People v. Glenn

• Decision Date: 22 July 2008
• Docket Number: No. 2006-04052,2006-04052
• Citation: 2008 NY Slip Op 6383,53 A.D.3d 622,861 N.Y.S.2d 781
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MALIK GLENN, Also Known as MALIK GREEN, Appellant.
• Court: New York Supreme Court — Appellate Division

53 A.D.3d 622

861 N.Y.S.2d 781

2008 NY Slip Op 6383

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MALIK GLENN, Also Known as MALIK GREEN, Appellant.

No. 2006-04052

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided July 22, 2008.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered February 9, 2006,

convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, and upon the recommendation of a Judicial Hearing Officer (Demakos, J.H.O.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

Ordered that the judgment is affirmed.

At the suppression hearing, the arresting detective (hereinafter the detective) testified that on December 15, 2004, at 10:40 A.M., he observed the defendant exit a white vehicle, walk around to the passenger side of that vehicle, open the passenger side door, and converse with a man who was standing on the adjacent sidewalk. According to the detective, the passenger side door remained ajar as the defendant and the other man conversed. At this point, the detective observed the defendant holding a clear plastic ziplock bag which he believed contained marijuana. Although the detective admitted that there were four traffic lanes and one parking lane separating him from the defendant, the detective unequivocally testified that he could see from his vantage point the defendant holding the plastic bag containing what he believed was marijuana. Thereupon, the detective approached the defendant and placed him under arrest. The detective then looked through the open passenger side door and observed a gun inside the open glove compartment. A subsequent search of the trunk revealed two boxes of ammunition.

The defendant and two of his friends also testified at the suppression hearing. In this regard, the defendant denied holding the marijuana bag in his hands and asserted that after he exited his vehicle, he closed and locked the car doors.

Following the suppression hearing, the hearing court found the testimony of the detective credible and denied that branch of the defendant's omnibus motion which was to suppress physical evidence.

The credibility determinations of a hearing court are accorded great deference on appeal, and will not be disturbed unless clearly unsupported by the record (see People v Bhattacharjee, 51 AD3d 684 [2008]; People v Wynter, 48 AD3d 492 [2008]; People v Hay, 37 AD3d 494 [2007]; People v Edwards, 29 AD3d 818 [2006]; People v Brown, 24 AD3d 565, 566 [2005]; People v Parker, 306 AD2d 543 [2003]) . Here, the record amply supports the hearing court's determination to credit the testimony of the detective that he observed the defendant holding a plastic bag which he reasonably believed contained marijuana and that the gun was in plain view (see People v Edwards, 29 AD3d at 818-819).

Contrary to the defendant's contention and our dissenting colleague's view, "[n]othing about the [detective's] testimony was unbelievable as a matter of law, manifestly untrue, physically impossible, contrary to experience, or self-contradictory" (People v James, 19 AD3d 617, 618 [2005]). We disagree with the dissent's assertion that the testimony of the detective was illogical and that, to credit his testimony, "one would have to believe that he had X-ray vision." The detective, who, at the time of the hearing, had over 13 years of experience on the police force and was assigned to narcotics "buy and bust" operations, unequivocally testified regarding his observations of the defendant's actions, the marijuana, and the gun. Notwithstanding defense counsel's vigorous cross-examination, the detective remained consistent and steadfast regarding his observations.

The hearing court was in the best position to observe the demeanor, evaluate the testimony, and assess the credibility of all of the witnesses, including the detective and the defendant. To the extent that there may have been certain inconsistencies between the detective's hearing testimony and the criminal court complaint and arrest report, the hearing court was fully apprised thereof. Simply stated, the evidence presented an issue of credibility. In this regard, the hearing court's credibility determination is entitled to great weight on appeal (see People v Prochilo, 41 NY2d 759, 761 [1977]), and we discern no basis to disturb it.

