Opinion
CR 2062–17
09-29-2017
PEOPLE of the State of New York, Plaintiff, v. KATHLEEN C., Defendant.
ADA Brad Rudin, Tompkins County District Attorney, 320 North Tioga Street, Ithaca, NY 14850 John Alden Stevens, Esq., Williamson, Clune & Stevens, 317 North Tioga Street, Ithaca, NY 14850
ADA Brad Rudin, Tompkins County District Attorney, 320 North Tioga Street, Ithaca, NY 14850
John Alden Stevens, Esq., Williamson, Clune & Stevens, 317 North Tioga Street, Ithaca, NY 14850
Scott A. Miller, J.
Defendant, Kathleen C., moves for dismissal of the accusatory instruments charging one count of criminal impersonation in the second degree (PL § 190.25) and one count of resisting arrest (PL § 205.30) upon the grounds that such charges are facially insufficient pursuant to CPL § 100.40. Defendant also moves, pursuant to CPL § 170.40 for dismissal of all charges in the furtherance of justice. Defendant further moves pursuant to CPL Article 710 and De Bour/Hollman for dismissal upon the grounds that the police-citizen encounter was unreasonable. The Court has reviewed the Defendant's moving papers and the People's response in opposition thereto.
Most significantly, Defendant attached (on DVD) the entire police body camera interaction between Defendant and the arresting officer. The Court carefully reviewed the video/audio evidence in chambers. As the entire interaction between the arresting officer and the Defendant was recorded, no suppression hearing is warranted. The Court has reviewed the contemporaneously recorded and preserved interaction. The Court need not make any findings of credibility. The facts are not in dispute.
Findings of Fact
On May 3, 2017 at about 1:25 a.m. several Ithaca Police Department (IPD) officers responded to a noise and underage alcohol party complaint at 210 College Avenue. Upon arrival, officers observed 50 to 75 students at the residence and at least a dozen students standing outside the house on the property bordering the city sidewalks. Some students were holding beer cans and some were holding plastic cups. The arresting officer first interacted with a male student who left the side yard of the property and entered upon the public sidewalk while holding a beer can in clear violation of the City of Ithaca's local law prohibiting possession of open containers of alcohol on public property. (Ithaca City Code § 128–3). The officer did not inquire of the male student's identity, nor did he demand that identification be produced. The officer did not issue a ticket. The officer directed this male student to put down the beer can. In response, the male student simply turned around, walked back into the residence, and kept the beer can in his hand (as is evident from the body camera footage). The officer did not object.
One second after the male student reentered the residence, the same officer encountered the Defendant, a 20 year old female Cornell University Student. Defendant can be seen holding a clear plastic cup which contains a clear liquid. The arresting officer, in uniform and holding an activated flashlight which he used to illuminate the Defendant as she walked back towards the residence, stated to her, "Excuse me Miss, do you have ID?" The officer's hand can be seen motioning to the Defendant in an obvious command to come toward him and physically produce an identification card. In response, the Defendant walked toward the officer, turned over a license while holding up a clear plastic cup to the officer for inspection, and explained that she was only drinking water. The arresting officer did not demonstrate any interest in the contents of the plastic cup. Rather, the arresting officer stated, "You saw me and automatically just went to go back in." The license produced by the Defendant bore the name, Jane C., aged 23. The picture of Jane, not matching that of Defendant, the arresting officer engaged in further questioning of Defendant concerning her true identity, which resulted in her being placed under arrest for criminal impersonation in the second degree. As she was being arrested, the Defendant can be seen pulling away from the officer several times in order to avoid being secured in handcuffs. During a lengthy processing at IPD, the arresting officer eventually was able to speak with Defendant's parents by telephone. Defendant's parents both identified themselves as attorneys. The officer learned that Jane was the older sister of the Defendant. Prior to being released upon her own recognizance, the arresting officer explained to the Defendant that he "thought [she] was drinking alcohol" and he had merely been "trying to identify if that was alcohol" in the cup Defendant had been holding.
Conclusions of Law:
Legal Sufficiency
For an information to be legally sufficient, it must contain non-hearsay allegations which establish, if true, every element of the offense charged and Defendant's commission thereof ( CPL § 100.40 ).
In People v. Casey, (95 NY2d 354, 360 [2000] ) the Court of Appeals explained, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a Defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." In deciding a defense motion to dismiss an information for facial insufficiency, the Court must "view the evidence in a light most favorable to the People" ( People v. Waite , 108 AD3d 985, 969 [3rd Dept. 2013] ). When viewing the evidence in the light most favorable to the People, both charges, criminal impersonation in the second degree and resisting arrest, are legally sufficient and that branch of Defendant's motion is DENIED.
