Opinion
2006KN033000.
Decided September 9, 2008.
Charles J. Hynes, Esq., District Attorney, Kings County, Brooklyn, New York, By: David Morisset, Esq., for the People.
Lazzaro Law Firm, P.C., Brooklyn, New York, By: James Kirshner, Esq., for defendant.
Defendant is charged with one count each of Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01) and Possession of Pistol Ammunition AC 10-131[I][3]). This Court conducted a Mapp hearing, and following the written submission by the parties and its oral decision of June 10, 2008, issues this written decision granting defendant's motion to suppress in its entirety.
References preceded by "H" are to the minutes of the October 2, 2007 proceedings, while references to "H1" are to the October 3, 2007 proceedings.
FINDINGS OF FACT I. The People's Case
The People's witness at the hearing was Police Officer Edward Babington, a member of the Anti-Crime Unit of PSA 2. His entire four year tenure had been spent at PSA 2; his assignment was in a "plainclothes detail that focuses on gun arrests and major narcotics arrests" (H: 12). Overall, he had made 116 arrests as a police officer. As to gun crimes, Officer Babington had personally made sixteen gun arrests and had "been involved" in fifty others (H: 13). He was "trained in working in plain clothes, how to carry ourselves, how to identify ourselves and how to identify other people who may be in plain clothes" ( id.).
On May 12, 2006, Officer Babington and his partner, Officer Victor Troiano, were in plainclothes in an unmarked car working a 5:30 pm to 2:05 am tour. They "were on routine patrol trying to pick up an arrest for either a gun or major narcotic, just basically general enforcement" (H: 13-14). On cross-examination, however, Officer Babington acknowledged that there was in fact a third person in the car, namely, his supervisor who "was driving the vehicle" that night (H: 38). At about 11:15 or 11:30 pm, a confidential informant ("CI") called Officer Babington on his personal cell phone and told him "that there was an individual at a specific location that he observed to be in possession of a firearm. He gave a physical description [ a Middle Eastern individual, approximately six foot three, 190 pounds, between mid 30's, 35, with a thin build, dark hair, dark eyes'], the exact address [ 4102 Avenue D'], and he gave a full name. He also provided a clothing description [ white T-shirt, blue jeans and dark shoes']" (H: 16-17).
As of the incident date, Officer Babington had known the CI for approximately eight months and had used him approximately "two or three times before." While he initially stated on direct that "the outcome of the previous experiences with this informant" had been "positive. Two led to firearm arrests previously" (H: 19-20), he conceded on cross-examination that one of these two gun arrests had "gone to trial and [Officer Babington] sat on trial for that one" and that "case was dismissed" (H: 33-34). As to the second, "nothing has happened since the arrest" (H: 34). Every time that the CI contacted Officer Babington, he would call either Babington's personal cell phone or that of his partner (H: 31-32).
Upon receiving this information from the CI, Officer Babington decided to file a "gun stop tip". This program "is through the city wherein one provides us with information that leads to a gun arrest and if we file an arrest, he receives money from the city" (H: 17-18). Accordingly, after he spoke with a detective at Gun Stoppers, he contacted the informant to give him the contact information for that detective. He then had a conversation with this detective who provided him with a "tip number". "A tip number is when you provide the information to the detective and after the detective speaks with me and he speaks with the confidential informant, he determines whether the tip number is warranted. If the tip number is warranted, they give you a number and from that time one, every time you call the gun stop, you have to reference that tip number and you get paid through that tip number. They document every time you call through that tip number, things of that nature" (H: 19-20). Upon receiving the tip number, he "proceeded to the location given to me by the confidential informant to begin [his] part of the investigation" at about 1 o'clock (H: 20-21).
On his way to the location, he had a third conversation with the CI "to make sure he was done speaking with [the detective at Gun Stop]. They didn't need any more information that he knew of on his end and to let him know that [Babington] would contact him later not to call [his] partner" (H: 34-35). Approximately 15 to 20 minutes elapsed from the initial conversation with the CI to the third conversation with him. Following that conversation, it took about ten minutes to arrive at the location, a Kennedy Fried Chicken store; thus they arrived at the location at around midnight (H: 35-36). Officer Babington acknowledged on cross-examination that "all of the information that [he] knew about 4102 Avenue D and the individuals possibly inside was based on information given by the informant." Thus, "[b]eyond what [he] was told by the informant, [he] kn[ew] nothing about a firearm being at 4102 Avenue D" or about any of the entity's employees (H: 36-37).
