People v. Smith

Citation59 Misc.3d 1231 (A),108 N.Y.S.3d 690 (Table)
Decision Date29 May 2018
Docket Number377–2016
Parties The PEOPLE of the State of New York, v. David SMITH, Defendant.
CourtUnited States State Supreme Court (New York)

59 Misc.3d 1231 (A)
108 N.Y.S.3d 690 (Table)

The PEOPLE of the State of New York,
v.
David SMITH, Defendant.

377–2016

Supreme Court, Bronx County, New York.

Decided May 29, 2018


Terri Rosenblatt, Esq.

Assistant District Attorney Elizabeth Kamens, Assistant District Attorney Meghan O'Malley, Michael Murphy, Esq., Attorneys for Defendant

Miriam R. Best, J.

For the reasons that follow, defendant's motion to suppress a firearm, statements and a saliva sample for a Fourth Amendment violation is denied. Defendant's motion to suppress his post-arrest statements to a detective for a Fifth Amendment violation is granted to the extent indicated below.

Background

Defendant is charged with Criminal Possession of a Weapon in the Second Degree (PL § 265.03[3] ) and related crimes. The People allege that on January 17, 2016, at approximately 12:40 am, police observed defendant operating a scooter on a public roadway in the vicinity of Bussing and Edson Avenues in Bronx County, crossing over double-yellow lines into the opposing traffic lane and failing to stop for a stop sign. The People further allege that defendant refused to pull over when directed to so by police, then removed a loaded, operable, unlicensed .38 caliber revolver from his waist area, threw it underneath a parked vehicle, and fled (Criminal Court Complaint, pp. 1–2).1 When the People filed the indictment here, they gave notice of two statements in the Voluntary Disclsoure Form ("VDF"). First, they noticed an oral statement defendant allegedly made to P.O. Patrick Jean on January 17, 2016 at 12:40 am, when opposite 4224 Edson Avenue in the Bronx, in which he said, in sum and substance, "I just got off of work. I work at a Chinese restaurant on White Plains Road. What's going on? This is my scooter. I don't have paperwork for it. I don't know why it's not registered." The People also noticed a videotaped statement defendant allegedly made to Detective Christan Jimenez at the 47 Precinct at 11:30 am that same day, when he said, in sum and substance, "I work as a tailor on 214 Street. I arrived in the U.S. in October 2010. I didn't know they were officers. I was coming from my girlfriend's house on Gun Hill Road with a stop at 214. At 12:30 I was at Edenwald and Bussing. I didn't know they were cops. I had been robbed previously in that area, that's why I didn't stop. They told me that they found a gun and that there was shots fired in the area. They didn't see me throw anything."

A Mapp/Dunaway/Huntley hearing was ordered regarding the firearm, statements and a saliva sample that defendant gave while in custody. This court conducted the hearing on May 1, 2018. The People called Police Officer Jean and Detective Jimenez, whom the court found to be credible. The defense called no witnesses. Based on the testimony at the hearing, I make the following findings of fact and conclusions of law.

Findings of Fact

Police Officer Patrick Jean has been a New York City police officer for 13 years. He has worked in the 47 Precinct since leaving the police academy (H 4–5).2 On January 17, 2016, he was working from 8:00 pm to 4:35 am with a partner, Officer Palmerini; they were assigned to anticrime and were in plain clothes in an unmarked police car (H 5, 6–7). At about 1:15 am, Jean was on White Plains Road when he got a call on his cell phone from his sergeant, Sgt. Barberis, who told him that he had stopped an individual who had thrown a firearm (H 8–9, 17, 33–34, 41, 43). Sgt. Barberis told Jean to come to the location, 4224 Edson Avenue (H 7, 43). It took Jean "[t]wo minutes, tops" to arrive at the scene (H 40). When he got there, Jean saw Barberis next to a parked Suburban SUV and saw defendant up the block on Edson Avenue with Officer Maldonado. A two-wheel motorized scooter was a couple of feet away from defendant, who was already under arrest (H 17, 23, 24, 35).3 Palmerini went up the block where Maldonado was (H 35). Jean stayed in the area of the SUV; using his flashlight, he saw a firearm under the SUV (H 24, 25–26, 35, 42 and People's Exhibit 1).

