People v. Rafailov
| Decision Date | 16 January 2013 |
| Docket Number | No. 2011KN091329.,2011KN091329. |
| Citation | 2013 N.Y. Slip Op. 50100,966 N.Y.S.2d 348,38 Misc.3d 1214 |
| Parties | The PEOPLE of the State of New York v. Rufat RAFAILOV, Defendant. |
| Court | New York Criminal Court |
OPINION TEXT STARTS HERE
Charles J. Hynes, District Attorney (Danielle Moss, Esq., of counsel), for the People.
Brooklyn Defender Services (Debora Silberman, Esq., of counsel), for Defendant.
The following constitutes findings of fact and conclusions of law as to a Huntley–Mapp–Dunaway Hearing held before me. The hearing raised numerous legal issues, including the distinction between primary and secondary evidence and its interplay with the inevitable disclosure exception to the exclusionary rule.1 Because the controlled substances at issue constitute primary evidence obtained as the result of an illegal search, they are suppressed. Suppression is denied as to the carton of allegedly untaxed cigarettes, as they were found in plain view, and not as a result of an illegal search. Suppression is also denied as to Defendant's statement, as it was made in response to investigatory questioning before a reasonable person in his position would have believed he was not free to leave.
The sole witness was Detective Steven Gordon, called by the People. The defense did not call any witnesses. The Court found Det. Gordon to be a credible witness, and further finds that his testimony was not tailored in any way. Det. Gordon testified that he has been a member of the NYPD for about 8 1/2 years, assigned to Brooklyn South Narcotics for the past two-and-a-half years, and has made over 300 arrests, over 150 of which were for controlled substances, and has assisted in over 1000 arrests for controlled substances. (Hr'g Transcript (“Tr.”) 17–18, October 24, 2012.) He has received training in identification and field testing analysis of narcotics. (Tr. 18.)
On November 16, 2011, he was working a night tour, approximately 3:30 PM to midnight, in plainclothes as the passenger using an unmarked car with his partner, Detective Donohue. (Tr. 19.) At that time, he was near the intersection of Avenue U and East 12th Street in Brooklyn, which he described as not a drug-prone location and not a location where he previously made arrests (Tr. 36), but one with which he was familiar solely because he lives “around there” (Tr. 20:21). The location was not on his tactical plan for the evening, and he could not give a definitive reason as to why he was there. (Tr. 20, 56–57.)
At about 9:40 on a rainy night, while his unmarked car was in motion (Tr. 30), Det. Gordon observed an unidentified man (hereinafter the “Cell Phone Man”) walking back and forth along a portion of Avenue U with no street lights (Tr. 33–34, 45) but lit by vehicle headlights and commercial store lights such that he could “see everything.” (Tr. 52–53.) Det. Gordon observed the man making several calls on his cell phone, looking up and down the street, as if for a car (Tr. 21, 38), for about ten to fifteen minutes (Tr. 53–54). Detectives Gordon and Donohue then split up, with Detective Gordon proceeding on foot to a bench in front of a laundromat across the street from the Cell Phone Man (Tr. 32), while Detective Donohue remained in the car, now parked on a side street facing Avenue U. (Tr. 31).
Shortly thereafter, the Defendant pulled up in an automobile, stopped his car, and was approached by Cell Phone Man. Defendant then exited his vehicle, opened the trunk and both men met at the trunk. At that time, Det. Gordon called Det. Donohue on his cell phone, and told him to meet at Defendant's vehicle. (Tr. 23.) Det. Gordon observed Cell Phone Man hand Defendant a sum of currency, and observed Defendant with his hand in his pocket (Tr. 23), at which time he frisked Defendant for weapons and found a jewelry box, which Det. Gordon opened and discovered to contain controlled substances. (Tr. 24, 27.) He also observed a carton of cigarettes in the open car trunk, and testified that after identifying himself as a police officer, in response to his inquiries “what's going on?” and what he was doing at the location (Tr. 44), Defendant allegedly responded that he was “selling the cell phone male cigarettes, untaxed cigarettes” (Tr. 25:17).
