People v Livingston

[*1] People v Livingston 2005 NY Slip Op 50688(U) Decided on March 14, 2005 Supreme Court, Bronx County Massaro, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 14, 2005
Supreme Court, Bronx County

THE PEOPLE OF THE STATE OF NEW YORK,

against

Michael Livingston, Defendant.



5249/2003



For the People of the State of New York

HONORABLE ROBERT T. JOHNSON

District Attorney

By: CARMEN MARTINEZ, ESQ.

Assistant District Attorney

For Michael Livingston

Bronx Defenders

By: JUSTINE OLDERMAN, ESQ.

JOSH BOWERS, ESQ.

Dominic R. Massaro, J.

Defendant, Michael Livingston, is charged with Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39 [1]). He moves to suppress the property recovered from his person and his on-the-scene identification as derived from an arrest that lacked probable cause. At a combined Mapp/Gethers (see Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 [1961]; People v. Gethers, 86 NY2d 159 [1995]) hearing, the People called two witnesses: New York City Police Detectives Lita Steed and John Balogna. Defendant did not call any witnesses. The Court finds the testimony of Detectives Steed and Balogna to be credible. Suppression is denied.

Factual Setting

The People's Case

On December 2, 2003, at approximately 1:03 a.m., Detective Steed was assigned as the ghost and arresting officer for a buy-and-bust operation. Detective Steed is an eighteen year veteran of the police department, a six year veteran of the Bronx Narcotics Squad, has made hundreds of narcotics arrests, participated in numerous buy-and-bust operations, and is specially trained in the recognition of narcotics and their packaging and trade. In this particular operation, Undercover 3557 was assigned to purchase narcotics.

At the corner of 211th Street and White Plains Road, Undercover 3557 approached an individual, later learned to be separately apprehended defendant Lorenzo Murphy, and they engaged in a conversation. The undercover officer and Mr. Murphy walked to the corner of 213th [*2]Street and Carlisle Place where Mr. Murphy looked at Undercover 3557 "because he has his money" (Tr. at 31). Undercover 3557 and Mr. Murphy then touched hands. Mr. Murphy crossed the street and proceeded to the doorway of a house where Defendant and another individual, later learned to be separate apprehended defendant Michael McCray, were standing. All three had a conversation and each person touched hands once or twice with the other two. In the touching of hands, a "small object" was exchanged amongst the three (Tr. at 35-36). Mr. Murphy then walked back over to Undercover 3557, at which point, they touched hands again. The undercover officer then gave Detective Steed, who had observed all of the abovementioned events, a "positive buy" signal. Detective Steed informed the field team that there was a positive buy and also provided descriptions of Defendant and Messrs. Murphy and McCray. The field team then moved onto the scene and apprehended all three. No one else was present in the area at that time. Detective Steed positively identified Defendant, and Undercover 3557 did likewise in a drive-by identification procedure. Afterwards, Detective Balogna conducted a search of Defendant incident to his arrest in which he recovered twenty dollars of pre-recorded buy money.

Arguments of Counsel

Defendant claims that the People have failed to establish probable cause to arrest him. First, he argues that Detective Steed was too far away from the interaction between himself and Mr. Murphy to see what occurred. Furthermore, Defendant asserts that because he was not engaged in the hand-to-hand transaction with Undercover 3557, his actions with Mr. Murphy should be treated as an observation sale and not as a buy-and-bust. Under this theory, Defendant claims that because Detective Steed only saw hand contact between Mr. Murphy and him, and was unable to discern what was actually exchanged, there was no telltale sign of a drug transaction as is required by People v. McCray, 51 NY2d 594 (1980), and People v. Alvin Jones 90 NY2d 835 (1997). Rather, Defendant argues that the People only established his presence at the scene and his touching hands with Mr. Murphy, which he claims is insufficient to establish probable cause.

The People claim that they established the lawfulness of the police conduct as well as probable cause to believe that a narcotics sale occurred because Detective Steed testified that she observed Mr. Murphy engage in a conversation with Undercover 3557, and after they touched hands, Undercover 3557 gave Mr. Murphy a sum of pre-recorded buy money, Mr. Murphy went over to Defendant and Mr. McCray and a small object was passed amongst the three. Mr. Murphy then went back to Undercover 3557 and handed him something that caused him to transmit a positive buy sign. Moreover, the People contend that Detective Balogna's recovery of twenty dollars of pre-recorded buy money was pursuant to a search incident to a lawful arrest.

Discussion

In the Gethers (supra), portion of the hearing, the People must establish that probable cause to stop and hold a defendant for an on-the-scene confirmatory identification by an undercover officer existed. See People v. Corey Jones, 2 NY3d 235 (2004). Probable cause exists when "information which would lead a reasonable person who possessed the same expertise as the officer to conclude, under the circumstances, that a crime is being or was committed." McCray, supra, at 602. See also People v. Bellinger, 74 NY2d 633 (1989); People v. Carrasquillo 54 NY2d 248 (1981).

