People v. Roger
| Decision Date | 20 January 2012 |
| Docket Number | No. 2011NA012813.,2011NA012813. |
| Citation | 946 N.Y.S.2d 68 |
| Parties | The PEOPLE of the State of New York, v. Daniel ROGER, Defendant. |
| Court | New York County Court |
OPINION TEXT STARTS HERE
Kathleen Rice, Nassau County District Attorney.
Timothy D. Aldridge, Esq., Attorney for Defendant.
The Defendant is charged with Criminal Possession of a Controlled Substance in the Seventh Degree, Failing to Signal and Operating an Uninspected Motor Vehicle, in violation of Penal Law § 220.03 and Vehicle and Traffic Law §§ 1163(a) and 306(b), respectively.
Upon the consent of the parties, on December 14, 2011 this court conducted a Mapp/Dunaway/Huntley1 hearing. At such a hearing, where a defendant challenges the legality of a search and seizure, along with statements allegedly obtained as a result thereof, the People have the burden of going forward, in the first instance, to establish the legality of the police conduct. People v. Malinsky, 15 N.Y.2d 86, 262 N.Y.S.2d 65 (1965); People v. Wise, 46 N.Y.2d 321, 413 N.Y.S.2d 334 (1978); People v. Dodt, 61 N.Y.2d 408, 474 N.Y.S.2d 441 (1984); People v. Moses, 32 AD3d 866, 823 N.Y.S.2d 409 (2nd Dept.2006), lv. den.7 NY3d 927, 827 N.Y.S.2d 696 (2006) Once the prosecution has met this burden, the defendant has the ultimate burden to establish the illegality of the police conduct, by a fair preponderance of the evidence. People v.. Berrios, 28 N.Y.2d 361, 321 N.Y.S.2d 884 (1971); People v. Di Stefano, 38 N.Y.2d 640, 382 N.Y.S.2d 5 (1976); People v. Lombardi, 18 A.D.2d 177, 239 N.Y.S.2d 161 (2nd Dept.1963) The burden is also on the People to prove, beyond a reasonable doubt, that the statements in question were voluntarily made before their admission into evidence on the People's case in chief at trial. People v. Huntely, 15 N.Y.2d 72, 255 N.Y.S.2d 838 (1965); People v. Valeruis, 31 N.Y.2d 51, 334 N.Y.S.2d 871 (1972); People v. Anderson, 42 N.Y.2d 35, 396 N.Y.S.2d 625 (1977).
In an attempt to meet their burden, the People relied exclusively on the testimony of Police Officer Gene Piccirillo. The Defendant did not call any witnesses. Having had the opportunity to listen to Officer Piccirillo and observe his demeanor on the witness stand, the court finds him to be credible and makes the following findings of fact:
Officer Piccirillo is an eighteen (18) veteran of the Nassau County Police Department, assigned to the anti-crime unit for the past eight (8) years. At the Nassau County Police Academy he received training in, among other things, arrests involving drug transactions. Over the course of his career he has made over one thousand (1,000) arrests, seventy five (75%) percent of which involved searches or pat downs.
On May 29, 2011, at approximately 11:00 p.m., Officer Piccirillo was on duty, in plain clothes, in an unmarked Buick Century, with Police Officer Kevin O'Brien, who was also in plain clothes. At that time, the officers were parked on the east side of Grand Avenue, in Baldwin, facing north, just north of the Baldwin train station, investigating possible narcotics activity. This is an area known to the officers as a location of prior narcotics transactions. Officer Piccirillo witnessed five (5) drug transactions at this location in the month preceding this incident.
While parked, Officer Piccirillo saw a 1997 Volkswagon come to a stop at an apartment complex on the east side of Grand Avenue, approximately one hundred (100') feet from the officers. Officer Piccirillo observed the driver of the Volkswagon exit his vehicle and approach an individual standing in front of the apartment buildings. The men appeared to engage in conversation and then Officer Piccirillo observed “some sort of hand to hand transaction.” Officer Piccirillo could not see what was exchanged between the individuals. Based upon his training and experience he believed this to be a drug transaction.
Following this brief encounter, which lasted less than one (1) minute, the driver returned to the Volkswagon and proceeded northbound. Officer Piccirillo proceeded to follow the Volkswagon, staying approximately two (2) car lengths behind, without activating his lights or siren. After traveling about three-quarters ( 3/4) of one mile Officer Piccirillo observed the Volkswagon change lanes without signaling. Officer Piccirillo then activated his emergency lights; and, the Volkswagon pulled to the curb. Officer Piccirillo acknowledged that if not for the VTL violation he would not have pulled over the Volkswagon. Officer Piccirillo further testified that he pulled the Volkswagon over to conduct a VTL investigation.
