People v Rodriguez

[*1] People v Rodriguez 2009 NY Slip Op 51197(U) [23 Misc 3d 1139(A)] Decided on June 15, 2009 Nassau Dist Ct Engel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 15, 2009
Nassau Dist Ct

The People of the State of New York,

against

Ramon A. Rodriguez, Defendant.



2008NA017500



Hon. Kathleen Rice, Nassau County District Attorney, by Jesse Aviram, ADA

Attorney for Defendant: Lawrence S. Kerben, Esq.

Andrew M. Engel, J.

The Defendant is charged with criminal possession of a weapon in the fourth degree in violation of Penal Law § 265.01(2). In accordance with the order of this court (Engel, J.) dated November 21, 2008 a hearing was held pursuant to Mapp v. Ohio, 367 U.S. 643; 81 S. Ct. 1684 (1961), Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979) and People v. Huntely, 15 NY2d 72, 255 NYS2d 838 (1965) on April 7, 2009 and May 11, 2009

At a Mapp/Dunaway/Huntley hearing, where a defendant challenges the legality of a search and seizure, along with statements allegedly obtained as a result thereof, the People have the burden of going forward, in the first instance, to establish the legality of the police conduct. People v. Malinsky, 15 NY2d 86, 262 NYS2d 65 (1965); People v. Wise, 46 NY2d 321, 413 NYS2d 334 (1978); People v. Dodt, 61 NY2d 408, 474 NYS2d 441 (1984); People v. Moses, 32 AD3d 866, 823 NYS2d 409 (2nd Dept. 2006), lv. den. 7 NY3d 927, 827 NYS2d 696 (2006) Once the prosecution has met this burden, the defendant has the ultimate burden of establishing the illegality of the police conduct, by a fair preponderance of the evidence. People v. Berrios, 28 NY2d 361, 321 NYS2d 884 (1971); People v. Di Stefano, 38 NY2d 640, 382 NYS2d 5 (1976); People v. Lombardi, 18 AD2d 177, 239 NYS2d 161 (2nd Dept. 1963) Additionally, the People have the burden of proving the voluntariness of any statements allegedly made beyond a reasonable doubt. People v. Valeruis, 31 NY2d 51, 334 NYS2d 871 (1972); People v. Anderson, 42 NY2d 35, 396 NYS2d 625 (1977).

In an attempt to meet their burdens, the People relied upon the testimony of Sergeant Kevin C. Driscoll, Police Officer Zsolt Poroszlay and Police Officer Kevin O'Brien. The Defendant did not call any witnesses. After listening to the People's witnesses, and observing their demeanor, the court finds their testimony to be credible and makes the following findings of fact:

Sgt. Driscoll has been a member of the Nassau County Police Department for approximately sixteen (16) years. Before that he was a member of the New York City Police Department for four (4) years. During this time he has conducted over one hundred (100) license premises checks at premises holding liquor licenses. These inspections are conducted on a monthly basis, or more frequently if there is an incident involving the premises. These [*2]inspections are performed to determine if the subject premises are in possession of a proper license and there are no violations of the Alcohol Beverage Control Law or other local ordinances. Officer Poroszlay has been a member of the Nassau County Police Department for approximately four and one-half (4½) years. He is fluent in a number of languages, including Spanish, and has provided interpreter services for other officers more than one hundred (100) times. Officer O'Brien has been a member of the Nassau County Police Department for approximately five (5) years. He has participated in approximately fifty (50) prior license premises inspections.

On July 7, 2008, at approximately 9:50 p.m. Sgt. Driscoll went to the Joelle Deli, located at 261A Nassau Boulevard, Roosevelt, New York to conduct a routine inspection of these premises. Sgt. Driscoll went to these premise, without a warrant, having been advised by Sgt. John Herman of potential code and ordinance violations having been observed the night before while investigating an assault at these premises. Sgt. Driscoll was accompanied by a Sgt. Franco, Officer O'Brien and other uniformed and plain clothes officers, a Fire Marshall and Code Enforcement Officer. When they arrived, they entered through the front door and spread out throughout the premises. At that time there were ten (10) civilians in the premises; three (3) employees and seven (7) customers. The Defendant, a female identified as the Defendant's wife, and a third employee were behind the counter.

Sgt. Driscoll asked the woman behind the counter who was in charge. She did not speak English and did not respond. The Defendant then approached Sgt. Driscoll, who asked the Defendant who the owner was or who was in charge. The Defendant did not respond directly, indicating, in broken English, that he worked there and "made gestures" inquiring if there was a problem. Sgt. Driscoll believed the Defendant was able to speak English, but was being evasive to try and avoid admitting he was the owner or manager. Sgt. Driscoll then asked the Defendant and the woman behind the counter for the liquor license. The woman gestured to the side; and, the sergeant saw the liquor license for the premises. He did not see a license for public assembly.

