Opinion
No. 2011KN024774.
2012-02-16
The PEOPLE of the State of New York v. Pakij OCHJAROEN, Defendant.
Defense Attorney–Brian Crow, Esq. LAS. Assistant District Attorney Darren Sullivan, Esq.
Defense Attorney–Brian Crow, Esq. LAS. Assistant District Attorney Darren Sullivan, Esq.
ALEXANDER B. JEONG, J.
The defendant, Pakij Ochjaroen, is charged with Criminal Possession of a Controlled Substance in the Seventh Degree (P.L. § 220.03). The defendant moves to suppress the contraband that was recovered. In the alternative, the defendant requests a suppression hearing. For the following reasons the defendant's motion is denied, in toto.
The pertinent part of the accusatory instrument alleged the following:
That on or about March 29, 2011, at approximately 11:50 am at 209 South 3rd Street, County of Kings. ....the informant observed the defendant in possession of a quantity of heroin which informant recovered from the ground where informant observed defendant throw it.
It is undisputed that the “ground” from where the contraband was recovered is a public street.
The court requested from defense counsel an allegation of fact that would either confer standing or an allegation of fact if credited would warrant suppression of the contraband. The court instructed the defendant that such allegation could be made in writing or given orally.
Defense counsel submitted an affirmation, dated December 5, 2011, which alleged the following facts:
Based upon the sworn allegation of Police Officer Malpica, the defendant possessed an indeterminate amount of heroin prior to throwing it on the ground where it was recovered by the police after a warrantless seizure of the defendant by the police.
The defendant states that he was in the area of 209 South 3rd Street on the night of March 29, 2011. He states that he was not engaged in any apparently unlawful or suspicious behavior when he was stopped by a police officer, who immediately began frisking and searching his person. He was seized, searched and arrested by the police without a warrant or probable cause.
The defendant argues that he is entitled to rely on the People's allegations, to wit; that Police Officer Malpica observed the defendant possess an indeterminate amount of heroin prior to throwing it to the ground where it was recovered by the police to establish standing and cites People v. Burton, 6 NY3d 584 (2006). The defendant's reliance on Burton, supra. is misplaced, in that the contraband recovered in Burton was recovered from the defendant's person. In the case at bar, the contraband was recovered from the ground, an undisputed public place.
Defense counsel in his motion papers falsely attributes a statement to Police Officer Malpica that the recovery of the heroin occurred after a warrantless seizure of the defendant by the police. The accusatory instrument is devoid of that factual allegation and defense counsel fails to mention where that information was retrieved.
Unless the accused alleges facts that if true demonstrate standing to challenge the search or seizure, there is no legal basis for suppression and thus no need for a hearing. Standing exists where the defendant was aggrieved by a search of a place or seizure of an object in which he had a legitimate expectation of privacy. Obviously, in Burton, the defendant had an expectation of privacy in his person. Burton held that even though the defendant was allowed to utilize the People's evidence to satisfy this standing threshold, that proof alone was not enough to require a hearing because the accusation that contraband was recovered from the defendant did not create an issue of fact as to whether the search and seizure were the result of a Fourth Amendment violation. In Burton, granting of the Mapp hearing was based simply on the allegation that the defendant was illegally searched because an expectation of privacy in a person's body is presumed. A similar factual allegation, as averred to by defense counsel, that the defendant was standing on the street and that the police approached him for no reason is insufficient when the contraband is recovered from a public place. “The identical pleading may be factually sufficient in one context but not the other.” See, People v. Mendoza, 82 N.Y.2d 415 (1993).
Defense counsel also cites People v. Johnson, 42 AD3d 341 (App.Div. 1st Dept.2007). That case is also misapplied. In Johnson, the contraband was also recovered from the defendant's person. The court held that the defendant could meet his evidentiary burden by utilizing the police officer's statement that tangible property was seized from his person (not an undisputed public place). However, in the case at bar the contraband was not recovered from the defendant's person.
Comparison of the defendant's factual allegations with that of People v. Coleman, 82 N.Y.2d 415 (1993), decided within Mendoza, supra., clearly demonstrates the insufficiency of the defendant's motion. The facts in Coleman bear resemblance to the case at bar. Coleman was charged with weapon possession for a gun he discarded. Coleman made the following sworn allegation of fact in his motion for a Mapp hearing.
