People v. Pizzichillo

• Decision Date: 21 November 1988
• Parties: The PEOPLE, etc., Respondent, v. Samuel PIZZICHILLO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 432

534 N.Y.S.2d 432

144 A.D.2d 589

The PEOPLE, etc., Respondent, v. Samuel PIZZICHILLO, Appellant.

Supreme Court, Appellate Division Second Department.

Nov. 21, 1988.

Philip L. Weinstein, New York City (Gael M. Mooney, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Kenneth Appelbaum, of counsel), for respondent.

Before MOLLEN, P.J., and THOMPSON, LAWRENCE and WEINSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Dunkin, J.), rendered December 19, 1984, convicting him of attempted sodomy in the first degree, criminal impersonation in the first degree and unlawful imprisonment in the first degree under Indictment No. 1283/84, upon a jury verdict, and imposing sentence, and (2) a judgment of the same court, rendered April 15, 1985, convicting him of sodomy in the first degree under Indictment No. 1278/84, upon his plea of guilty, and imposing sentence. The appeals bring up for review the denial (Pitaro, J.), after a consolidated hearing, of those branches of the defendant's omnibus motions which were to suppress certain physical evidence seized by law enforcement officials.

ORDERED that the judgments are affirmed.

The pertinent facts relating to the defendant's appellate contentions have been fully set forth by the Presiding Justice in his dissent.

We find no merit to the defendant's claim that suppression of the challenged items found in his vehicle was warranted because the seizure of his vehicle from the driveway of his home was improper. The suppression hearing evidence established that the vehicle was voluntarily turned over to the police by members of the defendant's family, who possessed the requisite degree of authority and control over the premises where the vehicle was located (see, People v. Cosme, 48 N.Y.2d 286, 422 N.Y.S.2d 652, 397 N.E.2d 1319; People v. Wood, 31 N.Y.2d 975, 341 N.Y.S.2d 310, 293 N.E.2d 559). As noted by the hearing court, the seizure of the automobile, which was the situs of the crimes, was with the full cooperation of the defendant's family. Indeed, on the day after the arrest, when the police officer arrived to secure the vehicle, the family members had already replaced a flat tire and had driven the car into the driveway, leaving the keys in the ignition for the officer.

This case is factually distinguishable from People v. Miller, 40 Ill.2d 154, 238 N.E.2d 407, cert. denied 393 U.S. 961, 89 S.Ct. 401, 21 L.Ed.2d 375, wherein at the time of the defendant's arrest at a private home where he was employed to care for a bedridden invalid, a police officer secured the consent from the home owner to search the defendant's vehicle in the garage.

Even assuming, arguendo, that the seizure of the defendant's vehicle was illegal, we find that the suppression of the items found in the vehicle was not warranted since their seizure was pursuant to a valid search warrant (see, People v. Plevy, 52 N.Y.2d 58, 436 N.Y.S.2d 224, 417 N.E.2d 518; People v. Seidita, 49 N.Y.2d 755, 426 N.Y.S.2d 463, 403 N.E.2d 169; United States v. Kinney, 638 F.2d 941, cert. denied 452 U.S. 918, 101 S.Ct. 3056, 69 L.Ed.2d 423; United States v. Agapito, 620 F.2d 324, 338, cert. denied 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40; United States v. Korman, 614 F.2d 541, 547, cert. denied 446 U.S. 952, 100 S.Ct. 2918, 64 L.Ed.2d 808). The information submitted in the search warrant application, excluding the statement that the officer had viewed the handcuffs in the impounded vehicle, was "itself sufficient to establish probable cause" (People v. Plevy, supra, 52 N.Y.2d at 66, 436 N.Y.S.2d 224, 417 N.E.2d 518; see, People v. Seidita, supra, 49 N.Y.2d at 756, 426 N.Y.S.2d 463, 403 N.E.2d 169; see also, People v. Arnau, 58 N.Y.2d 27, 33, n 1, 457 N.Y.S.2d 763, 444 N.E.2d 13 ["The validity of a warrant and search depends on whether the untainted information, considered by itself, establishes probable cause for the warrant to issue"] ). Specifically, the complainants' statements concerning the vehicle and the presence of the knife and handcuffs therein set forth in the officer's affidavit in support of the warrant application were derived from sources independent of and discovered prior to any allegedly illegal conduct of the police, and established probable cause to search the vehicle. Similar to the situation in People v. Burr (70 N.Y.2d 354, 520 N.Y.S.2d 739, 514 N.E.2d 1363, cert. denied 485 U.S. 989, 108 S.Ct. 1294, 99 L.Ed.2d 505), the defendant herein made no claim at the suppression hearing that the police officer's mere opening of the door of the vehicle after it was impounded "was improperly undertaken by the police" with the intent "to confirm the information" already known to the police (People v. Burr, supra, at 362-363, 520 N.Y.S.2d 739, 514 N.E.2d 1363). Further, there is no evidence in the record that would support a finding of an improper confirmatory search by the police.

