People v Yonis

[*1] People v Yonis 2008 NY Slip Op 52417(U) [21 Misc 3d 1138(A)] Decided on November 25, 2008 District Court Of Nassau County, First District Bruno, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 25, 2008
District Court of Nassau County, First District

The People of the State of New York, Plaintiff,

against

Acosta-Yanes Yonis, Defendant.



15787/07



REPRESENTATION:

Kathleen M. Rice, District Attorney, 99 Main Street, Hempstead, NY 11550 for the People

Daniel P. Trunk, Esq., Law Office of Frederick Altschuler, 90 Merrick Avenue, Suite 501, East Meadow, New York 11554 for defendant.

Robert A. Bruno, J.

DECISION AFTER HEARING

The defendant is charged with one (1) count of Penal Law §265.01(1) criminal possession of a weapon in the fourth degree, a class A misdemeanor.

On September 6, 2008, upon stipulation of both parties, this Court conducted a Dunaway/Mapp hearing.

The People called one witness to the hearing, Police Officer Kenneth Schenke ("P.O. Schenke"). The defendant did not call any witnesses. Based upon the testimony of P.O. Schenke, the Court makes the following finding of facts and conclusions of law:

FINDINGS OF FACTS

The Court finds the testimony of P.O. Schenke to be credible. P.O. Schenke is currently a fourteen (14) year veteran with the Nassau County Police Department and prior to that time he served six (6) years with the New York City Police Department.

P.O. Schenke testified he had training in both the New York City Police Academy and the Nassau County Police Academy and has assisted in approximately fifty (50) arrests for dangerous weapons.

On June 18, 2007, P.O. Schenke was working the 7:00 p.m. to 7:00 a.m. tour on radio motor patrol with a recruit. At approximately 9:53 p.m. P.O. Schenke received a call regarding a disturbance at 10-13th Street, Locust Valley, NY ("10 - 13th Street"). P.O. Schenke testified that the radio call he received advised that an occupant of a tan Honda Accord, license plate No.DER-9421, [*2]New York plates was holding a gun out of the window. No description was given regarding the occupants.

P.O. Schenke also testified that 10 - 13th Street was a known gang and drug location where a gang known as the "MS-13" displayed their "tags", symbols on buildings at that location. P.O. Schenke also testified he had previously responded to 10 - 13th Street and was familiar with the area.

People v. Yonis

Index No.: 15787/07

P.O. Schenke testified that he responded to the radio call and saw the tan Honda Accord, license plate #

DER-9421, NY, which was the subject of the radio call, parked. P.O. Schenke also testified he observed four to five individuals next to the tan Honda Accord, some of whom were wearing the blue bandana gang colors of "MS-13", who were believed to be the occupants of the vehicle.

Thereafter, P.O. Schenke testified he approached the individuals with back-up and asked if anyone owned the tan Honda Accord. When one of the individuals at the scene responded that they were the owner of the tan Honda Accord, P.O. Schenke proceeded to put everyone up against the wall and performed a "pat-down" for safety and felt a gravity knife in the defendant's pocket, leading to the defendant's arrest.

CONCLUSIONS OF LAW

As with most police-citizen street encounters, the Court must weigh the reasonableness of the governments interest in trying to provide a safe and crime free society against the encroachment involved with respect to an individual's Fourth Amendment rights to privacy and security.

In an effort to balance these, sometimes competing interests, the Court of Appeals in People v. DeBour, 40 NY2d 210, 386 NYS2d 375 (1976), provided four-tiered analytical framework, that escalates, as attendant factors increase in weight and competence of permissible police intrusion that does not run afoul of the Fourth Amendment, which are as follows:

1.Level One of permissible police intrusion occurs where the police request information from an individual when "... there is some objective credible reason for that interference not necessarily indicative of criminal activity." People v. DeBour, supra at 223.

2.Level Two of permissible police intrusion of an individual occurs when there is "... a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure. People v. DeBour, supra at 223. [*3]

3.Level Three of permissible police intrusion occurs where the police have "a reasonable suspicion that a particular person has committed or is about to commit a felony or misdemeanor, the CPL authorizes a forcible stop and detention of that person." People v. DeBour, supra at 223. In addition to the foregoing, "if the officer reasonably suspects that he is in danger of physical injury by virtue of the detainee being armed" he may frisk the detainee. People v. DeBour, supra .

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4.Level Four, "a police officer may arrest and take into custody a person when he has probable cause to believe that person has committed a crime, or offense in his presence." People v. DeBour, supra at 223. Clearly, this is the most intrusive level of encounter.

Simply stated, the four levels of permissible police activity start with Level One, the least intrusive and gradually escalates, depending on the circumstances, to Level Four, the most intrusive.

