People ex rel. Vasquez v. Warden

• Decision Date: 13 August 2010
• Docket Number: No. 252776–09.,252776–09.
• Citation: 28 Misc.3d 1226,2010 N.Y. Slip Op. 51507,958 N.Y.S.2d 62
• Parties: The PEOPLE of the State of New York, ex rel. Jonathan VASQUEZ, Petitioner, v. WARDEN, Robert N. Davoren Center New York State Division of Parole, Respondent.
• Court: New York Supreme Court

28 Misc.3d 1226
958 N.Y.S.2d 62
2010 N.Y. Slip Op. 51507

The PEOPLE of the State of New York, ex rel. Jonathan VASQUEZ, Petitioner,
v.
WARDEN, Robert N. Davoren Center New York State Division of Parole, Respondent.

No. 252776–09.

Supreme Court, Bronx County, New York.

Aug. 13, 2010.

Elon Harpaz, The Legal, for Petitioner, Jonathan Vasquez.

Michael Arcati, Assistant Attorney General, for Respondent.

SHARON A.M. AARONS, J.

On August 2, 2010, this court conducted a hearing pursuant to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Although the court in its decision dated May 26, 2010, stated that it denied Petitioner's application for a Writ of Habeas Corpus but granted the branch of the application for a Mapp hearing, what the court in essence did was to deny the Writ of Habeas Corpus pending the outcome of the Mapp hearing. Respondent filed a motion for reargument which this court denied in its decision dated July 7, 2010. At the Mapp hearing Parole Officer Kevin O'Connor (“PO O'Connor”) and Luna Suarez, Petitioner's mother, both testified. Based on the testimony of Luna Suarez whom this court fully credits, and the testimony of PO O'Connor whom this court credits in part, Petitioner's applications to suppress the box cutter and the knife and for a Writ of Habeas Corpus are granted.

FINDINGS OF FACTS

Petitioner, Jonathan Vasquez, was convicted of Assault in the Second Degree on September 20, 2007, in Richmond County, and was sentenced to a term of two years of incarceration. On April 28, 2009, he was released on parole with a post-release supervision. As a condition of his release, Petitioner agreed to abide by the term and conditions imposed on him by the Division of Parole. His assigned parole officer was PO O'Connor who was assigned to Staten Island where Petitioner resided. Petitioner resided in Staten Island in a two-floor house with his mother and four siblings.On September 29, 2009, at about 11:00 a.m., New York City Police Department (“NYPD”) Detective Michael Guariano (“Det.Guariano”) of the 120 Precinct, Staten Island, called PO O'Connor on the telephone and told him that he intended to arrest Petitioner because an eyewitness had positively identified Petitioner as the perpetrator who, on September 10, 2009, fired shots into the windows of the rectory of a catholic church across from where Petitioner resided, and a shell casing was recovered. Prior to the telephone call, PO O'Connor was not aware of the shooting incident or of any complaints from the community about Petitioner. He had no indication that Petitioner was in anyway violating the conditions of his parole.

During the telephone call, Det. Guariano asked PO O'Connor to search Petitioner's residence to see if he could recover the gun. PO O'Connor conferred with Senior Parole Officer John Zwaryczuk (“SPO Zwaryczuk”). They then spoke with Det. Guariano and explained that their search would be limited to Petitioner's bedroom as other people also lived at the residence.

Approximately one hour later, at about 12:15 p.m. on September 29, 2009, PO O'Connor and SPO Zwaryczuk went to Petitioner's residence where they met Det. Guariano and two other NYPD officers, a detective and a lieutenant. PO O'Connor told the members of the NYPD to remain in their car which was parked across the street from Petitioner's residence while he and SPO Zwaryczuk knocked on the front door of Petitioner's residence. They were told by Petitioner's brother that he had gone to the store. Petitioner returned shortly and PO O'Connor immediately handcuffed him outside of his residence for safety reasons while they conducted the search, and because Petitioner was going to be arrested by Det. Guariano.

After Petitioner was handcuffed, the parole and the NYPD officers all entered Petitioner's residence and proceeded to the second floor where Petitioner's bedroom was located. Two officers, one of whom was PO O'Connor, searched Petitioner's room, two officers stayed with Petitioner on the stairs. PO O'Connor was focused on the search of Petitioner's bedroom and was unaware of any other activities in the house. He believed that the NYPD lieutenant remained downstairs while he searched Petitioner's bedroom. Ms. Suarez recognized PO O'Connor as one of the officers who searched Petitioner's bedroom because he had been to her home before as her son's parole officer. She also recognized the two detectives who were with him because they had been in the neighborhood and to her home during their investigation of the shooting at the rectory. She described the second person who searched Petitioner's bedroom as one of the two detectives who had been to her home previously. She described him as having caramel colored skin and piercing green eyes.

Ms. Suarez was on the second floor when the officers entered her home and remained there because the officer prevented her from leaving. During the search of Petitioner's bedroom, Ms. Suarez heard footsteps and boxes and furniture being moved on the hardwood floor on the first floor. After the officers left, she saw evidence that the first floor had been searched since it was not in the same condition that she had it in before they had arrived at her home. She saw that the sofa in the living room was moved from the wall and the cushions taken out; boxes in the living room were moved and opened; the flour and coffee in the kitchen were poured out; the milk and tupperware in the refrigerator were knocked down; the back door was opened; and the curtain was also knocked down.

Prior to September 29, 2009, PO O'Connor knew that Petitioner had possessed a weapon in the past based on the nature of the underlying charges that led to his incarceration. However, on the four prior occasions that he visited Petitioner's residence, he neither conducted a search of the residence nor requested back up by NYPD officers. Prior to the conversation with Det. Guariano, he had no intention of searching Petitioner's bedroom. PO O'Connor explained that Det. Guariano and the other members of NYPD were at Petitioner's residence for security reasons, as it was customary for parole officers to seek the assistance of NYPD officer when they search a parolee's residence, especially if the parole officers do not have the manpower for back-up, as was the case on September 29, 2009.

PO O'Connor recovered a twelve-inch rusty knife and a box cutter on the top of an armoire in Petitioner's room, but did not find the gun. Petitioner was taken outside where the parole officer's handcuffs were removed and Det. Guariano arrested and handcuffed him. Criminal charges were brought against Petitioner in Richmond County Criminal Court for the shooting incident, however, no criminal charges were brought against him for possession of the knife and box cutter. The only charges for possessing the knife and box cutter are the parole violation charges. The criminal prosecution was later dismissed.

On September 30, 2009, PO O'Connor lodged parole violation warrant number 580284 against the...