Once they arrived at the location, they remained outside for approximately two to three or five minutes until all patrons had exited the store (H: 21; 37-38). During that time, he "could see the individual behind the counter and at that point he fit the description" given by the confidential informant (H: 57). He and his partner then entered the store with "radios in hand, shields out . . . [He] had on a belt with the various instruments of [his] trade such as handcuffs, mace, extra magazine for bullets, flash light and [his] gun." His shield was hanging from his neck (H: 21-22). The supervisor did not enter the store with Babington and his partner.
Upon entering the store, Officer Babington observed defendant at the counter behind the plexiglass; there was a second person cooking food, who was also behind the plexiglass, but to the right of defendant (H: 22-23). According to Officer Babington, "[w]hen you go in, there is a general waiting area where you make the order and wait for the food. It is set up with plexiglass, so it is a door of plexiglass, a door to your left and the counter immediately in front of you" (H: 22-23; Defense Exhibits A, E F).
Although there was no direct eye contact with defendant when Officer Babington first entered the store, he saw defendant "wal[k] off to the side to a doorway and procee[d] halfway into the doorway. [He] saw a small motion and then [he] heard a loud clank noise and then [defendant] closed that door and proceeded back to where [Babington] was standing and he opened up the plexiglass door which le[d] in to where he was" (H:24). He then clarified that "after [defendant] went to the door in the back, half of his body was obscured. When he went in, I saw a slight motion and then I heard a loud clank noise and then he closed that door and he proceeded to the plexiglass door and unlocked the two locks that were on and opened that" (H: 24-25).
Officer Babington clarified further on cross-examination that defendant made "a motion, not necessarily a throwing motion. His body was obscured so [Babington] didn't see any throwing motion but upon entering [he] did observe [defendant] go to a door and make a slight motion but then close the door . . . [Specifically], as he's walking away from [Babington] towards that door and gets to that door, and opens this door, [Babington] can only see the left side of his body because as the door opens in, the right side of his body is inside that door . . . [W]hen he turned sideways, [Babington] couldn't see this half of his body (indicating) his right arm. All [he] could see was [defendant's] left hand on the door this way and then turned this way and then he pulled the door back . . . The left hand door opens in, his body is turned, now he's facing so [Babington] can't see the right side . . . [He] saw like a slight turn. Like the door was not there, [Defendant] was reaching for the door and [Babington] saw a slight motion with the right side of his body [but he] couldn't see exactly what it was (H: 41-43). While defendant's body was obscured Babington did not know "what he was doing at that time," "whether he was throwing the firearm down there" or "what he threw, if anything" (H: 56).
When defendant opened the plexiglass door, he asked Officer Babington how he could help him. After identifying himself and advising defendant about the report of a firearm in the store, Officer Babington proceeded to frisk defendant "for [his] safety." He later added on cross examination that defendant told him, "there is no gun here, you can look" (H: 47). Babington denied, however, that his partner started searching the area immediately upon entering the area behind the plexiglass (H: 47-49). He asked defendant his name and defendant said "S[.] I[.]" As he continued frisking defendant, Officer Babington felt "what appeared to [him] to be a bullet . . . It was approximately two to three inches long, it was cylindrical in shape and it was tapered at one end and flat at the other end" (H: 25-26; 56). In response to Babington's inquiry about the contents of his pocket, defendant said that it contained a quarter; Babington then recovered a nine millimeter bullet. When asked where he had obtained the bullet, defendant responded that "someone came to the store and gave it to him" (H: 26; 29). Although one or two customers entered the store while Babington was frisking defendant, they promptly left upon observing the police presence (H: 46-47).
Babington's partner was present during the frisk and once it was determined that it was safe, he went to check the stairwell where Babington had first observed defendant after he entered the store and reported that he "had hot lunch," meaning that he had recovered a firearm. Although the officers did not know whether there were any other workers in the store or basement, Babington's partner did not retrieve the gun; instead he left it on the stairs and rejoined Babington upstairs (H: 26; 51-52). Babington described the location as follows: "When you go through the plexiglass door, you continue straight on, there is a wood door that is right there that leads down to the basement . . . when you go through the plexiglass door . . . you continue straight and the door would be directly in front of you" (H: 27-28; Defense Exhibits, A, G, H I). He walked about three quarters of the way down the 15 to 20 step staircase and saw a black nine millimeter Beretta which weighed about three pounds lying on the steps. He did not search anywhere else downstairs and instead returned upstairs and placed defendant under arrest (H: 53-55).
