Opinion
Indictment Nos. 0941-2017 1685-2017
02-20-2018
THE PEOPLE OF THE STATE OF NEW YORK, v. DAVID WILLIAMS (a/k/a MELV1N WILLIAMS), Defendants.
Unpublished Opinion
DECISION AND ORDER
HON. JUAN M. MERCHAN, A.J.S.C.:
The defendant, Melvin Williams, is charged under indictment number 1685-2017(hereinafter "the first incident") with Criminal Possession of a Controlled Substance in the Third Degree, in violation of Penal Law § 220.16(1), Criminal Possession of a Controlled Substance in the Fourth Degree, in violation of Penal Law § 220.09(1), Criminal Possession of a Controlled Substance in the Fifth Degree, in violation of Penal Law § 220.06(1), and other lesser crimes.
This indictment superceded indictment number 4851-2016, which was dismissed by the Honorable Charles Solomon on the grounds that the evidence before the grand jury was not legally sufficient.
This indictment was obtained after officers from the Department of Probation and the Police Department recovered drugs inside an apartment occupied by Milton Laws, but which was allegedly also linked to the Defendant.
On January 24, 2017, Milton Laws pled guilty to Criminal Possession of a Controlled Substance in the Third Degree, and was sentenced to a prison term of two years, to be followed by three years of post-release supervision.
Defendant was later charged under indictment number 0941 -2017 (hereinafter "the second incident") with Criminal Sale of a Controlled Substance in the Third Degree, in violation of Penal Law § 220.39(1), and two counts of Criminal Possession of a Controlled Substance in the Third Degree, in violation of Penal Law § 220.16(1). These charges stem from his alleged participation in a drug sale in the context of a buy and bust operation conducted by the New York City Police Department. The two indictments were subsequently consolidated for hearing and trial.
Defendant challenges: (1) indictment number 1685-2017 on the ground that the police were not justified in entering a bedroom where most of the drugs were recovered; and (2) whether probable cause existed for his arrest on the alleged sale case under indictment number 0941-2017.
On October 18, 20, 26, and 27, 2017, this Court conducted a combined Wade/Mapp/Dunaway hearing The hearing concluded on October 27, 2017. The parties subsequently filed written submissions. At the hearing, Sergeant John Toscano, Detective Michael Whiteman, and Probation Officer Joubert Garnier testified for the People regarding the first incident. Detectives Jeanette Rivera and Lawrence Thomas, and Undercover Officer 322, testified for the People as to the events surrounding the second incident. The Defendant did not call any witnesses. This Court, having had the unique opportunity to view the witnesses, hear their testimony and observe their demeanor, credits the testimony of the People's witnesses as to the first incident, and concludes that the People have met their burden as to that matter. However, this Court does not credit key police testimony with respect to the second incident. As a result, the People have not met their burden to establish probable cause for Defendant's arrest in that matter. Therefore, for the reasons that follow, Defendant's motion to suppress is denied as to the first incident and granted as to the second incident.
See United States v. Wade, 388 U.S. 218 (1967); Dunaway v. New York, 442 U.S. 200 (1979); Mapp v. Ohio, 367 U.S. 643 (1961).
Procedural History
On November 2, 2016, officers from the Department of Probation discovered drugs during a home visit to the apartment of Milton Laws, located at 325 East 115th Street, Apartment 406, in New York County. After the probation officers discovered the drugs, they notified officers from the New York City Police Department, who were waiting downstairs in the lobby of the building. Those police officers then entered the apartment, searched a bedroom which the Defendant claims belonged to him. There, they discovered additional drugs and drug paraphernalia.
On December 27, 2016, Defendant was arrested for his alleged participation in a drug sale to an undercover officer during a "buy and bust" operation. The felony complaint charged that, "On or about December 27, 2016, at about 4:55 p.m., at 2251 [First] Avenue, ... the defendant[] knowingly and unlawfully sold a narcotic drug" (see felony complaint, in the Court file).
As a result of the recovery of the drugs during the home visit on November 2,2016, a Grand Jury returned an indictment on December 30, 2016, accusing Defendant of Criminal Possession of a Controlled Substance in the Third Degree, in violation of Penal Law § 220.16(1), Criminal Possession of a Controlled Substance in the Fourth Degree, in violation of Penal Law § 220.09(1), Criminal Possession of a Controlled Substance in the Fifth Degree, in violation of Penal Law § 220.06(1), and other lesser offenses.
The People served and filed their Voluntary Disclosure Form (hereinafter "VDF") on or about April 15, 2017. Among other things, the People maintained in their "Bill of Particulars" section that the drug sale occurred "outside of 2251 [First] Avenue" (See VDF, dated April 5, 2017).
