People v Gulley

[*1] People v Gulley 2005 NY Slip Op 52010(U) [10 Misc 3d 1058(A)] Decided on December 12, 2005 Supreme Court, Queens County Rotker, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 12, 2005
Supreme Court, Queens County

THE PEOPLE OF THE STATE OF NEW YORK

against

DARRIN GULLEY, Defendant.



1094/05



A.D.A. Andrea Carlino

Defense Counsel: Lester Seidman

Seymour Rotker, J.

The following constitutes the opinion, decision and order of the court.

An indictment has been filed against the defendant accusing him inter alia of the crime of Criminal Possession of Stolen Property in the Fourth Degree (P.L. § 165.45[2]). The charge is that on April 22, 2005, defendant knowingly possessed a stolen credit card.

Defendant, claiming to be aggrieved by an unlawful search and seizure, has moved to suppress the credit card, seized from his person, by Police Officer Theodore Imbasciani on April 22, 2005.

In this case, the People assert that the seizure of the credit card from the defendant's person was incident to a lawful arrest. The People have the burden, in the first instance, of going forward to show the legality of police conduct. Defendant, however, bears the ultimate burden of proving by a preponderance of the evidence that the physical evidence should be suppressed.

Defendant, again claiming to be aggrieved by an unlawful acquisition of evidence, has also moved to suppress a statement made by him on April 22, 2005 to Officer Imbasciani upon the ground that it was involuntarily made within the meaning of CPL § 60.45.

A confession or admission is admissible at trial in this State only if its voluntariness is established by the People beyond a reasonable doubt.

A pretrial suppression hearing was conducted before me on December 8, 2005.

Testifying at this hearing was Police Officer Theodore Imbasciani. I give full credence to his testimony.

I make the following findings of fact:

On April 22, 2005, while operating a radio motor patrol car for his sergeant, Police Officer Theodore Imbasciani of the 105th Precinct, an eighteen and one-half year veteran of the New York City Police Department, observed a person, later identified as the defendant Darrin Gulley, operating a mountain bicycle on a public sidewalk. The officer saw Gulley drive from the sidewalk into a schoolyard at approximately 9:15 A.M. while school was in session. Gulley then drove out of the schoolyard.

Shortly thereafter, Officer Imbasciani stopped Gulley and, after patting him down for weapons, stated that he was going to issue Gulley a summons for riding a bicycle on the sidewalk. The officer asked Gulley for identification which he produced. At that point, Officer Imbasciani performed a computer check upon defendant and discovered that there was an outstanding warrant that had been issued in the Bronx Criminal Court for defendant's [*2]arrest. At that point Gulley and his bicycle were taken to the 105th Precinct for processing on the outstanding bench warrant.

While at the precinct, Gulley was asked to empty his pockets and Officer Imbasciani went through the defendant's wallet and saw a credit card/debit card issued in the name of Augusta Coates-Kirkling. Officer Imbasciani asked the defendant about his possession of the credit card which was later determined to have been stolen from Ms. Coates-Kirkling. Defendant had not been issued his rights against self incrimination. Nevertheless, the defendant responded to the officer's questions.

I make the following conclusions of law:

Probable cause to arrest is present when the facts and circumstances known to the arresting

officer, warrant a reasonable person with the same expertise to conclude that a crime is being, or was, committed, and that the defendant is the perpetrator. See People v. Maldonado, 86 NY2d 631, 635 NYS2d 155 (1995); People v. Carrasquillo, 54 N.Y2d 248, 455 NYS2d 97 (1981); People v. McCray, 51 NY2d 594; 435 NYS2d 679 (1980); see also C.P.L § 70.10(2). The totality of circumstances gives rise to a finding of probable cause when it is more probable than not that the person to be arrested committed a crime. See People v. Carrasquillo, supra at 254; People v. Surico, 265 AD2d 596, 697 NYS2d 356 (3d Dept. 1999). This legal conclusion is made after all the facts and circumstances are considered together. See People v. Bigelow, 66 NY2d 417, 423; 497 NYS2d 630 (1985). Although the facts and circumstances viewed separately may be insufficient to establish probable cause, when these factors are viewed in totality, probable cause may be found. Id.

In the present case, probable cause exists. Initially, the police properly stopped defendant to issue him a summons for an Administrative Code violation, riding his bicycle on the sidewalk. During the stop, the officer discovered that there was an outstanding bench warrant for his arrest, thus, the police possessed probable cause to arrest him at that juncture.

Next addressing defendant's application for the suppression of the credit/bank card recovered from his person, the 4th Amendment of the United States Constitution and Article I, § 12 of our State Constitution protects individuals "from unreasonable government intrusions into their legitimate expectations of privacy." US Const, 4th Amend; NY Const, art I, § 12; People v. Quackenbush, 88 NY2d 534, 647 NYS2d 150 (1996), citing People v. Class, 63 NY2d 491, 483 NYS2d 181 (1984), quoting U.S. v. Chadwick, 433 US 1, 7, 97 S. Ct. 2476 (1977). However, the Court of Appeals has justified a warrantless search incident to an arrest in two circumstances: to protect the public's safety and safety of the officer, and to prevent evidence from being destroyed or concealed. See People v. Wylie, 244 AD2d 247, 666 NYS2d 1 (1st Dept. 1997), citing People v. Smith, 59 NY2d 454, 465 NYS2d 896 (1983); People v. Belton, 55 NY2d 49, 447 NYS2d 873 (1982); People v. Gokey, 60 NY2d 309, 469 NYS2d 618 (1983).

In this case, the officer executed a search incident to a lawful arrest. Under this exception, police are permitted to search a person who is lawfully arrested, or the area in a suspects immediate control if the search closely follows the arrest, which is what occurred in the circumstances presented in this case. See Wylie, supra at 249, citing Belton, supra at 52. Thus, suppression of the property is not warranted.

Next addressing the admissibility of defendant's statement, it is well-settled that statements, which are volunteered and not the product of interrogation, are not subject to the rule in Miranda v. Arizona, 384 US 436, 86 S. Ct. 1002 (1966); People v. Torres, 21 NY2d [*3]49, 286 NYS2d 264 (1967). The admissibility of defendant's statement depends on whether is was made as a result of express questioning or its functional equivalent. People v. Huffman, 61 NY2d 795, 473 NYS2d 495 (1984), citing People v. Bryant, 59 NY2d 786, 464 NYS2d 729 (1983). Here, it cannot be said that the officer's question to defendant was not likely to elicit an incriminating response. Defendant's statement to the officer was not merely a response to the taking of pedigree information from defendant. Defendant was in custody and being questioned without the benefit of being advised of his rights. Thus, suppression of the statement is granted.

Accordingly, defendant's motion to suppress the property, to wit: the credit/bank card, is denied and his application to suppress his statement is granted.

The foregoing constitutes the opinion, decision and order of the court.

Kew Gardens, New York

Dated: December 12, 2005

SEYMOUR ROTKER

JUSTICE SUPREME COURT