Several of the cases relied upon by the dissent are distinguishable. For example, in People v Lebron (184 AD2d 784 [1992]), this Court found that the hearing court erred in denying suppression where the arresting officer concededly made several false statements to his superiors about the material facts of his encounter with the defendant, and his testimony was "so improbable as to be inherently unworthy of belief" (id. at 785). In Lebron, this Court concluded that the officer's testimony that he was able to see into the defendant's six or seven-inch deep pocket and observe a metal object strained credulity. Similarly, in People v Quinones (61 AD2d 765 [1978]), the Appellate Division, First Department, rejected the testimony of a police officer, finding it to be "incredible as a matter of law." In that case, it appears that the officer did not testify truthfully when he stated that he came to the scene in response to a radio communication. Moreover, although the officer testified that he was the first on the scene in response to the communication informing that "men with shotguns were in the lobby," he nevertheless stated that he did not have his weapon drawn when he approached the building. In contrast to the facts in Lebron and Quinones, the testimony of the detective in the instant matter was neither incredible as a matter of law nor "patently tailored to nullify constitutional objections" (People v Brown, 24 AD3d 565, 566 [2005]).

Accordingly, the hearing court properly denied that branch of the defendant's omnibus motion which was to suppress physical evidence.

Rivera, J.P., Miller and Dillon, JJ., concur.

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

Belen, J. (dissenting).

On December 15, 2004, the arresting detective (hereinafter the detective) and two other plainclothes officers were on duty, sitting in an unmarked police car on 41st Avenue and 21st Street in Queens County. This spot was on the shoulder of a street with four moving traffic lanes and parking lanes on either side, leading to and from the Queensboro Bridge.

In the sworn criminal court complaint filed by the detective on that date, he alleged that: "at the abovementioned date, time and place of occurrence, he observed the defendant, Malik Glenn, exit a 1998 Dodge Vehicle, Virginia registration, and speak to another male and while deponent also states the vehicle front door from which the defendant had exited was open and upon looking inside the car observed the glove compartment door open, and in full view, a .45 caliber black taurus firearm loaded with nine live .45 caliber hollow point rounds in the magazine and lying next to the firearm was a second magazine containing ten live .45 caliber rounds."

"Deponent further states that he also recovered from the car's trunk a box of Winchester .45 caliber live rounds, one box of Winchester .9 mm rounds and one small taurus firearm, metal adjustment key attached to the defendant's car key ring."

The complaint asserts that the gun was in plain view, seen by looking into the door that the defendant exited, the driver's side door. However, the arrest report states that the gun was recovered by a "search incidental to lawful arrest." Moreover, in his hearing testimony, the police officer testified that he recovered the gun from the glove compartment after seeing it through the passenger door. He testified that "[t]he glove box was ajar. It was open, as well as the car door, the passenger door." This testimony directly contradicted the sworn felony complaint.

While the majority finds the 13 years of narcotics experience of the detective to be supportive of his version of the search this is perhaps the most troubling aspect of this case. One would expect a police officer with 13 years of experience, and by inference, many hundreds of arrests, to be able to complete a straightforward arrest report and sworn felony complaint consistent with each other and with the events at issue.

Although the defendant also was arrested for criminal possession of marijuana in the fifth degree, the complaint does not state where or how the marijuana was found except that it allegedly was in plain view.

At the suppression hearing held six months later on June 2, 2005, the detective testified that he and two other officers from the Queens Narcotics Unit of the New York City Police Department were involved in a "buy and bust" operation on the date in question. While sitting in an unmarked police car, he saw, across four lanes of moving traffic and two parking lanes that the defendant exited his Dodge Intrepid, walked around the back of the vehicle to the passenger side front door, which he opened and left open, contradicting the complaint which states that it was the door that the defendant exited from that was left open.

The detective then allegedly saw the defendant hold a transparent zip-lock sandwich bag containing marijuana and place it in his right front jacket pocket. He stated "I could see it was a quantity of marijuana. It wasn't like pounds; it was a substantial amount." "I saw it in a clear bag. I recovered 23 zip locks containing marijuana from the clear bag." "I could see his hand clenching this object like...