People v. Creary
| Decision Date | 05 May 2022 |
| Docket Number | Ind. 1365/2020 |
| Parties | The People of the State of New York v. Brandon Creary and Dylan Hamilton, Defendants. |
| Court | New York Supreme Court |
Camille Russell, Esq., for Brandon Creary.
Scott Dufault, Esq., for Dylan Hamilton.
Paige Nyer Assistant District AttorneyOffice of the Queens District Attorney.
Defendants are charged by indictment filed January 12, 2021, with two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1][b], [3]), both class "C" violent felonies. Defendant Creary is also charged with one count criminal possession of a firearm (Penal Law § 265.01 [b]), a class "E" felony and one count menacing in the second degree (Penal Law § 120.14 [1]), a class "A" misdemeanor. These charges stem from events alleged to have occurred December 21, 2020 between approximately 4:00 a.m. and 9:30 a.m., at 219-49 141st Road in Queens County.
Defendants move to suppress a loaded firearm recovered from defendant Creary's vehicle on the grounds it was obtained without requisite probable cause and, therefore, the fruits of an unlawful search. Defendant Creary also moves to suppress statements made by him to arresting officers on the same grounds and further claims that they were otherwise involuntarily obtained.
By decision and order dated August 5, 2021, the Hon. Michael Yavinsky ordered that a Mapp/Dunaway hearing be conducted with respect to both defendants and a Huntley hearing as to defendant Creary. On February 17, 2022, this court commenced a combined Mapp/Huntley/Dunaway hearing. [1] It concluded on March 11, 2022, and, after receiving robust oral arguments, reserved decision. The parties subsequently filed supplemental memoranda of law, which are made a part of the record before this Court. Based upon the evidence presented, the parties' arguments, prior court proceedings and documents on file with the court, this Court, by its April 27, 2022, Decision and Order GRANTED defendants' motion to suppress the loaded firearm and DENIED defendant Creary's motion to suppress his statements. That Decision and Order is recalled and replaced herein.
At the hearing, the People called four witness: New York City Police Department (NYPD) Sergeant Crystal Collins (Sgt Collins), formerly a police officer of the 105 Precinct; Police Officer Daniel Rodney (PO Rodney) of the 105 Precinct; Detective James Fleming (Det Fleming) of the 105 Detective Squad; and Police Officer Timothy O'Connell of the 105 Precinct. Defendants did not call any witnesses. This Court finds the testimony of all witnesses credible to the extent indicated and is summarized as follows. Issues necessitating suppression are decided as a matter of law.
Sgt Collins, an eleven-year veteran of the NYPD, testified that on December 21, 2020, at approximately 9:20 a.m., while assigned to the 105 Precinct, she responded to a radio run for menacing that allegedly occurred several hours earlier (tr at 9, lines 15-16). Sgt Collins stated that upon arriving at 219-49 141st Road, in Queens County, she spoke with Ashley, the complainant, who had called 911. Ashley reported to Sgt Collins that Brandon Creary, her ex-boyfriend, "pulled a gun on her" at approximately 4:00 a.m. (tr at 14, lines 6-25; tr at 15, lines 1-2). She further indicated to Sgt Collins that Creary then left the house in his car and his bedroom door was open. At approximately 9:00 a.m., when leaving her room, she observed Creary's bedroom door to be closed and heard his cell phone inside leading her to believe Creary was also inside (tr at 15, lines 23-25; tr at 16, line 1).
Sgt Collins testified that after Ashley provided a description of Creary's vehicle, she began to canvas the area but did not locate any vehicles matching that description (tr at 16, lines 11-22). At approximately 9:50 a.m., however, Ashley pointed out Creary's vehicle, which was across the street several car lengths from the residence. In so doing, she explicitly indicated the person asleep inside (in the driver's seat) was Creary's friend, Dylan Hamilton (tr at 18, lines 9-25).
At the same time, Sgt Collins testified that NYPD's Emergency Service Unit (ESU) was entering the premises to open Creary's bedroom door where he was thought to be located (tr at 22, lines 1-5). Nevertheless, Sgt Collins explained that because since she did not know for certain where the gun was located and tinted windows precluded her from seeing who, if anyone, was in the back seat (tr at 19, lines 9-22), she knocked on the window and instructed Hamilton to open the door for her and the other officers' safety. When he complied, Sgt Collins observed a firearm in the driver's side door pocket (tr at 20, lines 10-25) and directed PO Rodney's attention to it (tr at 50, lines 7-15). Sgt Collins removed Hamilton from the vehicle and placed him under arrest (tr at 21, lines 8-13). PO Rodney then removed the firearm from the door and handed to PO O'Connell (tr at 51, lines 1-4). PO Russo testified that being arrested, he transported Creary to the precinct, obtained his pedigree information and lodged him (tr at 100, lines 1-6).
