Opinion
2014-0921
05-15-2015
The People of the State of New York v. Eugene C. Smith, Defendant.
For the People:SANDRA DOORLEY, ESQ. BY: Michael Dollinger, Esq. Monroe County District Attorney 47 S. Fitzhugh Street Rochester, New York 14614 For the Defendant:TIMOTHY DONAHER, Esq. BY: Jill Paperno, Esq. Monroe County Public Defender 10 N. Fitzhugh Street Rochester, NY 14614
For the People:SANDRA DOORLEY, ESQ. BY: Michael Dollinger, Esq. Monroe County District Attorney 47 S. Fitzhugh Street Rochester, New York 14614 For the Defendant:TIMOTHY DONAHER, Esq. BY: Jill Paperno, Esq. Monroe County Public Defender 10 N. Fitzhugh Street Rochester, NY 14614 Christopher S. Ciaccio, J.
DECISION AND ORDER CIACCIO, J.
Defendant, Eugene C. Smith, is charged by Ind. No. 2014-0921 with one count of Criminal Possession of a Weapon in the second degree, allegedly occurring on or about August 21, 2014.
By motion filed October 27, 2014, and pursuant to Criminal Procedure Law §§ 60.45, §710.20(3) and 710.70(1). defendant requested that the Court suppress a two- page written statement he made to Officer Anthony Mazurkiewicz on August 22, 2014, and which was noticed by the People pursuant to Criminal Procedure Law §710.30. Alternatively, defendant request a Huntley hearing.
Defendant also moved for suppression of evidence based on an alleged unlawful search and seizure. The People opposed, and the Court at the motion argument ruled that sufficient facts had been alleged to demonstrate a genuine issue of fact and granted a hearing as to that issue.
A combined Mapp/Huntley hearing was held on March 24, 2015. What follows are the Court's findings of fact and conclusions of law.
Findings of Fact
Officer Anthony Mazurkiewicz of the Rochester Police Department testified that at approximately 9:50 p.m. on August 21, 2014, he was conducting surveillance in the area of Jackson Street in the City of Rochester. Jackson Street is a dead-end street, and from his unmarked vehicle, Officer Mazurkiewicz could see a group of five or six "kids" standing on the steps of a school located at the end of Jackson Street, about seventy five yards away. He observed them for approximately twenty minutes.
Officer Mazurkiewicz observed smoke rising above their heads and formed a belief that they were smoking something. From his vantage point he could not actually see anything in anyone's hand or mouth. He called for assistance from other nearby officers.
As other police officers approached the school, the group ran. Two ran directly in front of his vehicle, then turned northbound and ran across a yard at 88 Jackson Street. Officer Mazurkiewicz identified the defendant as one of the two who ran in front of his vehicle and who he learned had been taken into custody by Officer Backus at approximately 10:05 p.m.
Officer Mazurkiewicz spoke to the defendant at the Public Safety Building. Prior to questioning, defendant was read his Miranda rights from a Rochester Police Department Miranda Rights Notification and Waiver Card, which was entered into evidence as People's Exhibit 1. Officer Mazurkiewicz testified that no threats or promises were made to the defendant in order for him to waive his constitutional rights. Defendant never requested an attorney. Defendant did state that he had smoked a little weed and had a sip of wine, but that he was not intoxicated. Defendant did not appear confused at all to Officer Mazurkiewicz and indicated that he understood the rights and that he agreed to waive them.
Defendant's statement was reduced to a writing and was entered into evidence at the hearing as People's Exhibit 2. Officer Mazurkiewicz asked the defendant questions, and the defendant wrote down the answers. Once completed, Officer Mazurkiewicz read the statement out loud to the defendant and then defendant read it on his own. Defendant also signed the statement.
Officer Jonathan Kent testified that at approximately 10:00 p.m. on August 21, 2014, he was dispatched to the same area concerning a report made by a fellow officer that there was a group of persons congregating near a school located between Jackson Street and Midland Avenue.
As Officer Kent approached, he observed four to five individuals from about twenty yards away. Some were sitting on steps and others standing in the driveway leading up to the school. As he neared the group, Officer Kent smelled the odor of burnt marijuana, with which he was familiar due to his extensive training and experience and that he had detected such odor on hundreds of previous occasions. Officer Kent did not actually see anyone smoking anything and was unable to determine when the marijuana he smelled had been burned.
Officer Kent called out to the persons there, "police, come here" and "hang on a second." The group immediately dispersed and ran westbound on Jackson Street. The defendant was eventually apprehended by a different officer (Officer Backus). Later a gun was discovered in the general vicinity of where the defendant had run before he was taken into custody.
