call and within a few blocks of the last location described.
This was not sufficient corroboration of the information in the anonymous 91 1 call under the standard of People v. Williams decided November 8, 201 9, by the Appellate Division, Fourth Department ( People v. Williams, 177 AD3d 1312 [4th Dept 2019] ), which this Court is bound to follow.
In Williams, similar to this case, an anonymous caller reported that drugs were being sold out of a particular vehicle ( id., at 1312 ). When police arrived, they located the vehicle parked on the side of the road, occupied by the defendant, and pulled next to in such a way that it could not be moved (id.). The Appellate Division held this was a seizure of the vehicle without reasonable suspicion ( id., at 1313 ). While Officers confirmed some of the information reported by the anonymous caller, as they located the reported vehicle at the reported location, "[t]he officer did not make any ‘confirmatory observations’ of the criminal behavior reported by the 911 caller and therefore did not have a ‘reasonable suspicion that [defendant] was involved in a felony or misdemeanor’ to justify the seizure. The Fourth Department concluded that based on the anonymous tip and the officer's observation of defendant's "otherwise innocuous behavior, the officer had, at most, a founded suspicion that criminal activity [was] afoot" (People v. Williams, 177 AD3d 1313).
This holding seemingly overrules People v. Jeffrey (2 AD3d 1271 ). Jeffrey involved an anonymous 91 1 caller "indicating that a ‘drunk driver’ named ‘Jeffrey’ was about to leave in a specifically described motor vehicle parked at a specific location" ( People v. Jeffrey, 2 AD3d at 1272.). Police in that case went to the location and pulled over the described vehicle just as it was being driven away ( People v. Jeffrey, 2 AD3d at 1272 ). The Fourth Department noted, as is the case here and in Williams, that "[t]he police acted on the basis of the report alone and did not observe any actions indicative of criminal behavior prior to the stop" ( People v. Jeffrey, 2 AD3d at 1272 ). Despite this, the Fourth Department held "the report was sufficiently corroborated to provide reasonable suspicion for the stop" (id.). Significantly, the Fourth Department, explicitly "reject[ed] defendant's contention that corroboration of the report was required with respect to ‘its assertion of illegality" reasoning this was not required because the alleged criminality reported was not concealed ( People v. Jeffery, 2 AD3d at 1272 ).
This Court does not find the anonymous 91 1 report of criminality, selling drugs from the Honda Accord, and that there was a weapon in the car, is a report of concealed criminal activity. Similarly, the report in Williams does not appear to be a report of concealed criminal activity, being a report of drugs being sold out of a vehicle parked on public roadway ( People v. Williams, 177 AD3d at 1312 ). Moreover, the anonymous 91 1 reports in Jeffery, Williams, or the present case, do not include anymore than conclusory allegations of illegal activity. This court concludes, therefore, that Jeffrey is overruled as applied to the facts of this case, i.e., an anonymous report of drugs being sold out of a vehicle and a conclusory report of a weapon where officers do not observe or confirm any illegal activity.
As the seizure of the vehicle in which defendant was a passenger was not based on reasonable suspicion, the gun found in the car must be suppressed ( People v. Williams, 177 AD3d at 1313 ). The statements made by defendant to the police following the unlawful seizure are also suppressed as fruit of the poisonous tree ( People v. Cady, 103 AD3d at 1157 [citing People v. Riddick, 70 AD3d 1421, 1424 [4th Dept 2010] ; lv denied 14 NY3d 1444).
Accordingly, it is
ORDERED that defendants' motion to suppress evidence and statements is granted.
The above constitutes the Decision and Order of the Court.