Accordingly, we find no reason to disturb the hearing court's conclusion that the items seized from the defendant's vehicle were not subject to suppression.

In addition, we find that neither the prosecutor's summation nor his cross-examination of the defendant's character witnesses warrants reversal of the judgment rendered December 19, 1984. The defendant did not object at trial to the statements made by the prosecutor during his summation concerning the testimony of the defendant's character witnesses, which he now claims were prejudicial. As to the prosecutor's questioning of the defendant's character witnesses, almost all of the questions now challenged by the defendant were not objected to by him at the trial. Further, when objections were made at the trial, the record indicates that either the objections were sustained and in at least one instance, a curative instruction was given, or the objection was properly overruled, or the answer to the question was not prejudicial.

THOMPSON, LAWRENCE and WEINSTEIN, JJ., concur.

MOLLEN, P.J., dissents and votes to reverse the judgments of conviction, vacate the defendant's guilty plea and grant those branches of the defendant's omnibus motions which were to suppress physical evidence and remit the matters to the Supreme Court, Queens County, for further proceedings.

The instant appeal arises out of the defendant's convictions of sodomy and other or related offenses in connection with two separate incidents which occurred in January and March of 1984. The cases were consolidated for purposes of the suppression hearing only. The defendant was ultimately convicted, after a jury trial under Indictment No. 1283/84, inter alia, of attempted sodomy in the first degree in connection with the March 1984 attack. Thereafter, the defendant pleaded guilty under Indictment No. 1278/84 to sodomy in the first degree with respect to the January 1984 incident. On appeal, the defendant focuses primarily on the propriety of the suppression court's ruling regarding the validity of the search and seizure of his automobile. For the reasons which follow, I conclude that the seizure and subsequent search of the defendant's car was improper and, thus, the suppression court erred in denying the defendant's motion to suppress the physical evidence seized as a result of that search.

At the suppression hearing, the complainant involved in the March 10, 1984, incident testified that on the afternoon in question, she was walking to a store in the vicinity of her Ozone Park residence when the defendant pulled up next to her in a black Buick and asked her for directions to Rockaway and Lefferts Boulevards. The defendant identified himself as a police officer and displayed a badge. He stated that he was in a hurry and asked the complainant to get into the car and direct him. The complainant agreed. When she entered the car, however, the defendant locked the car and attempted to sexually assault the complainant at knife point. After a brief struggle, the complainant managed to escape from the car. When she exited the car, she was able to observe the vehicle's license plate number. The complainant then immediately went to her aunt's house and contacted the police.

Following his interview of the complainant, Detective McKinley ascertained that the defendant was the registered owner of the vehicle in question. It was also determined that the defendant was not a police officer; in fact, it was ultimately determined that the defendant was a corrections officer. The day following the incident, Detective McKinley went to the defendant's residence in Ozone Park and asked the defendant's parents if he could speak with the defendant. When the defendant appeared, the detective indicated that he wanted to speak with the defendant at the precinct. The defendant agreed and, as they were walking towards the police vehicle, Detective McKinley asked the defendant if he was the owner of the vehicle in question. The defendant responded affirmatively and also stated that no one else ever used the vehicle. The detective testified that at that point in time, he considered the defendant to be in custody, although he was not formally arrested nor was he given Miranda warnings. Prior to leaving the defendant's residence, Detective McKinley took the defendant's car keys, handed them to the defendant's parents and stated that a police officer would be by later in the day to pick up the car. No request was made of the defendant to consent to the seizure of his vehicle.

Once he arrived at the precinct, the defendant was given an opportunity to contact his union representative and an attorney after he was informed of the charges against him. The defendant was also administered his Miranda warnings. Thereafter, the defendant was placed in a lineup and identified by the complainant. The defendant was also identified separately by the victim of the sexual attack which occurred in January 1984 which allegedly also occurred in the defendant...