Opinion
7811/2014
04-08-2016
The People of the State of New York v. Akiel Simon, Defendants.
For the People OFFICE OF KENNETH THOMPSON, ESQ. KINGS COUNTY DISTRICT ATTORNEY 350 Jay Street Brooklyn, New York 11201 By:Assistant District Attorney Mark Berkowitz, Esq. 718-250-2000 For the Defense LEON SCHRAGE, ESQ. 26 Court Street, Suite 810 Brooklyn, New York 11242 718-858-0751
For the People OFFICE OF KENNETH THOMPSON, ESQ. KINGS COUNTY DISTRICT ATTORNEY 350 Jay Street Brooklyn, New York 11201 By:Assistant District Attorney Mark Berkowitz, Esq. 718-250-2000 For the Defense LEON SCHRAGE, ESQ. 26 Court Street, Suite 810 Brooklyn, New York 11242 718-858-0751 ShawnDya L. Simpson, J.
INTRODUCTION
The defendant is charged with one count of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03 (3)), Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02 (1)), and Criminal Possession of a Firearm (Penal Law § 265.01-b (1)). The defendant has made a motion pursuant to Criminal Procedure Law (CPL) §§ 710.20 and 710.60 to suppress a firearm and two separate statements allegedly made to the police. On February 17 and 18, 2016, a combined Huntley/Mapp/Dunaway hearing was conducted by the court. Going forward, the People have the burden of establishing that the police's conduct was lawful (People v. Malinsky, 15 NY2d 86, 262 N.Y.S.2d 65 [1965], People v. Wise, 46 NY2d 321, 413 N.Y.S.2d 334 [1978], People v. Bouton, 50 NY2d 130, 428 N.Y.S.2d 218 [1980]). On a motion to suppress, the People carry the burden of proving probable cause or reasonable suspicion, by a preponderance of the evidence (United States v. Goines, 604 F. Supp. 2d 533 [E.D.NY 2009]). For the foregoing reasons, the defendant's motions to suppress are granted. FINDINGS OF FACT
On September 19, 2014, at approximately 12:50 a.m., Police Officer Richard Cleri, then with the 73rd precinct Strategic Enforcement Team (SET) , was in plainclothes driving an unmarked car on duty on Rockaway avenue facing north at the corner of East New York avenue in Kings county. Officer Cleri was in the car with his partner Officer Beasley. Officers Anton, Sadowy, and Sergeant Blowe, arrived later at the scene in a separate car. Officer Cleri has been an officer for almost ten years and has been with the Citywide Anti-crime unit since September 2015. Officer Cleri testified that on the above date and time he was stopped at the light on Rockaway Avenue when he observed a livery cab heading east on East New York Avenue. Officer Cleri testified that there was moderate traffic, his headlights were on, it was dark, but there were street lights. The officer turned right and followed the livery cab. As soon as he made the turn, Officer Cleri stated that he observed the cab go over the double yellow lines for a few seconds (Feb. 17 transcript p. 25). The car is said to have been about three car lengths from the officer's car (Feb. 17 transcript p. 25).
The SET unit monitors criminal gang activity and not traffic activity as testified during the hearing. --------
Officer Cleri testified that he observed three men in the back seat of the livery cab (Feb. 17 transcript p. 62). Officer Cleri stated that he pursued the livery cab for about four blocks and stopped it with sirens as he got closer. Officer Cleri further testified that he radioed the other officers to appear at the scene. Officer Cleri testified that he then went to the rear left passenger door of the cab, that the window was down and that he smelled marihuana (Feb. 17 transcript p. 63). When Officer Cleri approached he had his flashlight in hand, gun in his holster, and his shield clipped to his shirt (Feb. 17 transcript p. 33).
Officer Cleri stated that he opened the rear left passenger door furthest from where the defendant sat and asked the two individuals to exit, which they did (Feb. 17 transcript p. 64). The two men were said to have been sitting still. He frisked both men for weapons and found nothing (Feb. 17 transcript p. 66). The men were asked where they were headed, to which one responded to a party in East New York (Feb. 17 transcript p. 35). Officer Cleri stated that he observed the defendant seated moving like he was stuffing something in the buttocks area of his pants (Feb. 17 transcript p. 67). Officer Cleri stated that he began a conversation with the defendant. The other two Officers and Sergeant arrived at the scene and assisted Officer Cleri and his partner (Feb. 17 transcript p. 43). Officer Cleri testified that he put his hand on the defendant's arm and told him to step out of the vehicle and had him put his hands on the roof of the car. Officer Cleri testified that he searched the defendant and after a few minutes recovered a "bag of weed" by the defendant's ankle (Feb. 17 transcript p. 41). It is at this time that the defendant is alleged to have stated "it's just weed" twice. Officer Cleri stated that he then placed the marihuana in his pocket and rear cuffed the defendant after placing him on the ground (Feb. 17 transcript p. 41, 43).
