People v. Suncar

• Decision Date: 20 December 2019
• Docket Number: 1068-19
• Citation: 116 N.Y.S.3d 872,66 Misc.3d 672
• Parties: The PEOPLE of the State of New York, v. Kevin SUNCAR and Jeremiah Medina, Defendants.
• Court: New York Supreme Court

66 Misc.3d 672

116 N.Y.S.3d 872

The PEOPLE of the State of New York,

v.Kevin SUNCAR and Jeremiah Medina, Defendants.

1068-19

Supreme Court, Bronx County, New York.

Decided on December 20, 2019

For defendant Medina, Nicolas Schumann-Ortega, The Legal Aid Society, Criminal Defense Division, 260 E. 161st Street, Bronx, NY 10451, 718-579-3087

For defendant Suncar, Ruben Dario Fernandez and Mariam Gaye, The Bronx Defenders, 360 East 161st Street, Bronx, NY 10451, 718-838-7853

For the People: A.D.A. RosAnn Piccolo, Bronx County District Attorney's Office, 198 East 161st Street, Bronx, NY 10451, 718-664-1681

David L. Lewis, J.

FACTS

Defendants Kevin Suncar and Jeremiah Medina move this Court for the suppression of items seized in a search of a parked vehicle.

THE HEARING

The People called a single witness: Police Officer Freddy Pichardo of the 46th Precinct. Pichardo has been a police officer for four years and serves as a patrol officer, mainly responding to 911 calls. He stated that he received training at the police academy four years ago in the recognition of controlled substances and marijuana including smelling, texture, and the packaging of controlled substances and marijuana. He was also trained in the way to approach motor vehicles, including identifying violations from "running a red light, tinted windows, things that we can stop a vehicle for."

Officer Pichardo has made less than thirty arrests in four years and assisted in over 200. One involved cocaine and one arrest involved marijuana and this is the only one. He assisted in less than 50 drug arrests that "involved marijuana".

On March 11, 2019, at 9:20 in the morning, Officer Pichardo was with his partners, Officer Gonzalez and Sergeant Beharry, all of whom were in uniform. Officer Pichardo saw the defendants in a red Hyundi sedan which was parked and with the engine off. It was blocking the pedestrian crosswalk. This was a parking violation. The officer indicated that they issued a summons, an A summons, for the violation. It was never introduced into evidence. The officer was unable to indicate what law it violated. The time of the defendant's arrest was 9:27 am. on the street by the car.

He and the Sergeant approached the vehicle. Pichardo was standing on the passenger side of the vehicle on the sidewalk. He did not recall where Beharry was. Medina was in the front passenger seat and Suncar was sitting in the rear passenger seat. They appeared to the officer to be sleeping. Pichardo knocked on the window to tell them to move the car but he got no response. Then "we gave them a command" which was quoted as "Hey, can you hear me? Can you hear me? Wake up. Wake up." The command was delivered through the closed window. Pichardo said that he then thought they needed medical help. They then decided to enter the vehicle. The Sergeant opened the rear driver side door, where one of the defendants was sleeping. Pichardo stated "As we approached there was a strong smell of marijuana coming out of the vehicle." The doors and windows of the car were closed, however, as they approached. Officer Pichardo repeatedly injected the "strong smell of marijuana" into many of his answers.

Pichardo stated that they opened the door and tried to wake them up. He stated that he open the door and then answered that the Sergeant not he opened the car door. They yelled at them and shook them a little bit. Then they were waking up. When they were awake they were asked to step out of the vehicle. By that time it was clear that they did not need medical attention. They stumbled out. Pichardo opined that clearly they were tired or under the influence of something. They were ordered to stand by the building away from the car.

The Sergeant called Pichardo over. Pichardo stated that we then saw that there were narcotics in the middle of the rear seat. Pichardo did not see anything until he was called over after the Sergeant had been searching the car. The drugs that he saw he saw only after the Sergeant called him over after he had searched the car and only then called Pichardo over to see the drugs in the middle of the rear seat. On cross examination Pichardo stated that the drugs were in a brown bag and a plastic bag. The marijuana was in baggies but he could not recall whether they were open or not. He testified that the Sergeant gave him the drugs and he put them in his pocket to transport them to the precinct. The Sergeant showed Pichardo multi colored packaging of a rock like white powder he believed was cocaine and marijuana in a little bag or maybe two bags. He stated that the marijuana was bundled, adding "with a strong smell". The claim is that he could smell the raw marijuana from the two closed little bags. He said you can smell it from two feet away although there was no evidence that he was two feet away. Further he said you could smell it when you opened the bag. He admitted on cross examination that he found no burning marijuana cigarettes in the car.

