People v. Barnes

• Decision Date: 17 June 2015
• Docket Number: 2011-08161
• Citation: 11 N.Y.S.3d 669,129 A.D.3d 981,2015 N.Y. Slip Op. 05200
• Parties: The PEOPLE, etc., respondent, v. Michael BARNES, appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 981

11 N.Y.S.3d 669

2015 N.Y. Slip Op. 05200

The PEOPLE, etc., respondent

v.Michael BARNES, appellant.

2011-08161

Supreme Court, Appellate Division, Second Department, New York.

June 17, 2015.

Lynn W.L. Fahey, New York, N.Y. (Ronald Zapata of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Jeanette Lifschitz, and Tina Grillo of counsel), for respondent.

WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, JOSEPH J. MALTESE, BETSY BARROS, JJ.

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered August 18, 2011, convicting him of criminal possession of a weapon in the second degree and possession of burglar's tools, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Gavrin, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

The defendant contends that the hearing court improperly denied that branch of his omnibus motion which was to suppress physical evidence retrieved from the trunk of his vehicle during a traffic stop because the testimony of the police officers at the pretrial suppression hearing that he voluntarily opened his trunk was incredible and patently tailored to overcome constitutional objections. Contrary to the People's contention, the defendant preserved this argument for appellate review by, inter alia, specifically challenging the testimony of the police officers and arguing at the hearing that the testimony of the respective police officers was irreconcilable and inconsistent, and conflicted with testimony given before the grand jury (cf. People v. Taylor, 120 A.D.3d 519, 520, 990 N.Y.S.2d 635 ; People v. Inge, 90 A.D.3d 675, 933 N.Y.S.2d 879 ).

Nevertheless, the hearing court did not err in denying that branch of the defendant's omnibus motion which was to suppress the physical evidence. “The credibility determinations of a hearing court are entitled to great deference on appeal, and will not be disturbed unless clearly unsupported by the record” (People v. Taylor, 120 A.D.3d at 520, 990 N.Y.S.2d 635 [internal quotation marks omitted]; see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 ; People v. Richardson, 118 A.D.3d 821, 987 N.Y.S.2d 224 ; People v. Louis, 99 A.D.3d 725, 951 N.Y.S.2d 563 ). Contrary to the defendant's contention, the respective testimony of the police officers was not incredible as a matter of law, as it was not manifestly untrue, physically impossible, contrary to experience, or self-contradictory (see Matter of Sherrod H., 116 A.D.3d 954, 983 N.Y.S.2d 812 ; People v. Lynch, 63 A.D.3d 959, 917 N.Y.S.2d 199 ; People v. James, 19 A.D.3d 617, 798 N.Y.S.2d 483 ). Moreover, in exercising our factual review power, we find no basis in the record to disturb the hearing court's credibility determination (see People v. Granger, 122 A.D.3d 940, 997 N.Y.S.2d 466 ). Any inconsistencies in the officers' testimony did not establish that the testimony was tailored to ify constitutional objections and did not render the testimony incredible or unreliable (see People v. Blake, 123 A.D.3d 838, 996 N.Y.S.2d 725 ; People v. Hopkins, 244 A.D.2d 357, 665 N.Y.S.2d 327 ; People v. Gonzalez, 224 A.D.2d 322, 638 N.Y.S.2d 440 ; People v. Thomas, 175 A.D.2d 852, 573 N.Y.S.2d 420 ).

BARROS, J., dissents, and votes to reverse the judgment, on the law and the facts, grant that branch of the defendant's omnibus motion which was to suppress physical evidence, and dismiss the indictment, with the following memorandum:

Since the People failed to meet their heavy burden in establishing that the defendant voluntarily consented to the search by law enforcement officials, I dissent.

When the People rely on consent to justify a search or seizure, “they bear the ‘heavy burden’ of establishing that such consent was freely and voluntarily given” (People v. Marcial, 109 A.D.3d 937, 938, 971 N.Y.S.2d 328, quoting People v. Gonzalez, 39 N.Y.2d 122, 128, 383 N.Y.S.2d 215, 347 N.E.2d 575 ; see People v. Whitehurst, 25 N.Y.2d 389, 391, 306 N.Y.S.2d 673, 254 N.E.2d 905 ; People v. Quagliata, 53 A.D.3d 670, 671, 861 N.Y.S.2d 792 ; People v. Vasco, 191 A.D.2d 602, 603, 595 N.Y.S.2d 71 ). “Implicit in this concept is that the testimony offered by the People in first presenting their case must be credible” (People v. Quinones, 61 A.D.2d 765, 766, 402 N.Y.S.2d 196 ; see People v. Berrios, 28 N.Y.2d 361, 368, 321 N.Y.S.2d 884, 270 N.E.2d 709 ). “[C]onsent to a search is voluntary when it is a true act of the will, ‘an unequivocal product of an essentially free and unconstrained choice’ ” (People v. Richardson, 229 A.D.2d 316, 316, 645 N.Y.S.2d 298, quoting People v. Gonzalez, 39 N.Y.2d at 128, 383 N.Y.S.2d 215, 347 N.E.2d 575 ). “Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle” (People v. Gonzalez, 39 N.Y.2d at 128, 383 N.Y.S.2d 215, 347 N.E.2d 575 ).

In assessing the voluntariness of a defendant's consent, the court should consider the totality of the circumstances, including whether the defendant was in custody or under arrest, whether the defendant was confronted by a large number of police agents, whether the defendant had been evasive or uncooperative prior to giving consent, the past experience of the defendant in dealing with law enforcement, and whether the defendant was advised of a right to refuse consent (see id. at 127–130, 383 N.Y.S.2d 215, 347 N.E.2d 575 ; People v. Poinvil [Rollin], 47 Misc.3d 79, 9 N.Y.S.3d 525 ).

Despite the presence of guns and burglar's tools in the trunk of the defendant's vehicle, the People claimed that the defendant nonetheless voluntarily consented to the search of his trunk. The People produced two witnesses, Officer Stanos and Officer Oliva. Officer Stanos testified that on April 10, 2009, at 4:00 a.m., he and his supervisor, Sergeant Smith, pulled the defendant's vehicle over for speeding. Officer Stanos admitted that he did not recall the sequence of events, but refreshed his recollection by looking at his memo book. According to Stanos's refreshed recollection, the defendant produced a valid interim license, a passport, the vehicle registration, and insurance card. Officer Stanos searched for the license plate number in his computer, and found that the vehicle was listed as “impounded.” At trial, the People stipulated that the vehicle had previously been impounded for unpaid parking violations, that the judgment was satisfied, a receipt was issued, and that the vehicle had been released from impound nine days before the subject stop.

Because the name on the registration did not match the name on the insurance card, and the car was listed as impounded, Officer Stanos called for backup to assist with the investigation. He did not recall any conversations that he had with the defendant, and he did not testify as to the significance of the “impounded” listing on his computer.

Despite the presence of Sergeant Smith at the scene, Officer Oliva took over the investigation as soon as he arrived with his partner. At that time, four officers were present. Officer Stanos did not recall whether the defendant was asked to open the trunk, but “at some point,” the defendant and his passenger exited the vehicle, and he thought that they were looking for paperwork, “something like that, maybe the registration they were looking for.”

The second witness, Officer Oliva, testified that Sergeant Smith, the patrol supervisor, called for assistance. He testified that the defendant produced an interim license, insurance card, and a passport, but not a registration. As such, the officers asked...