People v. Ochjaroen
| Decision Date | 16 February 2012 |
| Docket Number | No. 2011KN024774.,2011KN024774. |
| Parties | The PEOPLE of the State of New York v. Pakij OCHJAROEN, Defendant. |
| Court | New York Criminal Court |
Defense Attorney–Brian Crow, Esq. LAS.
Assistant District Attorney Darren Sullivan, Esq.
The defendant, Pakij Ochjaroen, is charged with Criminal Possession of a Controlled Substance in the Seventh Degree (P.L. § 220.03). The defendant moves to suppress the contraband that was recovered. In the alternative, the defendant requests a suppression hearing. For the following reasons the defendant's motion is denied, in toto.
The pertinent part of the accusatory instrument alleged the following:
That on or about March 29, 2011, at approximately 11:50 am at 209 South 3rd Street, County of Kings. ....the informant observed the defendant in possession of a quantity of heroin which informant recovered from the ground where informant observed defendant throw it.
It is undisputed that the “ground” from where the contraband was recovered is a public street.
The court requested from defense counsel an allegation of fact that would either confer standing or an allegation of fact if credited would warrant suppression of the contraband. The court instructed the defendant that such allegation could be made in writing or given orally.
Defense counsel submitted an affirmation, dated December 5, 2011, which alleged the following facts:
Based upon the sworn allegation of Police Officer Malpica, the defendant possessed an indeterminate amount of heroin prior to throwing it on the ground where it was recovered by the police after a warrantless seizure of the defendant by the police.
The defendant states that he was in the area of 209 South 3rd Street on the night of March 29, 2011. He states that he was not engaged in any apparently unlawful or suspicious behavior when he was stopped by a police officer, who immediately began frisking and searching his person. He was seized, searched and arrested by the police without a warrant or probable cause.
The defendant argues that he is entitled to rely on the People's allegations, to wit; that Police Officer Malpica observed the defendant possess an indeterminate amount of heroin prior to throwing it to the ground where it was recovered by the police 1 to establish standing and cites People v. Burton, 6 NY3d 584 (2006). The defendant's reliance on Burton, supra. is misplaced, in that the contraband recovered in Burton was recovered from the defendant's person. In the case at bar, the contraband was recovered from the ground, an undisputed public place.
Unless the accused alleges facts that if true demonstrate standing to challenge the search or seizure, there is no legal basis for suppression and thus no need for a hearing. Standing exists where the defendant was aggrieved by a search of a place or seizure of an object in which he had a legitimate expectation of privacy. Obviously, in Burton, the defendant had an expectation of privacy in his person. Burton held that even though the defendant was allowed to utilize the People's evidence to satisfy this standing threshold, that proof alone was not enough to require a hearing because the accusation that contraband was recovered from the defendant did not create an issue of fact as to whether the search and seizure were the result of a Fourth Amendment violation. In Burton, granting of the Mapp hearing was based simply on the allegation that the defendant was illegally searched because an expectation of privacy in a person's body is presumed. A similar factual allegation, as averred to by defense counsel, that the defendant was standing on the street and that the police approached him for no reason is insufficient when the contraband is recovered from a public place. “The identical pleading may be factually sufficient in one context but not the other.” See, People v. Mendoza, 82 N.Y.2d 415 (1993).
Defense counsel also cites People v. Johnson, 42 AD3d 341 (App.Div. 1st Dept.2007). That case is also misapplied. In Johnson, the contraband was also recovered from the defendant's person. The court held that the defendant could meet his evidentiary burden by utilizing the police officer's statement that tangible property was seized from his person (not an undisputed public place). However, in the case at bar the contraband was not recovered from the defendant's person.
Comparison of the defendant's factual allegations with that of People v. Coleman, 82 N.Y.2d 415 (1993), decided within Mendoza, supra., clearly demonstrates the insufficiency of the defendant's motion. The facts in Coleman bear resemblance to the case at bar. Coleman was charged with weapon possession for a gun he discarded. Coleman made the following sworn allegation of fact in his motion for a Mapp hearing.
