People v. Pappas
| Decision Date | 14 December 1994 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Nicholas PAPPAS, Defendant. |
| Court | New York City Court |
Charles J. Hynes, Dist. Atty. of Kings County (Robert Cutrona, Brooklyn, of counsel), for plaintiff.
Defendant was initially charged with one count of Obstructing Governmental Administration in the Second Degree (Penal Law § 195.05). The accusatory instrument was subsequently superseded, charging the defendant with two counts of Attempted Criminal Tampering With Physical Evidence (Penal Law § 110/215.40[2], two counts of Obstructing Governmental Administration in the Second Degree (Penal Law § 195.05) and two counts of Removal of Human Remains From the Place of Death (9 Rules of the City The superseding information contains a statement by Detective Alfred Smith, made pursuant to Penal Law § 210.45, that Mr. Pappas admitted to him that on March 5, 1994 at 12:00 p.m. he removed the "remains" of two persons from inside his residence and disposed of the "remains" by placing them in the trunk of a car without notifying the police or other authority. Detective Smith also alleges that he observed said human "remains" recovered from the trunk of a car on March 5, 1994 at 68th Street and Shore Road.
of New York § 205.30[a]--hereinafter Health Code) 1.
Defendant has moved pursuant to Criminal Procedure Law §§ 170.30(1)[a], 170.35(1)[a] and 170.40(1)[e] to dismiss the accusatory instrument and to suppress the statements made to Detective Smith on March 8, 1994 and the statement to Assistant District Attorney Kelly on March 9, 1994 at the Squad Office of the 68th Precinct.
On March 5, 1994, the dead bodies of two women were found in the trunk of a car at 68th Street and Shore Road in Brooklyn. Somehow the investigation focused on Mr. Pappas.
On March 8, 1994, Mr. Pappas appeared at the 68th Precinct at 10:40 p.m. and was questioned by Detective Smith concerning events of February 20, 1994. A complaint follow-up "No. 35," reflecting the substance of his statements at this interview, has been provided to defendant and to the court.
Following that statement, at 1:05 a.m. on March 9, 1994, Mr. Pappas was questioned by Assistant District Attorney Tracy Kelly. An audio tape and transcript of that statement has been provided to the court.
Mr. Pappas was served with a desk appearance ticket on April 14, 1994, charging him with two violations of the Health Code. Due to a misunderstanding as to the time he was to appear, defendant appeared in court late in the day on May 18, 1994.
Two statement notices pursuant to Criminal Procedure Law § 710.30(1)(a) were served by mail on Mr. Pappas' attorney on June 1, 1994. In the first dated May 15, 1994, it is alleged that in a statement to Detective Smith on May 8, 1994 at 8:40 p.m., "[Defendant] admitted to paying someone to dispose of two bodies who died in his apt [sic] [and] also admitted to not reporting the deaths." In the second dated May 31, 1994, it is alleged that he made a statement, recorded on audio tape, to ADA Kelly, the substance of which is:
When defendant returned to court on June 15, 1994, an accusatory instrument superseding the first was filed. Two counts of Attempted Criminal Tampering With Physical Evidence (Penal Law § 110/215.40[2], one count of Obstructing Governmental Administration in the Second Degree (Penal Law § 195.05) and two counts of Removal of Human Remains From the Place of Death (Health Code § 205.30[a] were added. One count of Obstructing Governmental Administration was retained.
The motions which are being considered in this order are directed at the instrument containing these charges.
Defendant then filed an omnibus motion seeking a bill of particulars and discovery, dismissal of the charges on various grounds and a request for a hearing to suppress all statements which were noticed pursuant to Criminal Procedure Law § 60.45.
The people responded by providing additional police reports relating to the investigation conducted by the police after the car containing the two dead women's bodies was found. An additional summary of the statement
given to Assistant District Attorney Kelly was provided:
The "AP" Judge decided that the request for discovery and particulars had been satisfied and without reaching the issues concerning the motions to dismiss sent the case to a Jury Part for a Huntley/Wade/Dunaway hearing.
