People v. Moreaux

• Decision Date: 15 August 2022
• Docket Number: Ind. No. 3825/19
• Citation: 76 Misc.3d 976,174 N.Y.S.3d 237
• Parties: The PEOPLE of the State of New York v. Luis MOREAUX, Defendant.
• Court: New York Supreme Court

76 Misc.3d 976
174 N.Y.S.3d 237

The PEOPLE of the State of New York
v.
Luis MOREAUX, Defendant.

Ind. No. 3825/19

Supreme Court, Kings County, New York.

Decided on August 15, 2022

174 N.Y.S.3d 239

Appearing on behalf of the Defendant: Ariel Simon, Esq. and Elizabeth Daniel Vasquez, Esq., Brooklyn Defender Services, 177 Livingston Street, Brooklyn, NY 11201

Appearing for the People: Assistant District Attorney Andres Palacio. Kings County District Attorney's Office, Homicide Bureau, 350 Jay Street, Brooklyn, NY 11201.

Jill Konviser, J.

76 Misc.3d 978

On March 10, April 1, and April 8, 2022, this Court conducted a combined Dunaway , Huntley , and Mapp hearing. Detective Omar Veliz testified for the People. The defendant did not present any evidence. At the conclusion of the hearing the

174 N.Y.S.3d 240

Court heard oral arguments from the parties. The parties also relied on their previously submitted papers to wit: (1) Defendant's Motion to Suppress, dated May 3, 2021; (2) People's Reply, dated July 12, 2021; (3) Defendant's Reply, dated August 13, 2021; (4) People's Opposition to defendant's Reply, dated August 16, 2021¹ ; (5) Defendant's Motion to admit Expert Testimony at the Mapp hearing, dated December 6, 2021; (6) Defendant's Motion to Present a Complete Case at the Mapp Hearing, dated January 11, 2022; (7) People's Response the defendant's Motion to Present a Complete Case at the Mapp Hearing, dated February 14, 2022; and, (8) Motion for Leave to File a Brief of Amici Curiae by the American Civil Liberties Union and New York Civil Liberties Union in Support of Defendant's Motion to Suppress, dated March 7, 2022.²

Upon the testimony and evidence elicited at the hearing, as well as the oral arguments and written submissions of the parties, the Court credits the testimony of Detective Omar Veliz and makes the following findings of fact and conclusions of law.

76 Misc.3d 979

Findings of Fact

Detective Omar Veliz, currently assigned to the 75th Precinct Detective Squad, testified that he has been employed by the New York Police Department (hereinafter "NYPD") for more than 19 years. On February 3, 2017, he received information from a confidential source with respect to a homicide that had occurred decades earlier on June 10, 1995. The source provided the name Luis Moreaux as having been a participant in the homicide. Detective Veliz retrieved the homicide case file from the basement of the 75th Precinct and reviewed it. He learned that the homicide took place at an auto shop located at 3196 Atlantic Avenue in Brooklyn. The deceased, Omer Kurt, was a gas station attendant at the location and was found inside the office, strangled to death, with a cord around his neck, a pole across his body and blood pooled next to his head.³ Detective Veliz learned that the defendant was the same Luis Moreaux who was employed as a mechanic at the Brooklyn auto shop at the time of the homicide.⁴ Veliz also learned that fingernail samples from the decedent had been collected during the autopsy and subsequently requested the Office of the Chief Medical Examiner ("OCME") to test the decedent's fingernails for the presence of DNA. On October 31, 2017, Velez received a report from the OCME indicating they had created a profile, identified as Male Donor A, from those fingernail samples.⁵

As part of the investigation, Veliz performed a background check via departmental computer for Luis Moreaux that revealed both a home address of 616 West 165th Street in Manhattan and a red GMC Yukon SUV registered in his name. Detective Veliz attempted to locate the defendant for the express purpose of obtaining an abandonment DNA sample in the form of a cigarette butt, soda can, water bottle or other discarded item in order to compare

174 N.Y.S.3d 241

the sample with the OCME profile of Male Donor A. In February of 2017, Veliz visited the Manhattan address, but did not observe the defendant or his vehicle. He "ran the license plate" for the Yukon looking for any license plate reader (LPR) hits or summonses. The LPR search revealed that the Yukon had received summonses in the

