People v Lozado

[*1] People v Lozado 2006 NY Slip Op 50883(U) [12 Misc 3d 1153(A)] Decided on May 1, 2006 Supreme Court, Bronx County Marvin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 1, 2006
Supreme Court, Bronx County

The People of the State of New York

against

Carlos Lozado, Defendant.



4242-2003



Appearances:Robert T. Johnson, District Attorney, Bronx County,

Christiana C. Stover, Assistant District Attorney, Of Counsel

Elliot H. Fuld, Bronx, New York, attorney for defendant

Seth Marvin, J.

This motion involves the novel issue of the applicability of the exclusionary

rule to evidence proferred by the People pursuant to People v. Molineux, 168 NY 264 (1901).

Background

By an indictment filed on December 12, 2003, the defendant Carlos Lozado was charged, while acting in concert with Sherrod Miller [FN1] and William Sierra [FN2], and with others, with robbery in the first, second and third degrees, grand larceny in the fourth degree, criminal possession of a weapon in the fourth degree and unlawful possession of marihuana. All hearings have been completed and the case was sent to this part for trial.

The indictment stems from an incident on November 29, 2003, in the vicinity of Fordham

Road and Cambreleng Avenue in The Bronx, in which the complainant was robbed at knifepoint. The knife allegedly used by Lozado during this incident was not recovered.

At a pre-trial conference, the People requested the court's permission to present evidence that approximately two weeks prior to the occurrence which comprises the charges in the instant [*2]case, Police Officer John Walker observed the defendant in possession of a knife which is similar to the description given by the complainant of the knife used in the current case.

This court ruled that testimony relating to the observation of the knife would be admissible at trial on the issue of identity and to complete the narrative, i.e., explain the police conduct. See, People v. Espinal, 262 AD2d 245 (1st Dept.), lv. denied, 93 NY2d 1017 (1999), petition for writ of habeas corpus dismissed, 2000 WL 1774960 (S.D.NY)("The court properly exercised its discretion in receiving testimony that, one month prior to the crime, defendant possessed a knife that was sufficiently established to have been similar to the murder weapon ..., since it was relevant to establish defendant's identity and its probative value outweighed any prejudicial effect." (citations omitted); People v. Bailey, 14 AD3d 362 (1st Dept.), lv. denied 4 NY3d 856 (2005) ("The court properly exercised its discretion in admitting evidence that, one to two weeks before the incident, defendant ... was in possession of a revolver of similar appearance to the weapon used in the crime charged[]". Defendant then claimed that the observation of the knife was the result of improper interference with his liberty by the police, and pursuant to CPL §§ 710.10, 710.20 and 710.40 and Mapp v. Ohio, 367 U.S. 643 (1981), moved to suppress this prospective testimony.

An evidentiary hearing was held on March 6, 2006 on the propriety of the police conduct at the time of the observation of the knife. Police Officer Walker was the only witness at the hearing. I find his testimony to be credible and make the following findings of fact and conclusions of law.

Findings of Fact

On November 14, 2003, Officer Walker was assigned to the Intelligence Division of the 48th precinct. The police had received "... numerous narcotics complaints ... for several locations in that area" (H 4) East 189th Street and Hughes Avenue in the Bronx - - and this was known as "...a drug prone location..."(H 4).[FN3] Several complaints involving the sale of crack cocaine and heroin had also been received relating to a social club at this intersection. As the officer and his partner, Sergeant O'Donnell, approached that corner, they were in plainclothes and driving an unmarked police vehicle.

From 10 to 15 feet away, Officer Walker noted that several persons were congregating on the corner. As the police vehicle approached, one of the people on the corner leaned over and whispered something to defendant, who immediately took "... two steps back and runs and turns the corner[]" heading southbound on Hughes Avenue. (H 6-7, 19). "As he got closer the corner, [defendant] turned and ran." (H 8).

The officers followed defendant and abruptly stopped the car next to defendant within several feet of the corner. Their intention was "... to find out what he was running for." (H 33). Defendant turned and looked at the police officers. When Officer Walker yelled and asked why he was running, defendant did not respond. Defendant stopped running and appeared to crouch down slightly behind a parked car; his hands looked like they were close to his jacket pockets. Officer Walker did not know if defendant "... had a weapon on him ... or if he's dropping anything to the ground. I can't tell because his hands were hidden from my view ..." (H 13). [*3]

As he exited his vehicle, Officer Walker told defendant, "let me see your hands." (H 9). As Sergeant O'Donnell approached, defendant stated "... all I got on me is weed." (H10). Defendant was then placed under arrest and 19 glassine envelopes of marihuana were recovered from his person.

