People v. Lloyd
| Decision Date | 14 February 2023 |
| Docket Number | Index No. 2023-50362 |
| Parties | The People of the State of New York, v. Cecil Lloyd II, Defendant. |
| Court | New York Supreme Court |
Unpublished Opinion
For the People: Melinda Katz, District Attorney, Queens County (Nicholas Balboni, Esq., Of Counsel)
For the Defendant: Matthew Thomas, Esq.
The defendant is charged with Attempted Robbery in the First Degree [P.L. § 110/160.15(4)], two counts of Criminal Possession of a Weapon in the Second Degree [P.L. § 265.03(3) and 265.03(1)(B), respectively], and Menacing in the Second Degree [P.L. § 120.14(1)]. He has moved for an order: (1) finding that the police lacked probable cause to arrest the defendant and therefore any resulting evidence should be suppressed as fruits of the poisonous tree; (2) suppressing physical evidence as the result of an unlawful search and seizure; (3) suppressing identification testimony contending that the pretrial identification procedure was unduly suggestive; and (4) suppressing statement evidence contending that the defendant's statements were obtained as the result of an unlawful custodial interrogation.
A Mapp/ Huntley/ Dunaway/Wade hearing was held before this Court on February 7, 2023. The People called two witnesses at the hearing, PO Michael Devonish and PO Jaime Pinero.
On January 20, 2023, the defendant filed a Post-Hearing Motion to Suppress, moving, in addition to above, for a discovery sanction striking PO Devonish's testimony. The People declined to file a response, and instead relied on the hearing record.
PO Michael Devonish, of the NYPD 114th Precinct, testified that on March 20, 2022, at around 4:20 am, while he was on routine patrol in an unmarked police vehicle, he and Lieutenant Deschamps responded to a 911 call in the vicinity of 31st Avenue and 45th Street in Astoria, Queens, NY. When he arrived at the location, a male Hispanic came to the passenger side of the police vehicle and reported that someone displayed a gun at him, specifically the extended magazine, and that the person was around the corner in a vehicle.
PO Devonish further testified that he asked the witness to come into his car to show them where the vehicle was, but the witness stated he will go there in his car and will point out the vehicle when he sees it. The witness then turned onto 45th Street, stopped in front of a black Dodge Charger, and while pointing at the vehicle with his left hand stated "that is the car with the person with the gun." PO Devonish stopped in front of the car, and he and Lieutenant Deschamps exited the vehicle, approached the driver's side, and called for and additional police car as there were multiple people inside. PO Devonish described the defendant as seated in the rear passenger side.
The individuals were asked to exit the vehicle. The defendant was placed into handcuffs at that time. PO Rossi stated that there was a gun in the car. PO Devonish testified that while on scene, after individuals were placed into custody, he also observed the gun in the vehicle, by looking into the rear passenger side with a flashlight. The firearm remained in the vehicle until members of the NYPD Evidence Collection Team arrived on scene and make the firearm safe. PO Devonish learned from the officer who handled the firearm that it was loaded.
Once the individuals from the car were all placed under arrest, PO Devonish continued speaking to the complainant, Mr. Molina. Mr. Molina reported that he was walking to his car with his friend when the defendant approached Mr. Molina, stated that Mr. Molina owes the defendant $200, and brandished a firearm at which point Mr. Molina ran to his car with his friends.
PO Jaime Pinero, also of the NYPD 114th Precinct, testified that on March 20, 2022, at approximately 4:20 am, while he was on routine patrol, he responded to a 911 call at 45th Street and 31st Avenue, in Astoria, Queens County, NY. He stated that when he arrived at the location, he observed several officers standing at the back passenger door of a black Dodge Charger that was occupied by five people. At that point, PO Pinero assisted Lieutenant Deschamps in removing the defendant from the rear passenger seat of the vehicle and placing the defendant in handcuffs. Immediately after placing the defendant in handcuffs and walking off to the side with the defendant, PO Pinero heard PO Rossi state that there was a firearm in the floorboard of the vehicle.
At that time, Lieutenant Deschamps walked away while PO Pinero waited with the defendant. Lieutenant Deschamps soon returned and instructed PO Pinero to walk the defendant to the front of the RMP to conduct a show up. While PO Pinero stood with the defendant in front of the RMP, Lieutenant Deschamps walked to another vehicle that contained the complainant and the other witnesses and shined a flashlight on the defendant. Lieutenant Deschamps then proceeded back to PO Pinero, advised him there was positive identification of the defendant, and instructed him to place the defendant in the back of the police car.