In the instant action, PO Schenke testified he arrived at the location where the vehicle was parked within a few minutes after he received a radio call that an occupant in the vehicle was pointing a gun out of the window. Upon PO Schenke's arrival to the location and spotting the tan Honda Accord with the same New York license plate's from the earlier radio call, PO Schenke had a founded suspicion that criminal activity was afoot and therefore engage in a Level Two inquire by simply asking the individuals standing next to the vehicle in question "who owned the car".

When one of the men in the group of four to five responded it was their car, the officer was justified in performing a pat-down of the defendants for the officers safety based upon the fact that the radio transmission he received a few minutes earlier indicate one of the occupants of the car had a gun. Therefore, under a Level Three inquiry, the police were justified in performing a "pat-down" of the defendant. In addition to the foregoing, this Court is also mindful that PO Schenke testified that this particular location was known as a gang/drug location and PO Schenke also observed the MS-13 gang symbols on the buildings as he approached the individuals.

While this Court is mindful that gang affiliation or a high crime area does not, by itself, provide a basis to justify a stop-and-frisk" (see, People v. Posnjak, 72 AD2d 966, 422 NYS2d 264 (4th Dept 1979). "[A] police officer directed to a location by a general radio call cannot reasonably be instructed to close his eyes to reality - neither the officer nor justice should be that blind. The officer was rightfully and dutifully on the scene and could not ignore possible indications of criminality, nor is there any logical reason for him to reject the natural mental connection between newly encountered facts and the substance of the radio message." People v. Benjamin, 51 NY2d 267, 271 (1980).

Finally, when PO Schenke was performing his "pat-down" of the defendant he felt a gravity [*4]knife which he recognized from his training and twenty (20) years experience as a police officer and therefore the Level Three encounter was elevated to a Level Four encounter whereupon the defendant was arrested.

In an analogous case, "... the arresting officer received a radio transmission regarding a knife-point robbery at an Exxon station involving three black males. Approximately fifteen (15) minutes after receiving the transmission, the officer observed, in the vicinity of the scene of the crime, three

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black males, two of whom wore clothing matching the description furnished in the transmission. When the officer called out to the defendant and his companions, requesting them to stop, they changed direction and increased their pace. The officer then ordered the suspects to stop. We find that the defendant's initial detention was supported by reasonable suspicion founded on articulable facts (see, CPL 140.50; People v. De Bour, 40 NY2d 210, 386 NYD2d 375, 352 NE2d 562; People v. Alleyne, 136 AD2d 552, 523 NYS2d 170, lv. denied 71 NY2d 892, 527 NYS2d 1001, 523 NE2d 308; People v. Davis, 123 AD2d 640, 506 NYS2d 783, lv. denied 69 NY2d 710, 512 NYS2d 1036, 504 NE2d 404). Moreover, once the officer observed a bulge in the defendant's pocket, he justified in conducting a limited pat-down search to ascertain whether the defendant was armed with a weapon (see, People v. Spivey, 46 NY2d 1014, 416 NYS2d 534, 389 NE2d 1056; People v. Rosa, 138 AD2d 756, 526 NYS2d 569, lv. denied 72 NY2d 866, 532 NYS2d 516, 528 NE2d 906). Probable cause to arrest the defendant existed upon the discovery of a knife in his pocket (see, CPL 140.10 [1][b]; People v. De Bour, Supra; People v. Cantor, 36 NY2d 106, 365 NYS2d 509, 324 NE2d 872; People v. Ulmer, 134 AD2d 634, 521 NYS2d 526, lv. denied 70 NY2d 1011, 526 NYS2d 946, 521 NE2d 1089). Accordingly, the officer was entitled to effectuate a warrantless arrest since he possessed reasonable cause to believe that defendant was one of the perpetrators of the robbery (see, CPL 140.10[1][b])." People v. Alford, 146 AD2d 635, 536 NYS2d 848 (2nd Dept 1989). (Also see, In re Jakiuo L., 256 AD2d 466, 682 NYS2d 399 (2nd Dept 1998).

"It would, indeed, be absurd to suggest that a police officer has to await the glint of steel before he can act to preserve his safety. Considering the totality of the circumstances, including the radio call and the information acquired by observation at the scene, there was an ample measure of reasonable suspicion necessary to justify the limited intrusion which produced the" gravity knife. (See, People v. Benjamin, supra at 271.)

Accordingly, the defendant's motion to suppress the gravity knife is denied.

This matter is set down for a conference on December 11, 2008 at 9:30 a.m., Part 1, District Court, Nassau County, 99 Main Street, Hempstead, New York 11501.

This constitutes the decision and order of the Court.

SO ORDERED: [*5]

______________________________________

DISTRICT COURT JUDGE

November 25, 2008

cc:Kathleen M. Rice, District Attorney

Daniel P. Trunk, Esq.