Pichardo asked Medina who the vehicle belonged to and Medina said his aunt and then he said his mother. Pichardo said he stopped asking questions because he concluded that he could not get a "straight answer". One of the two men told Pichardo that they did not have keys to the vehicle.

WAIVER OF STANDING ISSUE BY THE PEOPLE

The defense asserts that the People, by failing to raise the issue of the defendants' standing until their reply papers were filed after the close of the hearing, have functionally forfeited the right to challenge the defendants' standing. Citing to People v. Sylvester , 129 A.D.3d 1666, 12 N.Y.S.3d 469 (4th Dept. 2015), the defense contends that the challenge is untimely. No existing First Department case addresses this issue. But see People v. Graham , 211 A.D.2d 55, 57-58, 626 N.Y.S.2d 95 (1st Dept.), lv denied 86 N.Y.2d 795, 632 N.Y.S.2d 508, 656 N.E.2d 607 (1995) (finding unpreserved the People's contention that the defendant lacked standing to challenge a search, noting that the People failed to raise the issue in either their motion opposing suppression or at the hearing, citing People v. Hunter, 17 N.Y.3d 725, 726-727, 926 N.Y.S.2d 401, 950 N.E.2d 137 [2011] ). In fact, the People objected at the suppression hearing as to relevance when the defense sought to prove standing by and through the credit card found in the inventory search, in effect arguing that it was not in issue. But of most significance was the fact that the People stood silent when the Court stated that the People have not challenged standing. The People in papers claim that the hearing is still ongoing because there are papers being submitted. The hearing consists of the evidence and not subsequent filings. The attempt to "keep the hearing open" by the People is specifically not permitted once they have rested. See People v. Havelka , 45 N.Y.2d 636, 412 N.Y.S.2d 345, 384 N.E.2d 1269 (1978). As in Sylvester , the People's challenge to defendants' standing was made after the proof at the suppression hearing was closed, and was thus untimely, citing Hunter, 17 N.Y.3d at 727-728, 926 N.Y.S.2d 401, 950 N.E.2d 137

The People further argue that that People v. Sylvester is not "binding law" because it is a Fourth Department case. (Although they erroneously state that it is a Third Department case). Sylvester relies upon the Court of Appeals reasoning in People v. Hunter, 17 N.Y.3d 725, 926 N.Y.S.2d 401 (2011), and appears to this Court to be perfectly good law. The People have failed to demonstrate that any other court has rejected the Sylvester rule.

Once the hearing is concluded the People can no longer raise the standing issue to block the hearing. The simplest reason is fundamental fairness to the defense so the defense cannot be ambushed with the issue after the hearing is closed. The issue of standing must be raised as soon as practicable so that the court can appropriately exercise its discretion and the parties can tailor their hearing strategy to avoid 'substantial possibilities of surprise. Further it is a matter of fairness to the Court itself which could have disposed of the matter on the standing issue at the first opportunity.

Therefore, as a matter of law the People must raise the challenge to the defendants' standing as part of the actual hearing. Their silence is to be read as an admission that standing was not contested.

PEOPLE v. DEBOUR ANALYSIS

Prior to an arrest, justifiable police intrusion upon a citizen in a public place is of three levels. Police, in a first level encounter, may approach civilians to request information when there is some objective credible reason for that interference not necessarily indicative of criminality. The common-law right to inquire, or the second level, allows police to interfere with a citizen's freedom, short of seizure, "to the extent necessary to gain explanatory information," provided the police have a founded suspicion that criminal activity is afoot. People v. DeBour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976). Here, the officer had a credible objective reason for approaching the vehicle when he observed it was partially parked in a crosswalk. After observing the occupants asleep in the vehicle, the officer was justified in making a level one DeBour request for information. People v. Lovelle , 33 Misc. 3d 1212[A], 2011 WL 5007465 (Crim. Ct., Kings County 2011). It is well established that approaching an occupied stationary vehicle is a minimal intrusion which is not the equivalent of a stop. See People v. Harrison , 57 N.Y.2d 470, 457 N.Y.S.2d 199, 443 N.E.2d 447 (1982). As such an encounter is analogous to approaching a citizen on the street to request information and the same four-tiered analysis set forth in People v. DeBour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562, is utilized. See People v. Ocasio, 85 N.Y.2d 982, 629 N.Y.S.2d 161, 652 N.E.2d 907 (1995). Utilizing the DeBour analytic framework, it is clear that the approach in this case was a wholly...