People v. Miller
| Decision Date | 12 October 2021 |
| Docket Number | Index No. 100-21 |
| Citation | 74 Misc.3d 614,161 N.Y.S.3d 630 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Marcus MILLER and Shade Brown, Defendant. |
| Court | New York Supreme Court |
For Defendant Miller: David Bart, Esq., Fresh Meadows (18-B)
For Defendant Brown: Judah Maltz, Esq., Kew Gardens (18-B)
For the People: Melinda Katz, District Attorney, Queens County (Dylan Nesturrick, Esq., of Counsel)
Summary of the Court's Decision:
Defendant Miller : Motion to Suppress Physical Evidence Granted; Valid Waiver of Miranda ; Statement Evidence a Direct Result of Unlawful Stop, and therefore, Suppressed.
Defendant Brown : Motion to Suppress Physical Evidence Denied for Lack of Standing; People Failed to Establish that Defendant's Arrest Was Based on Probable Cause; Valid Waiver of Miranda ; Statement Evidence a Direct Result of Unlawful Seizure, and therefore, Suppressed.
The defendants have moved to suppress evidence, arguing that the evidence obtained was due to unlawful police conduct. A Mapp /Huntley /Dunaway hearing was held before this Court on July 15, 2021 to determine the defendant's motion to suppress. The People presented two witnesses: Officer Michael Fortunato and Officer Vincent Monteleone and video evidence. I find both witnesses to be credible, and based upon the evidence adduced at the hearing, I make the following findings of fact and conclusions of law:
Findings of Fact
Officer Michael Fortunato is employed by the NYPD, presently assigned to the 106th Precinct. As an officer, he works in public safety, "enforcing the law." (Tr at 9). He received six months of training at the police academy, which included basic firearms training. (Tr at 10). Since then, he has been involved in about two to three firearms-related arrests. (Tr at 10).
On January 23, 2021, Officer Fortunato was set to work a 5:30 pm to 2:05 am shift, which is January 23 into the morning of January 24. (Tr at 10). He was working with two partners: Sergeants Cruz and Doheny, patrolling in an unmarked vehicle. (Tr at 11). He testified that the vehicle has no "NYPD" lettering on it but is still equipped with police lights and sirens. Sergeant Cruz was driving the vehicle, and Officer Fortunato was seated in the back seat, passenger side. (Tr at 11).
At around 9:40 pm on January 23, Officer Fortunato was in the vicinity of 127th Street and 135th Avenue, in Queens County. (Tr at 11). At that time, he was assisting another officer, Officer Monteleone, in conducting a car stop. (Tr at 11). He testified that Officer Monteleone had reached out to his car1 because he was attempting to pull over a vehicle that would not pull over. (Tr at 11). It took, at most, five minutes for Officer Fortunato's vehicle to reach the location. When he arrived, he observed Officer Monteleone attempting to pull over a vehicle with lights and sirens. (Tr at 12).
Officer Fortunato observed a dark blue BMW in front of Officer Monteleone's vehicle. (Tr at 13). Officer Fortunato's vehicle was behind Officer Monteleone's vehicle. It was dark out, but there were streetlights and lights from houses on in the area. (Tr at 13). It was a clear night. Officer Monteleone cut in front of the blue BMW so that the BMW could come to a stop. (Tr at 13). Officer Fortunato's vehicle had been behind Officer Monteleone's vehicle for over a minute before the BMW came to a stop. (Tr at 14).
When the BMW came to a stop, Officer Fortunato observed the defendant exit the vehicle. (Tr at 14). He testified that the defendant was Marcus Miller. He observed Mr. Miller coming from the backseat passenger side of the BMW. Officer Fortunato testified that as he was exiting his vehicle, Mr. Miller was exiting the BMW. (Tr at 43). Mr. Miller then ran, at which time Officer Fortunato used a "forcible takedown" on him. (Tr at 15). He described "forcible takedown" as a tackle. (Tr at 15). Sergeant Doheny assisted Officer Fortunato in subduing Mr. Miller. (Tr at 44). Mr. Miller was then placed in handcuffs. Officer Fortunato testified that Mr. Miller was placed in handcuffs because "he fled from a lawful car stop." (Tr at 16, line 13).Office Fortunato then conducted a search as the defendant was under arrest, and the officer wanted to ensure that he didn't have anything illegal on his person that could hurt someone or illegal contraband. (Tr at 17). At the time of the search, at least two other officers were present. (Tr at 44). He conducted a pat down first and felt one hard object down the defendant's leg. Officer Fortunato kept asking the defendant what the hard object was, to which the defendant said, "my phone." He eventually found two handguns inside his clothing, in between his legs. (Tr at 17). Officer Fortunato testified that the handguns were between Mr. Miller's long Johns and his underwear. (Tr at 18). One handgun was a revolver, the other a semiautomatic pistol. (Tr at 18). Officer Fortunato testified that he also observed Shade Brown, the other defendant, seated in the back seat, and then later on the ground, handcuffed. (Tr at 19, 35). There were a total of five individuals in the vehicle. (Tr at 30).