Down a hall there was a kitchen area and an area with a pool table in which five (5) to seven (7) customers were located. These individuals were playing pool, eating and drinking beer. Sgt. Driscoll could not recall if he spoke to these individuals, but did recall that they did not give him a hard time. These individuals were asked to leave the premises, which they did. During the inspection of these areas Sgt. Driscoll observed a broken, roach infested "joker poker" machine. There was also food out in the kitchen area, although Sgt. Driscoll could not recall if there was any cooking going on at the time. During his time in the premises Sgt. Driscoll observed the following violations: the premises had only one (1) accessible entrance/exit; the back door was locked shut; the hallway to the back door was used for storage and was blocked; and, partition walls were constructed in the premises with air conditioning venting into the hallway. The Fire Marshall and Code Enforcement Officer wrote various violations for these areas.

During the inspection Sgt. Driscoll observed that there was what appeared to be a room behind the counter area with one way glass. As both part of the routine inspection of the premises and for reasons of safety Officer O'Brien requested a key to the room from the Defendant, which the Defendant provided from his key chain; and, Officer O'Brien entered the room. The room behind the counter was approximately six (6') feet eight (8") inches by six (6') feet ten (10") inches. Officer O'Brien could tell immediately upon opening the door that no one was in the [*3]room. Officer O'Brien also observed the handle of a handgun sticking out between two (2) mattresses in the room.

Officer O'Brien advised Sgt. Driscoll that a handgun was observed in the room. Sgt. Driscoll went into the room to see for himself, at which time he observed the handle of a snub nosed .38 caliber revolver sticking out between two (2) mattresses. Upon making this observation, Sgt. Driscoll left the gun in place and secured the room. Crime scene investigators came to the deli, took pictures and recovered the gun. Cash was also found in bags and envelopes and was seized and invoiced. Sgt. Driscoll also observed paperwork with the Defendant's name on it. The Defendant was placed under arrest at this time.

Officer Poroszlay was called to the premises to perform translation services. When he arrived the Defendant was in the storage area of the store; and, the officer was told to ask the Defendant one (1) or two (2) questions. He then asked the Defendant if he was the owner, what his position was at the store and did he have keys for the store and the room behind the counter. The Defendant was not in handcuffs at this time and had not been advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). The Defendant responded by indicating that he was not the owner, but that he was in charge at that time. Officer Poroszlay remained at the scene for more than two (2) hours, but did not recall seeing the Defendant arrested.

The Defendant argues that he was in custody at the time he was questioned and that his statements must be suppressed since he was not advised of his Miranda rights. The Defendant further argues that the search of the office in which the handgun was found was beyond the scope of a license and premises inspection and that once the door to the room was opened, and no one observed therein, the search of that room should have ended. In conjunction therewith the Defendant argues that the handgun was not seen in plain view.

The People argue that the Defendant lacks standing to challenge the search of the premises. The People further argue that the search of the premises was a proper license and premises inspection under the Alcohol Beverage Control Law; and, more particularly, that the search of the room in which the handgun was seen in plain view was properly performed out of concern for the safety of the officers involved.

STANDING

The protections of the Fourth Amendment against unreasonable searches and seizures applies to commercial premises, as well as residential properties. New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636 (1987) Nevertheless, "[t]he invocation of the right to be secure against unreasonable searches and seizures (citations omitted) and its exclusionary enforcement (citations omitted), requires personal standing to challenge the government's action (citations omitted)." People v. Rodriguez, 69 NY2d 159, 513 NYS2d 75 (1987)Such standing will be found to exist where the aggrieved party has a legitimate expectation of privacy in the place or object searched. People v. Ortiz, 83 NY2d 840, 611 NYS2d 500 (1994); People v. Kennedy, 284 AD2d 346, 725 NYS2d 369 (2nd Dept. 2001) app. den. 96 NY2d 920, 732 NYS2d 637 (2001)