As a result of Defendant's arrest on the drug sale, on March 27, 2017, a second grand jury returned an indictment accusing Defendant of Criminal Sale of a Controlled Substance in the Third Degree, in violation of Penal Law § 220.39(1), and two counts of Criminal Possession of a Controlled Substance in the Third Degree, in violation of Penal Law § 220.16(1).
On May 16,2017, the Honorable Charles H. Solomon dismissed indictment number 48512016, on the ground that the evidence before the Grand Jury failed to link the Defendant to the apartment where the drugs were discovered by police. The People were given leave to represent the case to another Grand Jury.
This case was re-presented and on June 13,2017, a grand jury returned an indictment, which Justice Solomon later found to be legally sufficient. The indictment effectively superceded the indictment which Justice Solomon had previously dismissed.
Following motion practice and discovery in both cases, Justice Solomon granted Defendant a Wade/Mapp/Dunaway hearing to determine whether probable cause existed to arrest Defendant on the buy and bust case. Justice Solomon granted a Mapp/Dunaway hearing to determine whether the police were justified in entering the second or front bedroom where the police observed drugs and drug paraphernalia.
In a decision and order, dated August 17, 2017, Justice Solomon granted the People's motion, pursuant to CPL § 200.20(2)(b) and (c), to consolidate the indictments for hearings and trial.
Findings of Fact
A. Search of the Apartment (The First Incident) - Indictment Number 1685-2017
Sergeant John Toscano, a Field Intelligence Officer (hereinafter "FIO") with the 28lhPrecinct, received information from FIO Sergeant Padell, of the 68th Precinct based upon an informant's tip, which indicated that Milton Laws and Defendant were in possession of a firearm and a large quantity of drugs inside apartment 406 at 325 East 115th Street in New York County. This information was passed along to Probation Officer Joubert Garnier, who had recently been reassigned as Laws' probation officer. Officer Garnier was also informed that the apartment was registered to Laws, that Laws was on probation, and that Defendant, "hangs out in the apartment and he has four warrants" (H. 110). Officer Gamier had possession of those warrants when he conducted a home visit on November 2, 2016.
Probation Officer Gamier, along with Probation Officers Michael Tarello, Joe Healey, Richard Trowers, and Supervising Probation Officer Sal Marciante, conducted the home visit of probationer Milton Laws' home. NYPD officers Sgt. Toscano and Det. Whiteman accompanied the probation officers to the building, however, the police officers waited in the lobby, while the probation officers went to the apartment.
At approximately 7:30 a.m., the probation officers knocked on Laws' apartment door. The officers identified themselves as probation officers and displayed their badges. Laws opened the door. The officers announced that they were conducting a home visit, to which Laws replied, "Okay." He led four of the five officers inside. Officer Sal Marciante remained in the hallway.
Laws led the probation officers through the living room, where the officers observed a woman apparently preparing a child for school. The woman and child left the apartment shortly thereafter. When the officers asked Laws where he slept, Laws led Probation Officers Gamier and Tarello to a bedroom in the rear of the apartment; Probation Officers Healey and Trowers remained in the livingroom. On the way to the bedroom, Laws asked the officers if they wished to search his hallway closets which the officers declined. After entering the bedroom, Probation Officer Garnier asked Laws if he possessed anything illegal, to which Laws responded that he did not. Laws gave the officers permission to search his bedroom. Probation Officer Tarello led Defendant back to the livingroom where Probation Officers Healey and Trowers had remained. Probation Officer Tarello then returned to the bedroom.
No one else was present inside the apartment besides Laws.
The officers proceeded to search the bedroom. Upon searching a dresser, Probation Officer Gamier found a sock, which contained two clear, plastic bags each containing bullets. Probation Officer Garnier notified his supervisor, Probation Officer Marciante, who was still in the hallway, that he had found bullets. Probation Officer Marciante then notified the police officers who were still in the lobby. When Probation Officer Garnier informed Laws about the bullets, he denied ownership. Laws was handcuffed for the officers' safety and escorted back into the bedroom. At this point, Sgt. Toscano and Sgt. Whiteman responded to Probation Officer Marciante's notification and came to the apartment and into the bedroom. Sgt. Toscano testified that Sgt. Whiteman asked Laws whether there was anything else in the apartment that they should know about, and that Laws indicated to the officers that whatever they were looking for was inside the other bedroom (H. 78, 154). According to Officer Garnier, Laws responded, "The front bedroom underneath the bed, the safe, [my] friend has a gun" (H. 78).
Laws, handcuffed, led the police and probation officers to a bedroom in the front of the apartment. The door was open and they all entered. There, Laws gestured with his head toward the floor and said, "Oh, its under the bed" (H. 157). Sgt. Whiteman looked under the bed where he observed a safe. When the officers opened the safe, they discovered drug paraphernalia. In the corner of the bedroom, Probation Officer Garnier observed a shopping bag. In plain view without having to move or manipulate the bag in any way, he observed what he believed to be multiple glassines of heroin inside the shopping bag. He also observed a plate containing white residue, a burned pot, and a red and black air gun. Sgt. Toscana returned to the rear bedroom where he recovered eleven bags of heroin inside the same dresser where the bullets were found.