Upon information and belief, based upon conversations with Mr. Coleman, the defendant was not engaged in any criminal activity on August 21, 1990. Nor had he given the police any probable cause to believe that he might be engaged in unlawful behavior. Nevertheless, at about 12:15 a.m., police arrived, threw him against a car, and began to search him. The police contend, and in conversations with affirmant, Mr. Coleman concedes, a quantity of over $300 in cash was seized from his person. The police additionally contend that Mr. Coleman was observed by them to throw down a loaded .22 caliber pistol upon their approach. Although Mr. Coleman denies this allegation, the allegation by the prosecution's witness that the defendant was seen in actual possession of the item is sufficient to confer standing on the defense to challenge the alleged seizure (People v. Sutton, 91 A.D.2d 522 [1st Dept.1982] ). Affirmant alleges that if the weapon was discarded by the defendant, this action only occurred as a result of illegal police conduct-that is, the detention and arrest of Mr. Coleman on less than reasonable suspicion that he had committed a crime (See People v. Howard, 50 N.Y.2d 583 [430 N.Y.S.2d 578, 408 N.E.2d 908] ). The defense moves to suppress the pistol, as well as the currency found on the defendant's person, as fruits of the illegal police conduct.2
The 1st Department affirmed the trial court's decision to summarily deny the Mapp hearing for lack of standing because “defense counsel's motion papers consisted solely of legal conclusions and conclusory allegations.” See, People v. Coleman, 191 A.D.2d 390 (1st Dept.1993). The Court of Appeals affirmed Coleman on different grounds. First, the Court concluded that the detention and arrest occurred only after the relinquishment of the gun and hence that allegedly illegal police conduct could not have served as a basis for suppression. As such, Coleman did not identify any illegal conduct that would have warranted suppression of the gun. Emphasis added. The Court further emphasized that if Coleman had been chased, lack of knowledge would not have provided an excuse because he would have been in the position to allege that fact.
There are several important points that can be deduced from the Court's rationale. First, an allegation that an individual relinquished contraband when a police officer approached, standing alone, is generally insufficient to warrant a Mapp hearing 3. Second, an accurate chronological account of the events on “dropsy” cases is crucial to sufficiently raise the issue of abandonment. Third, lack of knowledge of facts that would otherwise provide the necessary causal link between the police action and the defendant's behavior is not an excuse if the defendant is in a position to witness and experience those events firsthand.
The sufficiency of the defendant's factual allegations should be evaluated by (1) the face of the pleadings, (2) assertions in conjunction with the context of the motion, and (3) the defendant's access to information. See, Mendoza, supra. When evaluating the sufficiency of the defendant's factual allegation based on those standards together with the Court's rationale in Coleman, the defendant's allegations are lacking.
In the case at bar, the contraband was recovered from the ground. Defense counsel asserts that based on (1) the fact that Police Officer Malpica observed the defendant possess an indeterminate amount of heroin prior to throwing it to the ground and (2) the defendant's assertions that he was not engaged in any apparently unlawful or suspicious behavior and that he was seized, searched and arrested without probable cause, gives the defendant standing to challenge the recovery of the contraband. Defense counsel is incorrect.
The Court of Appeals in Coleman/Mendoza flatly rejected the defense argument that the allegations by the prosecution that [Coleman] was seen in actual possession of the item is sufficient to confer standing if the subsequent recovery occurs at a public place. See, Coleman/Mendoza, supra. Moreover, there is insufficient linkage between P.O. Malpica's sworn allegations and the defendant's statement to raise 4th Amendment issues.
The facts in Coleman provide an excellent guide in determining the sufficiency of defense counsel's factual allegations. Both Coleman and the case at bar are “dropsy” cases and in both cases defense counsel attempts to allege illegal police conduct as the basis for standing. Despite a much more detailed factual allegation in Coleman, the Court affirmed the lower court's decision to summarily deny the Mapp hearing. Coleman's allegation that the police threw him against a car and searched him, and further that if the weapon was discarded, that action only occurred as a result of illegal police conduct—the detention and arrest—was found to be insufficient.4 Measured against this standard, the defendant's allegation of being stopped and searched illegally did not suffice. Even when taking together the factual allegations of the stop and search with the allegations in the accusatory instrument, the defense allegations fall short....
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