People v Lewis

[*1] People v Lewis 2005 NY Slip Op 52289(U) [11 Misc 3d 1073(A)] Decided on August 30, 2005 Supreme Court, Suffolk County Mullen, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 30, 2005
Supreme Court, Suffolk County

People of the State of New York

against

Lawrence Lewis, Defendant.



917-05



HON. THOMAS J. SPOTA

District Attorney, Suffolk County

By: Harrison Edwards,

Assistant District Attorney

200 Center Drive

Riverhead, New York 11901

Attorney for Defendant

Legal Aid Society of Suffolk County

By: John R. Schick, Esq.

300 Center Drive

Riverhead, NY 11901

Michael F. Mullen, J.

A combination Huntley, Dunaway and Mapp hearing was held in this case on August 1, 2005. The People called one witness, Officer Daniel Rella of the Suffolk County Police Department and the defendant, three, including himself. From their testimony, the Court has pieced together the following:

[*2]Officer Rella and his partner were on routine patrol in their marked police unit in Wyandanch on April 5, 2005, at about 4:30 PM, when they noticed a known drug dealer talking to a white male (whom they did not recognize) in the parking lot of a convenience store. They made a u-turn to investigate but by the time they got back to the parking lot, the drug dealer had left. Officer Rella began to speak to the white male, asking what he was doing in the neighborhood. He learned the man's name to be Richard Morte, and that he resided in Shirley. The man indicated that he and four friends, who were seated in a vehicle parked about thirty (30) feet away, had stopped at the convenience store to buy some drinks. Officer Rella went over to the vehicle and began to speak to the driver. She was a white female, as was the passenger seated in the front seat with her. There were two black males in the back seat: defendant behind the driver and a Dasheen Nudgette behind the front passenger.

Officer Rella testified that as he was speaking to the driver, defendant kept interrupting and he seemed agitated and annoyed. The officer told defendant to step outside the vehicle, and, as he prepared to do so, defendant became fidgety and nervous and began clutching his jacket. The officer became concerned, thinking there was something in the jacket. He continued to observe defendant as he took off the jacket, left it on the back seat, and he got out of the car. According to Rella, defendant left the back door open and when he did, the officer reached in, felt that the jacket was heavy, and found a gun in one of the pockets. Defendant was placed under arrest, and transported to the First Precinct.

While being transported, and while at the precinct, defendant made certain statements which the People seek to offer at the trial. It appears the statements were made without any prior Miranda warnings.

The other four people who had been in the vehicle, (including Morte), were also transported to the precinct but they were not arrested or charged and eventually were released, as was the vehicle. Officer Rella acknowledged that he did not see any drug transaction take place.

The defendant testified that he lived in Mastic and that his friend Heather Williams agreed to give him a ride to Wyandanch to visit some relatives. On the way home, they stopped at the convenience store to buy some drinks. He saw the police searching Richard (Morte) and then come over to the car to question the driver. The police asked him questions and told him to step outside the car. He did so, and closed the door. One of the officers went inside the car, searched the jacket, and then put a gun in his face and told him he was under arrest. The car belonged to his friend, Heather Williams (actually, her mother was the owner), and her friend Cassandra Longo was driving. Defendant claimed he was not wearing a jacket, but admitted he had crack in his waistband.

[*3]Cassandra Longo testified that on April 5th she had some free time between classes at Suffolk Community College and her friend Heather Williams asked her to drive them to Wyandanch so defendant could visit some relatives. Defendant gave her the directions. They waited in the car while he made his visit and on their way home they stopped at the convenience store. Defendant and "Richie" got out and after defendant returned to the backseat, a police officer came to her window and asked her some questions. The officer asked defendant to get out, and he did, and shut the door. She could not say "for sure" whether defendant was wearing a black jacket, and she could not recall defendant interjecting himself into the conversation between herself and the police officer.

Heather Williams testified that she asked Cassandra to drive them to Wyandanch on April 5th so defendant could visit his relatives. He was her friend. Richie and Dasheen were also in the back seat with defendant. She stated that when defendant got out of the car at the officer's direction, he shut the door. She did not see anyone wearing the black jacket and, according to her, had no idea how it got in the backseat.

Conclusions of Law

In People v DeBour, 40 NY2d 210, 223, the Court set out a four-tiered method for evaluating the propriety of police initiated encounters. The level of police intrusion must be reasonably related in scope to the circumstances which rendered its initiation permissible (People v Debour, supra at 215). Each progressive level authorizes a separate degree of police interference with the liberty of the person approached and consequently requires escalating suspicion on the part of the investigating officer (People v Hollman, 79 NY2d 181,185).

If a police officer simply seeks information from an individual, such as identity, address or destination, that request must be supported by an objective, credible reason, not necessarily indicative of criminality (People v Hollman, supra at 184). The common-law right of inquiry, a wholly separate level of contact, is "activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion" (People v DeBour, supra at 223). In other words, once the officer asks more pointed questions that would lead the person to believe that he or she is suspected of some wrongdoing and is the focus of the officer's investigation, the officer is no longer merely seeking information. This has become a common-law inquiry that must be supported by a founded suspicion that criminality is afoot (People v Hollman, supra at 185).

