Opinion
2007NY086874.
Decided June 23, 2008.
The People were represented, Ryan Malkin, Esq., Assistant District Attorney, New York County District Attorney's Office, New York.
The defendant was represented, Glendoval J. Stephens, Esq., New York.
The defendant, along with two co-defendants, is charged with two counts of criminal possession of a controlled substance in the seventh degree (PL § 220.03) one count of criminal possession of marijuana in the fourth degree (PL § 221.15) and four counts of unlawful possession of marijuana (PL § 221.05). By Notice of Motion served and filed on February 8, 2008, he has moved for: 1) suppression of any and all physical evidence recovered as a result of defendant's alleged illegal search and seizure or, in the alternative, a Mapp/Dunaway hearing; 2) suppression of statement evidence obtained as a result of defendant's alleged illegal search and seizure or, in the alternative, a Huntley/Dunaway hearing; 3) preclusion of any unnoticed identification testimony pursuant to Criminal Procedure Law § 710.30; 4) a Bill of Particulars and further discovery; and 4) precluding the use at trial of defendant's prior criminal history or uncharged criminal, vicious, or immoral conduct. The People filed their Response and first Voluntary Disclosure Form ("VDF") on April 2, 2008.
By Decision and Order, dated May 21, 2008, this Court directed the People to file a supplemental VDF describing precisely what items of physical evidence they intend to offer against this defendant and, as to each item, the theory of defendant's possession. The People served and filed a supplemental VDF on June 16, 2008.
The complaint alleges that on November 16, 2007, at about 1:30 a.m. in front of 1 River Place, the defendant was in the rear of a motor vehicle with one co-defendant seated in the driver seat and the other co-defendant in the front passenger seat. The complaint further alleges that a police officer recovered loose marijuana from this defendant's lap, a marijuana cigarette from the floor of the vehicle next to defendant's feet, one bag of marijuana from inside defendant's pants and one bag containing concentrated cannabis from the rear seat of the vehicle. The complaint also alleges that the officer recovered two marijuana cigarettes from the ashtray between the driver and front passenger seat and a substance having an aggregate weight of more than two ounces from the floor of the vehicle between the front passenger's feet. Finally, the complaint alleges that the officer recovered ten (10) pills of Methylenedioxymethamphetamine recovered from the driver side door.
The People served and filed a New York City Police Laboratory Report that confirms that presence of contraband in several items. The report confirms the presence of marijuana in item number 1 described as a bag, item number 2 also described as a bag, item number 4A described as a cigar, and item number 5 described as a cigarette. The report also lists item number 3 as a bag of concentrated cannabis. Additionally, the report lists item number 4B as a cigar that was not analyzed. Item number 6A is a single pill of Methylenedioxymethamphetamine and item number 6B is described as nine pills that were not analyzed. Item number 7A of the report is described as two pills of Amphetamine and item number 7B is described as one table of Clonazepam. The final item of the report, 7C, is described as four pills that were not analyzed.
In addition to a statement allegedly made by the defendant to the arresting officer, the supplemental VDF lists several items of physical evidence that the People intend to offer at trial. The items are identified by letter and are: a) marijuana; b) hashish; c) ecstacy; d) U.S. Currency; e) digital scale; f) plastic bags/glassines; and g) shaving cream can with false bottom. The defendant alleges that he was lawfully seated in an automobile and that the arresting officer did not observe the driver or any passenger engage in any unlawful activity that would justify the stop of the vehicle and the defendant's seizure and search.
Defendant's motion is decided as follows:
Motion to Suppress Physical Evidence
The defendant has a legitimate expectation that his travel will not be impeded by unlawful police conduct and therefore has standing to challenge the lawfulness of a stop of the vehicle ( see People v May, 81 NY2d 725, 727; People v Millan, 69 NY2d 514, 520). However, as a passenger without any alleged ownership interests in the vehicle he does not possess a legitimate expectation of privacy in its interior (see Rakas v Illinois, 439 U.S. 128, 148-149). Defendant's motion to suppress the items of physical evidence listed in the supplemental VDF is granted to the extent that a hearing is ordered to determine whether the vehicle stop was justified ( see generally Kamins, New York Search and Seizure 2008, Automobile Stops § 5.02), and whether the officer's actions with respect to the defendant were justified ( see generally Kamins, New York Search and Seizure 2008, Action with Respect to Passenger, § 5.04).