The defendant was searched again by Officer Cleri and that's when he said he felt something hard towards the buttocks area with the defendant facing away from him (Feb. 17 transcript p. 43). Officer Cleri testified that several attempts were made with all the officers present to retrieve the hard object he felt, but were unsuccessful. Officer Cleri testified that the defendant moved his body and prevented him and the other officers from frisking him. The defendant was placed in Officer Cleri's vehicle with officers Beasley and Sadowy and taken to the precinct. The other officers returned in a separate vehicle. The two other passengers and cab driver were dismissed.
Officer Cleri testified that after arriving at the precinct, the defendant was frisked again by the front desk area (Feb. 17 transcript p. 49). It was said that the officers tried to search the defendant in the groin area and pockets, but it was relayed to the Sergeant that the defendant had to be strip searched (Feb. 17 transcript p. 50). Officer Cleri testified that the defendant would not unclench his legs (Feb. 17 transcript p. 49). Officer Cleri said he stated to the defendant that they were going to find what he had on him (Feb. 17 transcript p. 50). According to Officer Cleri, the defendant was taken to the back of the cell area where he stated to the officer that he had crack cocaine on him. Officer Cleri testified that the defendant was placed on the ground and searched again with the assistance of the other officers. Officer Cleri testified further that Officer Anton got the defendant's legs open and saw a gun in between the defendant's buttock area (Feb. 17 transcript p. 43, 52). Officer Anton is said to have recovered a gun from between the defendant's buttocks area.
Officer Anton testified as the arresting officer in this case. Officer Anton did not initially recall receiving marihuana from Officer Cleri until he arrived at the precinct. When asked to read the lab report, Officer Anton testified that the marihuana he received weighed 2.863 grams and was in a twist bag (Feb. 18 transcript p. 21, 13). Officer Anton also testified that he processed the defendant and that the defendant stated to him that he didn't mean for it to go that way and that he would take it on the chin like a man. Miranda warnings were not given. Officer Anton did not provide any testimony concerning his recovery of a weapon from the defendant. Officer Anton stated a gun was vouchered, but nothing more. DISCUSSION
Unreasonable searches and seizures are prohibited by both the federal and New York state constitutions (see Terry v. Ohio, 392 U.S. 1 [1968], People v. De Bour, 40 NY2d 210 [1976]). This limitation extends to both brief investigatory stops of people or vehicles ( Terry v. Ohio, 392 U.S. 1, see also Criminal Procedure Law (CPL) §140.10, People v. De Bour, 40 NY2d 210, see also, People v. Garcia, 20 NY3d 317 [2012]). The police can briefly stop a person for questioning if there is reasonable suspicion, shown from some objective evidence, that person has or is about to commit a crime ( Terry v. Ohio, 392 U.S. 1). An officer can pat down or frisk a person believed to be carrying a weapon to ensure their safety if there is reasonable suspicion the person is armed and dangerous ( Terry v. Ohio, at 30). The only purpose for this limited search is for officers to ensure their safety ( Id.).
Under De Bour, there are four levels of intrusion. The first level requires a rational, objective, and credible reason to stop and make an inquiry, not necessarily involving criminality (De Bour, 40 NY2d 210). The second level is the common-law right of inquiry that requires a founded suspicion of criminal activity (Id.). The third, requires reasonable suspicion that a felony or misdemeanor is being committed and the last requires probable cause that a crime has been committed (Id.). Further, "the court must weigh the degree of intrusion entailed against the precipitating and attending circumstances'", "concentrat[ing] on whether the conduct of the police was reasonable at the time in view of the totality of the circumstances" (People v. Sosa, 20 Misc 3d 1140A [1st Dist Ct., Nassau Co. 2008] citing People v. Salaman, 71 NY2d 869,870, [1988], People v. Lomiller, 30 AD3d 276, 277 [App. Div., 1st Dept. 2006] respectively). For the search and seizure to be legal the People must establish that "the officer had an articulable basis to fear for his own safety" (People v. Sosa, 20 Misc 3d 1140A, citing People v. Torres, 74 NY2d 224 [1989]; see also, People v. Cornielle, 172 AD2d 681 [App. Div., 2nd Dept. 1990]; CPL §140.50 (3)).