76 Misc.3d 980

vicinity of 421 St. Lawrence Avenue, a residential block in the Bronx. Detective Veliz surveilled St. Lawrence Avenue and although he did observe the defendant on several occasions, he did not observe him discard anything. Veliz also received information that the defendant worked at Excellence Auto Repair, located at 4184 Park Avenue in the Bronx. He went to that location to determine whether the defendant still worked there and ultimately observed the defendant. After approximately one year of investigating without observing the defendant discard anything, on February 2, 2018, Veliz requested that the NYPD Technical Assistance Response Unit (TARU) install a remote camera close to the Bronx body shop in order to view the location from a distance.⁶ Veliz also performed a computer check for Excellence Auto where he learned that the owner, Allesandro Lugo-Mora, had filed a complaint report on February 23, 2018, regarding a missing inspection sticker. On March 23, 2018, Detective Veliz called and spoke to Mr. Lugo-Mora about the missing sticker. Lugo-Mora indicated that the defendant, who had worked at the shop for eight years, might be able to assist, and that he would be available after 10:00 p.m.⁷ Detective Veliz went to the body shop on the night of March 23, 2018 at approximately 10:25 p.m. with his partner, Detective Yuan Newton. Once inside, they were greeted by the defendant who introduced himself. After introducing themselves, the detectives indicated they were there to speak about the inspection sticker. The defendant, having spoken to his boss, said that he was expecting their visit. Veliz asked the defendant "if he would follow him to the car so we can speak about it" (Tr. 38) and the defendant agreed. Veliz described the defendant's demeanor as both cooperative and friendly, and that "he was -- looked like he was glad to see the police." (Tr. 41). During their entire interaction, the detectives’ weapons were holstered and covered by their suit jackets and at no point did either make any threats or promises.

The People introduced surveillance video from the TARU pole camera showing the entirety of the interaction between the detectives and the defendant while outside of Excellence

76 Misc.3d 981

Auto.⁸ The video depicts the detectives outside the shop and the defendant's exit from the shop moments later. The three men head to the police car — the defendant, trailing behind, is not handcuffed, restrained or escorted. Detective Newton gets into the driver's seat and Detective Veliz, the front passenger seat. The defendant opens the rear passenger door, but then leaves the door open and heads back to the shop. Neither detective follows. A few moments later the defendant walks back to the car, enters the rear passenger seat and closes his door.⁹ Veliz testified that the car doors were never

174 N.Y.S.3d 242

locked and the defendant opened the door himself not just to enter, but also to exit.

Once in the car, Detective Veliz again brought up the missing inspection sticker. Veliz explained that he had a folder with eight photographs of individuals and wanted to show them to the defendant to see if any of them had ever been to the shop. Veliz handed the defendant the folder. The folder contained eight random photographs of individuals who had nothing to do with either the missing sticker or the homicide investigation. The defendant looked at the photographs and said he did not recognize any of them and handed the folder back to Veliz. The defendant then asked to see the photographs once more and Veliz obliged. The defendant again indicated that he did not recognize anyone and handed the folder back to Veliz. Veliz then asked the defendant to fill out a lost/stolen property report regarding the inspection sticker and provided him with a pen and an envelope. (Tr. 46.)¹⁰ Specifically, the detective asked the defendant "if he can fold [the report] and enclose it in the envelope and seal the envelope." (Tr. 47). The defendant "sealed [the envelope] by licking the flap." (Tr 47). Veliz then asked the defendant "if he [could] place his signature on the envelope." (Tr.47). According to Veliz, he never directed, ordered or forced the defendant to seal, lick or sign the envelope. The interaction with the defendant lasted about ten minutes, the defendant was cooperative throughout, was never handcuffed, restrained, threatened or coerced, the doors

76 Misc.3d 982

to the police car were never locked, and no force was used.¹¹ As the defendant was getting out of the car he told the detectives that if they ever needed anything else they could come by anytime. After the defendant exited the vehicle, unaided, he closed the door and began to walk away, but before the detectives drove off, the defendant hurriedly returned to the car, knocked on Veliz's window to get his attention and returned the detective's pen.¹²

Detective Veliz thereafter placed the envelope in a brown NYPD evidence bag and brought the envelope back to the 75th Precinct where he vouchered and then delivered it to the NYPD lab to send to the OCME for comparison with the DNA profile from the nail clippings. On June 18, 2018, Veliz received a report from the OCME indicating that the comparison test of the DNA from the envelope sealed by the defendant matched the DNA that had been recovered from under the fingernails of the decedent for Male Donor A.¹³

On July 12, 2019, Detectives Veliz and Newton returned to Excellence Auto Repair. They went into the body shop and asked the defendant if he would come back with them to the 48th Precinct regarding an investigation. The defendant agreed. The defendant was not placed under arrest nor was he handcuffed or otherwise restrained when he accompanied Veliz and Newton to the 48th Precinct approximately

174 N.Y.S.3d 243

two to three blocks away.¹⁴

After arriving at the 48th Precinct, the...