Upon information and belief, based upon conversations with Mr. Coleman, the defendant was not engaged in any criminal activity on August 21, 1990. Nor had he given the police any probable cause to believe that he might be engaged in unlawful behavior. Nevertheless, at about 12:15 a.m., police arrived, threw him against a car, and began to search him. The police contend, and in conversations with affirmant, Mr. Coleman concedes, a quantity of over $300 in cash was seized from his person. The police additionally contend that Mr. Coleman was observed by them to throw down a loaded .22 caliber pistol upon their approach. Although Mr. Coleman denies this allegation, the allegation by the prosecution's witness that the defendant was seen in actual possession of the item is sufficient to confer standing on the defense to challenge the alleged seizure (People v. Sutton, 91 A.D.2d 522 [1st Dept.1982] ). Affirmant alleges that if the weapon was discarded by the defendant, this action only occurred as a result of illegal police conduct-that is, the detention and arrest of Mr. Coleman on less than reasonable suspicion that he had committed a crime (See People v. Howard, 50 N.Y.2d 583 [430 N.Y.S.2d 578, 408 N.E.2d 908] ). The defense moves to suppress the pistol, as well as the currency found on the defendant's person, as fruits of the illegal police conduct.
The Court did not rule on the seizure of the money because the People stated they would not be seeking to introduce the money at trial.
The 1st Department affirmed the trial court's decision to summarily deny the Mapp hearing for lack of standing because “defense counsel's motion papers consisted solely of legal conclusions and conclusory allegations.” See, People v. Coleman, 191 A.D.2d 390 (1st Dept.1993). The Court of Appeals affirmed Coleman on different grounds. First, the Court concluded that the detention and arrest occurred only after the relinquishment of the gun and hence that allegedly illegal police conduct could not have served as a basis for suppression. As such, Coleman did not identify any illegal conduct that would have warranted suppression of the gun. Emphasis added. The Court further emphasized that if Coleman had been chased, lack of knowledge would not have provided an excuse because he would have been in the position to allege that fact.
There are several important points that can be deduced from the Court's rationale. First, an allegation that an individual relinquished contraband when a police officer approached, standing alone, is generally insufficient to warrant a Mapp hearing . Second, an accurate chronological account of the events on “dropsy” cases is crucial to sufficiently raise the issue of abandonment. Third, lack of knowledge of facts that would otherwise provide the necessary causal link between the police action and the defendant's behavior is not an excuse if the defendant is in a position to witness and experience those events firsthand.
People v. Samuel, 42 AD3d 551, (App.Div.. 2nd Dept.2007) appears to conclude that a mere allegation of a police officer approaching an individual who discards contraband is sufficient to confer standing. The brief summary of the facts in the decision stated by the Second Department does not include other important factors as stated in the trial court's decision that the officer told the defendant to “come over here” prior to the officer approaching the defendant. This distinction is important because the Court of Appeals in Coleman/Mendoza rejects the notion that an allegation of an officer approaching prior to the relinquishment of contraband is sufficient. Regardless, in the case at bar, defense counsel failed to provide substantiated factual allegations that police officers approached the defendant before the defendant relinquished the drugs.
The sufficiency of the defendant's factual allegations should be evaluated by (1) the face of the pleadings, (2) assertions in conjunction with the context of the motion, and (3) the defendant's access to information. See, Mendoza, supra. When evaluating the sufficiency of the defendant's factual allegation based on those standards together with the Court's rationale in Coleman, the defendant's allegations are lacking.
In the case at bar, the contraband was recovered from the ground. Defense counsel asserts that based on (1) the fact that Police Officer Malpica observed the defendant possess an indeterminate amount of heroin prior to throwing it to the ground and (2) the defendant's assertions that he was not engaged in any apparently unlawful or suspicious behavior and that he was seized, searched and arrested without probable cause, gives the defendant standing to challenge the recovery of the contraband. Defense counsel is incorrect.
The Court of Appeals in Coleman/Mendoza flatly rejected the defense argument that the allegations by the prosecution that [Coleman] was seen in actual possession of the item is sufficient to confer standing if the subsequent recovery occurs at a public place. See, Coleman/Mendoza, supra. Moreover, there is insufficient linkage between P.O. Malpica's sworn allegations and the defendant's statement to raise 4th Amendment issues.
