People v. Lawson
| Decision Date | 27 June 2012 |
| Docket Number | No. 3078/2011.,3078/2011. |
| Citation | 36 Misc.3d 1212,957 N.Y.S.2d 266,2012 N.Y. Slip Op. 51257 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Thomas LAWSON, Brandon McDonald, Roy Worth, Defendants. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Steven Sternberg, Esq., Queens Law Associates, Forest Hills, for the Defendant Lawson.
Joseph Sulik, Esq., Kew Gardens, for the Defendant McDonald.
Robert DiDio, Esq., Kew Gardens, for the Defendant Worth.
Hon. Richard A. Brown, District Attorney—Queens County, by Anisha Abraham, Esq., Kew Gardens, for the People.
In an 18 count indictment, the defendants have been charged with various robbery and weapons offenses arising from their alleged participation in an armed robbery of one Derwin Spencer and an attempted armed robbery of one Neville Louison, early on the morning of August 24, 2011; in addition, the defendant McDonald was charged with one count of Reckless Endangerment in the First Degree, and the defendant Worth was charged with two VTL violations.
Contending that their Constitutional rights were violated by the police during the stop of the vehicle in which they were traveling; the subsequent search of the vehicle and the seizure of two loaded weapons and a “Joe Rodeo” watch from within the vehicle, together with a silver necklace recovered from the person of McDonald; and the custodial interrogation of each defendant at the 114th Precinct after their arrest which, in turn, resulted in all of the defendants making written and/or oral inculpatory statements to the police, the defendants filed motions to suppress the physical evidence and their oral and written statements.
A Dunaway/Mapp/Huntley hearing was held before this Court on March 21, 23, and 27, 2012. The People presented two witnesses: Police Officer Dennis Mogelnicki and Detective David Chianese, both of whom the Court found to be credible and worthy of belief. Post-hearing memorandums of law in support of Worth's and McDonald's motions to suppress, dated May 1, 2012 and June 22, 2012, respectively, were submitted by defense counsel.1 A memorandum of law in opposition to the motion to suppress, dated June 1, 2012, was submitted by the People.
On August 24, 2011, at approximately 3:30 a.m., Officers Mogelnicki and Duong were in uniform in a marked police car and were responding to a radio call of “shots fired” at a strip club named “Starlets,” located at 49–05 25th Ave. At approximately 4 a.m., while in the process of setting up a crime scene, Mogelnicki testified that he heard the sound of gunshots that appeared to be coming from a few blocks away to the south. Mogelnicki would later learn that the shots had been fired near a second strip club known as “Perfection,” located at 62–05 30th Ave., but, as he testified on re-direct examination, the only establishment that would have been open at that time of the morning, in the direction where the shots had been fired, was “Perfection.” The two officers returned to their vehicle and proceeded south on the service road of the Brooklyn–Queens Expressway (hereinafter the BQE), in the direction of the sound of the shots. At approximately 4:02 a.m., at the intersection of the BQE and Bulova Ave., traveling toward him from the direction of the shots, Mogelnicki observed a white 2002 GMC Denali truck, traveling west on Bulova Ave., “blow” a stop sign and turn left onto the BQE without signaling. Activating their turret lights and siren, the officers gave chase and pulled the Denali over about 100 feet from the stop sign. With their weapons drawn, Mogelnicki and Duong approached the truck whose back and rear windows were darkly tinted. The driver of the vehicle, Worth, had his hands out the driver's side window and, while pointing, stated that “there had been a shooting over there and someone may be shot.”
Worth complied with Mogelnicki's request for him to step out of the vehicle. A quick pat-down or frisk of Worth for weapons revealed nothing and he was brought to the rear of the truck, now watched over by other police officers who had since arrived at the scene. There was no one seated in the other front seat of the three row truck, but Mogelnicki observed that two passengers (McDonald & Lawson) were seated in the middle row, McDonald on the right and Lawson in the middle seat. After telling the two defendants remaining in the truck to come out, Mogelnicki reached inside the truck and pulled McDonald from the cabin of the truck. Once outside the vehicle, McDonald was given a quick pat-down, and in so doing Mogelnicki felt a “hard object” in this defendant's right front pants pocket. The object was revealed to be a necklace and it was returned to McDonald. Repeating his actions with Lawson, Mogelnicki leaned into the vehicle as he began to pull him out. It was at that moment that Mogelnicki observed what appeared to be the black handle of a firearm, underneath the middle row seat where McDonald had been sitting. Lawson was searched but nothing was recovered. All three men were arrested, placed in handcuffs and were sat down on the curb 2.
