People v. Harris

• Decision Date: 30 December 2020
• Docket Number: Ind. No. 1243/16,2017–05563
• Citation: 138 N.Y.S.3d 593,192 A.D.3d 151
• Parties: The PEOPLE, etc., respondent, v. Shymeek HARRIS, appellant.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 151

138 N.Y.S.3d 593

The PEOPLE, etc., respondent,

v.Shymeek HARRIS, appellant.

2017–05563

Ind. No. 1243/16

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

Argued—March 26, 2019

December 30, 2020

Paul Skip Laisure, New York, N.Y. (Samuel Barr of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Roni C. Piplani of counsel), for respondent.

RUTH C. BALKIN, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, BETSY BARROS, JJ.

OPINION & ORDER

MILLER, J.

The defendant contends that the Supreme Court should have granted those branches of his omnibus motion which were to suppress physical evidence and his statement to law enforcement officials. The defendant maintains that, on this record, the court should have declined to credit the testimony of the People's witnesses at the suppression hearing. For the reasons more fully set forth below, we agree that the People failed to sustain their initial burden of demonstrating the legality of the police conduct in the first instance, and that, under the circumstances of this case, the court should have granted those branches of the defendant's omnibus motion which were to suppress physical evidence and his statement to law enforcement officials. Accordingly, we reverse.

I. Factual & Procedural Background

The defendant was a passenger in a vehicle that was stopped for alleged traffic infractions. The defendant and the driver of the vehicle were ultimately arrested. During the encounter, law enforcement officials recovered a single credit card (with an alleged burn mark on it) from the center console of the vehicle, and they recovered a stack of about 15 other credit cards from the defendant's person. The defendant was also alleged to have made an incriminating statement during the encounter.

The defendant was charged with seven counts of criminal possession of a forged instrument in the second degree and two counts of criminal possession of stolen property in the fourth degree. As relevant here, the first count alleged, under an acting-in-concert theory (cf. Penal Law § 265.15[3] ), that the defendant possessed a credit card bearing a number ending in 1544—the allegedly burned card from the center console. The second count alleged that the defendant possessed a credit card bearing a number ending in 6043—one of the cards recovered from the defendant's person.

The defendant moved to suppress: (1) the credit card recovered from the center console of the vehicle, (2) the group of credit cards recovered from the defendant's person, and (3) the statement the defendant allegedly made to law enforcement officials during the encounter. The People opposed the defendant's motion to suppress the physical evidence and his statement to law enforcement officials.

The Supreme Court, Queens County (Stephanie Zaro, J.), granted the defendant's motion to suppress "to the extent that a Mapp/Huntley/Dunaway hearing [was] ordered." The suppression hearing took place before the Supreme Court, Queens County (Ronald D. Hollie, J.), over the course of five different days between October 3, 2016, and October 28, 2016.

At the hearing, the People presented the testimony of the two law enforcement officials who recovered the physical evidence and recorded the defendant's statement: Detective Dimitri Roidis, and Sergeant Ramrio Ruiz. After the People rested, the defendant called three witnesses to testify, including the individual who was operating the vehicle that was stopped by the police, Carlos Richards.

The Supreme Court, Queens County (Ronald D. Hollie, J.), denied the defendant's motion to suppress in a two-paragraph decision and order. The decision and order did not make any specific credibility determinations or factual findings, and did not state the legal basis for the denial of the defendant's suppression motion.

The defendant subsequently entered into a plea agreement and pleaded guilty to the second count in the indictment which charged him with criminal possession of a forged instrument in the second degree. The defendant was sentenced, in accordance with the plea agreement, to four years of probation.

On appeal, the defendant contends that the Supreme Court should have granted his motion to suppress. The People argue that the defendant failed to establish his standing to challenge the search of the vehicle (cf. People v. Wesley, 73 N.Y.2d 351, 360–361, 540 N.Y.S.2d 757, 538 N.E.2d 76 ), and that, in any event, the police testimony at the suppression hearing was properly credited by the hearing court.

In a decision and order dated September 25, 2019, this Court remitted the matter "to the Supreme Court, Queens County, for a new determination of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statement to law enforcement officials in accordance herewith, and thereafter a report to this Court advising of the new determination" ( People v. Harris, 175 A.D.3d 1555, 1555, 109 N.Y.S.3d 362 ). The appeal was held in abeyance in the interim (see id. ).

The Supreme Court, Queens County (Ronald D. Hollie, J.), subsequently issued a report which included findings of fact and conclusions of law in support of its determination denying the defendant's motion to suppress. After the Supreme Court's report was filed, both parties provided supplemental briefing to this Court.