Further, police officers may use a traffic infraction as a pretext to stop a vehicle, so long as the officer did actually have reasonable cause to believe that the driver committed a traffic infraction (see Whren v. United States , 517 U.S 806 [1996]). The holding in Whren is followed in New York (People v. Robinson, 97 NY2d 341 [2001]). The issue herein is whether the evidence adduced at the hearing credibly established that a traffic infraction was committed or that the officer so believed.
The People assert that the stop of the livery cab and search of the defendant was lawful because the vehicle crossed over double yellow lines for a few seconds and Office Cleri smelled marihuana as he approached. However, the court finds neither Officer Cleri's or Officer Anton's testimony credible. In this case, Officer Cleri observed the car with the livery license with its passengers and decided to follow the car before the opportune claimed traffic infraction occurred. It was after Officer Cleri observed the livery cab and was making the right turn to follow it that the cab was said to have crossed double yellow lines for a few seconds. The car was eventually pulled over after driving about four blocks. Officer Cleri testified that there was no car in between his and the livery cab as he drove. The evidence demonstrates that the livery cab was not stopped because of a purported cross over for a few seconds of double yellow lines.Officer Cleri testified that it was his intent to give the driver a summons for the infraction, but he had no books or form with which to issue a summons. No summons was issued, no discussion was had with the driver, he was never approached. There was clearly no effort or aim on any of the officers' part to speak with the cab driver. The name or contact information of the cab driver was not secured to substantiate the claims made by the People, that the driver crossed the yellow double lines, or that the odor of marihuana was present. No effort was made to secure the cab driver's information, although it was available to substantiate the cause for the stop of the vehicle. The vehicle's license was not checked. No evidence was presented to corroborate Officer Cleri's testimony that he observed the livery vehicle cross over double yellow lines.
Officer Cleri's testimony has not established credibly that he observed the cab cross double yellow lines. The testimony established that Officer Cleri observed the vehicle with the passengers in it and proceeded to follow the cab for a few block. According to his own testimony, Officer Cleri upon approaching the vehicle opened the door and searched the two other passengers first without reasonable suspicion that either of those person's were armed and dangerous. The other officers were radioed before any contraband was found on the defendant. Although pretextual stops are permissible, credible evidence must be presented to establish reasonable suspicion for the stop and that the officer believed a traffic infraction was committed (People v. Garcia, 20 NY3d 317). Here, such evidence is not provided.
The court is not persuaded by Officer Cleri's testimony that there was a lawful basis for the stop and search of the defendant given absent and contradicting evidence. Officer Cleri claims to have smelled marihuana as he approached the vehicle, but there was no evidence of burnt marihuana. Officer Cleri testified that unburnt marihuana can also emit a strong odor. However, the small amount of marihuana purportedly found by the defendant's ankle, 2.863 grams in a twist bag, does not give cause to believe that Officer Cleri smelled marihuana. Officer Cleri's testimony does not give cause to believe that he smelled marihuana as he stood outside the vehicle. Officer Cleri did not conduct a search for marihuana in the car. No smoke was observed, the driver was not asked if the passengers were smoking, and Officer Cleri stated he smelled marihuana emitting from the rear passenger window furthest from the defendant.
Officer Cleri's account of the recovery of marihuana and a gun is faulty and uncorroborated. When the defendant was first placed on the ground and handcuffed Officer Cleri said he put his hands in between the defendant's leg after he stood him up and felt a hard object (Feb. 17 transcript p. 43). Somehow he and the other officers were unable to secure that object. The defendant initially exited the vehicle, put his hands on the roof of the car, was searched, was placed on the ground at the scene and the purported hard object could not be removed from the defendant's buttocks area. From these various searches, only a very small amount of marihuana was allegedly removed from the defendant's ankle area.