II. The Defense Case
Yazen Abu Qattam, a 19-year-old part-time college student who had been friends with defendant for about four years when he testified at the hearing, had worked at the store for one and a half months before leaving on June 20, 2006 (H1: 62-64; 112-13). At about midnight on May 13, 2006, Qattam was in the back area "making food" while defendant manned the register, when three men entered the store. He did not see any badges displayed and in fact did not know that the men were officers until they started searching the premises. One officer, whom he described as tall and wearing a t-shirt and pants, was Officer Babington; a second was shorter and he wore a t-shirt and pants; the third was also shorter than Babington and wore a jacket above his tee-shirt and pants (H1: 64; 72-73; 78-81). At the time there were about three or four customers inside the store. Defendant "was on the phone taking an order and taking orders from customers" in the few minutes that immediately preceded the appearance of these officers; music was playing through the two speakers positioned in the customer area of the store (H1: 68-71; 85-86; 91-92; Defense Exhibits C D [speakers]; Defense Exhibit E [area where defendant took orders]; Defense Exhibit F [areas where defendant would stand and where Qattam prepared food]).
The officers, standing behind the plexiglass on the customers' side, spoke to defendant for about two minutes and he opened the locked plexiglass door for them (H1: 82-84; 118). They then walked into the employee area. "Two of them start[ed] talking to S[.] One started searching, then one start searching the front, then after that one stood with S[.] . . ." (H1: 72). Specifically, the officer wearing the jacket stood in front of defendant talking to him for about five minutes while Babington stood about four feet behind him; the third short officer searched the area where defendant had been working (H1:89-91). During these five minutes, Qattam was "working . . . go[ing] back and forth . . . [since] he "make[s] the food at the back and bring them to the front" (H1: 90-91).
Thereafter, Babington searched defendant; the one with the jacket went to the basement and the third officer searched the area where Qattam was located (H1: 101-102). The officer with the jacket was in the basement for about five to seven minutes, returned upstairs and the short officer escorted him back to the basement. Babington remained with defendant. About three minutes later, the short one returned, had about a two-minute conversation with defendant and returned downstairs. Within "two to three to about five minutes" later, both officers returned upstairs, talked to defendant and arrested him (H1: 102-105).
While Qattam could not hear what the officers were saying to defendant, he was able to see them. While generally he cannot "always see what is going on in the front" while he is working in the back, he explained that he would not just remain in the back where he prepared the food but would make the food and bring it to the front and would also go to the front to "take the order" (H1: 114; 116-117). He maintained that he never lost sight of the officers while they were in his area (H1: 93-94).
The distance between the plexiglass and the wooden door leading to the basement is about fourteen feet while the plexiglass door is between sixteen to seventeen feet from the front entrance of the store (H1: 105; Defense exhibits G, H I [H1: 95-98]). According to Qattam, defendant was the manager of the store; he "deals with the money, with the customers", he had keys to the location, and sometimes gave Qattam his paycheck, otherwise "the owner" would pay Qattam (H1: 64-65).
III. Post-hearing proceedings
Upon completion of the hearing, the court ordered that the People produce the CI for a Darden hearing and adjourned the matter to October 18, 2007 as a control date to ascertain when the People would make the CI available to the court (H: 131-132). On October 18, the People advised the court that it was unlikely that the CI would participate in a Darden hearing although Officer Babington was in communication with him, claiming that the CI feared for his safety. At the People's request, the case was adjourned for one week. On October 25, the People sought another week to reach out directly to the CI; the matter was adjourned to November 2.
On that date, the People advised that the assistant prosecutor had spoken with Officer Babington who indicated that the CI did not wish to speak with the prosecutor and that he did not wish to appear in court. The Court was advised that the Assistant's supervisors were reviewing the case to decide the manner in which to proceed in this case. The matter was adjourned for the People's decision on November 16. On that date, the People advised that they still had not made a decision and asked for an adjournment to November 28. The court advised that the matter would be put on for decision on December 13th, with any memorandum of law due November 30. The People filed a late response; accordingly, the matter was adjourned for decision on January 25, 2008. On that date, the court ruled that the suppression decision would be held in abeyance pending a hearing pursuant to People v. Carpenito, 80 NY2d 65, regarding the unavailability of the CI and adjourned the matter for the hearing on February 28, 2008.