On September 12, 1994, a hearing was held. Detective Smith testified concerning the circumstances surrounding his questioning of Mr. Pappas, his advising Mr. Pappas of his Miranda warnings, and the substance of his statement. The audio tape of the statement given before Assistant District Attorney Kelly was also played.
At the conclusion of the hearing, Mr. Pappas' attorney conceded that the statement given by his client had been preceded by adequate Miranda warnings and that his client voluntarily agreed to speak with Detective Smith. He offered no additional arguments why the motion to suppress should be granted.
Although Mr. Pappas' attorney did not challenge the voluntariness of the statement, he requested an opportunity to make additional motions. He consented to the denial of the motion to suppress the statements.
The case was fourth called to set a trial date. The prosecutor announced that additional discovery would be provided consisting of an autopsy report which stated that the cause of death was accidental.
The case was adjourned to October 13, 1994. On that date, motion papers from Mr. Pappas appeared, particularizing the grounds upon which he had moved for dismissal in his original moving papers. The people opposed dismissal of the charges. After oral argument both sides were requested to present additional arguments in writing.
On November 4, 1994, additional oral arguments were made. The people conceded that the allegation that defendant's acts "prevented pronouncement of death and determination of death by the medical examiner's office and interfered with the investigation conducted by the detective," even if true, did not make out the elements of the crime of Obstructing Governmental Administration. See, People v. Case, 42 N.Y.2d 98, 396 N.Y.S.2d 841, 365 N.E.2d 872 (1977). The two charges were dismissed.
Defendant has only offered conclusory arguments to support his motion to dismiss in the interest of justice pursuant to Criminal Procedure Law § 170.40(1)[e]. Therefore, that motion is denied.
In moving to dismiss pursuant to Criminal Procedure Law § 170.30(1)[a], he contends that the accusatory instrument is defective on its face because it contains a blatant falsity. He points out that during the Huntley hearing, Detective Smith, the officer whose statements provided the factual allegations in the accusatory instrument supporting the charges of Tampering With Physical Evidence, testified, under oath, that the defendant never admitted to disposing of the bodies and putting them in the trunk and that the complaint was not true. See, Hearing Transcript, September 12, 1994, P 36, L 2-5 and P 41, L 4-9.
The defendant also argues that the complaint is insufficient because no proof exists that the women were dead when they were taken from the apartment, so defendant could not have knowingly been removing human remains from the place of death; and, further, that since the individuals were not dead when they left his apartment, no official proceeding could have been contemplated at which his acts were designed to prevent the evidence from appearing.
The people contend that the words in the complaint are not an exact quote of defendant's The people say that the defendant admitted in his audiotaped statement, in substance, to summoning, watching and paying the two men who removed the bodies from his residence. They use the term bodies to be synonymous with the remains of a dead person and suggest that because someone died in someone's apartment, the death would be the subject of some unspecified official proceeding.
statements, but merely a recitation of the substance of his statement. It is the people's position that "all the factual statements ... in the complaint are supported by evidence and any confusion on the part of the detective is the result of an inartfully drafted, but legally sufficient Complaint (sic)."
To be legally sufficient, a misdemeanor information and any supporting depositions must set forth (a) non-conclusory allegations providing reasonable cause to believe that the defendant committed the offense charged and (b) nonhearsay allegations of fact which "establish, if true, every element of the offense charged." CPL §§ 100.40(1)[c]; 100.15(3); People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986]; People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987].
A person is guilty of tampering with physical evidence when:
"[b]elieving that certain physical evidence is about to...
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People v. Palmer
...death and disposal," there was reason to "conclude that a prospective official proceeding could be contemplated" (People v. Pappas, 163 Misc.2d 1029, 1036, 623 N.Y.S.2d 83 [Kings Co.Crim.Ct.1994] ). In contrast, where two bodies were discovered in the trunk of an abandoned car, and it was d......