In the event that the hearing court determines that the stop of the vehicle was unlawful, the hearing court may suppress some, or all, of the evidence ( see Wong Sun v United States, 371 U.S. 471; People v. Ingle, 36 NY2d 413 [vacating conviction for attempted criminal possession of a dangerous drug in the fourth degree because the police officer improperly stopped defendant's vehicle for a routine traffic stop without reasonable suspicion]; cf People v. Robinson, 97 NY2d 341 [holding that where a police officer has probable cause to detain a person temporarily for a traffic violation, that seizure is lawful even though the underlying reason for the stop might have been to investigate some other matter]). Whether the police officer reasonably suspected a traffic violation had occurred or had probable cause to believe a traffic violation has occurred and which standard is to be applied in this case is properly left to the hearing court.
In the event that the hearing court determines that the police officer's stop of the vehicle and actions with respect to the defendant were lawful, the additional issues to be determined at the hearing are detailed below with respect to each item of physical evidence listed in the supplemental VDF.
The supplemental VDF describes three forms of marijuana that the People intend to introduce against this defendant as: 1) a marijuana cigarette found in open view in the front area of the car; 2) marijuana recovered from this defendant's pants pocket; and 3) loose marijuana recovered from the floor of the vehicle directly in front of the defendant. Where the People do not intend to rely on a statutory presumption, defendant's motion to suppress physical evidence must include sworn allegations of fact establishing the defendant's standing to challenge a search and seizure of property ( see People v. Wesley 73 NY2d 351). While a defendant may rely on the allegations in the complaint in order to establish standing ( see People v. Burton , 6 NY3d 584 [defendant's claim that he was stopped and searched without legal justification in conjunction with the police claim that drugs were recovered from the defendant sufficient to establish standing]), the defendant must establish a legitimate expectation of privacy in the premises or object searched ( see People v. Ramirez-Portoreal, 88 NY2d 99). A court will evaluate the sufficiency of defendant's allegations in relation to: 1) the face of the pleading; 2) the context of the motion; and 3) the defendant's access to information ( see People v. Mendoza, 82 NY2d 415, 426). The defendant's motion to suppress the marijuana recovered from his pants pockets is granted to the extent that a Mapp/Dunaway hearing is ordered. At this point, the defendant has failed to establish standing to move to suppress the marijuana cigarette recovered from the front area of the car or the loose marijuana recovered from the floor of the vehicle. The defendant is granted leave to establish standing to suppress these items at the hearing.
With respect to both the Hashish and Ecstasy listed in the supplemental VDF where the People intend to rely on the automobile presumption, the defendant does have standing to suppress ( see People v Millan, 69 NY2d 514; People v Faulkner, 185 AD2d 764 [1st Dept 1992]; cf People v Drakes, 175 AD2d 841 [2d Dept 1991] [defendant not charged with possession of a controlled substance under statutory presumption does not have automatic standing]). The defendant's motion to suppress the hashish and ecstacy is granted to the extent that a Mapp/Dunaway hearing is ordered.
With respect to the United States currency recovered from defendant's pocket, a Mapp/Dunaway hearing is ordered.
