People v. Pabellon

• Decision Date: 19 October 2016
• Docket Number: No. 16–0450.,16–0450.
• Citation: 48 N.Y.S.3d 267 (Table)
• Parties: The PEOPLE of the State of New York v. Jose PABELLON, Defendant.
• Court: New York County Court

48 N.Y.S.3d 267 (Table)

The PEOPLE of the State of New York
v.
Jose PABELLON, Defendant.

No. 16–0450.

County Court, Westchester County, New York.

Oct. 19, 2016.

Hon. James McCarty, Acting Westchester County District Attorney, County Courthouse, White Plains, Attn: A.D.A. James Bavero, for the People.

Office of Clare Degnan, Esq., The Legal Aid Society of Westchester County White Plains, Matthew Feinberg, Esq. and Richard Viviano, Esq., for Defendant.

SUSAN CACACE, J.

Under the instant indictment, the defendant has been charged with the crimes of Criminal Possession of a Weapon in the Second Degree and Criminal Possession of a Weapon in the Third Degree, arising from an incident alleged to have occurred on or about April 5, 2016 in the City of Yonkers, County of Westchester, State of New York.

By Decision and Order, filed and entered on August 15, 2016, the Supreme Court, Westchester County (Neary, J.), ordered that (1) a pre-trial hearing be conducted pursuant to Mapp v. Ohio (367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 ) and Dunaway v. New York (442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 ) to determine whether any search resulting in the seizure of physical evidence was conducted in violation of the defendant's rights under the Fourth Amendment to the United States Constitution, and (2) a pre-trial hearing be conducted pursuant to People v. Huntley (15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 ) and Dunaway v. New York (442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 ) to determine whether any statements allegedly made by the defendant were involuntary within the meaning of CPL 60.45, and/or were obtained in violation of the defendant's rights under the Fourth and Sixth Amendments to the United States Constitution. In accordance therewith, this Court conducted a combined suppression hearing on October 10, 11 & 12, 2016 to determine the trial admissibility of the seized handgun, the seized ammunition magazine, and those statements attributed to the defendant by the People pursuant to CPL 710.30. During this combined hearing, Police Officers Richard DeVito, Anthony Intervallo, and Detective Neal Cromwell of the Yonkers Police Department (YPD) testified on behalf of the People, and Police Officer David Fraszka of the YPD and the defendant, Jose Pabellon, testified on behalf of the defense. Upon considering the testimony of all of these witnesses, I give credence to the testimony given by YPD Police Officers DeVito, Intervallo and Fraszka, and YPD Detective Cromwell, above that given by the defendant. Based upon the evidence adduced at this hearing, I make the following findings of fact:

FINDINGS OF FACT

On April 5, 2016, at approximately 2:45 PM, Police Officers Richard DeVito and David Fraszka were conducting a routine patrol in plainclothes and an unmarked patrol vehicle in the Nodine Hill area of the City of Yonkers in order to address recent gang and gun activity in that area. P.O. DeVito has been employed by the YPD for 21 years as a patrolman and has participated in between 50 and 100 gun arrests throughout his career. P.O. Fraszka was driving the patrol vehicle northeast on Linden Street at between 10 and 15 miles per hour, when P.O. DeVito observed the defendant standing on the sidewalk as he appeared to be preparing to cross the street in front of 43 Linden Street, an area known by these police officers to be a high crime area involving gangs, guns, drugs, robberies, assaults and stolen vehicles. The defendant was known to P.O. Fraszka and P.O. DeVito prior to this encounter, as he had been arrested by P.O. Fraszka in 2015 and had been seen in that area frequently by P.O. DeVito. As the defendant started walking across the street, P.O. DeVito observed him look in the direction of the patrol vehicle from a distance of between 30 and 35 feet, when he stopped walking and grabbed the right rear pants pocket of his denim jeans with his right hand before proceeding to walk across the street again at a quickened pace. Upon observing the defendant's actions, P.O. DeVito believed that there was a hard object in the right rear pocket of the defendant's jeans, as that pocket appeared to him to "sag a little".

After he had finished crossing Linden Street, the defendant ducked behind a parked vehicle-prompting P.O. DeVito to exit from the passenger side of the patrol vehicle and walk to the defendant's location-where he saw the defendant crouching with his right hand upon the right rear pocket of his denim jeans. At that time, P.O. DeVito recalled seeing what he described as "something metallic" sticking out from the defendant's right rear pants pocket, and then he called out "Yonkers Police". The defendant responded by walking away from P.O. DeVito, which prompted P.O. DeVito to yell again "Police. Stop.", after which the defendant accelerated his pace as he continued walking away from P.O. Devito. The defendant's walking pace was so quick that P.O Devito had to jog for approximately 43 feet to catch up to the defendant in front of 54 Linden Street. As he caught up to the defendant, P.O. DeVito reached out and grabbed the defendant by his left arm, halting his ability to continue walking away, and said "Police. Stop.".

Although both P.O. DeVito and P.O. Fraszka knew the defendant's identity prior to this encounter, P.O. DeVito then asked the defendant for his identification and his address which lead the defendant to initially respond that he lived at 43 Linden Street. The defendant then stated an alternate address while stuttering and speaking nervously, and while turning the right side of his body away from P.O. DeVito and P.O. Fraszka-seemingly trying to keep them from getting behind him. The defendant then reached into his left rear pants pocket, removed his wallet and handed it to P.O. DeVito. After P.O. DeVito had briefly looked at the defendant's wallet, he told the defendant that he would put it back into his pants pocket for him. However, as P.O. DeVito attempted to place the wallet into the defendant's pants, the defendant turned his body away between 2 and 3 times before P.O. DeVito was able to successfully place it into the defendant's rear left pants pocket. At that time, P.O. DeVito was able to observe 2 inches of the exposed barrel of a handgun protruding from the defendant's right rear pants pocket, which prompted him to motion to P.O. Fraszka for assistance as he removed a .380 handgun from the defendant's right rear pants pocket. As P.O. Fraszka grabbed the defendant and placed him under arrest, he heard the defendant ask "It's not a felony if it's not loaded, right?". The defendant was then handcuffed and transported to the Detective Division of the Yonkers Police Department Headquarters (hereinafter, YPDDD) in the absence of any response or questioning.

Once seated upon a chair in the YPDDD's interview room at approximately 4:05 PM, the defendant was advised of his so-called Miranda rights by Det. Neal Cromwell from a pre-printed card which was admitted...