Barberis told Jean that he and Maldonado were traveling4 eastbound on Edenwald Avenue when they saw in their rearview mirror5 that defendant was operating a two-wheel motorized scooter. These officers watched defendant for half a block as he was swerving from the left to the right lane across the double-yellow lines. When defendant turned left to go north on Edson Avenue, these officers turned north on Baychester Avenue, which they chose as "a faster route to try to catch up to" defendant (H 9). At the intersection of Baychester and Boston Avenues they turned west on Boston Avenue, where they saw defendant still operating the scooter and failing to stop at the stop sign at the intersection of Boston and Edson Avenues (H 9). At that time, these officers put on their lights and sirens to stop defendant, but he did not stop (id. ). The officers then rolled down their windows and identified themselves as police, but defendant still did not stop (H 9–10). Instead, using his right hand, defendant removed a silver firearm from his waist and threw it to the left across his body and under a vehicle. When the firearm fell Barberis heard "a metal hitting the ground" (H 10, 13, 21, 22, 23). The officers stopped defendant "further north on Edson," where Maldonado arrested him and Barberis went back to safeguard the firearm (H 19–20, 24).

Barberis and Maldonado told Jean that defendant made a statement when they stopped him, telling Maldonado that he worked for a Chinese restaurant doing deliveries, that he had just gotten off work, and that he did not have any paperwork for the scooter (H 29). Defendant was not handcuffed or under arrest when he made this statement (id. ). According to Jean, these officers told him that they did not use any force or coercion or make any promises to defendant to make this statement (H 30–31).

Jean photographed the firearm in place under the SUV and safeguarded it until officers from the Evidence Collection Team ("ECT") arrived about an hour later (H 24, 26, 37, 42). An ECT officer, who was wearing gloves, unloaded the firearm, which was a revolver, fumigated it and swabbed it for DNA (H 31, 32, 37–38, 42).6 Then the officer gave the firearm to Jean, who took it back to the precinct and vouchered it (H 31–32, 42–43).

Other officers transported defendant to the 47 Precinct, where he was put in a holding cell and his pedigree information was obtained (H 32).

Detective Christan Jimenez has been employed by the New York City Police Department for 13 years. For approximately the past three years, she has been assigned to the 47th Precinct Detective Squad (H 47–48, 56). On January 17, 2016, she took a videotaped statement from defendant (H 50–51). Before doing so, she reviewed arrest paperwork and did a search for warrants (H 51, 65–66). Based on her review of those materials, Jimenez knew that defendant was 20 years old and did not have a "long rap sheet" (H 65–66).

Jimenez's interview of defendant was recorded on People's Exhibit 2, which was received in evidence without objection (H 53–53A; H 74–75). The videotape shows that when she and defendant entered the interview room at 11:34 am, she removed the handcuffs from defendant and he asked how he could get a voucher for his property. She and defendant then sat at a table and she asked defendant his name, date of birth and address. Jimenez then asked defendant questions about his education, his work, where he was born, when he came to the United States, and whether he had any problems or "beefs" with anyone. Jimenez then asked defendant if he knew who his arresting officer was. Defendant said that he "didn't even know they was officers" (PX A, p ACT11; DX A, p. 8).7 Jimenez asked what made him say that and defendant answered in part by saying, "Because I was riding, right, tell me now, you're on the road, right? Two guys ..." (PX 2; H 59, 80).8

Up to this point, Jimenez had not read defendant his Miranda rights.9 At this point, she said to him, "All right, you want to tell me what happened last night, alright. So let's do it the right way, okay?" Defendant said, "Yeah," and Jimenez said, "I'm going to read you your rights" (PX 2; PX A, p ACT 11; DX A, p. 8). She also told defendant to "answer clearly, no nodding." She told defendant that he had the right to remain silent and refuse to answer any questions, and asked if he understood. Although defendant's answer was unintelligble to me, Jimenez's response was clear: she asked defendant if he wanted her to read it again; he said yes, and she did so. He then answered yes to that question and each of the other standard Miranda questions (PX 2; H 70). Defendant then agreed to answer questions. Among other things, he said that he was at his girlfriend's on Gun Hill Road the night before; that he was tipsy; that he was riding a blue moped, which was confiscated; that he had been robbed "like two weeks back" but had not reported it and that was why he did not stop; that the officers who stopped him told him they had found a gun and there were "shots fired." Defendant also said that he saw the police car before they saw him, made a turn and asked himself "why this car slow down?" Defendant denied that he had a gun and said the police did not see him throw anything. He also said that an officer "came back" and told him his fingerprints were on the gun when they did not even fingerprint him. Jimenez asked defendant if he was willing...

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