The third level of intrusion is where a police officer has reasonable suspicion that a person was involved in a felony or misdemeanor. Then, the officer is authorized to forcibly stop and detain that person. Finally, where the officer has probable cause to [*4]believe that a person has committed a crime, an arrest is authorized (DeBour, supra at 223).

Initially, the Court notes that Officer Rella's contact with Richard Morte was proper. Rella first observed Morte in a known drug location speaking to a known drug dealer. By the time he approached Morte, the dealer had already left. During their conversation, Rella simply sought to learn why and how Morte got there.

According to Rella, Morte explained that he and his friends had come from Queens and stopped at that location to get some drinks. He also told Rella he could speak to his friends in the car and find out for himself. Rella then approached the vehicle.

Rella asked the driver, Cassandra Longo, where they came from, where they were going and if Morte was traveling with them. The answers conflicted somewhat with those given by Morte. Further, according to Rella, defendant kept interrupting and appeared nervous and agitated. The officer also observed the defendant clutching something in the jacket he was wearing. Again, according to Rella, after he was asked to stop interrupting, defendant became agitated and was cursing under his breath.

Rella then asked defendant to step out of the car. He responded by unzipping the jacket, removing it, and placing it on the seat next to him. Rella reached in, picked up the jacket, felt the shape of a gun, and placed defendant under arrest.

Issues of credibility are primarily for the trial court, and its determination is entitled to great weight (People v Miret-Gonzalez, 159 AD2d 647). If testimony has all appearances of having been patently tailored to nullify constitutional objections, it is to be discredited. Similarly, testimony which is physically impossible, contrary to experience, or self-contradictory, is to be disregarded as being without evidentiary value (People v Miret-Gonzalez, supra at 649).

It appears that some of Officer Rella's testimony may have been "tailored" to meet the circumstances here, i.e., he stated that defendant left the door open when he got out of the car. All the other testimony pointed to defendant closing the door. And common experience would seem to support that fact. At the same time, the testimony of defendant and the two women concerning the jacket strains credulity. It defies all logic and common sense to suggest that no one in the car saw the jacket in the back seat or knew how it got there.

On balance however, the testimony of Officer Rella was more credible. And whether the door was open or closed is not the crucial issue. The issue is whether under the circumstances confronting the police as they questioned the occupants of that car in the [*5]parking lot in the late afternoon of April 5th justified Officer Rella in directing defendant to get out of the car and then reach in and take out the jacket.

Reasonableness, of course, is the touchstone of the Court's inquiry into the propriety of police conduct, and the Court must weigh the degree and scope of the particular intrusion against the precipitating and attending conditions confronted by the police (People v McLaurin, 70 NY2d 779, 781).

We start with the fact we are not dealing with the powers of the police to stop a vehicle. Here, the vehicle was stopped and parked before the police approached (see, People v Harrison, 57 NY2d 470, 475). Also, it matters not that defendant was a passenger and not the driver. Precautionary police conduct directed at a passenger is just as equally authorized as conduct directed at a the driver (see, People v Robinson, 74 NY2d 773, 775).

The officers were patrolling in a high drug area and saw a known drug dealer speaking to someone in the middle of a parking lot who apparently was not from the neighborhood. By the time they pulled into the lot, the dealer had left so they asked the individual who had been speaking to him his name and the reason for his being there. The man explained that the guy he had just been speaking to was his friend, but he did not know his name. He explained that he had just come from Queens with some friends and they were going on to Shirley. He suggested the police confirm his story with his friends who were parked nearby. When Officer Rella spoke to the driver, she gave a different version. She said that they had come to Wyandanch from Mastic. Defendant, who was in the back seat, kept interjecting and appeared agitated. He appeared to be holding something in the pocket of his jacket. When Officer Rella asked him to step out of the car, defendant, for some reason, started taking off his jacket. The fact that he did so and the way he did it heightened Officer Rella's concern for his safety. When defendant was outside of the car, the officer reached in, felt a bulge in one of the pockets of the jacket, and seized a loaded revolver. Defendant was immediately placed under arrest. Under all the circumstances here, the police conduct violated no constitutional prescriptions and any motion to suppress the gun must be denied (People v McLaurin, supra). Obviously too, there was probable cause for the arrest.

As for any statements defendant may have made while he was interjecting himself into Officer Rella's conversation with the driver, clearly, they would be admissible. He was not in custody in the back seat, and was not being questioned. Similarly, the statements defendant made en route to the precinct, and at the precinct about "beating" this charge and/or not doing any time for it, are admissible because they were not in response to any questioning. [*6]

The foregoing constitutes the decision and order of the Court.

DATED: HON. MICHAEL F. MULLEN, J.S.C.