The People then advised that Officer Babington had been injured in the line of duty on February 26, 2008 and had been taken to Jamaica Hospital with a knee injury; the matter was adjourned to April 7, 2008 for the hearing. The matter was adjourned to April 9, 2008, On that date, the court was advised that the arresting officer was still out line of duty with various knee-related injuries and that he may be scheduled for a second surgery that week. The matter was again adjourned to May 9th. On May 9, 2008, the People reported that the arresting officer was still out on line of duty; that the only person who has any contact with the CI was the arresting officer; that the last contact with the CI may have been in March 2008; and that there was no other officer to testify regarding the CI.
CONCLUSIONS OF LAW
Defendant maintains that the People cannot demonstrate probable cause for his arrest in the absence of the information provided by the confidential informant. To that end, he maintains that without a Darden hearing to demonstrate the existence of the CI, the People are unable to satisfy their burden of establishing the legality of the police conduct.
The People counter that defendant lacks standing and that a Darden hearing was unnecessary because they were able to establish probable cause given their independent investigation at the scene. They aver further that should the Court disagree, they should be granted yet another opportunity to meet their obligations under Darden. This court grants defendant's motion to suppress.
Preliminarily and contrary to the People's position, the court finds that defendant has established standing through credible evidence that he was the manager of the establishment, who, other than "the owner," paid an employee's salary, manned the cash register behind an enclosed area, dealt with all matters related to customers, and had keys to the location ( see, People v. Perez, 266 AD2d 242 [2d Dept. 1999], lv dismissed 94 NY2d 923).
It is well established that "where there is insufficient evidence to establish probable cause apart from the testimony of the arresting officer as to communications received from an informer, when the issue of identity of the informer is raised at the suppression hearing," the suppression judge should conduct an in camera inquiry of the informant ( see, People v. Darden, 34 NY2d 177, 181). As the Court of Appeals has recognized, such a proceeding "calls for a sensitive and wise balancing of the rights of the individual defendant and the interests of the public. Such a procedure as we have described would be designed to protect against the contingency, of legitimate concern to a defendant, that the informer might have been wholly imaginary and the communication form him entirely fabricated. At the same time the legitimate interests of the police in preserving the anonymity of the informer would be respected" ( id. at 181-182; People v. Adrion, 82 NY2d 628, 635).
People v. Adrion is instructive. There, Special Agent Wright of the New York Office of the FBI received information from the Newark, New Jersey office that a confidential informant had advised that Samsonite luggage which had been stolen from a parked truck in North Plainfield New Jersey could be found in a Ryder rental truck located at 527 East 86th Street in Brooklyn. Several hours later, Agent Wright went to the location and confirmed that the Ryder truck was parked there. After a three-hour surveillance of the location, he observed a co-defendant ("Grado") drive a second Ryder truck and park nearby. He then entered the first truck. The driver of a car which came to the driveway then joined Grado in his truck, who then drove it to a common alleyway or driveway "running between the backyards of houses facing East 84th and East 85th Streets". He eventually observed defendant Adrion, Grado and two others unloading cartons that matched the markings on the stolen property into a garage located at 610 East 85th Street.
Pursuant to Agent Wright's inquiry, Grado acknowledged that he had leased the Ryder truck and produced a rental agreement but then gave "implausible responses" regarding the bill of lading, the source of the merchandise, the goods' consignee or final destination and why he was loading commercial goods into a private location. He was unable to give the location or last name of the person who had hired him for this, his first job as a trucking company; and told the agent that he had "forgotten" about the truck on 86th Street.
Notwithstanding all of the foregoing, the Court of Appeals held that "[a]lthough Agent Wright personally observed a number of suspicious circumstances, including the unloading of a "commercial quantity" of cartons from a rented vehicle into a private residence, markings on the cartons that matched the markings on the stolen cars and the evasive answers of one of the suspects, these circumstances were not sufficient to link defendants to the purloined property without reference to the informant's statements" ( 82 NY2d at 634).