The supplemental VDF lists a digital scale and plastic bags/glassines as evidence that the People intend to offer against this defendant under a theory of constructive possession. The complaint, VDF, supplemental VDF and defendant's motion are devoid of any indication as to where these items were discovered. A defendant may possess contraband and still lack standing to seek suppression if the defendant lacked a legitimate expectation of privacy in the place searched ( see People v. Ramirez-Portoreal, 88 NY2d 99; Rawlings v. Kentucky, 448 U.S. 98). A legitimate expectation of privacy exists where defendant has manifested a subjective expectation of privacy that society recognizes as objectively reasonable ( see People v. Reynolds, 71 NY2d 552, 557). While a passenger may have a legitimate expectation of privacy in a container inside the vehicle ( see People v Bell , 9 AD3d 492 [2d Dept 2004]), a defendant lacks standing to move to suppress physical evidence unless the defendant was the victim of an invasion of privacy ( see People v. Ponder, 54 NY2d 165, 165). Furthermore, it is a "defendant's burden to demonstrate his or her own constitutional interest in seeking suppression" ( see People v Rodriguez, 69 NY2d 159, 358). At this point, the defendant has failed to establish standing to move to suppress the digital scale and plastic bags/glassines. The defendant is granted leave to establish standing to suppress these items at the hearing.
The final item listed in the supplemental VDF is a shaving cream can with a false bottom allegedly recovered from next to the defendant where no other passenger was seated. The defendant has failed to establish standing to move to suppress the shaving cream can. At the hearing the defendant is granted leave to establish standing to suppress the can.
A final issue that the hearing court may need to resolve is whether any of the items were abandoned by the defendant or whether the items were discovered as a direct consequence of an illegal seizure and search. When property has been abandoned a defendant loses standing to suppress. Property is deemed abandoned when the expectation of privacy in the object has been given up by voluntarily and knowingly discarding the property resulting in a waiver of any constitutional protection ( see People v Howard, 50 NY2d 583, 593). The burden rests upon the People to establish such a waiver ( id.) A defendant's surrender of control over property or a disclaimer of ownership, standing alone, is not always enough to establish abandonment ( see People v. Ramirez-Portoreal, 88 NY2d 99, 110). Additionally, if the abandonment was coerced or precipitated by unlawful police activity, then the seized property may be suppressed because it constitutes fruit of the poisonous tree ( see Wong Sun v United States, 371 U.S. 471). A court must determine whether the property itself "was revealed as a direct consequence of the illegal nature of the stop" ( see People v Cantor, 36 NY2d 106, 114 [reversing attempted possession of a weapon conviction and dismissing the accusatory instrument where defendant's handgun was revealed as a direct consequence of an illegal seizure]) or whether defendant's decision to relinquish possession was a considered judgment to waive any privacy interest in the item ( see People v Boodle, 47 NY2d 398 [affirming conviction where defendant's attempt to discard a handgun was an independent act involving a calculated risk rather than in response to the illegal police action and the illegal police action lacked the element of purposeful exploitation which would taint the discovery of the weapon]). Because a main purpose of the exclusionary rule is to deter lawless police activity ( see People v McGrath, 46 NY2d 12, 31; Mapp v Ohio, 367 U.S. 643, 648), part of the determination as to whether the evidence should be suppressed is whether any illegal police conduct occurred and if so whether that conduct had as its purpose uncovering incriminating evidence ( see Brown v Illinois, 422 U.S. 590, 605).
Motion to Suppress Statement Evidence
The court action sheet indicates that the People gave statement notice pursuant to Criminal Procedure Law 710.30[a] at arraignment. As to the noticed statement a Huntley/Dunaway hearing is ordered.
Motion to Preclude Unnoticed Identification Evidence
Neither the People's Response nor the two VDFs indicate that the People intend to offer any identification evidence at trial. The defendant's motion to preclude unnoticed identification evidence is denied as premature with leave to renew in the event the People attempt to offer any.
Motion for a Bill of Particulars and Discovery
Defendant's motion for a Bill of Particulars and additional discovery is denied. The VDF and supplemental VDF are sufficient.
Ventimiglia/Sandoval Motion
Defendants' motions to preclude the use of defendant's criminal history or uncharged bad acts is referred to the trial court.
The People are reminded of their continuing obligation to supply Brady material.
To the extent not addressed herein, the remainder of the motions are denied.
This case is next on the calender in Part SA on July 22, 2008. The time from June 23, 2008, until that date date is to be excluded under Criminal Procedure Law § 30.30[a].