Officer Piccirillo and Officer O'Brien exited their vehicle and approached the Volkswagon. Officer Piccirillo approached the driver, who was the same individual observed in what appeared to be a hand to hand transaction, who Officer Piccirillo identified as the Defendant; and, Officer O'Brien approached the passenger's side of the vehicle. With his shield displayed, Officer Piccirillo asked the Defendant for his license, registration and insurance card. At this same time, with his shield displayed, Officer O'Brien was speaking with the passenger of the Volkswagon. Officer Piccirillo recalled that the Defendant provided his license, but could not recall if he also provided his registration and insurance card. At this time, Officer Piccirillo also noticed that the inspection sticker on the Defendant's windshield was expired. Officer Piccirillo then asked the Defendant to exit his vehicle, which the Defendant did, without objection.
The area where the Defendant was stopped was well lit. Officer Piccirillo did not have his gun drawn, did not handcuff the Defendant, did not touch the Defendant and did not use any force. Without Mirandizing2 the Defendant, and with the intent of “seeing if the [Defendant] would be honest with [him],” Officer Piccirillo twice told the Defendant that he had seen him pull up to a building on Grand Avenue, exit the vehicle, approach a male in front of the building, exchange something, return to the car and drive away. The Defendant responded by stating that he did not know what Officer Piccirillo was talking about; that he had nothing on him; that the officer could check the car; and that he would even open the trunk. In response, Officer Piccirillo patted down the Defendant and then reached into his left front pocket, pulling out two (2) packets of a white powdery substance, believed to be cocaine. Officer Piccirillo then had the Defendant sit on the curb. No other statements were made.
“Simply stated the proper analysis in cases of this nature is to examine the predicate for the police action and then determine whether or not that predicate justified the extent of the official intrusion on the individual.” People v. Stewart, 41 N.Y.2d 65, 66, 390 N.Y.S.2d 870, 871 (1976); See also: People v. Allen, 109 A.D.2d 24, 489 N.Y.S.2d 749 (1st Dept.1985) In making this analysis, the court “must weigh the degree of intrusion entailed against the precipitating and attending circumstances,” People v. Salaman, 71 N.Y.2d 869, 870, 527 N.Y.S.2d 750, 751 (1988) “concentrat[ing] on whether the conduct of the police was reasonable at the time in view of the totality of the circumstances (citations omitted), for reasonableness is the touchstone by which police-citizen encounters are measured (citations omitted).” People v. Lomiller, 30 AD3d 276, 277, 818 N.Y.S.2d 27, 28 (1st Dept.2006); See also: People v.. Alvarez, 308 A.D.2d 184, 764 N.Y.S.2d 42 (1st Dept.2003)
In People v. De Bour, supra., the Court of Appeals “set out a four tiered method for evaluating the propriety of encounters initiated by police officers in their criminal law enforcement capacity[,]” People v. Hollman, 79 N.Y.2d 181, 184, 581 N.Y.S.2d 619, 620 (1992) as follows:
(1) The least intrusive encounter permits an officer to approach an individual to request information where there is “some objective credible reason for that interference not necessarily indicative of criminality.” People v. De Bour, supra. at 223, 386 N.Y.S.2d 375, 384 (1976)
(2) The next level of permissible intrusion is the common law right to inquire, which is predicated upon “a founded suspicion that criminal activity is afoot[.]” People v. De Bour, id. at 223, 386 N.Y.S.2d 375, 385 (1976) At this level, a police officer may interfere with a citizen to the extent necessary to gain explanatory information; but, such interference may not rise to the level of a forcible seizure. People v. De Bour, id.; People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509 (1975)
(3) At the next level of intrusion, a police officer may forcibly stop and detain a citizen where the officer “entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor[.]” People v. De Bour, supra. at 223, 386 N.Y.S.2d 375, 385 (1976) “Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe that criminal activity is at hand.” People v. Cantor, supra. at 112, 365 N.Y.S.2d 509, 516 (1975); See also: People v. Martinez, 80 N.Y.2d 444, 591 N.Y.S.2d 823 (1992); People v. William II, 98 N.Y.2d 93, 745 N.Y.S.2d 792 (2002) As a corollary to this temporary stop for questioning, if the officer reasonably suspects that he or she is in danger of physical injury the officer is authorized to frisk the individual. See:CPL § 140.50(3); People v. De Bour, supra.
(4) The final, and most intrusive, level of encounter is an arrest of an individual when the officer has probable cause to believe that the person has committed a crime or offense in his presence.
Officer Piccirillo's observation of what appeared to him to be a hand to hand drug transaction did not provide him with either probable cause to make an arrest of the Defendant or with reasonable suspicion that a crime had been committed, sufficient to forcibly stop and detain the Defendant at...
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