People v. Henry
| Decision Date | 12 August 1999 |
| Citation | 695 N.Y.S.2d 892,181 Misc.2d 689 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Mark HENRY, Defendant. |
| Court | New York Supreme Court |
Michele Maxian, Kew Gardens (Jana Ertrachter of counsel), for defendant.
Richard A. Brown, District Attorney of Queens County, Kew Gardens (Sharon Sloan of counsel), for plaintiff.
The defendant moves to suppress a pair of wire pliers recovered from his person and statements. On August 5, 1999, a suppression hearing was held before this court. At this hearing, Police Officer James Pelosi testified for the People. No one else testified. I find the officer's testimony credible and based on that testimony, this court makes the following findings of fact and conclusions of law.
On January 12, 1999, at around 1:00 am, Police Officer James Pelosi was patrolling in an unmarked car with Sergeant George Norris as a part of the Street Narcotics Enforcement Unit. They were both in plainclothes.
At the intersection of Merrick and Linden Boulevards, Pelosi saw a blue Honda stopped at the light directly opposite his car. Inside he saw two passengers and the defendant, who was operating the car which did not have its headlights on. When the traffic light changed, the officer and his sergeant followed the Honda for an eighth of a mile. The police then put on their siren and emergency lights, which in this unmarked car consisted of the headlights alternating back and forth from normal to bright. At that point the Honda accelerated at a high rate of speed (between 30 to 70 miles per hour). The Honda turned left onto Murdock Avenue and was pursued for three to five minutes. The officer stated that during that time, the defendant was driving in an erratic manner taking sharp turns and accelerating quickly. The defendant lost control and struck a curb causing a flat tire. The police car pulled along side and blocked the Honda's driver's side door. The defendant and his two occupants exited the Honda on the passenger side and fled. Pelosi pursued the defendant for about one minute while Norris notified the aviation unit. During the pursuit, Pelosi shouted demands that the defendant stop. When the defendant was caught two blocks later he was never asked for license and registration, but he asked why he was being arrested. At that point the officer read the defendant his Miranda warnings, handcuffed the defendant and searched him. Pelosi stated that "after placing Mr. Henry under arrest and searching him for my safety, I recovered a pair of wire pliers from his right front jacket pocket" (Transcript, page 14).
The defendant stated that he understood them and again asked why he was being arrested. Pelosi told the defendant that he was being arrested for driving a stolen vehicle, even though at that point Pelosi only knew that the defendant was speeding and was driving without headlights and recklessly. He had not yet determined that the vehicle was stolen.
The defendant stated he had been picked up on Jamaica Avenue by "Calves" and "Legs" and they were just driving around.
When Pelosi took the defendant back to the vehicle, he observed that the vehicle's passenger side door handles were jarred, the glove compartment was broken and held in place by a string, that the ignition was removed from the column and that a screw driver was inserted in its place.
The defendant is indicted for driving a vehicle at night without displaying lighted headlights (Vehicle and Traffic Law § 375.2A ) and reckless driving (Vehicle and Traffic Law § 1212) and, along with his co-defendant Alvin Shelton, with the possession of the stolen blue Honda (Penal Law §§ 165.50 and 165.45 ), unauthorized use of that vehicle (Penal Law § 165.05 ) and possession of burglars tools including the subject wire cutters as well as a screwdriver, mace, macguar and socket, penlight and gloves (Penal Law § 140.35).
Even though the officer's articulated reason for arresting the defendant was for possessing a stolen car, he had no knowledge that the car was stolen at the time of the arrest. The validity of the arrest and search in this case depends on the scope of the officer's authority when arresting the defendant for violations of the Vehicle and Traffic Law.
It is well settled that a police officer may lawfully stop a car where that officer has reasonable cause to believe that the driver violated the vehicle and traffic law (Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331; People v. Ellis, 62 N.Y.2d 393, 396, 477 N.Y.S.2d 106, 465 N.E.2d 826; People v. Ingle, 36 N.Y.2d 413, 419, 369 N.Y.S.2d 67, 330 N.E.2d 39). At the end of the hearing, it became clear that the issue was not at all about the stop and the seizure of the defendant for the traffic violations but rather whether Pelosi was authorized to search the defendant and recover the wire pliers from his jacket. Since the defendant was properly stopped and given his Miranda warnings, his voluntary statement can be admitted into evidence at trial and accordingly, the motion to suppress the statements is denied.
