People v. K.U.
| Decision Date | 04 May 2012 |
| Citation | 2012 N.Y. Slip Op. 22233,37 Misc.3d 551,950 N.Y.S.2d 637 |
| Parties | The PEOPLE of the State of New York v. K.U., Defendant. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Angel Frau, Esq., Vanity Muniz, Esq., The Legal Aid Society, Attorneys for Defendant K.U.Yasmin Tabi, Esq., Aaron Kaplan, Esq., Assistant District Attorneys, Bronx County, for the People.
For the reasons that follow, defendant's motion to suppress physical evidence is denied. The People's motion to close the courtroom during the testimony of the undercover officer is granted. Defendant's motion to allow an unlimited number of Legal Aid Society lawyers to be present in the courtroom during the undercover officer's testimony is denied.
This Court held a Mapp/Dunaway/Hinton hearing on February 9, 2012. Detective Jason Duval testified on the suppression issues and Undercover Officer 163 (hereinafter, “UC 163”) testified relative to the People's application to close the courtroom for a portion of the trial. The Court found these witnesses credible and credits their testimony.
On July 20, 2011, at approximately 2:00 a.m., Detective Duval, a 10–year veteran of the NYPD, was assigned as the arresting officer for an investigation into prostitution conducted by the Vice Enforcement Division in the vicinity of a Howard Johnson Express hotel at 1922 Boston Road, Bronx County, a location where Duval had made prostitution-related arrests in the past (H. 10, 12). 1 The Vice Enforcement Division investigates and makes arrests for after-hours clubs, unlicensed clubs, prostitution, promoting prostitution, sex trafficking and the sale of narcotics inside clubs (H. 10). While Duval, who was in plain clothes, waited in an unmarked police car about 20 yards away, he watched an undercover police officer speaking with defendant (H. 12–14). 2 The area was not very dark and there were streetlights and buildings in the area (H. 39). Within seconds of seeing a positive agreement sign from the undercover, Duval arrested defendant and the undercover confirmed to Duval that he had arrested the right person (H. 41).3 Duval recovered a purse from defendant's person, inside of which were 24 condoms, one package of lubricant and two cellular telephones (H. 14–16).
UC 163 has been a member of the NYPD for 11 years and an undercover officer for eight years (H. 48–49). UC 163 is assigned to the vice club team as the head undercover and does all of the team's prostitution cases (H. 49, 50). The vice club team deals with narcotics arrests, case work inside clubs in Manhattan, and human trafficking and underage prostitution cases throughout New York City ( id.). UC 163 works in all of the boroughs, usually on the midnight tour, has open cases in most of the boroughs, is involved in undercover operations “[a]ll over the city,” has cases in which he was the undercover officer pending in the Bronx Hall of Justice, and has targets of his investigations still at large (H. 49–51, 64).4 UC 163 works “pretty evenly” in Brooklyn, Queens, the Bronx and Manhattan, and has the fewest cases in Staten Island (H. 54, 55). As for the Bronx specifically, UC 163 works in “a multitude of precincts” and has done a substantial amount of undercover work in the precinct in which the Bronx Hall of Justice is located (H. 55). UC 163 expects to work as an undercover officer for the duration of his career (H. 49).
UC 163 described his work in prostitution cases in detail:
I step out. I make phone calls. I help cultivate cases as far as prostitution is concerned. I am on the sets. I'm the one who is in conversation with the prostitutes. I'm the one who gets the positives or negatives from the subjects. And I'm the one who informs the field team if it's an arrest situation or not.
(H. 50).5 UC 163 also does buy and busts and long-term case operations throughout the city in which he purchases drugs, and also makes gun buys (H. 51–52, 60).
UC 163 has received safety threats regarding his status as an undercover officer:
Throughout the eight years I've been undercover, I've been told numerous times that if I was found out I was a cop, that I would be killed. I have been in different situations in the eight years I've been an undercover similar to that.
(H. 51.) In a prostitution investigation, a pimp “who was trusting me to go off with one of his girls ... said that if he found out I was a cop or snitch, he was going to come back and kill me” (H. 66). To the best of his knowledge, UC 163 has never been threatened by a Legal Aid attorney, a Bronx Defender attorney, or any member of the Bronx Bar Association (H. 57–58, 65), but he would not know if anyone who had threatened him were an attorney with those organizations, or an employee of the District Attorney's Office or a judge, for that matter (H. 63, 65). As UC 163 explained, “[s]ometimes we arrest people that least expect to be out soliciting prostitution or buying drugs, so anybody could be out there” (H. 61).