The defendant was transported to the 114th Precinct for arrest processing. PO Devonish drove the vehicle back to the precinct, with the firearm inside. On a video-taped statement with PO Devonish present, a detective from the 114th Precinct advised the defendant of his Miranda warnings and spoke to him about the incident. [1]
The police have probable cause to arrest an individual when they have "information sufficient to support a reasonable belief that an offense has been [committed] or is being committed or that evidence of a crime may be found in a certain place." People v. Jones, 202 A.D.3d 821, 825 [2d Dept. 2022]. While mere suspicion or conduct equally susceptible to innocent or culpable interpretation is not sufficient, probable cause does not require proof beyond a reasonable doubt. People v. Guthrie, 25 N.Y.3d 130, 133 [2015]; People v. Alexander, 200 A.D.3d 790 [2d Dept. 2021], lv denied 37 N.Y.3d 1159 [2022]; People v. Kamenev, 179 A.D.3d 837 [2d Dept. 2020], lv denied 35 N.Y.3d 1027 [2020]. It is well settled that a "witness's identification of [a] defendant at a photographic array furnishe[s] probable cause for his arrest." People v. Ballinger, 62 A.D.3d 895 [2d Dept. 2009], lv denied 13 N.Y.3d 794 [2009]; People v. Pena, 95 A.D.3d 541 [1st Dept. 2012]; People v. Walton, 309 A.D.2d 956 [2d Dept. 2003].
Considering the totality of the circumstances (People v. Geddes, 171 A.D.3d 1210 [2d Dept. 2019], lv denied 33 N.Y.3d 1069 [2019]), the firsthand information obtained from the complainant, the officers' observations, the defendant's location in the vehicle, and the firearm recovered in the vehicle, the People sufficiently established probable cause for defendant's arrest. People v. Edmondson, 191 A.D.3d 1015 [2d Dept. 2021], lv denied 36 N.Y.3d 1119 [2021]; People v. Brown, 180 A.D.3d 1063 [2d Dept. 2020], lv denied 35 N.Y.3d 968 [2020]; People v. Mendoza, 49 A.D.3d 559 [2d Dept. 2008].
The next issue before the Court is the admissibility of the firearm recovered from the back passenger seat of the vehicle. When a defendant moves to suppress physical evidence, the People "have the burden of going forward to show the legality of the police conduct in the first instance" (People v. Knight, 205 A.D.3d 928, 929 [2d Dept. 2022], appeal dismissed 38 N.Y.3d 1151)]. Once the People meet this burden, the defendant "bears the ultimate burden of proving the illegality of the search and seizure" People v. Lewis, 208 A.D.3d 595 [2d Dept 2022]; People v. Julien, 201 A.D.3d 948 [2d Dept. 2022], lv denied 38 N.Y.3d 951 [2022]).
The Court of Appeals has noted that the search of an automobile is less intrusive than the search of one's person or home because one has a lesser expectation of privacy in an automobile than in one's home. People v. Kreichman, 37 N.Y.2d 693 (1975). The Court of Appeals has therefore also held that an officer's simple "peering inside an automobile does not constitute a search." People v. Class, 63 N.Y.2d 491, 494 (1984), rev'd, 475 U.S. 106, on remand, 67 N.Y.2d 431 (1986). Furthermore, under the automobile exception to the search warrant requirement, the police may search a vehicle and any containers found inside when they have probable cause to believe that it contains contraband, a weapon, or evidence of a crime. Pennsylvania v. Labron, 518 U.S. 938 (1996); Maryland v. Dyson, 527 U.S. 465 (1999).
An officer may stop a vehicle to investigate criminal activity when he has a reasonable suspicion that its occupants have been, or are about to engage in conduct in violation of the law. People v. Sobotker, 43 N.Y.2d 559 (1978). Furthermore, the police can seize contraband, evidence, or instrumentalities of a crime when these items are in open view and the officer makes his observations from a lawful vantage point. People v. Spinelli, 36 N.Y.2d 77 (1974). When items are seized in plain view, it must be immediately apparent to the officer that the items are evidence of a crime, contraband, or otherwise subject to seizure. An officer may use aids, such a flashlight to enhance his ordinary sense perception, provided that the officer has a right to be present at the site of the invasive activity. People v. Rudasil, 43 N.Y.2d 789 (1977).
In order to "forcibly or constructively stop an individual," the police must have "reasonable suspicion that the person is involved in criminal acts or poses some danger to the officers." People v Harrison, 57 N.Y.2d 470, 476 [1982]; see also People v De Bour, 40 N.Y.2d 210 [1976]. Thus, where a vehicle is lawfully parked on the street, a police officer's ...
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