At the time of defendant's arrest, the police also recovered a small folding knife with a white, glossy handle. Officer Walker believed that the blade was less than four inches long which is not illegal to carry in public. Defendant was given a summons regarding the marihuana and the

knife was returned to him.[FN4]

Conclusions of Law

Initially, the People argue that the court lacked the authority to order and conduct a suppression hearing. While conceding that the Court of Appeals has not addressed this issue, the People argued that at most, a proffer or highly truncated proceeding was sufficient to resolve this issue under People v. Ventimiglia, 52 NY2d 350, 362 (1981) and People v. Robinson, 68 NY2d 541, 550 (1986).

Whether or not the proffered testimony constitutes a clear case of Molineaux evidence, defendant has the right to contest the admissibility of any physical evidence obtained by the police and offered at trial. Indeed,. CPL § 710.20 (1), provides, in pertinent part, that:

Upon motion of a defendant who...is aggrieved by unlawful or

improper acquisition of evidence and has reasonable cause to believe

that such may be offered against him in a criminal action ... a court

may ... order that such evidence be suppressed or excluded upon the

ground that it:

1. Consists of tangible property obtained by means of an unlawful search

and seizure under circumstances precluding admissibility thereof in a

criminal action against such defendant.

" Where the language of a statute is clear and unambiguous, courts must give effect to its plain meaning [.]'" People v. Garson, ___ NY3d ___, 2006 WL 796993, citing Tall Trees Constr. Corp v. Zoning Board of Appeals of the Town of Huntington, 97 NY2d 86, 91 (2001). Under the plain language of this statute, the court was more than justified (if not required) to order a hearing on this issue.

This is not to suggest, however, that a formal hearing is required or mandated to determine similar Molineaux applications. Virtually all of such applications can be resolved based on a proffer or letter brief from the People. In this case, however, only via a full-blown adversary hearing could the necessary facts have been delineated in such detail in order to make the required findings for admissibility or preclusion. The People's proffer was simply insufficient to inform the court of the various nuances peculiar to this street encounter.

Moreover, it is well settled that "[a]ll relevant evidence is ... admissible at trial unless barred by some exclusionary rule." People v. Mateo, 2 NY3d 383, 424, cert. denied, 542 U.S. [*4]946 (2004). As the Court of Appeals recognized in People v. Jones, 2 NY2d 235 (2004),

The exclusionary rule was originally created to deter police unlawfulness

by removing the incentive' to disregard the law, but also serves to insure

that the State itself, and not just its police officers, respect the constitutional

rights of the accused[]...

Whether the rule should apply depend[s] upon a balancing of its probable

deterrent effect against its detrimental impact upon the truth-finding

process[.]'" ...But, it has never been enough to show that evidence must

be suppressed simply because it was discovered subsequent to an illegal

arrest'...Rather, the prosecution must have somehow exploited or benefitted

from its illegal conduct' such that there is a connection between the

violation of a constitutional right and the derivative evidence obtained by

the police[.]

(citations omitted). See People v. Young, 55 NY2d 419, 424, cert. denied, 459 U.S. 848 (1982). ("The underlying purpose of the exclusionary rule is not to redress the injury to the accused's privacy for that privacy once invaded, may never be restored. Rather, the rule's primary objective is to deter future unlawful police conduct and thereby effectuate the Fourth Amendment's proscriptions against unreasonable searches and seizures.").

In addition, Molineux applications have long been treated with great sensitivity and care by New York courts. As Judge Rosenblatt noted in People v. Rojas, 97 NY2d 470, 472 (2001), while reviewing over 100 years of authorities on this issue:

Molineux ... is now 100 years old. The last century has added to Molineux

certain refinements and procedures, but its foundation remains unchanged:

a criminal case should be tried on the facts and not on the basis of a

defendant's propensity to commit the crime charged ... propensity evidence

invites a jury to misfocus, if not base its verdict , on a defendant's prior

crimes rather than on the evidence - - or lack of evidence relating to the

case before it. We have repeated this theme throughout the last century. .

(footnote omitted).