CPL § 170.40 Motion to Dismiss in the Furtherance of Justice
Defendant moves to dismiss the charges in the furtherance of justice pursuant to CPL § 170.40, which provides that a Court may dismiss an accusatory instrument if it finds the "existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the Defendant upon such accusatory instrument or count would constitute or result in injustice." A compelling factor is present if the denial of the motion would be such an abuse of discretion as to shock the conscience of the Court ( People v. Stern , 83 Misc 2d 935 [Crim.Ct., N.Y.Co. 1975] ). The Defendant bears the initial burden of setting forth compelling factors in his motion papers. If this burden is not met, the Court may summarily deny the motion ( People v. Schlessel , 104 AD2d 501 [2nd Dept. 1984] ). A "trial court's discretion to dismiss in the interest of justice is an undertaking to be sparingly exercised" ( People v. Litman , 99 AD2d 573, 574 [3d Dept.1984] ).
In determining whether to dismiss in furtherance of justice, the Court is required to consider the following factors enumerated in CPL § 170.40 :
(a) the seriousness and circumstances of the offense;
(b) the extent of harm caused by the offense;
(c) the evidence of guilt, whether admissible or inadmissible at trial;
(d) the history, character and condition of the Defendant;
(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the Defendant;
(f) the purpose and effect of imposing upon the Defendant a sentence authorized for the offense;
(g) the impact of a dismissal on the safety or welfare of the community;
(h) the impact of a dismissal upon the confidence of the public in the criminal justice system;
(I) where the Court deems it appropriate, the attitude of the complainant or victim with respect to the motion;
(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.
In order to determine whether such "compelling factor, consideration, or circumstance exists, the Court must, to the extent applicable, examine and consider, individually and collectively" the above delineated factors ( CPL § 170.40 [1 ] ). CPL § 170.40 permits a trial court to dismiss criminal charges in the interest of justice only in the most "unusual case that cries out for fundamental justice beyond the confines of conventional considerations" ( People v. Belge , 41 NY2d 60, 62–63 [1976] ).
The Court has "sensitively balance[d]" all of the factors enumerated under CPL § 170.40, has likewise considered the foregoing factors individually and collectively, and has concluded that there do not exist compelling factors that clearly demonstrate that continued prosecution of Defendant would constitute a grave injustice ( People v. Rickert , 58 NY2d 122, 127 [1983] ). Conventional legal considerations, i.e., Defendant's suppression motion, discussed below, demonstrate that there exists a more appropriate and firmly established legal doctrine upon which to grant a dismissal. Consequently, Defendant's motion to dismiss in the furtherance of justice is DENIED.
CPL Article 710 Suppression Motion
Defendant moves pursuant to CPL § 710.20 for suppression of all evidence and dismissal of all charges, alleging that the initial police-citizen encounter between the arresting officer and Defendant was unreasonable and unauthorized ( U.S. Const. Amend. IV ; NY Const. Art. I § 12 )
The Court of Appeals has established a graduated four-level test for evaluating the reasonableness and constitutionality of police-citizen encounters, commonly referred to as the De Bour–Hollman inquiry (People v. DeBour , 40 NY2d 210, [1976] ; People v. Hollman , 79 NY2d 181 [1992] ; People v. Moore , 6 NY3d 496 [2006] ). The first level, permits a police officer to request information from an individual, and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality. (Moore , at 498; DeBour , at 223). The second level, known as the common-law right of inquiry, requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion short of a forcible seizure (Moore , at 498–499). The level two common-law right to inquire permits law enforcement to inquire whether the suspect is engaged in criminal activity. "Once the police officer's questions become extended and accusatory and the officer's inquiry focuses on the possible criminality of the person approached, this is not a simple request for information. Where the person approached from the content of the officer's questions might reasonably believe that he or she is suspected of some wrongdoing, the officer is no longer merely asking for information. The encounter has become a common-law inquiry that must be supported by founded suspicion that criminality is afoot" (Hollman , at 191).