Det Fleming testified that at approximately 4:30 p.m., at the 105 Detective Squad, he read Creary his Miranda rights, after which he obtained a videotaped statement from him (tr at 57, lines 9-11; tr at 59, lines 20-23). PO O'Connell testified that on December 21, 2020, at the 105 Precinct, he performed an inventory search of Creary's vehicle, which resulted in the recovery of several miscellaneous items (tr at 71, lines 11-25; tr at 72, lines 1-13).
A DVD of both Sgt Collins's and PO Russo's body-worn camera video recordings, as well as a DVD of Creary's videotaped interview were received in evidence without objection and played in open court.
A. The Loaded Firearm
Initially the People have the burden of commencing a suppression hearing by presenting evidence of probable, or reasonable, cause to show the legality of the police conduct (People v Baldwin, 25 N.Y.2d 66 [1969]; People v Malinsky, 15 N.Y.2d 86 [1965]). Once the People have met this burden, it is the defendant that bears the burden of proving any illegality of the police conduct (People v Berrios, 28 N.Y.2d 361 [1971]; People v Baldwin, 25 N.Y.2d 66 [1969]).
In sustaining their burden of establishing reasonable cause, the People must demonstrate that the attendant circumstances, coupled with defendant's behavior, justified the arresting officers' intrusion. Such intrusion, of course, must comport with the four-tier approach articulated in People v DeBour (40 N.Y.2d 210, 223 [1976]). DeBour's first level of intrusion permits a law enforcement officer to approach a citizen and request information provided there is an objective, credible, and articulable reason to do so, not necessarily indicative of criminality. The second level, the common-law right of inquiry, permits a momentary stop when there is a "founded suspicion that criminal activity is afoot" (DeBour, 40 N.Y.2d at 223). Under the third level, an officer may forcibly stop and detain a person when such officer has a reasonable suspicion that the individual has been involved in criminal activity. Finally, an officer may affect a full-blown arrest when there is probable cause to believe that an individual has, is or is about to commit a crime (DeBour at 223).
Though DeBour clearly outlined four levels of street encounters, wading through its' levels has long been observed as thorny. In fact, one Justice of the Appellate Division, Second Department, commented in dissent that even her colleagues had conflated the DeBour delineations: "the majority is sanctioning a fifth level of police intrusion, somewhere between the common-law right of inquiry and the forcible stop, not justified by the DeBour analysis" (People v Abdul-Mateen, 126 A.D.3d 986, 992 [2d Dept 2015] [Hinds-Radix dissenting ]). And while the Court of Appeals has continually upheld its use, even expanding it to encompass traffic stops (People v Garcia, 20 N.Y.3d 317 [2012]), the High Court has acknowledged that "[t]here are no bright lines separating various types of police activity" (People v Bora, 83 N.Y.2d 531, 535 [1994]). Some Appellate Courts have taken such criticism a step further noting that "seemingly similar face patterns sometimes result in different outcomes and lead to confusion" (People v Cartegena, 189 A.D.2d 67, 69 [1st Dept 1993]).
Among the issues perplexing courts when applying DeBour is where an officer is conducting a common-law right of inquiry and believes her safety is at risk. DeBour clearly limits a frisk by law enforcement to a level-three encounter. What has confounded courts is determining if, and when, police officers may take some other action during a level-one or level-two encounter to protect themselves if they fear for their safety. (See Does DeBour Permit a Fifth Level of Police-Citizen Encounter?, NYLJ, June 1, 2015, Kamins, B.). This is the issue that must be tackled.
Often cited when determining the critical, indeed indispensable matter of officer safety is People v Benjamin (51 N.Y.2d 267 [1980]). Authored by the same judge who penned DeBour, Former Chief Judge Sol Wachtler, it employs extensive and formidable language supporting the right of a police officer to take "due precaution for his own safety" (id. at 271). And, it is frequently cited for its poignant maxim, "[i]t would be absurd to suggest that a police officer has to await the glint of steel before he can act to preserve his safety" (id.). What is often overlooked, however, is that Benjamin did not extend the right to frisk to common law inquiries. ...
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