The facts in Coleman provide an excellent guide in determining the sufficiency of defense counsel's factual allegations. Both Coleman and the case at bar are “dropsy” cases and in both cases defense counsel attempts to allege illegal police conduct as the basis for standing. Despite a much more detailed factual allegation in Coleman, the Court affirmed the lower court's decision to summarily deny the Mapp hearing. Coleman's allegation that the police threw him against a car and searched him, and further that if the weapon was discarded, that action only occurred as a result of illegal police conduct—the detention and arrest—was found to be insufficient. Measured against this standard, the defendant's allegation of being stopped and searched illegally did not suffice. Even when taking together the factual allegations of the stop and search with the allegations in the accusatory instrument, the defense allegations fall short. Especially, in light of the fact that Police Office Malpica's observation of the defendant occurred on March 29, 2011 at approximately “11:50 am” and the defendant's assertion that he was in the area of 209 South 3rd Street on the “night” of March 29, 2011. Even if the word “night” is a typographical error and the word “morning” is inserted, the defendant's factual allegations fall short. Defense counsel never established the causal link or nexus between the police conduct and the defendant's actions. The requirement of this link is implied in Coleman where the Court states “the defendant now asserts on appeal that the gun was discarded as a result of illegal police pursuit. But the defendant never alleged in his first motion papers that he was pursued by the police.” See, Coleman, supra.
The only sentence in the entire allegation of fact which acknowledges discarding of a weapon by Coleman is stated hypothetically with the word “if”.
In the case at bar, defense counsel failed to properly link the allegation of the defendant's abandonment with any illegal police conduct that would have invoked Fourth Amendment issues.Although it's possible there are other factual scenarios that could provide the necessary link, based on these facts, the most logical link would have been facts that would have raised the issue of “forced abandonment.” By looking at Coleman's assertions raised on appeal, it's obvious that he like the defendant in the case at bar, was attempting to establish standing by factually raising the issue of “forced abandonment”.
On appeal, Coleman stated that “ if ” he had discarded a gun, that action occurred as a result of illegal police conduct-that is, the detention and arrest of Mr. Coleman on less than reasonable suspicion that he had committed a crime. The Court of Appeals held that those factual allegations were not enough to entitle the defendant to a suppression hearing. The Court suggested that had Mr. Coleman asserted that the gun was discarded as a direct result of an illegal police “pursuit”, then he would be entitled to a hearing. Since Mr. Coleman alleged that the gun “ might ” have been discarded as a result of the detention and arrest by the police, he was not entitled to a hearing. The Court held that the defendant failed to identify any illegal police conduct that would warrant suppression. See, Coleman, supra; People v. Cook, 168 Misc.2d 256 (Sup.Ct. Kings County 1996).
In the case at bar defense counsel argues without any factual support that “... the police officer in this case had no lawful authority to approach the defendant, and therefore the officer's allegation of abandonment was “a direct consequence of the unlawful police action.” Emphasis added. Police Officer Malpica did not state that any police officer approached, stopped or searched the defendant. The defendant did not mention any object or substance that was yielded by the defendant to the police as a result of illegal police conduct. Even assuming the defendant stated the “correct” time, there is no reasonable way to conflate the two disparate factual statements to read that the defendant threw away the drugs as a result of illegal police conduct.
Additionally, the defendant's lack of knowledge cannot be an excuse since throwing the drugs away, like being stopped and searched by the police, is a fact the defendant would have been in the position to allege. Furthermore, when deciding on the issue of abandonment, the court must evaluate the intent of the individual who discarded the property. The defendant would have been in the best position to allege why he discarded the drugs.
The defendant did not raise the necessary factual dispute in his motion. There was no allegation of fact that the defendant had an expectation of privacy at the public ground where the drugs were recovered. The defendant also failed to establish sufficient facts to invoke “forced abandonment” issues. As the Court stated in Burton, “our conclusion does not alter the existing evidentiary requirements for suppression motions ... As we now clarify, standing does not arise from a defense motion to suppress that merely states, as attested by police, that the arresting officer conducted a search of the accused person and allegedly found narcotics in an article of clothing-this alone does not create an issue of fact as to whether a Fourth Amendment violation occurred. A defendant must additionally assert that the search was not legally justified AND there must be sufficient factual allegations to support that contention (see CPL 710.60[1] ).” Emphasis added.