B. "Buy and Bust" Operation On December 27, 2016 (The Second Incident) - Indictment Number 0941-2017
Testimony of UC 322
On December 27, 2016, UC 322, assigned to the Narcotic Bureau Manhattan North Squad, along with Det. Rivera and several other officers, were working as part of a field team conducting "buy and bust" operations within the confines of the 25th Precinct. At approximately 4:00 p.m., in the vicinity ot 115th Street and First Avenue, UC 322 approached an individual, later identified as Tod Elfe. UC 322 asked Elfe if he knew where UC 322 could obtain some "dog food" or heroin, a street term for heroin. Elfe led the undercover to 116th Street and First Avenue. There, Elfe borrowed UC 322's cell phone and made numerous calls to "Mel," whom Elfe claimed was his boy." Elfe directed UC 322 to wait in front of a Dunkin Donuts nearby, while Elfe proceeded to walk back and forth on 116th Street between First Avenue and Pleasant Avenue.
After approximately thirty minutes, Elfe directed UC 322's attention toward an individual, later identified as the Defendant David Williams a/k/a Melvin Williams, who was walking in their direction. Elfe stated, "that's my guy right there," and asked UC 322 for money, at which time UC 322 handed Elfe $40 in pre-recorded buy money. UC 322 was standing several feet from the location where Elfe met the Defendant, whom UC 322 observed to be wearing a "white crew neck sweater with red lettering on it and black pants and black sneakers, as well as a black skull cap."
Elfe and the Defendant, with UC 322 following behind them, walked south from 116th Street to the northeast corner of 115,h Street and First Avenue. Elfe instructed UC 322 to remain on the corner. Elfe and the Defendant crossed the street and entered a housing development, at which point UC 322 lost sight of the two men. After 10 to 15 minutes, UC 322 observed the two men on the northwest comer of First Avenue and 115th Street in front of a restaurant. They were accompanied by a third individual, later identified as "Rosario." While the men were standing on the corner, UC 322 observed a hand-to-hand exchange between Elfe and the Defendant. After the exchange, Elfe left the company of the two men, walked across 115th Street, and waived for UC 322 to cross over to him.
When they met, Elfe said, "that's my guy right there, I got you," and handed UC 322 three glassines of heroin. According to UC 322, he and Elfe were somewhere between 2251 First Avenue and the southwest comer of 116th Street, maybe four or five storefronts north of2251 First Avenue. UC 322 could not say exactly where they were standing when Elfe handed him the narcotics.
After Elfe gave the drugs to UC 322, he walked back over to Defendant because, according to UC 322, Elfe wanted to introduce Defendant to UC 322. Defendant declined to meet UC 322. UC 322 and Elfe then walked north and parted ways at the comer of 116th Street and First Avenue. Elfe continued walking north and UC 322 turned left on 116th Street and headed westward. Within minutes of leaving the scene, UC 322 notified Sergeant King (who was in a police vehicle with Det. Rivera) that a "positive buy" occurred on First Avenue between 115th and 116th Streets and provided locations and descriptions of the individuals involved. UC 322 testified as follows:
Q. What did you tell the field team?
A. I let the field team know that the buy happened on First Avenue between 115th Street and 116th, as I proceed to walk westbound on 116th Street.
Q. At that time, do you remember if you conveyed specifics of, you know, each interaction that you observed?
A. I gave them the general description of both parties that were involved, as well as the third male.
Q. And do you remember, as best as you can, what you would have communicated about the role of each individual?
A. Yes.
Q. If any?
A. Absolutely. I let the field team know that the hand to hand was Mr. Todd Elfe. Mr. Elfe had on a green waist length jacket, blue jeans, and tan boots.
And the actual dealer in this instance was Mr. Williams who had on a black skull cap, white crew neck sweater with red lettering, black jean[s], as well as black boots on.(H. 210-211).
Approximately thirty-five minutes later, UC 322 made a confirmatory identification as he drove past the 25th Precinct and observed officers escorting the Defendant inside. UC 322 communicated with his field team that Defendant was the individual involved in the earlier narcotics transaction.
During UC 322's direct testimony, the People introduced a video from a camera mounted outside of 2251 First Avenue was played for the Court (H. 212-216). The video does not depict a narcotics sale. However, UC 322 asserted that he did see the Defendant in the video walk past the camera towards 116th and First Avenue, where the Defendant was apprehended by police. UC 322 also asserted that he observed in the video the Defendant was placed inside an unmarked prisoner van after he was apprehended.