Further, according to the People, the marihuana charge was dismissed by the grand jury, finding no true bill. The defendant was searched according to Cleri because the defendant moved his body like he was stuffing something in his pants, but no smoke was emitting from the defendant's pants and a small amount of sealed marihuana was allegedly found by his ankle after the search. There was no reasonable suspicion that warranted the search. Officer Cleri said he saw the defendant pushing something down his pants, which he somehow could not retrieve with four other officers present. Just the defendant and five officers were present at one point as the other passenger and the livery driver were let go. Officer Cleri's action's were not reasonable and were not warranted given the circumstances (see e.g., People v. Garcia, 20 NY3d 317 [2012]).
Officer Cleri's testimony that he placed the marihuana he said he found in his pocket further undermines his credibility on this allegation, in addition to the fact that the charge was dismissed by the grand jury. Officer Cleri purportedly gave the marihuana to Officer Anton at the precinct, but claims to have retrieved it from the defendant at the scene. Although there were a number of officers present at the scene, none was provided to give testimony that they observed Officer Cleri recover marihuana from the defendant's person. The facts alleged are unreliable and the charges concerning the possession of marihuana were dismissed by the grand jury, evidencing the unreliability of those claims and the officer's testimony (Feb. 18 transcript p. 31). This court is not persuaded that the officer believed or had reasonable suspicion to believe that the defendant possessed marihuana to conduct the initial search.
Officer Cleri's assertion is also not reliable given the lack of credibility with which he was found to have testified in a case with similar facts and issues as the instant one. At the hearing, a copy of a decision issued in federal court by District Judge John Gleeson, wherein Officer Cleri's testimony was found not credible, was admitted into evidence (see transcript of U.S.A. v. Raymond Jones, 13-CR0708 [E.D. NY, April 2, 2014]). In Jones, Officer Cleri's testimony was found not credible where he testified that the car in that case did not stop completely at a stop light and that that was the reason that car was stopped. In that case, the court did not give credibility to Officer Cleri's testimony that there was a valid traffic infraction that gave cause to stop the vehicle. Consequently, the firearm that was said to have been recovered from a bulge in that defendant's jacket was suppressed in Jones.
There may have been a hunch that criminal activity was afoot, but no reasonable suspicion or probable cause for the stop in this case (see Navarette v. California, 134 S. Ct. 1683 [2014]). Although pretext stops are permitted, the testimony failed to establish that a traffic infraction was committed or that criminal activity was in progress (People v. Robinson, 97 NY2d 342 [2001], Brown v. U.S., 517 U.S. 806 [1996], Gustafson v. Florida, 414 U.S. 260 [1973]). It is unclear why the cab was not immediately stopped if it was right in front of the officer's vehicle as claimed. Officer Cleri drove for about four blocks before stopping the cab for allegedly crossing double lines after the turn on to East New York Avenue.
Further, Officer Cleri testified that the precinct was only five blocks to excuse the inconsistent fact that the defendant was placed in the police car with just Officer Sadowy in the back. The defendant was driven to the precinct with one officer seated next to him. Two officers where in the front of the car.The defendant was placed in the back of the police car although it is claimed he purportedly carried a gun in his back at the time. It is not logical that an officer would permit a defendant to keep a gun in his back area, with his hands handcuffed to the rear. The defendant was rear cuffed which would contradict the idea that Officer Cleri believed that the defendant may have possessed a firearm below his back. Also, Officer Cleri testified that Officer Sodowy moved the defendant to the right to keep his hands away. It is unclear how Officer Cleri would have observed this given that he was driving the police vehicle back to the precinct.
This court is not persuaded that the defendant possessed a gun that was later retrieved at the precinct. Officer Cleri testified that he observed the defendant slouched down seated in the car with his arms in his pants as if he was pushing something in his pants. Officer Cleri's testified that throughout the process the defendant would not let him frisk him so as to be able to search and retrieve the gun at the scene.Officer Cleri testified that throughout the arrest process he and the other four officers were unable to recover a gun the defendant possessed at the scene. Officer Cleri claims that he felt a hard object in the defendant's buttocks area and was unable to recover it until they arrived at the precinct and took the defendant to the back of the cell area. It was not allegedly, until they arrived at the precinct that the officers were able to take a gun from the defendant's buttocks area.
The gun allegedly recovered was a .380 Astra firearm, which is an average handgun in size and the defendant is alleged to have been wearing regular pants. The defendant is of average build and there were five officers present. The defendant had his hands on the hood of the car, he was placed on the ground, handcuffed and searched several times at the scene, but a gun could not be recovered from his person until he was in the rear cell area of the precinct. The defendant was not charged with resisting arrest. The narrative provided by officers Cleri is faulty and lacks reason, and consequently is not relied upon herein.