In the case at bar, equivocal factual allegations as alleged by the defendant (where the defendant does not even mention the drugs) are insufficient to warrant the granting of a Mapp hearing. The defendant was required to make the necessary link from various sources. If the defendant was alleging forced abandonment then he should have factually alleged that illegal police conduct caused the defendant to abandon the property in question. Defense counsel failed to make this link. In fact, defense counsel was deliberately and artfully vague when it came to the drugs, an issue about which the defendant would have had intimate knowledge. See, Coleman, supra.
Affirmations containing only legal conclusions instead of “the sworn allegations of fact” required by CPL § 710.60(1) and (3)(b) are insufficient to warrant a suppression hearing. People v. Coleman, supra, (1st Dept.) citing, People v. Martinez, 187 A.D.2d 310 (1st Dept.1992); People v. Murray, 172 A.D.2d 437,appeal withdrawn79 N.Y.2d 942;People v. Kitchen, 162 A.D.2d 178,leave denied,76 N.Y.2d 941;People v. Holder, 149 A.D.2d 325,leave denied,74 N.Y.2d 794;People v. Covington, 144 A.D.2d 238,leave denied,73 N.Y.2d 890 and People v. Ricks, 96 A.D.2d 788 (1st Dept.1983). Application of this principle is particularly warranted where the affirmation deliberately avoids an assertion of possession. See, Coleman, supra. Emphasis added.
From the defendant's point of view in the case at bar, either the defendant possessed the contraband which was recovered lawfully or unlawfully by the police, or he never had the contraband and was framed by the police. If the latter is the case, no search issues are present making a Mapp hearing unnecessary since nothing would have been recovered from a place where the defendant had an expectation of privacy.
If the defendant at some point did possess the contraband and that fact is disclosed to defense counsel, there is no tactical reason not to reveal that fact in the motion papers. The defendant's statements in the motion papers cannot be used in the People's case in chief. They may be used to impeach the defendant's trial testimony but that issue becomes academic since the defense attorney cannot sit idly by as his client commits perjury. Defense counsel cannot suborn perjury and if at trial the defendant did change stories, defense counsel is ethically obligated to disclose that fact to the court. 18 U.S.C. § 1622; New York Code of Professional Responsibility,DR 4–101[c][3]; 22 NYCRR1200.19 (c)(3); New York Code of Professional Responsibility,DR 7–102 [a][4]. An attorney's ethical duty to advance the interest of his or her client is circumscribed by an “equally solemn duty to comply with the law and standards of professional conduct” to “prevent and disclose frauds upon the court”. Thus, a defendant's Sixth Amendment right to the assistance of counsel does not include the right to compel counsel to knowingly assist or participate in the presentation of perjured testimony. See, People v. DePallo, 275 A.D.2d 60 (App.Div. 2nd Dept.2000), citing, Nix v. Whiteside, 475 U.S. 157, 168–169, 106 S.Ct. 988;People v. Campos, 249 A.D.2d 237, 238 (App.Div. 1st Dept.1998).
Defense counsel has failed to provide the factual particularity required by People v. Mendoza (supra), in which the Court of Appeals cautioned that a suppression hearing is “not available merely for the asking” (82 N.Y.2d at 425). The bare assertion of innocence and the conclusory allegation that evidence has been illegally recovered are insufficient to warrant a hearing. See, People v. Marte, 207 A.D.2d 314 (App. Div. 1st Dept 1994). At no time has the defendant alleged that he actually discarded anything in response to unlawful police conduct. Instead, his allegations are couched in vague and hypothetical language that do not raise a factual issue requiring a hearing. People v. Rodriguez, 302 A.D.2d 254 (App.Div. 1st Dept.2003). The defendant has failed to assert a possessory interest in the item seized or the area searched. The defendant has failed to set forth a factual scenario which, if uncontradicted, would require suppression of the heroin. Accordingly, the defendant's motion is denied in its entirety.
The foregoing constitutes the decision and order of the court.