Testimony of Det. Rivera
Det. Rivera testified in substance that she has been an officer for almost 15 years, that she is presently assigned to Narcotics Bureau Manhattan North Squad with UC 322, and that she has made approximately"100 plus" arrests for narcotics, of which "a little under a hundred, a hundred or so" involved undercover "buy and busts" (H. 21). On December 27, 2016, Det. Rivera was participating in a "buy and bust" operation, along with UC 322 and several other officers, in the vicinity of 116th Street and First Avenue in New York County. Det. Rivera was partnered with Sergeant King and their role that day was to apprehend individuals suspected of being involved in street narcotics sales.
Det. Rivera testified that, at approximately 4:55 p.m. on December 27, 2016, she and her partner received a radio transmission from the "ghost" UC and/or the Sergeant. The radio transmission indicated that there had been a "positive buy, descriptions, and locations of the People that were involved in the narcotics transaction with the undercover" (H. 35). On cross-examination, defense counsel impeached Det. Rivera with her prior Grand Jury testimony regarding the content of the radio transmission:
Q. So, you testified that, basically, you received positive buy descriptions of the individuals, clothing and locations, but not specific roles of the people involved with -
A. No, that's too much information over the radio, sir.
Q. Okay
A. Just positive buy, clothing description of the individual that we need to apprehend as soon as possible, and location.
Q. Okay. Are the conversations recorded?
A. Over the point-to-point radio, no.
So let me ask you a question. You testified in the grand jury, actually, on two occasions in this case, correct?
A. Yes.
Q. And in the second grand jury presentation, which was in March of 2017, let me ask you if you recall the following question and the following answer from page 12.
"Question: And can you briefly describe the circumstance that led to the arrest of David William?
"Answer: Williams, David got into a conversation with the undercover. They got into a narcotics conversation. The UC wanted to buy drugs from Williams, David, and they exchanged currency for narcotics."
Do you recall that question and that answer?
A. Now that you are reading it, yes, I do.
Q. So, let me just ask you one more time. When you-so, when you received the radio transmission from the secondary undercover, it didn't specify who did the hand to hand or who did what. It's your testimony that is was, basically, positive buy, the description and location of the suspects?
A. Positive buy of the suspects, yes, clothing descriptions, and locations of where to apprehend them, yes.(H. 35-36). Thus, the Defense was able to demonstrate that Det. Rivera's testimony before the Grand Jury was inconsistent, in that she asserted in the Grand Jury that the undercover officer had engaged in a conversation with the Defendant. However, the undercover officer was clear in his testimony that he never spoke directly to the Defendant.
Det. Rivera testified that, upon hearing the radio transmission, she proceeded to 2251 First Avenue to apprehend a male black, wearing a white shirt, white sweater, and dark colored jeans. Det. Rivera stated that when she and her partner arrived at that location, she observed the Defendant in the custody of, Det. Adeleke and Det. Thomas, two of her fellow field team officers. Det. Rivera further testified that Defendant was wearing "a white sweater with a logo on the front, and dark colored jeans" when he was arrested (H. 27).
Det. Rivera testified that Defendant was searched at the time of his arrest and the police recovered pre-recorded buy money.
On cross-examination, Det. Rivera was impeached with her memo book entry, which contained a physical description of the Defendant but not a description of his clothing:
Q. Okay
Officer, you testified that the description of the defendant that you received was male black wearing a white sweater, I believe, with a logo on it, dark jeans, and, I believe, at 2251 First Avenue, is that accurate?
A. White sweater, dark colored jeans, male black.
Q. Do you have your memo book with you today?
A. No.
[THE PROSECUTOR]: I have a copy.
(Handing.)
[DEFENSE COUNSEL]: Could I have this marked as Defense D for purposes of identification?
THE COURT: Yes.
(Handing.)
Q. And I would refer you to the middle of the fourth page. And I am going to ask you to read that. * * *
Q. Right.
I'm referring you to the information about David Williams and his description.
A. All right.
Q. Okay. Isn't it a fact that what you recorded at the time of his arrest was that he was a male black, dark complexion, with a Ceasar style haircut, but no clothing description whatsoever?
A. Okay, I left it out. It's not there. It's not in the-I didn't put in anywhere in the memo book? Let's see. It's a lot of information to write.
I put down the details, the strip search, 47 years old, his date of birth, 5'9", 150-
Yeah. His clothing description I left it out of the memo book, yeah.(H. 45-46).
Det. Rivera further testified that she later learned that Elfe handed UC 322 the narcotics on one of the corners of 115lh Street and First Avenue. When confronted with a Police Department pedigree form, which indicates that the offense occurred in front of 2251 First Avenue, Det. Rivera explained that her use of the that address as the location of the offense was a mistake and that the offense occurred on 115th and First Avenue (H. 38). Next, when confronted with the arrest report, which contained the same offense location as the pedigree form, Det. Rivera attributed the error in the Arrest Report to her "typo" on the aforementioned pedigree form, which a fellow officer mistakenly used to complete the Arrest Report. However, when presented with the felony complaint, which also listed 2251 First Avenue as the location of the offense, her testimony was as follows:
The pedigree form and arrest report were offered for identification, but were not offered into evidence at the hearing (H. 38-39).
