People v. Feerick

• Citation: 241 A.D.2d 126,671 N.Y.S.2d 13
• Parties: , 1998 N.Y. Slip Op. 2697, 1998 N.Y. Slip Op. 2698 The PEOPLE of the State of New York, Respondent, v. Patricia FEERICK, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Mayra SCHULTZ, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. John DeVITO, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Orlando ROSARIO, Defendant-Appellant.
• Decision Date: 24 March 1998
• Court: New York Supreme Court Appellate Division

Page 13

671 N.Y.S.2d 13

241 A.D.2d 126, 1998 N.Y. Slip Op. 2697,

1998 N.Y. Slip Op. 2698

The PEOPLE of the State of New York, Respondent, v. Patricia FEERICK, Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. Mayra SCHULTZ, Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. John DeVITO, Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. Orlando ROSARIO, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

March 24, 1998.

Sylvia Wertheimer, of counsel (Mark Dwyer, on the brief, Robert M. Morgenthau, attorney), for respondent.

Roger Bennet Adler, of counsel (Karen Bennett, on the brief, Roger Bennet Adler, P.C., attorneys), for defendant-appellant Feerick.

Mark M. Baker and Benjamin Brafman, of counsel (Dalit Yarden, on the brief, Brafman, Gilbert and Ross, P.C., attorneys), for defendants-appellants Feerick and Rosario.

Richard E. Mischel, for defendant-appellant Schultz.

Raymond E. Kerno, for defendant-appellant DeVito.

Richard A. Dienst and Leslie H. Ben-Zvi, of counsel (Dienst & Serrins, attorneys), as Amici Curiae on behalf of the New York City Police Department, Patrolmen's Benevolent Association, Detectives' Endowment Association, Sergeants' Benevolent Association, Lieutenants' Benevolent Association, Captains' Endowment Association and National Association of Police Officers.

Before SULLIVAN, J.P., and MILONAS, TOM and MAZZARELLI, JJ.

PER CURIAM.

In a 30-count indictment, Police Lieutenant Feerick and Police Officers DeVito, Rosario and Schultz of the 25th precinct were charged with various crimes arising out of their conduct on September 26, 1990, in connection with their search for a lost police radio belonging to DeVito. On the morning of September 26th, defendants went to an apartment building in the Taino Tower complex in upper Manhattan to pursue a lead regarding the radio, which had been lost during a drug arrest in the area several days earlier. Defendants pushed their way into two apartments, ransacking both and, with weapons drawn, unlawfully detained the individuals encountered within (Denise Jackson, Theresa Johnson, Maribel Delgado and Ben Stokes). Defendants threatened them with arrest and other punitive repercussions if they did not cooperate in helping to find the radio. In searching the second apartment, where they encountered Stokes, defendants discovered 591 vials of crack cocaine in a paper bag; Feerick said they would "forget" about the crack if the radio were returned. Jackson was further threatened that large quantities of drugs would be "found" in her apartment if the radio were not promptly returned.

Upon returning to the precinct that afternoon, Officer DeVito vouchered the 591 crack vials and, in completing various forms, indicated that the drugs had been recovered in an alleyway behind the building, where he saw Ben Stokes drop them and flee, eluding apprehension. Late that same night, the lost radio was turned over to security personnel at the building complex by an unidentified individual and returned to the police.

Sometime after defendants left the building, Denise Jackson called 911 to report the incident, and Detective Miller of the Internal Affairs Division (IAD) began an investigation. He visited Jackson's apartment late that afternoon and photographed the damage evident throughout, including a message scrawled across one wall, "We want the radio." Jackson, Johnson, Delgado and Stokes, as well as members of building security, were interviewed, and the identity of the four officers was quickly ascertained; their memo books were seized and other relevant police records obtained. While Delgado was somewhat reluctant to become involved in the matter, Stokes, who gave Miller an account of what had transpired that day, was completely unwilling to cooperate in any criminal prosecution.

A newly formed unit of the Manhattan District Attorney's Office, the Official Corruption Unit, headed by Assistant District Attorney Stephens, was kept apprised of developments in the investigation, but by early January 1991, ADA Stephens decided not to pursue criminal charges against defendants. Although he believed the allegations and considered them to be serious, he had "philosophical" reservations about the new unit pursuing the matter. Stokes's unwillingness to cooperate was only a minor factor in his decision.

