People v. Dimas

• Decision Date: 22 February 2016
• Docket Number: Indictment No: 14-1618
• Citation: 2016 NY Slip Op 32708 (U)
• Parties: THE PEOPLE OF THE STATE OF NEW YORK v. PEDRO DIMAS a/k/a DIMAS PEDRO Defendant.
• Court: New York County Court

2016 NY Slip Op 32708(U)

THE PEOPLE OF THE STATE OF NEW YORK v. PEDRO DIMAS a/k/a DIMAS PEDRO Defendant.

Indictment No: 14-1618

COUNTY COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER

FILED: February 23, 2016

February 22, 2016

DECISION AFTER HEARING

ZAMBELLI, J.

The defendant has been indicted for the crimes of Attempted Murder in the Second Degree, Assault in the First Degree and Criminal Possession of a Weapon in the Second Degree allegedly committed on or about October 22, 2014, in the County of Westchester.

By decision and order dated September 15, 2015, this court granted defendant's motion solely to the extent of ordering Dunaway, Huntley, Mapp and Wade/ Rodriguez hearings. A Sirois hearing was further ordered following the People's application on January 4, 2016 and January 11, 2016. The following witnesses gave testimony: from the Yonkers Police Department: Detective Dennis Mullin, Police Officer Thomas Braig; Sergeant Marcelo Diaz of the Westchester County Department of Corrections; District Attorney Investigators Latheia Smith, Amin Muhammad, and Edward Salinas; civilian RT;¹ and Assistant District Attorney Shameika Mathurin.

On October 22, 2014, at approximately 9:00 a.m. Detective Mullin responded to the location of the deli/bodega at 27 Lawrence Street in Yonkers on the report of a shooting. He was accompanied by his partner Detective Russell Kilgore. Upon arrival, the detective observed a male, later identified as Sean Chilsolm, behind the counter lying on the floor with three gunshot wounds. Ambulance personnel were providing medical attention. After interviewing witnesses, the detective learned that a witness had chased after the shooter who got into a dark blue older model BMW. The shooter was described by the witness as a tall male approximately six foot, very heavy, wearing dark blue clothing, dark blue pants. The witness told the detective that the BMW traveled eastbound on Lawrence Street, made a right onto an area that used to be a train track area that goes behind some buildings and then turned onto Wolfe Street. The witness had seen the vehicle driving around the block earlier that morning.² The witness knew that the victim had had a fight two weeks prior with Dimas. The witness also saw the shooter get back into the passenger side of the BMW on Wolfe Street.

The Police Tech Unit retrieved video from 27 Lawrence Street, video of the individual exiting the store running eastbound on Lawrence Street. Videos retrieved from before the shooting and after the shooting from the areas described by the witnesses showed the dark blue old model BMW while parking had the driver's side reverse light out. After parking, a male exits the passenger side of the vehicle and walks westbound onWolfe Street into the train track area. Another video shows the shooter running into the store and coming out of the store and the same old model dark blue BMW driving around the block. The BMW on the video driving around the block after the shooting appears to be the same BMW that had parked on Wolfe Street where the individual exited the passenger side prior to the shooting. After the shooter exits the deli, the video shows the shooter running eastbound on Lawrence Street, making a right onto the train track area, left onto Wolfe Street, and reentering the same BMW on the passenger side. The videos depict the shooter exiting that vehicle at 73-83 Highland Avenue approximately ten minutes after the shooting which location is approximately a mile and a half from the scene of the crime.

The detective learned from the victim's girlfriend, Brittany Collazo, that the victim had had an issue with "Dimas". She told them Dimas and the victim had been engaged in an ongoing dispute about "dust" and that Sean had walked off with Dimas' "blunt". They had gotten into a fight two weeks before. Dimas hit Sean. Sean was in fear of his safety. He was hiding out in her apartment since the fight because he was scared to come outside. He knew Dimas to carry a gun.