The defense introduced the felony complaint into evidence at the hearing as Defense Exhibit C (H. 40-41).
Q. A ll right. Just one last thing I'll [sic] like to show you. I will like you to take a look at the felony complaint, Defense Exhibit C, for purposes of identification.
But do you recall - well, let me show it to you first Just take a look at it.
Q. So, you signed the felony complaint, correct?
A. I did, yes.
Q. And, obviously, aware that you are obligated to provide accurate information to the individual that drafted the felony complaint, fair to say?
A. Yes.
Q. And the felony complaint that you prepared, or that you signed, I m sorry, indicates that the scene of the crime is at 2251 First Avenue, correct?
A. His arrest location was in front of 22 -
Q. Well, no I'm asking you about the felony complaint that you signed. That's all I'm asking you about.
I ask you to look at the first paragraph under the charges that are listed?
A. And that's what I was responding to.
So that indicates that the crimes for which we are here today were committed at 2251 First Avenue in New York County?
A. No, sir.
This states here, to my recollection, to my knowledge, he was arrested in front of 2251 First Avenue.
THE COURT: What does the document say?
THE WITNESS: It says here, "On or about December 27th, 4:55 P.M., at 2251 First Avenue in the County and State of New York, the defendant knowingly and unlawfully possessed a narcotic drug with intent to sell it; the defendants knowingly and unlawfully sold a narcotic drug; the defendant knowingly and unlawfully possessed marijuana."
THE COURT: Okay.
So, in other words, that's where the incident took place, according to the felony complaint? That's not where the arrest took place?
THE WITNESS: His arrest location. His arrest location is in the same strip of where the barbershop is. I mean it's -
THE COURT: That's what I am asking you. I'm just asking you, according to the felony complaint - THE WITNESS: Uh-huh. THE COURT: That you just read, that's where the crime took place, at 2251 -
THE WITNESS: No. According to the - to me, to my knowledge, sir, I mean, in the 15 years that I have in my career, the arrest location would be here (pointing). You know, we put the buy
location separate in the pedigree. And this is the arrest location of where the individual was apprehended.
[DEFENSE COUNSEL]: Your Honor, I move the felony complaint into evidence.
THE COURT: The felony complaint is accepted into evidence.(H. 40-42). Thus, despite the fact that the felony complaint clearly indicates that 2251 First Avenue as the location where the crime allegedly occurred, Det. Rivera insisted that the address on the felony complaint identified the place of arrest and not the place of occurrence.
Testimony of Det. Thomas
On December 27, 2016, Det. Thomas was assigned to the Narcotics Bureau Manhattan North, which covers the 25th Precinct. At that time, Det. Thomas had made or assisted in hundreds of narcotics arrests, many of which were made pursuant to "buy and bust operations. On that date, Det. Thomas, along with his partner, Det. Adeleke, were participating in a buy and bust operation in the vicinity of 116th Street and First Avenue. They were part of the apprehension team and they were assigned to a police vehicle. At 4:55 p.m., the officers received a radio transmission from either the "ghost" undercover officer or their supervisor that the undercover officer had successfully purchased drugs. They were provided with a location and description of an individual and directed to apprehend that person. The officers stopped, detained, and arrested Defendant in front of 2251 First Avenue and escorted him to the 25th Precinct. The police searched Defendant at the precinct and recovered seven bags of heroin and three bags of cocaine. On cross-examination, Det. Thomas could not recall the description that came over the radio.
The Parties' Contentions
Regarding the first incident, Defendant contends that the police were required to obtain a warrant to search what the Defendant claims was his bedroom inside Milton Laws' apartment. Defendant asserts that this is so because the police were on notice that the bedroom belonged to the Defendant, based upon information known to the police that there was a possible firearm and drugs in Laws' apartment and that Defendant was known to "hang out" there, as well as Laws' statement to police that "my friend has a gun in the front bedroom" and Defendant's claim that the door to the bedroom was closed. Defendant further argues that, based upon this record, the police could not have reasonably believed that Milton Laws had actual or even apparent authority to consent to the search of the bedroom. Defendant further argues that even if the police had the authority to perform a protective sweep of the entire apartment, that sweep would not have placed the officers in a legal position to view the drug paraphernalia inside the safe or the heroin in the green shopping bag, both of which were found inside Defendant's bedroom.
