People v. Jones

• Citation: 202 A.D.3d 821,162 N.Y.S.3d 145
• Decision Date: 09 February 2022
• Docket Number: 2018–12099,Ind. No. 1101/17
• Parties: The PEOPLE, etc., respondent, v. Khalik JONES, appellant.
• Court: New York Supreme Court Appellate Division

202 A.D.3d 821

162 N.Y.S.3d 145

The PEOPLE, etc., respondent,

v.Khalik JONES, appellant.

2018–12099

Ind. No. 1101/17

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

Argued—December 20, 2021

February 9, 2022

Laurette D. Mulry, Central Islip, NY (Edward E. Smith and Lisa Marcoccia of counsel), for appellant, and appellant pro se.

Raymond A. Tierney, District Attorney, Riverhead, NY (Grazia DiVincenzo and Glenn Green of counsel), for respondent.

BETSY BARROS, J.P., CHERYL E. CHAMBERS, JOSEPH A. ZAYAS, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (William J. Condon, J.), rendered October 2, 2018, convicting him of criminal possession of a controlled substance in the third degree and loitering in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and statements he made to law enforcement officials.

ORDERED that the judgment is reversed, on the law, those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials are granted, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings on the indictment.

At a suppression hearing, former police officer, now Detective Michael Petrucci testified that, on the morning of May 26, 2017, he and another officer were at the Mastic/Shirley rail station investigating two narcotics tips regarding premises located at 125 Patchogue Avenue in Mastic. The first tip had been made to the Suffolk County Police Department, and provided the cell phone number of an individual named Nicholas Flores, who was alleged to be selling heroin from that location. Detective Petrucci testified that the second tip was received anonymously from "the city," and "gave information about a subject that went by the name of DA that would come from the city, take the train to the Mastic/Shirley rail station in the morning, deal heroin all day from 125 Patchogue Avenue in Mastic and then ... take that train back home. Because he was on parole, he had to be back into the city by his curfew." Although the second tip did not provide any physical description of DA, Detective Petrucci testified that he knew from "interaction[s] on the street or a traffic stop or an arrest" that the person known as DA "was a black male subject approximately 30—mid 30s, tall, bald ... head" who was said to "dress clean."

Detective Petrucci testified that, a little after 10:00 a.m., he observed a dozen people getting off the train. Most of them went to their cars, but "[o]ne black male subject exited that platform on foot and began walking out of the parking lot." The man—whom Petrucci identified in court as the defendant—was bald, in his mid–30s, and was wearing jeans and a shirt. The defendant met up with a white female and walked into a deli across the street from the station. After about five minutes, the defendant exited the deli and walked eastbound on Patchogue Avenue. The defendant stopped at 123 Patchogue Avenue, which is a residence, and went inside.

Detective Petrucci testified that he had personally made numerous arrests at 123 Patchogue Avenue, and described those premises as "probably our number one community complaint in the precinct," and the site of "numerous overdoses." He testified that "it's just a known location for users and dealers to operate out of." The location in question was next door to 125 Patchogue Avenue, which was the location mentioned in the tips. Detective Petrucci testified that he had conducted controlled buys at 123 Patchogue Avenue with confidential informants, and had observed hand-to-hand transactions, as well as overdoses, people using narcotics, and people dealing narcotics.

Detective Petrucci testified that, as soon as the defendant arrived at 123 Patchogue Avenue, "the volume of traffic, both vehicle and pedestrian, picked up significantly." He clarified that meant "cars in and out, people in and out on bikes, on foot." The defendant was "in and out" of the house at 123 Patchogue Avenue numerous times. Detective Petrucci continued to observe the defendant over the course of approximately one hour. At one point, Detective Petrucci observed a black Lincoln Navigator pull into the driveway area of 123 Patchogue Avenue, and the defendant "walked over" and "leaned in the front driver's side window" of that vehicle. Detective Petrucci testified that the defendant and the driver engaged in a "very quick and secretive" interaction that was "consistent with a narcotics transaction." On cross-examination, Detective Petrucci clarified that during that interaction his view of the defendant was from the passenger side of the Lincoln Navigator, so he "could see just general body movements, that's all," and see that the defendant was "at that driver's side window, that's all." He could not hear anything that was being said, and "did not see an exchange of money and drugs."

Detective Petrucci testified that he next saw a light-colored SUV traveling westbound on Patchogue Avenue. The vehicle parked several houses away from 123 Patchogue Avenue, and then a white male exited the vehicle and walked toward the driveway of 123 Patchogue Avenue, where he met the defendant and "exchanged in a secretive exchange consistent with narcotics activity." On cross-examination, Detective Petrucci testified that he "saw a quick hand-to-hand interaction" between the white male and the defendant, but he "did not see any money or drugs," and he agreed that it could have been a handshake. Detective Petrucci then observed a "Hispanic male" walk up to the defendant and the white male in the driveway. The three males had a "quick" interaction, and then dispersed.

At this point, Detective Petrucci felt "comfortable and confident enough" to investigate the three subjects. Detective Petrucci approached the defendant with his "Taser out" and his shield displayed. The defendant was "very compliant" and placed his hands behind his back, and Detective Petrucci placed the defendant in handcuffs. He asked the defendant if he had any weapons or contraband on him that he should know about, and patted the defendant down, but found nothing, including any drugs or currency. After patting the defendant down, Detective Petrucci left him standing outside of the police vehicle. The Hispanic male, who identified himself as Jason Gonzalez Mugaburu, stated that he was there "to buy drugs from DA." No drugs or currency was found on Mugaburu, only a crack pipe. The white male, who was identified as Nicholas Flores—the man mentioned in one of the tips—stated that he was there because he owed "DA" some drug money. No drugs or currency were found on Flores, so the officers "cut him loose."

On cross-examination, Detective Petrucci clarified that the defendant was "detained" at the time he was initially approached and handcuffed, and was arrested for loitering approximately 30 minutes later, after the police officers had spoken to Mugaburu and Flores, at which point the defendant was placed inside the police vehicle and brought to the precinct station house. However, Detective Petrucci conceded that paying someone for a prior drug transaction is not a crime, and that no drugs or currency were found on the defendant, Flores, or Mugaburu. After the defendant was arrested and brought to the precinct station house, another officer noticed a bag containing a powdery substance in the back seat area of the police vehicle where the defendant had been sitting. The substance later tested positive for heroin.

The defendant was charged with drug possession and loitering offenses. Prior to trial, he moved to suppress the bag of heroin and statements he made to police officers after his arrest that he "tried ditching the bag of drugs in the car" and that he "had to resort to taking street drugs as my meds aren't strong enough." After the hearing, the Supreme Court denied those branches of the defendant's omnibus motion.

Contrary to the People's contention, the defendant's contention that he was arrested without probable cause is preserved for appellate review. In his pretrial omnibus motion, the defendant requested a "probable cause hearing," and sought suppression on the ground that he was seized and detained by the police without a legal basis. Furthermore, in response to the defendant's contention that the police officers lacked probable cause to arrest him, the Supreme Court determined that "[t]he facts surrounding the arrest of Defendant conform to the body of law beginning with People v. De Bour . " Thus, the court "expressly decided" the issue of whether the defendant was arrested without probable cause ( CPL 470.05[2] ).

In ( People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375,...