People v. Sluszka, 2004-00145.
| Decision Date | 07 February 2005 |
| Docket Number | 2004-00145. |
| Citation | 15 A.D.3d 421,2005 NY Slip Op 01044,790 N.Y.S.2d 55 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. FRANK SLUSZKA and JOSEPH CARNES, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is reversed insofar as appealed from, on the law, those branches of the omnibus motion of the defendant Frank Sluszka which were to suppress physical evidence and his statements to law enforcement authorities are denied, that branch of the omnibus motion of the defendant Joseph Carnes which was to suppress physical evidence is denied, and the matter is remitted to the County Court, Nassau County, for further proceedings on the indictment.
Police Officer Jeffrey Raymond testified at the suppression hearing that he and his partner, Officer Unvertzagt, while in plain clothes and an unmarked police car, observed a Ford Bronco in a parking lot space, far from other cars and stores with its engine on and a person in the driver's seat. Thereafter, a station wagon pulled up, and the person in the Bronco got out, and entered the rear seat of the station wagon, leaving the Bronco unattended with its engine running. Officer Raymond testified that as he drove the unmarked police car next to the station wagon, he witnessed the driver hand a diet Coke 12-pack box to the passenger in the rear of the car. At that time, the driver of the station wagon looked in the direction of the undercover police car and then the station wagon pulled away. The officers activated the police lights to pull the station wagon over.
The station wagon stopped, but when Officer Unvertzagt exited the police car and began to approach the station wagon, it pulled away again. The police car followed and the station wagon stopped approximately 15 or 20 feet away. Both police officers approached the station wagon, and Officer Unvertzagt asked the driver of the station wagon, the defendant Frank Sluszka, why he drove away as they approached, and Sluszka said it was because he had "a little weed" on him. Officer Unvertzagt asked Sluszka where it was, and Sluszka pointed to a knapsack on the passenger front seat. As this was happening, Officer Raymond noticed the defendant Joseph Carnes in the rear passenger seat of the station wagon, reaching forward between his feet. Officer Raymond shone his flashlight on the floor and noticed the 12-pack soda box between Carnes' feet, which Carnes was attempting to shove under the front passenger seat with his feet. The box tore, and the officer observed that it contained a zip lock bag of what looked like marijuana.
The officers arrested both men, and recovered 17 small bags of marijuana in the knapsack and approximately one pound of marijuana from the soda can box. A search of Sluszka's person revealed additional controlled substances. The defendants moved, inter alia, to suppress the physical evidence recovered from the car and Sluszka's person and the statements made to the police by Sluszka at the scene.
The County Court found that the stop of...
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