II. Discussion

We disagree with the Supreme Court's determination to deny the defendant's suppression motion. For the reasons explained below, we conclude that none of the testimony of the People's witnesses should be credited, such that the People failed to prove the legality of the vehicle stop and the admissibility of the evidence obtained as a result. Accordingly, we reverse the judgment.

The Criminal Procedure Law provides that "[u]pon motion of a defendant who ... is aggrieved by unlawful or improper acquisition of evidence and has reasonable cause to believe that such may be offered against him in a criminal action ... a court may ... order that such evidence be suppressed or excluded upon the ground that it ... [c]onsists of tangible property obtained by means of an unlawful search and seizure under circumstances precluding admissibility thereof in a criminal action against such defendant" ( CPL 710.20[1] ).

If a court does not summarily grant or deny a motion to suppress (see CPL 710.60[2], [3] ), "it must conduct a hearing and make findings of fact essential to the determination thereof" ( CPL 710.60[4] ). As relevant here, the purpose of a hearing pursuant to this section "is to determine whether suppression should be granted because of an unlawful search and seizure" ( People v. Moore, 185 A.D.2d 825, 825, 586 N.Y.S.2d 647 ).

"[T]he CPL article 710 suppression procedure involves an adjudication based on mixed questions of law and fact" ( People v. Evans, 94 N.Y.2d 499, 505, 706 N.Y.S.2d 678, 727 N.E.2d 1232 ; see People v. Harrison, 57 N.Y.2d 470, 457 N.Y.S.2d 199, 443 N.E.2d 447 ; People v. McRay, 51 N.Y.2d 594, 435 N.Y.S.2d 679, 416 N.E.2d 1015 ). "The suppression court must make findings of fact, often requiring it to assess the credibility of witnesses" ( People v. Evans, 94 N.Y.2d at 505, 706 N.Y.S.2d 678, 727 N.E.2d 1232 ). "It must then render its conclusions of law and the reasons for its determination, all of which must be set forth on the record ( CPL 710.60[6] ) as a basis for an order ( CPL 710.70 )" ( id. ; see People v. Harris, 175 A.D.3d at 1557, 109 N.Y.S.3d 362 ).

At the outset, as the People correctly observe, "[i]n general, a defendant seeking to suppress evidence, on the basis that it was obtained by means of an illegal search, must allege standing to challenge the search and, if the allegation is disputed, must establish standing" ( People v. Carter, 86 N.Y.2d 721, 722–723, 631 N.Y.S.2d 116, 655 N.E.2d 157 ). Of course, the Court of Appeals has made clear that the issue of standing must be preserved, and thus "the People are required to alert the suppression court if they believe that the defendant has failed to meet his [or her] burden to establish standing" ( People v. Hunter, 17 N.Y.3d 725, 727–728, 926 N.Y.S.2d 401, 950 N.E.2d 137 ).

Here, by setting forth their position that the defendant lacked standing to contest the search of the vehicle in their written opposition to the defendant's omnibus motion, the People adequately "made [their] position" on that issue "known to the court" ( CPL 470.05[2] ; cf. People v. Sanchez, 226 A.D.2d 284, 284, 641 N.Y.S.2d 541 ; People v. Graham, 211 A.D.2d 55, 57–58, 626 N.Y.S.2d 95 ). Indeed, the defendant actually addressed the issue of standing in his post-hearing memorandum. Accordingly, we review the issue of whether the defendant sustained his burden of demonstrating "standing to challenge the search" ( People v. Carter, 86 N.Y.2d at 722–723, 631 N.Y.S.2d 116, 655 N.E.2d 157 ).

The People contend that the evidence adduced at the suppression hearing demonstrated that the police witnesses lawfully stopped Richards' vehicle for committing certain traffic infractions. The People maintain that after the vehicle was lawfully stopped, the testimony of the police witnesses demonstrated that they were able to observe the burned credit card on the center console of Richards' vehicle, in plain view, and that, in light of their training and experience, they were "immediately" able to determine that "it was forged" based on their visual observations alone. The People further contend: "Because the burned credit card ... was lawfully recovered under the plain view doctrine, and because it, alone, gave the police probable cause to arrest defendant, the stack of credit cards was lawfully recovered from defendant's person as a search incident to lawful arrest."

"[T]he stop of an automobile is a seizure implicating constitutional limitations" ( People v. Spencer, 84 N.Y.2d 749, 752, 622 N.Y.S.2d 483, 646 N.E.2d 785 ; see People v. Hinshaw, 35...