Indeed, the Court concluded that "Agent Wright would not even have been in a position to make those observations without the information purportedly supplied by the informant, since he had no knowledge independent of that source that would have led him to the street addresses in Brooklyn where the observations were made. Thus, the informant's tip was inextricably tied to every aspect of the People's proof on the probable cause question, including the so-called independent' indicia of criminality on which they now rely. Accordingly, the trial court was entitled to insist on production of the informant to assure itself that he or she was not wholly imaginary' and that the claimed communication was not entirely fabricated'" ( id. at 636).
Here, the evidence at the hearing established that the informant in question had worked with Officer Babington "two or three times before"; and that one of the two gun cases which resulted in arrests had in fact been "dismissed" after "trial", notwithstanding the officer's initial characterization of the CI's work as "positive". This CI provided the name and physical and clothing description of the defendant, as well as the precise address of the location where he had observed a weapon. Within thirty minutes of Officer Babington's conversation with the CI, he arrived at the location. He acknowledged that "all of the information that [he] knew about 4102 Avenue D and the individuals possibly inside was based on information give by the informant" and that "[b]eyond what [he] was told by the informant, [he] kn[ew] nothing about a firearm being at 4102 Avenue D" or about any of the store's employees.
While outside the location for between two to five minutes, the officer was able to verify that the person precisely described by the CI was indeed behind the counter. When he entered the store, his focus was on the defendant, whom he claimed walked "to the door in the back" where "half of his body was obscured" and made a "slight" but not a "throwing" motion with the right side of his body. In essence, the officer saw defendant open a back door with his left hand and could not see what he was doing with the right portion of his body. While the officer claimed to have heard, while standing outside the plexiglass area in the customer area at least fourteen feet away, a "loud clank noise", such a noise would have no suspicious meaning in the scheme of things at a fried chicken entity but for the information provided by the CI.
The next action taken by Officer Babington "for his safety", as part of what the People describe as the officers' "independent investigation", was to frisk defendant. Again, without the information from the CI, the entry of the officer and observations noted above would not have provided any basis for him to fear for his safety and to conduct the frisk which ultimately resulted in the recovery of the bullet from defendant. And even if the court were to conclude that the search of the premises did not occur until after the recovery of this bullet, and not almost immediately upon the officers' entry therein, the information from the CI was inextricably linked to the ultimate recovery of the gun in this case. Thus, this court rejects the People's claim that a Darden hearing was not required here ( see, People v. Darden, supra; People v. Adrion, supra; compare, People v. Farrow, 98 NY2d 629).
Once the People have been ordered to provide the informant for an in camera inquiry, they must provide the informant unless they can demonstrate that the informant is legitimately unavailable. Once they establish that the informant is unavailable due to actual fear of death or injury to the informant or his family, "the court has the discretion to permit the People to establish the informant's existence through alternative means. If the People are not able to meet this initial threshold, however, the court similarly has the discretion to require production of the informant" ( People v. Carpenito, 80 NY2d 65, 68-69; People v. Adrion, supra).
In this case, the court gave the People multiple opportunities to produce the informant. Beginning in October, 2007, the People made perfunctory efforts to bring the informant to court. While they claimed that Officer Babington was told by the CI that the latter had an unelaborated fear for his safety, there were no efforts made by the People themselves to communicate directly with the CI or Officer Babington's supervisors or even to subpoena the CI. And even after the Court ordered a hearing pursuant to People v. Carpenito, over four months later, and then granted several long adjournments for the People to attempt to meet their burden, it was on May 9, 2008, that the People reported that Babington was the only person who had any contact with the CI and that the last contact with the CI may have been in March 2008. Notably, during the hearing, Babington testified that whenever the CI wished to communicate with the police he would call either Babington or his partner's personal cell phones (H: 31-32).
Under the circumstances, since the People have failed to meet their initial burden of demonstrating "that the informant's unavailability is, in fact, the result of actual fear of death or injury to the informant or his family," they will not be permitted to establish the informant's existence through extrinsic evidence ( People v. Carpenito, supra; People v. Adrion, supra; People v. Phillips, 242 AD2d 856 [4th Dept. 1997]).
CONCLUSION
Based upon the foregoing, defendant's motion to suppress the gun and ammunition is granted.
This constitutes the Decision and Order of the Court.