Next, regarding the drug sale, Defendant claims that the People failed to meet their burden to establish probable cause for his arrest on the sale of narcotics because the police witnesses were incredible. Defendant contends that neither the undercover officer nor Det. Rivera were credible and that their testimony was inconsistent on key facts concerning where the narcotics transaction actually occurred. Defendant further contends that UC 322's testimony was incredible for other reasons as well. Defendant argues that UC 322's testimony, wherein he asserts: (1) that Elfe and the Defendant exchanged narcotics on the street and in plain view, rather than inside the housing development from which they had just emerged minutes earlier; (2) that Elfe sought to introduce UC 322 to the Defendant; and (3) that Elfe told UC 322 where Defendant lived; is beyond belief and should not be credited. Defendant also asks that this Court draw an adverse inference for the People's failure to produce UC 322's memo book at the hearing, which he asserted would contain information as to the date and time of the transaction and the individuals involved.
The People argue that this Court should credit the police testimony, arguing that there are plausible explanations for why their witnesses testified as they did.
With respect to the police entry into Defendant's bedroom, the People contend that Laws consented to the search of the bedroom. Further, the People argue that it was reasonable for the officers to believe that Laws had actual or apparent authority over the front bedroom because there was no evidence presented at the hearing that anyone besides Laws' wife and child lived in the apartment. The People further argue that, based upon the evidence at the hearing, the items seized should not be suppressed.
Conclusions of Law
At a Dunaway hearing, when a Defendant challenges the legality of his arrest, the People have the initial burden of going forward to establish the existence of probable cause for the arrest. People v. Dodt, 61 N.Y.2d 408, 415 (1984); People v. Berrios, 28 N.Y.2d 361 (1971); People v. Malinsky, 15 N.Y.2d 86 (1965); People v. Martinez, 31 Mise.3d 201 (N.Y. Dist. Ct. 2011). To satisfy its burden, the prosecution must present credible testimony. People v. Carmona, 233 A.D.2d 142 (1st Dept. 1996); People v. Quinones, 61 A.D.2d 765 (1st Dept. 1978). Once the People have met their initial burden, the defendant bears the ultimate burden to establish the illegality of the police conduct by a fair preponderance of the evidence. Berrios, supra, at 367; People v. Pettinato, 69 N.Y.2d 653, 654 (1986); People v. DiStefano, 38 N.Y.2d 640,652 (1976); People v. De Frain, 204 A.D.2d 1002 (4th Dept. 1994).
At a Wade hearing, while the People have the initial burden to establish, under the totality of the circumstances, the reasonableness of the police conduct and the lack of undue suggestiveness of the police-arranged identification procedure, see People v. Chipp, 75 N.Y.2d 327, 335 (1990), citing People v. Berrios, 28 N.Y.2d 361 (1971); see also People v. Delamota, 18 N.Y.3d 107 (2011); People v. Jones, 2 N.Y.3d 235, 244 (2004); People v. Ortiz, 90 N.Y.2d 533, 537 (1997), it is the defendant who has the ultimate burden of proving that the pre-trial identification procedure was not "so unnecessarily suggestive as to create a substantial likelihood of misidentification," People v. Duuvon, 77 N.Y.2d 541, 545 (1991); see also Chipp, 75 N.Y.2d at 335; Delamota, 18 N.Y.3d at 118.
At a Mapp hearing, though the People have the initial burden of going forward to establish the legality of the police conduct in the first instance, People v. Dodt, 61 N.Y.2d 408, 415 (1984); People v. Berrios, 28 N.Y.2d 361, 367 (1971); People v. Malinsky, 15 N.Y.2d 86 (1965); People v. Quinones, 61 A.D.2d 765 (1st Dept. 1978), the defendant bears the ultimate burden to persuade the court, by a preponderance of the evidence, that the search and seizure was unlawful, Berrios, 28 N.Y.2d at 367. The testimony relied upon by the People must be credible in order to meet their burden. See Berrios, 28 N.Y.2d at 369; People v. Carmona, 233 A.D.2d 142 (1st Dept. 1996); People v. Vasquez, 217 A.D.2d 466, 471 (1st Dept. 1995).
1. Propriety of Police Entry Into Front Bedroom (The First Incident).
Initially, this Court finds that the People did not waive the argument that Defendant lacked standing to challenge the search of the front bedroom by not raising that argument until after the close of all evidence. See People v. Hill, 153 A.D.3d 413,416 (1st Dept. 2017) ("[h]ere, the People specifically argued at the suppression hearing that defendant did not establish standing to challenge the searches of the vehicle or apartment, and the court itself raised the issue of standing during counsel's argument and based its ruling on that doctrine. We reject defendant's argument that the People were required to raise the issue of standing before the close of evidence"). Even if the People had specifically challenged defendant's standing in the response to defendant's omnibus motion, "a defendant must still establish standing at the suppression hearing." People v. Brown, 20 Mise.3d 1120(A), *5 (Sup. Ct. N.Y. Co. 2008). Here, this Court concludes that Defendant has failed to come forward with sufficient evidence demonstrating that he had a legitimate expectation of privacy in the subject bedroom where the evidence was seized.