In addition, UC 163 takes precautions when entering a courthouse to minimize interaction with the public, including wearing plain clothes but no police shield, driving to the courthouse in an unmarked car, entering through a different entrance, following different procedures from uniformed officers when entering and leaving the courthouse, and staying alone in a separate room while waiting to be called as a witness (H. 52–53).6 Indeed, the number “163” is an undercover number rather than a shield number; UC 163 does not use a shield number because a shield number can be tracked to reveal an undercover's identity (H. 53). UC 163 has testified at two trials, in both of which the courtrooms were closed (H. 67–68).
In UC 163's opinion, having a large number of spectators, for example, 50, in the courtroom during his testimony could jeopardize investigations and threaten his safety. UC 163 explained that,
If I'm out in the field and one of the 50 people recognize me, that could put me at liberty [ sic ] in a new—a numerous amount of ways. It could potentially blow my cover for the case thus putting me in harm's way with any subjects that I'm dealing with.
(H. 63–64.) Such a large number of spectators would in itself be jeopardizing regardless of the composition of the spectator pool (H. 64–65). 7 The sheer number of spectators would create potential problems because,
At any time where ever I am in the city, there's a possibility of bumping into someone who's seen me as a police officer I would be obviously taking on the stand and testifying. Whether that person can't place where they know me from and they think I'm a cop and I'm in conversation with somebody else and they say hey, do I know you from the police department or something? Just that statement alone could have a subject I'm dealing with run back to whoever, if not themselves, and definitely put harm in my safety at any time. That's why I prefer the least amount of people to ever be in a courtroom when I am testifying.
The more people that—especially in an open courtroom it's just that more people to see my face and possibly wonder who I am if they ever run into me thus putting me in jeopardy because it may not be right from that person but it could be from the person that I'm with at the time.
A lot of these cases I have to befriend people for long terms and, you know, it's not one, two, three on a street. It's, you know, face time with these people whether it's out to eat or this and that, you know, someone recognizes me and potentially blows my cover, I may be buying a gun from this person and that's going to cause me jeopardy possibly in the long run.
(H. 66–67.)
When a defendant moves to suppress evidence seized at the time of her arrest, the People have the burden of going forward, in the first instance, with credible evidence tending to show the legality of the police conduct. People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709 (1971). Once the prosecution has met this burden, defendant has the ultimate burden of proving by a preponderance of the evidence that the officers acted illegally. People v. Berrios, id.;People v. Burgos, 81 A.D.3d 558, 917 N.Y.S.2d 559 (1st Dept. 2011); People v. Bogan, 15 Misc.3d 1109(A), *2, 2007 WL 865899 (Sup. Ct., Bronx County 2007) (Dawson, J.); see also People v. Bulgin, 29 Misc.3d 286, 294, 908 N.Y.S.2d 817 (Sup. Ct., Bronx County 2010) (Best, J.).
It is well settled that, under the fellow-officer rule, a police officer can make a lawful arrest, even without personal knowledge sufficient to establish probable cause, if the officer is acting upon a communication with a fellow officer who has information sufficient to constitute probable cause for the arrest. In the context of a “buy and bust” operation, probablecause may be established at a suppression hearing solely through the testimony of a police officer who acted upon communications from an officer who participated in or witnessed the criminal conduct. People v. Ketcham, 93 N.Y.2d 416, 419–20, 690 N.Y.S.2d 874, 712 N.E.2d 1238 (1999). That is precisely the case here. Detective Duval watched the undercover officer engage in conversation with defendant, who appeared following an arrangement the undercover made by telephone, from approximately 20 yards away in a well-lighted area where Duval had made prostitution-related arrests before (H. 39). He saw the positive agreement sign and the undercover immediately confirmed that defendant was the person to be arrested (H. 41). Thus, the People have met their burden of going forward on the Mapp/Dunaway issues and established the legality of the police conduct. See People v. Ketcham, 93 N.Y.2d at 422, 690 N.Y.S.2d 874, 712 N.E.2d 1238 (...
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People v. Menner
...the undercover officer's testimony (see People v. Martinez, 82 N.Y.2d 436, 604 N.Y.S.2d 932, 624 N.E.2d 1027 [1993] ; People v. K.U., 37 Misc.3d 551, 950 N.Y.S.2d 637 [Sup.Ct., Bronx County 2012] ).Accordingly, the judgment of conviction is ...