Conclusions of Law
The Court accepts the testimony of Officers Mazurkiewicz and Kent, finding them to be credible, believable, and in a position to testify about the events in question. At a hearing to consider suppression of statements made by a defendant, the People bear the burden to prove beyond a reasonable doubt that the statements were voluntarily made and not the result of coercive police activity. People v. Guilford, 21 NY3d 205, 208 (2013), People v. Anderson, 42 NY2d 35, 38-39 (1977).
The credible evidence adduced at the hearing and the exhibits entered into evidence by the People established that, prior to making the statements at issue to Officer Mazurkiewicz on August 22, 2014, the defendant was properly administered his Miranda warnings and advised of his rights. The defendant clearly indicated that he understood his rights, and that he agreed to waive them. Accordingly, the Court concludes that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights prior to making the statements at issue (People v. Sirno, 76 NY2d 967, 968 [1990]; People v. Strahin, 114 AD3d 1284 [4th Dept 2014], lv denied 23 NY3d 968 [2014]).
Further, the Court also concludes that the defendant's statement to law enforcement on August 22, 2014 was not the product of coercion, pressure, or any other improper form of inducement (People v. Ellis, 73 AD3d 1433, 1434 [4th Dept, 2010], lv denied 15 NY3d 851 [2010], People v. Guthrie, 222 AD2d 1084 [4th Dept 1995], lv denied 87 NY2d 973 [1996]). The statement at issue thus was obtained with due regard to the defendant's constitutional rights.
However, as will be discussed below, the Court finds that, even with the totality of the information had by the officers at the scene, the evidence adduced at the hearing does not support probable cause for the arrest of the defendant.
Under People v. De Bour, 40 NY2d 210, 223 (1976), the Court of Appeals provided a graduated four-level test for evaluating encounters initiated by the police. The first level permits an officer to approach and request information based on an objective, credible reason, not necessarily indicative of criminality (id). Level two permits a greater intrusion and allows for a "common-law right to inquire," which must be based on a founded suspicion that criminal activity is afoot (id). Level three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual has committed, is committing or is about to commit a crime (id). Finally, at the fourth level, an arrest requires probable cause to believe that the person to be arrested has committed a crime (id, see also People v. Garcia, 20 NY3d 317, 322 [2012], People v. Burnett, 126 AD3d 1491 [4th Dept. 2015]).
The facts here establish that the initial encounter with the group was essentially a level one intrusion. Members of the Tactical Unit approached and asked to speak to them. Based on the smell of burnt marijuana, Officer Kent then had a proper basis for a level two encounter, since the smell, in combination with where the group was congregating and the time and the observations of Officer Mazurkiewicz, provided a basis for a "founded suspicion that criminal activity was afoot." The immediate flight of the group, including defendant, elevated the encounter and gave rise to the requisite reasonable suspicion justifying police pursuit (People v. Brown, 67 AD3d 1439 [4th Dept. 2009]; see also People v. Pines, 99 NY2d 525 [2002]).
The inquiry cannot end there. The chase continued and defendant was placed under arrest and taken to the police station, which required probable cause under level four of the DeBour analysis. The Court finds that defendant was placed under arrest before there was actual probable cause to believe he had committed any crime. Defendant was not seen smoking marijuana, in fact none of the group was. He was not even deemed to have the smell of burnt marijuana about him, and there was no evidence presented that any marijuana was found at the scene prior to (or even after) the arrest. Defendant's mere presence with a number of people about whom is smelled marijuana simply does not provide a basis for his arrest.
With regard to the recovered gun, there was no evidence presented connecting the recovered gun to this defendant at all. Absent the written statement of the defendant procured hours after his arrest, it cannot be determined how, where or when specifically the gun was located. A review of the testimony of Officer Kent merely indicates that a handgun was recovered. Officer Kent did not observe the defendant once he began pursuing another member of the group and he did not recover the gun. Although the People argued at the conclusion of the hearing that Officer Kent's testimony that a handgun was dropped in the path of one of the individuals running justified interviewing the members of the group, in reviewing DeBour and its progeny, this Court finds that the evidence presented does not rise to the level of probable cause necessary for the arrest of the defendant.
Accordingly, since the Court finds that the arrest of the defendant was unlawful, the fruits of that arrest (the gun recovered presumably after the arrest and defendant's subsequent statement to Officer Mazurkiewicz) must be suppressed.
Accordingly, defendant's motion to suppress is GRANTED.
This is the ORDER of the Court. Dated:May 15, 2015 Rochester, New York ______________________________ HON. CHRISTOPHER S. CIACCIO Monroe County Court Judge