Perhaps not surprisingly, the precise order of events is somewhat ambiguous. It appears that Det. Gordon started across Avenue U towards the Defendant as soon as he saw Defendant exit his vehicle and walk to the vehicle's trunk (Tr. 40), which was immediately upon Defendant pulling into the location. ( Id.) It is unclear as to whether the Defendant and Cell Phone Man had started to converse before Det. Gordon began his approach ( compare Tr. 40:21, with Tr. 40:24–41:3), but Det. Gordon testified that the exchange of money between the two occurred as the Detective approached. (Tr. 42:3–7.) Defendant put the money in his pocket and kept his hand in his pocket. Det. Gordon was then alongside Defendant, who remained with his hand in his pocket, as Det. Gordon identified himself. (Tr. 43–44.) At that point, Defendant removed his hand from his pocket, Det. Gordon frisked Defendant (Tr. 46), and recovered the jewelry box (Tr. 47). Asked to describe the recovery, Det. Gordon stated that he “felt the object, I removed it from his pocket, and I opened it up and I saw there were pills inside of it.” (Tr. 48:18–19.)
While Det. Gordon initially testified that the jewelry box was “as big as my hand,” and approximately five inches (Tr. 49), when it was introduced into evidence as People's Exhibit B, all parties stipulated that it actually measured two inches by one-and-a-half inches. .2 After Det. Gordon opened the box and found pills, which, based on his training and experience, he recognized to be controlled substances, he placed Defendant in handcuffs (Tr. 49), but Cell Phone Man was not arrested because, in Det. Gordon's opinion, he had not committed any crime (Tr. 49–50).
Det. Gordon stated that the reason for the frisk was for his safety, as well as the Defendant's safety, based on his training that when someone's hand is in their pocket during an approach, the person should be told to take their hand out of their pocket and then be frisked. (Tr. 55.) He did not articulate any particularized suspicion that Defendant had a weapon, nor did he state that when he felt a bulge in Defendant's pocket, which upon removal proved to be a jewelry box, he suspected that it was a weapon.
Defendant was arraigned on narcotics felonies. The felonies were dismissed on the People's motion on February 23, 2012, leaving only the misdemeanor charge of Criminal Possession of a Controlled Substance in the Seventh Degree, PL § 220.03. At the commencement of the hearing, the People further reduced that charge to PL § 110/220.03, a Class B misdemeanor. However, after both sides rested on the hearing and submitted post-hearing memoranda, the People served a superseding information charging Tax Law § 1814, an unclassified misdemeanor, in addition to the drug charge. The Court then re-opened the hearing for additional testimony on Defendant's application for suppression of the allegedly untaxed cigarettes. The Court ruled that it would consider all of the prior testimony as well in regard to suppression of the untaxed cigarettes.
The People re-called Det. Gordon, who further testified that he had no training in the identification of untaxed cigarettes, although he had seen them around at the police precinct. The carton of “Newport 100's” as well as the jewelry box recovered from Defendant were introduced into evidence. Det. Gordon testified that he saw the cigarettes in plain view in the trunk of Defendant's vehicle only after he frisked Defendant and opened the pill box. (November Hr'g Tr. 16:14–18 ).) He further testified that the cigarettes were in the trunk of Defendant's car, and he could not ascertain whether there were tax stamps on the bottom of the carton, which rested on the trunk floor, until he reached into the trunk and removed the carton. (November Hr'g Tr. 25:23–26:1.) 3
Det. Gordon was questioned in some detail as to the timing of his seeing the cigarettes, and several times he reiterated that he did not see them until after he frisked Defendant. ( See November Hr'g Tr. 16:9–18, 17:7–16, 26:16–20.) Also introduced into evidence was a voucher for $377, which Det. Gordon testified was recovered from Defendant, notwithstanding indications on the voucher that its contents were recovered from a person born in 1991, and therefore decades younger than Defendant. (November Hr'g Tr. 36:22–37:21.)
Relying mainly on People v. Hollman, 79 N.Y.2d 181, 581 N.Y.S.2d 619, 590 N.E.2d 204 (1992) and its progeny, Defendant contends, in essence, that none of the police activity, starting with Det. Gordon's initial approach and questioning of Defendant, was supported by the requisite level of cause. The People argue that good grounds, as articulated by People v. DeBour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976), exist to support each level of Det. Gordon's actions, and further argue that even if the search was improper, the contraband should be admissible under the inevitable discovery doctrine as set forth in People v. Fitzpatrick, 32 N.Y.2d 499, 300 N.E.2d 139, 346 N.Y.S.2d 793 (1973).
People v. DeBour articulates four distinct stages of police intrusiveness. Our analysis starts with the first two stages: first, a request for information, which must be supported by an objective, credible reason, albeit not necessarily indicative of criminality; and second, the common law right of inquiry, which requires “a founded suspicion that criminal activity is afoot.” DeBour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, ...
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