People v. Weissman
| Decision Date | 26 August 2014 |
| Docket Number | 2012KN095503 |
| Citation | 997 N.Y.S.2d 602,2014 N.Y. Slip Op. 24235,46 Misc.3d 171 |
| Parties | The PEOPLE of the State of New York v. Yona WEISSMAN, Defendant. |
| Court | New York Criminal Court |
46 Misc.3d 171
997 N.Y.S.2d 602
2014 N.Y. Slip Op. 24235
The PEOPLE of the State of New York
v.
Yona WEISSMAN, Defendant.
2012KN095503
Criminal Court, City of New York, Kings County.
Aug. 26, 2014.
Kenneth Thompson, District Attorney (Joseph A. DiBenedetto and Sholom J. Twersky, Esqs. of counsel), for the People.
Israel Fried, Esq., for Defendant.
Opinion
MICHAEL GERSTEIN, J.
This Mapp/Dunaway hearing requires the Court to apply the recent U.S. Supreme Court ruling in
Riley v. California, 524 U.S. ––––, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), to the inspection of photographs contained on Defendant's cell phone and reviewed after a Court Officer observed Defendant apparently taking a photograph in the courthouse in violation of Court rules. Defendant is charged with two counts of Criminal Contempt in the Second Degree (PL 215.50) for the use of his cell phone in the court to take pictures. Defendant has moved for suppression of the cell phone at issue and the pictures recovered from the phone. Riley holds, in essence, that no search may be conducted of an arrestee's cell phone incident to a lawful arrest without first obtaining a search warrant. Here, the People propose various theories to avoid that holding, but the Court finds none of those rationales persuasive, and grants Defendant's motion to suppress photographs recovered from Defendant's cell phone.
FACTS
The People called two witnesses at the hearing, Court Officers Robert Brusco (“Officer Brusco”) and Adam Cantor (“Officer Cantor”). While there were some discrepancies between them, the Court credits their testimony. The Defendant did not call any witnesses.
This case involves events that transpired during the trial of People v. Nechemia Weberman, charged with raping a 12–year–old girl, presided over by the Honorable John Ingram in Part 21 of Supreme Court, Kings County, in November 2012.
On November 27, 2012, Justice Ingram, explicitly admonished the members of the Weberman courtroom audience: “I remind all spectators no tweeting, no blogs, make sure everybody's phone is off. You can't have any direct communication with anybody outside the courtroom.” Defendant's Ex. A, Transcript of Weberman Trial at 93, People v. Weberman, No. 1589/11 (Supreme Court, Kings County Nov. 27, 2012). However, Judge Ingram stated shortly thereafter, “[y]ou can step and do whatever you want outside the courtroom.” Id.
Officer Brusco testified that he was assigned to secure the Part 21 audience during the Weberman trial. (Brusco Tr. June 11, 2014, 4:8–10, 21:7.) On November 28, 2012, he observed Yona Weissman, Defendant herein, and Joseph Fried (“Fried”) sitting in the Part 21 audience, and that he observed Defendant with a cell phone in his hand, approximately placed at his waist and to his side. (Brusco Tr. June 10, 2014, 12:17–13:9–13.) Officer Brusco believed that the cell phone was on, as its cover was open and the screen and keypad were
illuminated.
(Id. ) Upon Officer Brusco's approach, Fried nudged Defendant, who immediately put his phone away. (Brusco Tr. June 11, 2014, 23:23–25.) Significantly, there was no testimony that Officer Brusco thought Defendant was using his phone to take pictures.
On the following day, November 29, 2012, Officer Cantor was assigned to a security desk post outside Justice Ingram's courtroom for lunch relief, approximately 11:30AM–1:00PM. (Cantor Tr., June 13, 2014, 8–10.) Officer Cantor testified that after he interacted with Weissman on three separate occasions on that day, advising Weissman on each occasion, in substance, that the Part 21 courtroom was already filled to capacity, and that Weissman would have to wait for other spectators to leave before he could enter. After the third interaction, he observed Weissman and his companions proceed to the elevator area, and from that location, hold their cell phones in such a manner that they appeared to be using the phones to photograph Officer Cantor. (Cantor Tr. 12–16.) Any such photography, whether in the hallway or any other location within the courthouse, and whether of Officer Cantor or not, constituted a violation of 22 NYCRR 29.1, which, with exceptions not applicable herein, prohibits photography or recordings of any nature in the entire courthouse, as follows: “Taking photographs in a courthouse including any courtroom, office or hallway thereof, at any time or on any occasion is forbidden.”
Officer Cantor verbally directed Defendant and his companion to come over to the security desk where he was seated. (Cantor Tr. 17:7–8.) They immediately, and without protest, complied. It is undisputed that no guns were drawn, and no force, threats or promises were made. Moreover, it appears that Officer Cantor at this point had not even risen from his seat at the security desk. Specifically, Officer Cantor testified as follows:
A. I asked them [Defendant Weissman and his companion] to come over to me with their phones out and let me see the pictures on their phones.
....
Q. How did you ask them that?
A. I said “Come over here with your phones out, let me see the pictures in your phones.”
(Cantor Tr. 17:1–8)
* * *
Q. Did you accuse them of taking pictures of you?
A. I believe what I said to them was: “Let me see
the pictures in your phone, come over here,” something to that degree.
Q. So you didn't even ask them if they took photographs of you?
A. I asked them when they came over to me, yes.
Q. You just testified that you told them to show you the pictures in their phone, correct?
A. Yes, I said something to that degree, “let me see your phones, come over here with your phones,” something like that.
Q. And they both handed you their phones?
A. No.
Q. They didn't give you their phones?
A. No
Q. You took their phones?
A. No, they showed me the pictures in their phones holding their own phones.
Q. But at your direction, correct?
A. Yes.
(Cantor Tr. 60:10–25, 62:1–4)
* * *
Q. When Mr. Weissman showed you the photos on his phone, he showed you one image at a time, is that correct?
A. Yes.
Q. So the first image that he showed you was not an image of you, correct?
A. Yes.
Q. So you were able to tell that he did not in fact take a picture of you, correct?
A. I knew that that wasn't me, yes, but I told him to scroll through it, I didn't know what he might have done on the way to me.
Q. I see. So the first image wasn't you, you wanted to make sure that the second and all subsequent images weren't of you as well, correct?
A. Correct.
....
Q. So even though the first image was not of you, you didn't say “put your phone away”?
A. No.
(Cantor Tr. 62:7–63:1)
* * *
Q. So after the second image, you were able to tell that the second image was also not you, correct?
A. Yes, I was able to tell it wasn't me.
Q. In fact, there were no images of you in either of their [Defendant and his companion's] phones, correct?
A. Correct.
(Cantor Tr. 63:19–24)
After scrolling through the phone, Officer Cantor observed a photograph of a young woman testifying from the witness stand. Knowing that the Weberman trial concerned an alleged rape of a young girl, Officer Cantor recovered two cell phones from the men, entered Part 21 and approached Officer Brusco. (Cantor Tr. 29:1–4; 31:1–11.) Officer Cantor told Office Brusco that he believed Defendant and Fried had taken his photograph in the hallway of the courthouse. (Cantor Tr. 31:1–3.)
Officer Brusco entered the hallway, and asked the Defendant to show him (Officer...
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...defendant's cell phone and SIM card, Dunham applied the proper procedure by seeking a warrant for the search of their contents. People v. Weissman, 46 Misc.3d 171 (Crim. Ct. City of NY, Kings Co.2014) citing Riley v. California, 1134 S.Ct. 2473, 189 L. Ed 2d 430, 82 USLW 4558 (2014).The Peo......