With the three defendants secured, Mogelnicki recovered the gun from beneath the middle row seat, which was found to be a loaded 45 caliber pistol with one round in the chamber and one round in the magazine. Mogelnicki proceeded to conduct a full blown search of the vehicle, which accounted for about 10–15 minutes. The third row of seats had been placed flat down and from behind the rear seat, in what was described as the cargo area, the officer saw another firearm: a 40 caliber Glock pistol, with one 40 caliber round in the chamber and eight 45 caliber rounds in the magazine. Continuing his search, Mogelnicki noticed a “bulge” in a map pocket behind the front passenger seat. Reaching inside the map pocket, he removed a “Joe Rodeo” silver watch, which he then placed back into the pocket 3.
Lawson, McDonald and Worth were transported to the 112th Precinct, arriving at approximately 5:30 a.m. During the trip there was no conversation between any of the defendants and the police officers. At the precinct, the defendants were separated and placed into three adjoining holding cells, and the silver necklace was removed from McDonald's possession.
As Mogelnicki passed by the cell which housed Worth, that defendant told the officer to “come over.” Pointing in the direction of the other two defendants, Worth made a “motion of a gun” with his hand. Then, in a quiet whisper, he stated that the other two defendants “were the shooters.” At 6:00 a.m., Mogelnicki handed Worth a sheet of paper containing a printed set of Miranda warnings. At its top, the paper contained the following legend:
Directly below were the five standard Miranda warnings and the sixth and final question asking whether the person about to be questioned understood his or her rights and did the subject wish to speak to the questioner. Worth was told to read the Miranda warnings, to write yes or no if he understood each warning, and to write his initials next to each question. Mogelnicki was handed back the filled out Miranda sheet five minutes later. Mogelnicki then gave the defendant a piece of paper, a piece of cardboard and a pen. Stepping about five feet to the side of the cell to allow Worth to “write his story,” the officer could not see into the cell, but he could see the front of the cell and could ascertain that no one else entered during the period of time when Worth was writing his statement. At approximately 6:10 a.m., Mogelnicki returned to the cell and wrote on the piece of cardboard, “Where did they fire the guns?” The defendant wrote a brief description of the shooting on the cardboard. Mogelnicki then wrote “Write your side of the story” on the cardboard and gave it back to Worth. The defendant did, in fact, write a statement on the cardboard which he completed on the white piece of paper. In sum and substance, the defendant claimed that he had witnessed a robbery perpetrated by two individuals (later identified as Lawson and McDonald), that the two individuals were running down the block firing their weapons, and that the same two individuals, with guns still drawn, ordered him to stop, whereupon they opened the doors of his vehicle and climbed inside. Worth wrote that he took off with the two individuals, only to be stopped by the police shortly thereafter.
The defendant's written statement was completed by 6:30 a.m., and the piece of cardboard and the paper containing his statement were given back to Mogelnicki. With regard to the Miranda sheet, Mogelnicki testified that he observed that Worth had printed “Yes” next to each warning, indicating that he understood the warnings, and “Yes” where he indicated that he wanted to speak with Mogelnicki. He had also placed his initials (RW) after each warning. Although Mogelnicki had placed the date (8/24/11), the time (0600) and the location (114 Precinct) at the top of the Miranda sheet, he neglected to sign his name at the bottom of the sheet 4.
At approximately 8:45 A.M., Officer Mogelnicki escorted Worth to the detective's squad room on the second floor of the precinct, and informed Detective Chianese that Worth had already been Mirandized, had given a “sketchy” statement, and wanted to speak to a detective. The defendant was seated in the interview room and confirmed that he had received Miranda warnings, that he was aware of his rights, and that he wanted to speak with Chianese. The defendant orally repeated the basic exculpatory statement that he had given to Mogelnicki and then wrote out a nearly full page written statement, again claiming that he had nothing to do with the robbery or the guns that were found in his vehicle. However, when Worth was told that there was video surveillance from the club, he changed his story and admitted that he “knew” the two guys, that they had “jumped out” of his truck and “did...
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