After Officer Fortunato retrieved the handguns from Mr. Miller's person, he "unloaded" the semiautomatic pistol by ejecting the magazine and sliding out the chamber. (Tr at 19). He testified that the semiautomatic pistol was loaded; and that the revolver was later unloaded by the Evidence Collections Team (ECT) at the precinct. (Tr at 19). Officer Fortunato was wearing a body-worn camera, which was activated while his car with moving and before his vehicle came to a stop. He turned off the camera when he returned to the precinct. (Tr at 20). His body-worn camera footage was admitted into evidence as People's Exhibit 1.
Officer Monteleone has been employed by the NYPD for four years and is presently assigned to the 106th Precinct. (Tr at 55). He attended the police academy for six months, where he received his officer training. (Tr at 56). As an officer in the 106th, his duties include answering radio runs, "going to domestics" and pulling over cars for traffic violations. (Tr at 56).
On January 23, 2021, Officer Monteleone was working a 5:30 pm to 2:00 am shift. He was working with two partners, Sergeant Sorentino and Officer Gazzey. They were traveling in an unmarked vehicle, which does not have "NYPD" listed on the side but is equipped with a "light package." (Tr at 57). Sergeant Sorentino was seated in the front passenger seat, next to Officer Monteleone. (Tr at 74).
At around 9:40 pm, Officer Monteleone observed a blue BMW in the crosswalk on 134th Street and Rockaway Blvd. (Tr at 57). The BMW was parked on the white lines where a pedestrian would cross the street and thus was blocking the crosswalk.2 (Tr at 60). There was no driver inside the vehicle when he initially observed the BMW in the crosswalk. (Tr at 74).3 He stated that the roads were well-lit, and it was a clear night, with nothing obstructing his view as he looked out the vehicle. (Tr at 57). Upon observing the blue BMW, his car drove further down the block and turned back around when it was safe to do so, at which point the BMW drove away down Rockaway Boulevard. (Tr at 58). He followed the car for about two blocks before activating his lights and siren because he wanted to "catch up safely" since activating them too early "would cause confusion" on the road. (Tr at 79). As he followed, he observed it run a stop sign on 131st Street and Sutter. (Tr at 58, 60). He stated that the BMW "drove straight through" the white solid line where a car should come to a complete stop. (Tr at 80). He was about two car lengths behind the BMW when he witnessed this traffic violation. (Tr at 80). The officer then activated his lights and siren. (Tr at 58, 81). On 135th Avenue and 131st Street, the car "failed to signal." He testified that the car made a right, at which time he pulled in front of the blue BMW as another police car pulled up behind it. (Tr at 58). He testified that the other police car were the officers with the public safety team. (Tr at 58). The BMW was going over thirty-five miles an hour, although the officer did not attempt to measure its speed and could not estimate the speed of the vehicle. (Tr at 78).
Officer Monteleone testified that it was about five minutes of him following the BMW with his lights and siren on before it finally stopped. (Tr at 59). He never lost sight of the vehicle, nor was there ever a car that drove between himself and the BMW. (Tr at 85). It stopped at 127th Street and 135th Avenue when Officer Monteleone stopped his vehicle in front of it. (Tr at 60). Officer Fortunato's vehicle stopped behind the BMW. Officer Monteleone then observed a passenger exit the BMW from the rear passenger seat, who he identified as Mr. Miller. (Tr at 61). He testified that Shade Brown was seated in the middle passenger seat, rear. (Tr at 62). He exited his police car with his weapon drawn. (Tr at 88). He approached the driver of the BMW, Zasmor, and pulled him out of the car. (Tr at 89, 91).
He placed the driver of the BMW in handcuffs and secured him. (Tr at 63). He then walked around the car, at which time he observed Shade Brown. He testified that he did not place handcuffs on Ms. Brown (Tr. at 91-91) and did not remove her from the vehicle (Tr. at 90). Also, he did not know how she got out of the vehicle (Tr. at 91). Officer Fortunato pull two firearms out of Mr. Miller's pants. (Tr at 63). Officer Monteleone was a "few feet away" from Officer Fortunato. He testified that the two firearms recovered were a .9-millimeter Taurus semiautomatic and a .38 revolver. (Tr at 63). The officer took a picture of both firearms, and the photo was admitted into evidence as People's Exhibit 2. (Tr at 65, 71). Both defendants were taken to the 103rd Precinct to be debriefed by detectives. (Tr at 65). He testified that the debriefing...
To continue reading
Request your trial