People v. Thomas
| Decision Date | 03 August 2011 |
| Docket Number | 2010NA017842 |
| Parties | The People of the State of New York, v. Cynthia Thomas, Defendant. |
| Court | New York District Court |
Hon. Kathleen Rice, Nassau County District Attorney
Attorney for Defendant: Cornell Bouse, Esq.
The Defendant is charged with Promoting prison contraband in the second degree, in violation of Penal Law § 205.20.
On June 23, 2011, upon the parties' consent, the court conducted a Mapp/Huntley 1 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 NY2d 86, 262 N.Y.S.2d 65 (1965); People v. Wise, 46 NY2d 321, 413 N.Y.S.2d 334 (1978); People v. Dodt, 61 NY2d 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 NY2d 361, 321 N.Y.S.2d 884 (1971); People v. Di Stefano, 38 NY2d 640, 382 N.Y.S.2d 5 (1976); People v. Lombardi, 18 AD2d 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 NY2d 72, 255 N.Y.S.2d 838 (1965); People v. Valeruis, 31 NY2d 51, 334 N.Y.S.2d 871 (1972); People v. Anderson, 42 NY2d 35, 396 N.Y.S.2d 625 (1977).
The People attempt to meet their burden through the testimony of Correction Officer Christopher Marino. The Defendant did not call any witnesses. After listening to and observing Officer Marino's demeanor, the court finds his testimony to be credible and makes the following findings of fact:
Officer Marino has been employed by the Nassau County Sheriff's Department for twentythree (23) years; for fifteen (15) of which he has been a K-9 officer. Officer Marino's duties as a K-9 officer include searching the visiting areas at the Nassau County Correctional Center (the "Correctional Center"), along with the entirety of the center. In this capacity Officer Marino works with a dog specially trained to search for and detect the source of narcotics.
At the Correctional Center there are signs posted "throughout the facility, on the grounds, in the waiting areas, and inside the facility, in the registration area, the lobby, the visiting room itself[,]" (Hearing Transcript 6/23/11, p. 7 l. 1-4) indicating that "all persons entering the facility are subject to search by K-9 or staff for any contraband." (Hearing Transcript 6/23/11, p. 7 l. 6-7)
Officer Marino, who has worked with a number of dogs over the years, was originally trained by Canadian Customs, along with his first dog, in a ten (10) week course, with periodic training throughout the year. With the retirement and replacement of each new dog, Officer Marino would return to Canadian Customs, along with his new dog, for a five week training course. Officer Marino and the dogs would receive their training together. Specifically, the dogs were trained to distinguish different odors of narcotics, including marijuana, cocaine, heroin, opium and methamphetamine. The dogs were trained to sit if they detect the odor and source of such substances. If the dog detects the odor, but cannot locate the source of the substance, he/she will track to the initial area, become excited, jump or stand on his/her hind legs. Following their training, the dogs are certified by the State of New York as police narcotic detection dogs.
On July 8, 2010, at approximately 12:45 p.m. Officer Marino was working in "832 visiting area" at the Correctional Center with his dog "Spirit" who had received the aforesaid training. At that time, Officer Marino and Spirit were working in the "sallyport" area, which is the gated space separating the lobby, where the visitors register, place their ID on a pegboard and place their belongings into a locker for which they have been provided a key, and the actual visiting area. When the gate leading into the sallyport opens, visitors walk through a magnetometer, put their shoes on an x-ray machine belt, show a stamp they received at the registration window and a gate closes behind them. Once cleared, another gate opens, letting the visitors into the visiting area.
While working in the sallyport, Officer Marino saw the Defendant, whom he has previously encountered, enter the sallyport. At that point, Spirit approached the Defendant and became excited, indicating that the Defendant had something high on her body or in her mouth. At that same time, Officer Marino observed the Defendant to appear nervous; her eyes got big and she appeared tense. While, according to Officer Marino, Spirit could have been reacting to cocaine residue on the Defendant's upper body, he believed the Defendant had something in her mouth, due to the fact that Spirit kept detecting the odor of a illegal substance as the Defendant exhaled and then lost the scent each time the Defendant inhaled and held her breath. Officer Marino approached the Defendant and asked her to open her mouth. The Defendant did so; and, Officer Marino observed that the Defendant's tongue was arched, covering something under her tongue. Officer Marino believed the concealed item to be narcotics based upon Spirits reaction. Office Marino told the Defendant to lift her tongue. The Defendant refused, closed her mouth and turned away. Officer Marino observed the Defendant's throat move up and down, leading him to believe that the Defendant swallowed the item in her mouth. Officer Marino then asked the Defendant what she swallowed and the Defendant told him, in sum and substance, to go fuckhimself, she didn't swallow anything. The Defendant was then escorted out of the sallyport back into the lobby area, where she was detained.
In the lobby Officer Marino asked the Defendant if she wanted medical attention; the Defendant declined. Officer Marino then asked the Defendant to sign a medical refusal form, which the Defendant refused, stating, alternately, Officer Marino then took the key given to the Defendant and retrieved the Defendant's belongings from the locker provided to her. Officer Marino told the Defendant that he was going to search her belongings and asked her if there was anything sharp or anything that was going to harm him when he reached into her pocketbook. The Defendant advised Officer Marino that she had a steak knife in her pocketbook. Officer Marino then searched the Defendant's pocketbook and found, inter alia, a steak knife. Shortly thereafter, the Defendant was arrested for promoting prison contraband.
The Defendant argues that immediately upon being confronted by Officer Marino she was in custody and should have been advised of her Miranda rights. Having failed to advise her of such rights at that time, the Defendant suggests her statements which followed should be suppressed.
In opposition the People argue that at no time prior to her arrest was the Defendant in custody, triggering the application of her Miranda rights. The People further argue that whether in custody or not, the Defendant was not subjected to interrogation and that Officer Marino's inquiry as to whether there was anything sharp in her pocketbook was a reasonable inquiry necessary to protect the officer.
There are three (3) sets of statements allegedly made by the Defendant which are the subject of this hearing. The first is the Defendant's denial that she had anything in her mouth or that she swallowed anything immediately following Spirit having alerted Officer Marino that there was the odor of a controlled substance emanating from the Defendant when in the sallyport. The second is the Defendant's declination to sign a medical refusal form and averment that she had swallowed gum made while in the lobby. The third is the Defendant's statement that there was a knife in her pocketbook when asked by Officer Marino if there was anything in the bag which could injure him. While the People's notice served pursuant to CPL § 710.30 contains a fourth statement, wherein the Defendant allegedly indicated that she carried the knife for protection because she was mugged, the People acknowledge that there was no testimony adduced at the hearing regarding such a statement and that it should be suppressed.
It is well established that People v. Huffman, 41 NY2d 29, 33, 390 N.Y.S.2d 843, 846 (1976); See also: People v. Berg, 92 NY2d 701, 685 N.Y.S.2d 906 (1999) A determination of whether or not an individual was subjected to custodial interrogation will first turn on "what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position." People v. Yukl, 25 NY2d 585, 589, 307 N.Y.S.2d 857 (1969); See also: People v. Paulman, 5 NY3d 122, 800 N.Y.S.2d 96 (2005); People v. Morales, 25 AD3d 624, 807 N.Y.S.2d 142 (2nd Dept. 2006) In making this determination the court should look to such factors as the amount of time spent with the police, whether an individual was handcuffed or restrained in any way, whether there was any questioning,the location of the questioning, was the atmosphere unduly coercive, the individual's degree of cooperation, whether the individual was apprised of his or her rights, and whether the nature of the questioning was...
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