In 1967, the Court of Appeals distinguished arrests for crimes with arrests for traffic offenders. The court held that
"the Legislature never intended to authorize a search of a traffic offender unless, when the vehicle is stopped, there are reasonable grounds for suspecting that the officer is in danger or there is probable cause for believing that the offender is guilty of a crime rather than merely a simple traffic infraction" (People v. Marsh, 20 N.Y.2d 98, 101, 281 N.Y.S.2d 789, 228 N.E.2d 783).
The Marsh court refused to establish a uniform rule governing all searches accompanying valid arrests, but rather examined the nature of the offense and the surrounding circumstances to determine whether the search was warranted.
As Marsh dealt with a traffic infraction, it was not until 1973, that the Court of Appeals was confronted with a search of a defendant for a misdemeanor in the Vehicle and Traffic Law in People v. Adams, 32 N.Y.2d 451, 346 N.Y.S.2d 229, 299 N.E.2d 653. The defendant was subjected to a search of his person incident to an arrest for a violation of Vehicle and Traffic Law § 422. 1 The court held that notwithstanding that the arrest was for a misdemeanor, as opposed to an infraction, that the search incident to an arrest exception would not sustain the search for this type of traffic misdemeanor (id, at 455, 346 N.Y.S.2d 229, 299 N.E.2d 653). Thus, the court in erasing that line, eliminated the distinction between the traffic infraction and the misdemeanor traffic violation that existed in People v. Marsh, supra (see, People v. Adams, dissenting opn., supra at 456, 346 N.Y.S.2d 229, 299 N.E.2d 653).
At the end of 1973, the United States Supreme Court held that the fourth amendment to the federal constitution allowed for searches incident to arrest where the arrest is for a traffic violation (United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427). Our Court of Appeals the following year made reaffirmed Marsh and Adams and made it clear that although their underlying rationale relied, in part, on the fourth amendment, that "it was primarily an expression of State policy found in the State Constitution and the legislative intent underlying the arrest provisions of the Vehicle and Traffic Law" (People v. Weintraub, 35 N.Y.2d 351 concurring opn. p. 355, 361 N.Y.S.2d 897, 320 N.E.2d 636).
Also in 1974, the Court of Appeals addressed the issue of "whether, and to what extent, a search of a person is authorized as incident to a custodial detention for a misdemeanor traffic violation" (People v. Troiano, 35 N.Y.2d 476, 363 N.Y.S.2d 943, 323 N.E.2d 183). In Troiano, the defendant was arrested pursuant to a warrant for the traffic misdemeanor of driving while license was suspended or revoked (Vehicle and Traffic Law § 511) and was being taken into custody. The arresting officer frisked the defendant and discovered a "hard object" in his waistband. This object turned out to be a loaded revolver, which was confiscated. The court found the search to be legal since the defendant was being taken into custody:
(People v. Troiano, supra, 478, 363 N.Y.S.2d 943, 323 N.E.2d 183); see also, People v. Perel, 34 N.Y.2d 462, 358 N.Y.S.2d 383, 315 N.E.2d 452. However, the court did not abandon People v. Marsh, supra, and People v. Adams, supra.
"There is, perhaps, an area of traffic violation 'arrest' where a full-blown search is not justified, but it might seem to be confined to a situation where an arrest was not necessary because an alternative summons was available or because the arrest was a suspect pretext (cf. People v. Marsh, 20 N.Y.2d 98, 281 N.Y.S.2d 789, 228 N.E.2d 783; People v. Adams, 32 N.Y.2d 451, 455, 346 N.Y.S.2d 229, 299 N.E.2d 653, and dissenting opn. at pp. 456-457, 346 N.Y.S.2d 229, 299 N.E.2d 653; but see A.L.I., Model Code of Pre-Arraignment Procedure [O.D. No. 1, 1972], § SS230.2, including, however, the accompanying note)."
(People v. Troiano, supra, 478, 363 N.Y.S.2d 943, 323 N.E.2d 183).
In 1976, the Court of Appeals, relying on Troiano, found a search conducted incident to an arrest for a violation of Vehicle and Traffic Law § 509 () was justified where the defendant could not produce any identification.
"Without the available data on which to prepare a uniform traffic summons and confronted with the driver of a weaving car who possessed no operator's...
To continue reading
Request your trial
-
People v. Henry
...181 Misc.2d 689695 N.Y.S.2d 892THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,v.MARK HENRY, Defendant.August 12, Michele Maxian, Kew Gardens (Jana Ertrachter of counsel), for defendant. Richard A. Brown, District Attorney of Queens County, Kew Gardens (Sharon Sloan of counsel), for plaintif......