In McCray, supra, the Court of Appeals delineated the standard to determine if there is [*3]probable cause to arrest a defendant for engaging in an illegal drug transaction. The high court held that "[t]he reasonableness of the police conduct . . . will depend on the totality of the circumstances with which he [a trained narcotics officer] is confronted." McCray, supra, at 604, n.5. See also Alvin Jones, supra, at 837 (a "telltale sign" such as the passing of narcotics is not "an indispensable prerequisite to probable cause"); People v. Starling, 85 NY2d 509, 515 (1995) ("[T]he laws prohibiting narcotics sales encompass the actions of a 'middleman,' who acts as a broker between the seller and the buyer."); People v. Matienzo, 184 AD2d 296, 297 (1st Dept. 1992) ("[I]t is not a mere exchange involving currency that establishes probable cause, but all of the circumstances attending the exchange."), aff'd, 81 NY2d 778 (1993).

The First Department has repeatedly analyzed situations similar to the case at bar. In People v. Alvin Jones, 219 AD2d 417 (1st Dept. 1996), aff'd, supra, an officer trained in narcotics investigations and with considerable experience in that field, observed a defendant and a woman engage in conversation, followed by the women handing money to the defendant, who, in turn, handed an object back to the woman. Although the officer could not see the object, he believed that it was a vial of crack cocaine based on the manner in which it was held by the woman. Despite the fact that further actions by the defendant afterwards provided additional probable cause, the First Department held that, based on this information alone, there was probable cause to arrest and search defendant because "while [the] [d]etective . . . did not see the object defendant passed to the unapprehended buyer, his training and experience led him to believe from the way she received the object, glanced at it and then moved away from defendant that she was a drug purchaser and that a vial had been exchanged for money. The exchange of currency, is, of course, a highly significant consideration in this type of an encounter." Alvin Jones, supra, at 420.

Likewise, in People v. Alexander, 218 AD2d 284, 289-90 (1st Dept. 1996), lv. denied, 88 NY2d 964 (1996), the First Department explained that: [T]he totality of the circumstances provided the experienced undercover detective with the requisite probable cause to arrest. Common sense need not be jettisoned nor credulity stretched to its outermost bounds in making such an assessment. . . . The police officer's probable cause to believe that defendant possessed drugs was . . . strengthened by the fact that defendant and [a co-defendant] spent only a short period of time inside the building. . . . There are few, if any, reasonably innocent explanations for this conduct, and when viewed through the prism of the undercover officer's experience and training, it was certainly more probable than not that a crime had taken place. . . . Realistically and commonsensibly evaluated, the defendant's conduct would lead a layperson, let alone a trained and experienced drug enforcement officer, to believe that an illegal drug transaction had just transpired. . . . The fact that the detective did not see an exchange or transfer . . . did not diminish the probability that defendant was guilty of narcotics possession.

[*4]Similarly, in People v. Graham, 211 AD2d 55 (1st Dept. 1995), lv. denied, 86 NY2d 795 (1995), an officer observed several transactions in which a defendant exchanged money for a small object removed from a paper bag, although he could not see what the object was. In holding that there was probable cause, the First Department held that: [T]he observation of a drug package is not a sine qua non for the existence of probable cause in a drug sale. . . . In a probable cause analysis, the emphasis should not be narrowly focused on a recognizable drug package or any other single factor, but on an evaluation of the totality of the circumstances, which takes into account the "realities of everyday life unfolding before a trained officer who has to confront, on a daily basis, similar incidents" (People v. Cabot, 88 AD2d 556, 557 [1st Dept. 1982]). . . . Since street-level drug sales typically involve small, easily concealable packages, utilization of a totality of the circumstances analysis is both reasonable and necessary. Street sellers of narcotics should not enjoy an immunity from arrest or search merely because they are able to conceal their wares during the exchange; concealment is itself a common characteristic of illegal conduct. . . . [A]ny person observing defendant . . . and his method of operation, using good common sense, would have, in the totality of circumstances, concluded that defendant was involved in the sale of narcotics. . . . Moreover, of course, any person with [the arresting] officer's expertise . . . [was due] considerable deference [including] his conclusion that he was observing drug transactions. . . . Moreover, the purposeful concealment of the objects exchanged in the palm of defendant's hand . . . was consistent with the conduct of a low-level street seller.