Judged by these standards, it is difficult to imagine a scenario more properly governed by the exclusionary rule. This case involves the propriety of police conduct in a street encounter which tests the outer limits of police conduct under People v. DeBour, 40 NY2d 210, 223 (1976) and its progeny.

Conclusions of Law

Where physical evidence is suppressed due to an illegal search and seizure, any evidence observed by the police is also inadmissible. People v. Dory, 59 NY2d 121, 126-27 (1983); People v. Ortega, 241 AD2d 369 (1st Dept. 1997) (since defendant's arrest was illegal, court suppressed police observation of what defendant was wearing which matched the description given by the complainant). Since the police violated defendant's Fourth Amendment rights in this case, the [*5]police observation of the knife is suppressed.

When the police approached the corner of East 189th Street and Hughes Avenue and observed several people congregating there, they had an objective credible reason, not necessarily indicative of criminality, to approach to request information. People v. DeBour, 40 NY2d at 223; People v. Moore, __N.Y.2d __ , 2006 WL 396946. The People assert that when defendant ran southbound on Hughes Avenue, the police were justified to pursue him, citing, inter alia, People v. Grunwald, ___ AD2d ___, 810 NYS2d 437 (1st Dept. 2006).

The police may lawfully pursue an individual if they have a reasonable suspicion that he has, or is about to, commit a crime. People v. Brogdon, 8 AD3d 290 (2nd Dept. 2004). Where, however, the police pursue an individual without a reasonable suspicion, any evidence obtained thereafter must be suppressed. People v. Sierra, 83 NY2d 928 (1994).

"[A] defendant's flight in response to an approach by the police, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, may give rise to reasonable suspicion, the necessary predicate for police pursuit." People v. Sierra, 83 NY2d at 929. Accordingly, for the police pursuit of defendant to be lawful, there must be evidence of circumstances indicating that defendant might be engaged in criminal activity. In Brogdon, a police officer observed the defendant "hanging out" in the vestibule of a residential building known to be a drug prone location. The officer observed the defendant speaking to a man who had been banned from the premises and had been arrested several times for drug possession. The defendant, who was holding two plastic shopping bags, and the man left the building together when the officer approached. As the officer made eye contact with him, the defendant turned and ran with the two bags. The officer pursued and recovered a loaded handgun in one of the bags. The Appellate Division, Second Department, in suppressing the handgun, found that there were no specific circumstances indicating that the defendant might be engaged in criminal activity. Therefore, the police could not lawfully pursue the defendant.

In People v. Holmes, 81 NY2d 1056 (1993), two police officers observed a group of men talking near a known narcotics area. An officer noticed an unidentified bulge in the defendant's right jacket pocket. As the patrol car approached, the defendant began to walk away from the group. As the officer exited his vehicle, the defendant ran away and the police chased. The Court of Appeals held that flight in conjunction with equivocal circumstances that might justify a police request for information is insufficient to justify pursuit. id. at 1058.

The circumstances in the instant matter are similar to the above cited cases. Officer Walker testified that the police had received complaints of drug activity at the corner of East 189th Street and Hughes Avenue. There was no testimony as to the source of the complaints, nor how recently they had been made. At the time defendant started running, the only information the police had was that defendant was congregating with others on a corner where the police had received complaints of drug activity. Defendant's standing on the street corner is, at best, an equivocal circumstance, which, when combined with flight, fails to establish reasonable suspicion that a crime had been or was about to be committed. Accordingly, the police pursuit of the defendant down Hughes Avenue was not justified. Therefore, the police observation of the defendant's possession of a knife is suppressed.

Conclusion

The People's application to present evidence that, approximately two weeks prior [*6]to the alleged crime for which defendant is on trial, Officer Walker observed him in possession of a knife, is denied.

This constitutes the decision and order of the court..

Dated: Bronx , New York

May 1, 2006

_______________________

SETH L. MARVIN, A.J.S.C. Footnotes

Footnote 1:Following his plea of guilty to first-degree robbery, Miller was sentenced on May 27. 2005, to an indeterminate term of imprisonment of from one to three years, to be served concurrently with two other sentences.

Footnote 2:Following his plea of guilty to attempted robbery in the second degree, Sierra was sentenced on October 13, 2004, to three years jail. No notice of appeal was filed for either co-defendant.

Footnote 3:Numerical references preceded by "H" are to the minutes from the suppression hearing.

Footnote 4:The summons was eventually disposed of via an adjournment in contemplation of dismissal pursuant to CPL 170.56.