A level two common-law inquiry however, does not authorize a more "intrusive step," which would amount to even a brief detention of the individual ( People v. Johnson , 54 NY2d 958, 960 [1981] ). Citizens have the right to be left alone, and where the police possess only the level two common-law right of inquiry, the citizen likewise has the right to ignore the officer and walk away (Moore , at 500). The third level permits a police officer to forcibly stop and temporarily detain an individual, based upon a reasonable suspicion that the individual is committing, has committed, or is about to commit a crime (De Bour , at 223; Moore , at 498–499). The fourth level authorizes an arrest based on probable cause to believe that a person has committed a crime (De Bour , at 223; Moore , at 499).
Reaffirming the applicability of the four-tiered De Bour–Hollman analysis to police-citizen encounters, in People v. McIntosh (96 NY2d 521 [2001] ), the Court of Appeals, reversed the Appellate Division, and dismissed a charge of criminal possession of a controlled substance in the second degree. The McIntosh Court held that a police officers' request of all passengers on a bus to produce their tickets and identification based solely upon the fact that the bus had departed from a location known as a source of narcotics was a procedure "conducted without an objective, credible reason" and consequently could not satisfy the level one request for information requirements ( id. at 527 ). The McIintosh Court explained:
It is well settled that when an officer asks an individual to provide identification or destination information during a police-initiated encounter, the request for information implicates the initial tier of De Bour analysis. Although police officers have fairly broad authority to approach and pose questions, they may not do so on mere whim or caprice ; the request must be based on an articulable reason not necessarily related to criminality. McIntosh, at 525 (emphasis added; internal quotation marks omitted)
In evaluating 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. Nicodemus , 247 AD2d 833, 835 [4th Dept. 1981], lv. denied 92 NY2d 858 ). Although the first level "sets a low bar for an initial encounter" ( People v. Barksdale , 26 NY3d 139, 143 [2015] ), the Court of Appeals has nevertheless observed that, "[i]n determining the legality of an encounter under De Bour and Hollman, it has been crucial whether a nexus to [Defendant's] conduct existed, that is, whether the police were aware of or observed conduct which provided a particularized reason to request information. The fact that an encounter occurred in a high crime vicinity, without more, has not passed De Bour and Hollman scrutiny" (McIntosh , at 526–527). A level one request for information "involves basic, nonthreatening questions" (Hollman , at 185).
Here, the arresting officer's initial interaction with the Defendant does not pass level one scrutiny. The Defendant was not observed committing any offense, nor was there any report she had committed any crime or violation. Just seconds before the arresting officer's interaction with the Defendant, the same officer allowed a male student to reenter the residence, although this male student had just violated the City's open container law and retained possession of his beer in spite of the officer's command to put it down. The officer never inquired of this male student's identity or age nor was he requested to produce his ID.
In contrast, the Defendant, while she was walking from the residence yard to the side entrance, was immediately directed by verbal command and hand gesture to stop and to physically turn over her identification to the officer. The arresting officer demonstrated no interest in the Defendant's clear cup, and, in fact, ignored it when she presented it and volunteered that it contained only water. The Defendant did not appear intoxicated or impaired. The arresting officer did not initiate the encounter with "basic, nonthreatening questions," but at it's inception, the officer immediately commanded the Defendant to halt her movements and turn over her license (Hollman , at 185). There was no objective, credible reason for the arresting officer to demand that the Defendant stop and produce her identification. Had the officer commenced the interaction with basic, nonthreatening questions concerning Defendant's identity and age, the officer, if such question was posed in a nonthreatening manner, may have been authorized to ask Defendant to produce her identification papers. However, that is not the case here. At its inception, the police-citizen encounter went beyond that of merely asking questions in a nonthreatening manner. Additionally, a full review of this police-citizen encounter does not corroborate the arresting police officer's police station assertion that he was investigating whether the Defendant was consuming alcohol. Particularly, when viewed in light of the officer's interaction with the male student just seconds earlier and the arresting officer's total lack of interest in the Defendant's cup of water, the interaction with the Defendant, at its inception, was not based upon a credible objective, but rather, was the product of "whim or caprice." (Hollman , at 190).
The Court agrees with the Defendant that the officer's conduct was not justified from its inception. Consequently, Defendant's suppression motion is GRANTED, and the charges of criminal impersonation in the second degree and resisting arrest must be DISMISSED, as such charges flowed directly from the unauthorized police encounter ( Wong Sun v. United States , 371 U.S. 471 [1963] ; C.P.L. § 710.20 ).
This constitutes the Decision of the Court entered upon notice to both parties. A notice of appeal, if applicable, must be filed within thirty (30) days of the date of this decision. A CPL § 160.50 seal order shall be entered upon expiration of the People's time in which to appeal.