After speaking with the victim's girlfriend the detectives returned to the detective division to search for information about a "Dimas". After asking around, one of the detectives told Detective Mullin that he knew a male named Pedro Dimas. The RICI system was checked. The system consists of everyone who has been arrested and contains pedigree information, addresses, and photos. Dimas' photo was pulled up. His description in the system fit the description provided by the witnesses to the shooting. Thevictim's girlfriend confirmed it was Dimas Pedro.³ The description of Dimas Pedro, the description of the BMW including the driver's side broken reverse taillight was relayed through police channels. Detectives Cartegena and Kostewich had a description of the vehicle. At approximately 1:00 - 2:00 p.m. the detectives spotted an old model black BMW vehicle in front of 73-83 Highland Avenue. At approximately 2:00 p.m., an anti-crime unit was sent to the location to surveil the vehicle. The anti-crime unit, Police Officer Braig with his partner Paul Api, were advised it was a BMW, black, 5 series with a broken driver's side reverse light that was used in the shooting. Police Officer Braig was also advised Pedro Dimas was wanted for questioning on the shooting. At approximately 3:30 - 4:00 p.m. the officer saw a male get into the passenger side of the BMW and a female get into the driver's side. The vehicle left the parking spot and drove past the detective's vehicle. The officer did a u turn and followed them. The BMW took a roundabout way out to Broadway and failed to signal when turning from Carolina Street on to Harriet Street and then on to Broadway. The officer effected a traffic stop on Broadway. When the driver of the BMW put the vehicle in park, the officer observed the driver's side reverse light was out. He recognized the passenger as Dimas Pedro who he knew from prior experience. The driver was identified as Artya Green. They were brought into the police department and the vehicle was impounded. Defendant was taken to the detective division as was Ms. Green. The People have withdrawn for all purposes the CPL §710.30 notice alleging defendant made a recorded statement between 5:45 p.m. and 7:00 p.m.

Artya Green gave a statement to the detectives that defendant had taken her carthat morning without her knowledge. He had stayed with her the night before. He had not been staying with her before that. That morning of October 22 he left and took his clothes. She consented to a search of the apartment.

Detective Mullin went to the hospital to speak to the victim shortly after the shooting but the victim was in surgery. The detective as well as others returned that night at approximately 9:00 p.m. The victim was awake, coherent and alert but in pain. Detective Kilgore spoke to him in Detective Mullin's presence. He told the detective he was hanging out in the deli. He told them Dimas shot him. He told the detective that he knew Dimas. They had known each other for over a year. They were friends at one point, but the relationship had changed because Dimas thought that he had set him up to get arrested by the police. They had had a fight two weeks prior; Dimas punches really hard. Prior to showing the victim a photo array, the detective explained that the pictures shown may not include the person actually wanted for questioning. The persons in the array may be different depending on the time the picture was taken, they may be heavier, they may be lighter. Also, skin tones might be different, hair might be different. The photo array, Exh 1, was shown to the victim. He looked at the photo array, pointed to photo four, and stated "that's Dimas, that's who shot me". He circled the picture and signed it.

Defendant was booked and processed the following morning, October 23, at approximately 7:00 a.m. Pedigree information was taken while he was in the holding cell. He told them his address was 2 Lawrence Street. Asked if he had any markings, scars or tattoos he responded that he had a gunshot wound to his right ankle which caused his to walk to be "messed up". He was swabbed for gunshot residue.

On October 24^th the detective returned to the hospital and a typed statement was taken from the victim, Exh 42, on Detective Mullin's laptop. The victim gave the detective the details about the defendant's features that he recognized. He recognized it was Dimas because he could see the complexion of his skin, the bridge of his nose, his eyes, and the start of the braids in his hair that the mask wasn't covering.

CONCLUSIONS OF LAW

The Arrest of the Defendant

Defendant was in custody at the point he was taken to the detective division after the stop of the vehicle for a traffic infraction. Although the detective testified defendant was taken into the department for questioning, the defendant was nevertheless in custody at that point which requires a showing of probable cause. (See, People v Yukl, 25 N.Y.2d 585)

A police officer may arrest and take into custody a person when he has probable cause to believe that person has committed a crime, or offense in his presence (CPL §140.10; People v. De Bour, 40 N.Y.2d 210, 223)

"Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place and that the person being arrested committed the crime or offense (People v. McRay, 51 N.Y.2d 594, 602, 435 N.Y.S.2d 679, 416 N.E.2d 1015, supra; see also, Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, reh. denied 338 U.S. 839, 70 S.Ct. 31, 94 L.Ed. 513). The legal conclusion is to be made afterconsidering all of the facts and circumstances together. Viewed singly, these may not be persuasive, yet when viewed together the puzzle may fit and probable cause found (see generally, ...