By letter dated January 7, 1991, he informed the Police Department of his decision, detailing the evidence accumulated against the defendants and urging that the Department pursue the appropriate disciplinary action against them. In light of this decision, the Police Department commenced administrative proceedings against the defendants by conducting hearings pursuant to Patrol Guide (PG) Section 118-9; at such hearings (also referred to as "GO 15s"), an officer is compelled to answer questions under penalty of dismissal. On January 17, 1991, a PG 118-9 hearing was held for Feerick; on January 18, 1991, a hearing was conducted for Rosario. Hearings for DeVito and Schultz were conducted on January 24th. Feerick was questioned a second time on March 27th about related events, but not about her actions on September 26th.

Each defendant was represented by counsel, and each gave essentially the same statement, denying any wrongdoing. They claimed that they had canvassed the building in question in search of leads to recover the lost radio; that they encountered Jackson and Johnson only, in Jackson's apartment; and that they saw Stokes only in the alleyway when he dropped the drugs. In the course of Rosario's PG 118-9 hearing, he disclosed that he had arrested Stokes on January 5, 1991, for possession of those drugs. (Without advising the narcotics prosecutor of the investigation into the events of September 26th, Rosario proceeded to testify in the Grand Jury on January 11th regarding that arrest.)

Sometime after his arraignment on these drug possession charges, Stokes contacted Delgado for Detective Miller's number; Stokes was angry that defendants had not kept their part of the "bargain" that they would "forget" about the crack if the radio were returned. Stokes tried to reach Miller on January 18th, but Miller had left for the day. When Miller arrived at work on January 21st, having been off the previous two days, he found a message that Stokes had called on the 18th and would call again. He also found on his desk a copy of an arrest report relating to Stokes's January 5th arrest, which apparently had been faxed to the IAD office sometime on January 18th. Stokes did call Miller later on the morning of the 21st from the hospital prison ward where he was incarcerated on the drug charges, complaining about his arrest and advising Miller that he was now ready to cooperate in the investigation.

Later that week, after Miller had spoken to Stokes several times, the District Attorney's Office was apprised of Stokes's status. Its investigation was re-opened and, ultimately, testimony was presented to a Grand Jury, resulting in the instant indictment in March 1992. Following a jury trial, each defendant was found guilty of four counts of unlawful imprisonment in the second degree; one count of coercion in the second degree; one count of criminal trespass in the second degree (except two counts as to Feerick); and one count of official misconduct (except two counts as to Feerick and DeVito). Rosario was also convicted of perjury in the first degree, and DeVito was convicted of falsifying business records in the first degree. Prior to sentencing, defendants moved pursuant to CPL 330.30 to set aside the verdict, alleging improper use of their PG 118-9 statements in connection with the indictment and trial, as well as various Rosario violations. The trial court denied the motion, with leave to renew post-judgment. Thereafter, defendants' motion pursuant to CPL 440.10 to vacate the judgment on the same grounds was denied on January 10, 1995. Defendants' appeal from that denial was consolidated with their direct appeal.

By order of this Court entered August 29, 1996 (230 A.D.2d 689, 646 N.Y.S.2d 810), the appeals from their judgments of conviction were held in abeyance, in order for the Kastigar hearing court to determine if certain documents constituted Rosario material and if necessary, take additional evidence and make a de novo Kastigar ruling. By that order, we also reversed the denial of the 440.10 motion, the same Kastigar/Rosario claim having been raised therein. The matter having now been returned to us with a de novo ruling, and the parties having submitted supplemental briefs and further written argument, we turn to the substance of defendants' claims.

Among the numerous issues raised on this appeal, defendants challenge the sufficiency of the trial evidence, the court's charge on unlawful imprisonment, alleged inconsistencies in the jury verdict and the court's restriction on cross-examination of certain witnesses. We find that the evidence was more than sufficient to sustain the jury's verdicts of guilt, that all the elements of the crimes charged were established and that the guilty verdicts as to certain counts and not guilty verdicts as to others are not inconsistent with one another. Cross-examination regarding Jackson's drug use was not improperly limited by the court, and any error in the charge on unlawful imprisonment was harmless under the circumstances, given the absence of any evidence to support defendants' claim that their conduct in restraining the apartments' occupants was prompted by legitimate safety concerns.

In sum, while defendants continue to claim that, at worst, their conduct constituted no more than an impermissible search for which there is no criminal liability, and that to uphold the guilty verdicts would be to seriously "chill" the ability and good faith efforts of law enforcement to protect the public, the evidence before the jury amply...