"A defendant seeking suppression of evidence has the burden of establishing standing by demonstrating a legitimate expectation of privacy in the premises or object searched" People v. Ramirez-Portoreal, 88 N.Y.2d 99, 108 (1996). "A legitimate expectation of privacy exists where defendant has manifested an expectation of privacy (a subjective component) that society recognizes as reasonable (an objective component)." Ramirez-Portoreal, 88 N.Y.2d at 108. In Hill, the First Department wrote:
Defendant has the burden of establishing standing, and is entitled to rely on evidence elicited during the People's direct case (see People v. Burton, 6 N.Y.3d 584, 587-588 [2006]; People v. Gonzalez, 68 N.Y.2d 950, 951 [1986]). "The number of times a person stays in a particular place, the length and nature of the stay, and indicia of connectedness and privacy, like change of clothes or sharing expenses or household burdens, are all factors ... [to] support a reasonable expectation of privacy" (People v. Rodriguez, 69 N.Y.2d 159, 163 [1987]).Hill, 153 A.D.3d at 416.
Here, the defendant did not offer any evidence in support of his assertion that he had an expectation of privacy in the subject bedroom. Although a defendant may rely on the People's direct case, Milton Laws' statements to the probation officers, to wit, "[t]he front bedroom underneath the bed, the safe, [my] friend has a gun" (H. 78), is not sufficient for the defendant to establish that he had an expectation of privacy in that bedroom, let alone the apartment, even when coupled with the information the police had before they entered the apartment, that the Defendant was known to hang out in the apartment. This testimony established, if at all, merely '"that the defendant was a transient, who had no expectation of privacy in" that bedroom. People v. Walker, 150 A.D.2d 408 (2d Dept. 1989) ("The evidence produced at the hearing does not establish that he enjoyed an enclave where he could reasonably expect to be secure against invasions of his privacy. Rather, the evidence established that the defendant was a transient, who had no expectation of privacy in 'the baby boy's room.' Thus the evidence supported the trial court's conclusion that the defendant lacked the requisite standing to challenge the police entry into the apartment and bedroom"); see Brown, 20 Mise.3d 1120(A) at *4 (the defendant's possession of a key to the premises did not confer upon him the right to an expectation of privacy in the premises).
Cf People v. Crippen, 156 A.D.3d 946 (3d Dept. 2017) (the defendant established standing through his own sworn testimony that he slept overnight in the apartment "three to four times each week, showered, ate, watched television, kept clothing and toiletries there and invited guests to the apartment", and through police testimony that certain officers were aware that defendant lived in the apartment there and, thus, "there is no dispute in the record with regard to defendant's regular presence at his mother's apartment, including as an overnight guest"); People v. Mason, 248 A.D.2d 751,753 (3d Dept. 1988) (the defendant's testimony that he frequently stayed in the home and kept extra clothes there and the homeowner's uncontroverted testimony that the defendant was an overnight guest at her home at least four days a week demonstrated the defendant's expectation of privacy in the subject premises).
As an alternative holding, even if this Court were to conclude that the People waived the argument and/or that Defendant had standing to challenge the search of the front bedroom, the record demonstrates that the probation officers and the police officers acted reasonably. "It is the People's burden to establish the voluntariness of defendant's consent, and that burden is not easily carried, for a consent to search is not voluntary unless it is a true act of the will, an unequivocal product oi an essentially tree and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle.'" Peoplev. Packer, 49 A.D.3d 184,187 (1st Dept. 2008), quoting People v. Gonzalez, 39 N.Y.2d 122,128(1976). After knocking on the door, Laws allowed the lour pi obation officers into his apartment. When the probation officers asked Laws for permission to search his bedroom, Laws consented and led two of the officers to his bedroom, while the other two waited in the livingroom. Laws was cooperative with the officers, even offering them permission to search the hallway closets along the way to his bedroom. There was no evidence presented to even suggest that Laws was coerced in any way.
The discovery of the bullets in the dresser drawer of Laws' bedroom justified the decision by the probation officers to notify the police officers and justified asking Laws if there was a gun in the apartment. Although Laws had been handcuffed for safety reasons, that did not affect the voluntariness of his consent to the search of the front bedroom, where the drugs and paraphernalia were found. See People v. Urbaez, 219 A.D.2d 568, 568 (1st Dept. 1995) ("Notwithstanding that defendant was in custody at the time, the People met their burden of proving that defendant voluntarily consented to the search of his apartment. The defendant fully cooperated with the police and stated, 'the gun is in room 510 ... take me there and I will show you where it is'"). "The People's burden here was, thus, to prove by a preponderance of the evidence that the 'facts available to [Sgt. Toscano and Whiteman] at the moment... warrant[ed] a man of reasonable caution in the belief that [Laws] had authority over [the front bedroom]. People v. Gonzalez, 88 N.Y.2d 289,295 (1996). Here, other than Laws' statement that there was a gun that belonged to his friend in the front bedroom and the informant's tip that the Defendant was known to "hang out" in the apartment, there was no indication that anyone else resided in the apartment. Laws knew about the safe and exactly where to find it, and the door to that front bedroom was either open or unlocked. Based on this record, the officers reasonably believed that Laws had authority to consent to a search of the front bedroom. Under the circumstances, Laws voluntarily consented to the search of the front bedroom. See Gonzalez, 39 N.Y.2d at 122. Accordingly, that physical evidence will not be suppressed and will be admissible a trial.
