People v. Ventura

• Citation: 196 Misc.2d 989,768 N.Y.S.2d 279
• Court: New York Criminal Court
• Decision Date: 26 August 2003
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>JOSE VENTURA, Defendant.

196 Misc.2d 989

768 N.Y.S.2d 279

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,

v.JOSE VENTURA, Defendant.

August 26, 2003.

Legal Aid Society, New York City (Roma Kesseram of counsel), for defendant.

Robert M. Morgenthau, District Attorney, New York City (Michelle Warren and Mark Crooks of counsel), for plaintiff.

OPINION OF THE COURT

RICHARD M. WEINBERG, J.

This case had been referred to a judicial hearing officer to conduct a Dunaway/Huntley hearing. After reviewing the transcript of that hearing as well as the report of the hearing officer, this court modifies the hearing officer's findings and conclusions as follows:

The defendant has challenged the admissibility of certain statements on the theory that they are the fruits of illegal police conduct. The defendant has also challenged the voluntariness of the statements. While the ultimate burden under a Dunaway argument is upon the defendant, the People must initially come forward and justify the police conduct. On the issue of voluntariness, the burden of proof beyond a reasonable doubt is on the People.

The sole witness at the hearing, New York City Police Officer Christian Perez, was called by the People. Officer Perez first met the defendant when he was brought to the 34th Precinct station house on December 16, 2002 shortly after his 5:39 A.M. arrest. The defendant had been arrested by a Sergeant Hernandez and the sergeant's driver and they brought the defendant to the 34th Precinct station house. There, according to Officer Perez, Sergeant Hernandez related to Officer Perez the details of the arrest, namely, that Sergeant Hernandez had observed the defendant driving the wrong way on a one-way street, stopped him, smelled alcohol on his breath, and asked if he had been drinking. When the defendant replied "yes," the sergeant had arrested him. Officer Perez then took custody of the defendant and brought him to the 28th Precinct station house. At the 28th Precinct, Officer Perez read the defendant a full set of standard Miranda warnings in Spanish at about 6:50 A.M. The defendant acknowledged that he understood each warning and indicated that he was willing to answer questions. Accordingly, the defendant's subsequent statements were voluntary.

However, the defendant has also challenged the introduction of these otherwise voluntary statements as the fruit of an illegal arrest. The only evidence concerning the stop and arrest of the defendant was provided by Officer Perez' recitation of what Sergeant Hernandez had told him. While there is no reason to doubt that Officer Perez gave a candid recitation, that recitation was based on secondhand information. Officer Perez had nothing to do with the stop and arrest of the defendant. While this hearsay testimony was admissible, it did not supply the necessary proof of the legality of the stop and arrest. In his motion papers challenging the legality of his arrest, the defendant specifically denied operating a motor vehicle. Thus, it was incumbent upon the People to call a witness with firsthand knowledge of the challenged conduct. (See People v Gonzalez, 173 AD2d 845, 848 [1991] [Brown, J., dissenting].)

At the Gonzalez suppression hearing, the issue was whether the defendant had voluntarily accompanied the arresting officers from his home to the station house to be interviewed. The People's sole witness was the detective who had interviewed the defendant at...