Officer Cleri is the only one that testified that marihuana was recovered from the defendant. Officer Cleri is also the only one that observed the defendant moving his hand down his pants in the car or the cab crossing the double yellow lines once for a few seconds. He is also the only one that supposedly felt a hard object on the defendant at the scene. There were five officers involved at the scene and at the precinct, but only two officers testified and there has been no corroboration of much of Officer Cleri's testimony.
Although there were five officers involved only two provided testimony. Officer Anton had difficulty recalling key facts and was inconsistent in his testimony. When asked whether Officer Cleri gave him anything at the precinct, Officer Anton testified that he did not recall him giving him anything at the precinct (Feb. 17 transcript p. 13).When asked again whether it was later on at the precinct that Officer Clearly gave him marihuana Officer Anton testified that was "correct" (Feb. 17 transcript p. 313). Officer Anton then testified that he did not recall when Cleri recovered the marihuana. Immediately after, when asked by the court whether Officer Cleri gave him marihuana at the precinct or at the scene, Officer Anton testified that he was given marihuana at the scene (Feb. 17 transcript p. 13). Officer Anton's testimony was inconsistent and consequently lacked credibility.
Officer Anton's testimony also lacked reliability. He could not recall if the defendant was inside or outside the car when he arrived at the scene and made no observations concerning the defendant's movements. Officer Anton did not have recollection of significant facts concerning the case. Officer Anton testified that the defendant was already at the precinct when he arrived. Officer Anton testified that he processed the defendant and asked him pedigree questions, but could not recall whether the defendant said anything to him. When asked whether he had further conversation with the defendant other than pedigree information Officer Anton responded that he did not remember anything.
However, when asked if the defendant made a statement Officer Anton responded that the defendant stated "he did not mean for it to go that way." When asked what he had stated to the defendant before the statement was allegedly made Office Anton responded that "he said whatever happened in the street is over with" (Feb. 17 transcript p. 16). Officer Anton was non-responsive to the question and only related the statements he claims the defendant made to him. He did not recall many facts and simply reiterated that the statements he claims were made by the defendant. Officer Anton's testimony did not appear to be based on the recollection of his memory.
Further, Officer Anton only recalled seeing three people at the scene and not four as was the case, he had no recollection of the cab driver. He also did not recall the appearance of the marihuana allegedly recovered. He initially testified that it was in a plastic bag and did not know or could not remember the size, if it was big, medium or small. He testified that the marihuana was in a larger bag and not in one zip lock. However, the voucher for the marihuana stated that it was one twist wrap that weighed 2.863 grams.
Additionally, Officer Anton gave no testimony about his alleged recovery of a gun at the precinct or anywhere. Details concerning the recovery of a weapon are glaringly absent from his testimony. Officer Anton also did not testify that the defendant was volatile or fought or resisted any search or his arrest. Officer Anton essentially testified that he processed the defendant and heard him make two statements. Officer Anton's testimony failed to buttress Office Cleri's testimony.
The People failed to meet their burden and the hearing did not establish reasonable suspicion or probable cause for the defendant's search and arrest. The court finds both Officer Cleri and Anton's testimony not credible. Their recitation is not plausible given the totality of the circumstances (United States v. Goines, 604 F. Supp. 2d 533, 539). Consequently, the hearing failed to establish probable cause for the defendant's search and arrest. Given the lack of credible testimony and absent facts, the defendant's Mapp/Dunnaway motion to suppress is granted. There was no probable cause to arrest, seize or search the defendant. Since there was no probable cause to arrest or search, the defendant's Huntley motion to suppress statements is also granted (see People v. Harris, 77 NY2d 434 [1991], Payton v. New York, 445 U.S. 573).
Accordingly, the defendant's motion to suppress is granted. The marihuana and gun allegedly seized by the police and the statements made by the defendant in custody are hereby suppressed and are inadmissable at trial. CONCLUSION
Accordingly, the defendant's Huntley/Mapp/Dunaway motions to suppress are granted.
This constitutes the decision, opinion and order of the Court. Dated:Brooklyn, New YorkApril 8, 2016 ENTER,
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The Honorable ShawnDya L. SimpsonActing Justice of the Supreme Court