2. The "Buy and Bust" Case (The Second Incident)
In assessing credibility, a Court should not "discard common sense and common knowledge," Matter of Carl W., 174 A.D.2d 678, 679 (2d Dept. 1991), and therefore, should not "credit testimony which has all the appearances of having been patently tailored to nullify constitutional objections," People v. Miret-Gonzalez, 159 A.D.2d 647, 649 (2d Dept. 1990). "The rule is that testimony which is incredible and unbelievable, that is, impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory, is to be disregarded as being without evidentiary value, even though it is not contradicted by other testimony or evidence introduced in the case." People v. Miret-Gonzalez, 159 A.D.2d 647,649 (2d Dept. 1990).
This issue here is whether Det. Rivera's testimony credibly established that the police had probable cause to stop, detain, and arrest the Defendant for his alleged involvement in a drug sale. Det. Rivera's credibility was compromised when she refused to concede that either the sale did not occur in front of 2251 First Avenue or that she mistakenly signed the felony complaint which erroneously indicated that the sale occurred in front of 2251 First Avenue. Det. Rivera looked this Court boldly in the eye, raised the felony complaint, and stated while pointing at the document as follows:
THE COURT: That you just read, that's where the crime took place, at 2251 -
THE WITNESS: No. According to the - to me, to my knowledge, sir, I mean, in the 15 years that I have in my career, the arrest location would be here (pointing). You know, we put the buy location separate in the pedigree. And this is the arrest location of where the individual was apprehended.(H. 42). This testimony is either false or unbelievably mistaken and appears to be tailored to meet constitutional muster. This Court rejects the People's attempt to explain Det. Rivera's incredible testimony, i.e, that she relied on the information she received from UC 322 and that, despite her 15 years of experience, she honestly believed that the location of the arrest belonged in the felony complaint. The fact that Det. Rivera would not concede what every 15-year veteran should know - that a felony complaint does not identify the place of arrest but rather the place of occurrence -is beyond belief. What this Court does believe is that Det. Rivera insisted that 2251 First Avenue was the place of arrest and not the place of occurrence despite what the felony complaint (and other police documents) indicated because the video which depicted the front of 2251 First Avenue showed that no sale occurred in front of that location. Moreover, Det. Rivera was cooperative on direct examination and hostile and combative on cross-examination regarding the discrepancy in the location of the drug sale for no other apparent reason than that she was being untruthful. Foi these reasons, this Court declines to credit the entirety of Det. Rivera's testimony.
The Defendant offered the video into evidence in the Grand Jury. At the hearing, the People offered the video on their direct case (H. 212-216).
Other than Det. Rivera's testimony, no other officer testified that Defendant matched the description transmitted to the field team before he was arrested, as Det. Thomas testified that he did not recall the description provided. Because there is no credible testimony on this subject, the People have failed to meet their burden to establish probable cause for Defendant's arrest. See People v. Johnson, 63 A.D.3d 518 (1st Dept. 2009); People v. Tucker, 25 A.D.3d 382 (1st Dept. 2006); People v. Jones, 277 A.D.2d 30 (1st Dept. 30 (1st Dept. 2000); People v. Cid, 216 A.D.2d 131 (1st Dept. 1995); People v. Garcia, 232 A.D.2d 272 (1st Dept. 1996); People v. Perez, 207 A.D.2d 690 (1st Dept. 1994). Accordingly, the confirmatory identification and all other physical evidence obtained as a result of the illegal arrest must be suppressed. See People v. Gethers, 86 N.Y.2d 159, 160-162 (1995).
Conclusion
Defendant's motion is granted to the extent that this Court finds that the People failed to meet their burden to establish that probable cause existed for Defendant's arrest under indictment number 00941-2017. As a result, the confirmatory identification and the subsequently recovered physical evidence are suppressed. Defendant's motion is denied with respect to the search of the front bedroom of Milton Laws' apartment under indictment number 1685-2017. This Court finds that Defendant does not have standing to challenge the search of the front bedroom. Alternatively, Laws consented to the search and the probation officers and police officers acted reasonably in conducting the search of the rear and front bedrooms where the narcotics were recovered.
The above constitutes the decision and order of this Court.