Graham, supra, at 58-61. See also People v. Ketcham, 93 NY2d 416, 421-22 (1999) (probable cause to arrest a defendant exists where the suppression court could infer that "the ghost officer's information was obtained from first-hand observation and a signal or communication from the primary undercover indicating that a drug transaction had been completed . . . [because] the ghost officer's transmission 'positive buy,' followed by a description of a place and a person had an accepted meaning in the field"); People v. Perez, 227 AD2d 359 (1st Dept. 1996) ("[T]he drug-prone location, the furtive hand-off, and a pattern of conduct known by experienced narcotics officers as designed to distance a seller from the contraband through use of a stash man would have established probable cause . . . even though no money was ever seen changing hands. . . . [It was] an inescapable inference that the substance handed by defendant to the codefendant was the same as that recovered from the codefendant."); Matter of Devon H., 225 AD2d 135, 139 (1st Dept. 1996) ("[P]robable cause existed despite the fact that the item exchanged could not be observed. . . . Notwithstanding the inability to see [and recognize] the item, the totality of the circumstances . . . gave rise to probable cause. . . . [N]o single factor even observing the item exchanged is dispositive on the issue of probable cause."); People v. Lacend, 216 AD2d 112, 113 (1st Dept. 1995) (probable cause where "defendant's observed participation in the sale [*5]included providing a bag to a cohort who removed the glassine envelope from that bag to accomplish the sale and then handed the proceeds of the sale to defendant" as the defendant's activities constituted the role of "'the money man' or the 'stash man'"), lv. denied, 87 NY2d 923 (1996).

Here, even though the type of item exchanged could not be observed, the totality of the circumstances established probable cause to arrest Defendant and hold him for an on-scene identification by the undercover officer. Detective Steed, a trained and experienced narcotics officer, although not participating in the narcotics transaction, personally observed Undercover 3557, who she had worked with in the past, exchange an object with Mr. Murphy, which, based on her training and experience, was a sum of pre-recorded buy money. See People v. Washington, 87 NY2d 945, 947 (1996) (detective observing a "defendant engaging in a drug transaction as opposed to actually participating in it himself does not alter the fact that the personal observations of an experienced undercover officer . . . of the exchange of drugs for money, standing alone, established probable cause"). Then she observed Mr. Murphy exchange this cash with Defendant and Mr. McCray for another object and "when viewed in totality rather than in isolation, . . . [Defendant's] hand movements were not those of a person counting out change or making some other innocuous transaction." People v. Armstrong, 299 AD2d 224, 224-25 (1st Dept. 2002), lv. denied, 99 NY2d 612 (2003). Rather, the pattern of conduct exhibited by Defendant that was observed by Detective Steed, an experienced narcotics officer, establishes that he was the "stash" or "money" man. Detective Steed then observed Mr. Murphy take this object and give it to Undercover 3557, who, with a positive buy signal, indicated that a narcotics transaction had just been completed; "[t]here is no . . . requirement that the police know the kind or amount of the narcotics involved before making an arrest for criminal sale of a controlled substance." People v. Maldonado, 86 NY2d 631, 635 (1995). As a result, she provided the field team with a description of those involved and observed as Detective Bologna apprehended Defendant. Moreover, although many of the above cited cases involved known drug prone locations, "[t]he absence of explicit evidence as to prior drug activity in the location . . . does not preclude a finding of probable cause where there is evidence of a transfer of cash for items believed to contain a controlled substance." People v. Hartman, 294 AD2d 446, 448 (2nd Dept. 2002), app. dismissed, 100 NY2d 568 (2003).

Defendant's reliance on People v. Thompson, 4 Misc 3d 126 (App. Term. 2nd Dept. 2004), and People v. Aguiar, Misc 2d , May 15, 1998, 219 N.Y.L.J. 93, at 35, col. 5 (Supreme Ct. Nassau Cty. May 15, 1998), is misplaced as the former case merely involved an observation of a drug sale, and thus, there was no undercover officer to verify that a narcotics sale had, in fact, occurred as in the case at bar. In the latter case, unlike in the case at bar, the court there noted that "[n]o passing of any currency or object of any kind was observed." Aguiar, supra (emphasis added).

In the Mapp (supra) portion of the hearing, the People have the initial burden of establishing the lawfulness of the police conduct in acquiring the evidence they seek to introduce at trial against a defendant. See People v. Berrios, 28 NY2d 361 (1971); People v. Baldwin, 25 NY2d 66 (1969). If the People have made such a showing, a defendant then has the ultimate burden to establish by a preponderance of the evidence that the police conduct in acquiring that evidence was illegal. See Baldwin, supra; Berrios, supra. Here, as there was probable cause to [*6]arrest Defendant, "the requisite predicate for an . . . incidental search" existed. Alexander, supra, at 290. See also Graham, supra, at 61, fn. 2 ("As an incident to a lawful arrest, police may conduct a warrantless search of an individual and the area within that person's immediate control."), citing, People v. Smith, 59 NY2d 454, 459-60 (1983) (Jansen, J., concurring); Matter of Shermaine J., 208 AD2d 158, 164 (1st Dept. 1995) (because probable cause existed for the arrest of defendant, "the search and seizure of the $80 from his person incident to that arrest was valid").

ORDERED, that the defendant's motion to suppress the evidence recovered and his identification as derived from an arrest that lacked probable cause is denied.

The foregoing opinion constitutes the decision and opinion of the Court.

Dated: Bronx, New York

March 14, 2005

DOMINIC R. MASSARO,

Justice of the Supreme Court