It is the Defendant's burden to demonstrate that he had an expectation of privacy recognized by society to be reasonable under the circumstances presented. New York v. Burger, supra .; People v. Burton, 6 NY3d 584, 815 N.Y.S2d 7 (2006); People v. Reynolds, 71 NY2d 552, 528 NYS2d 15 (1988) "Thus, the test has two components. The first is a subjective component-did defendant exhibit [*4]an expectation of privacy in the place or item searched, that is, did he seek to preserve something as private (citations omitted). The second component is objective-does society generally recognize defendant's expectation of privacy as reasonable, that is, is his expectation of privacy justifiable under the circumstances (citations omitted)." [emphases in original] People v. Ramirez-Portoreal, 88 NY2d 99, 643 NYS2d 502 (1996) In meeting this burden, the Defendant need not testify or call any witnesses of his own, but may rely upon testimony presented during the People's direct case. People v. Gonzalez, 68 NY2d 950, 510 NYS2d 86 (1986); People v. Wesley, 73 NY2d 351, 540 NYS2d 757 (1989)

The Defendant's possession of the key to the office behind the counter, without more, does not establish that he had a legitimate expectation of privacy therein. People v. Vargas, 140 AD2d 472, 528 NYS2d 171 (2nd Dept.1988); People v. Scott, 273 AD2d 76, 709 NYS2d 543 (1st Dept. 2000) In addition thereto, the court must consider such factors as how and why the Defendant came into possession of the key, whether the Defendant took any precautions to maintain privacy, the manner in which the premises was used, whether the Defendant had the right to exclude others from the room, and the presence of any personal belongings therein. People v. Rodriguez, supra .; People v. Whitfield, 81 NY2d 904, 597 NYS2d 641 (1993); People v. Jose, 252 AD2d 401, 676 NYS2d 545 (1st Dept.1998) aff'd 94 NY2d 844, 702 NYS2d 574 (1999)

The People's reliance on People v. Johnson, 209 AD2d 721, 617 NYS2d 154 (2nd Dept. 1994) and People v. Norberg, 136 Misc 2d 550, 518 NYS2d 917 (Dist.Ct. Nassau Co. 1987) for the proposition that the Defendant, as an employee of the searched deli, lacked standing to challenge the search of the back office, is misplaced. As noted hereinabove, the commercial nature of the premises notwithstanding, the Defendant may properly challenge this search provided "the area [searched] was one in which there was a reasonable expectation of freedom from governmental intrusion." Mancusi v. DeForte, 392 U.S. 364, 88 S. Ct. 2120 (1968) [union official in office shared with others had a reasonable expectation of privacy sufficient to establish standing to challenge search thereof]; See also: People v. Perez, 266 AD2d 242, 697 NYS2d 672 (2nd Dept.1999) app. dis. 94 NY2d 923, 708 NYS2d 363 (2000) [manager of commercial premises had standing to challenge search]; New York v. Burger, supra . [manager of commercial premises had standing to challenge search]

Unlike People v. Johnson, supra ., where the area searched was the basement ceiling of the store in which the defendant worked, accessible to anyone, and People v. Norberg, supra ., where there was no indicia of an expectation of privacy other than the defendant's status as an employee, in the matter sub judice, according to the credible police testimony, the Defendant admitted that he was in charge of the premises; the Defendant was the only individual present with a key to the subject room; the room was locked, prohibiting entry by anyone else without the Defendant's permission; and, papers bearing the Defendant's name were observed in the room. Under all of these circumstances the court finds that the Defendant had standing to challenge the search of the locked office.

SUPPRESSION

The police were not present at the Joelle Deli on the evening in question to search for criminal activity. They were present to conduct a lawful license and premises inspection pursuant to Alcohol Beverage Control Law § 106(15), which provides, "All retail licensed premises shall be subject to inspection by any peace officer, acting pursuant to his special duties, or police officer and by the duly authorized representatives of the liquor authority, or the appropriate board during the [*5]hours when the said premises are open for the transaction of business." Stopping short of breaking and entering, no warrant was necessary to effectuate this search, as businesses selling alcohol, such as this deli, are "pervasively regulated." Colonnade Corp. v. United States, 397 U.S. 72, 90 S. Ct. 774 (1970); People v. Stumpp, 129 Misc 2d 703, 493 NYS2d 679 (Dist.Ct. Suffolk Co. 1985), aff'd 132 Misc 2d 3, 505 NYS2d 758 (App. Term 9th & 10th Jud. Dists. 1986); People v. Benigna, 144 Misc 2d 744, 545 NYS2d 905 (Crim.Ct. Kings Co. 1989) "To be sure, an administrative inspector can demand entry into locked areas which he reasonably believes contain regulated activity (United States v. Biswell, 406 U.S. 311, 92 S. Ct. 1593, 32 L.Ed. 87)." People v. Sciacca, 45 NY2d 122, 408 NYS2d 22 (1978) Indeed, it is equally true in the matter sub judice as it was in Biswell, supra ., that "[w]hen the officers asked to inspect [Defendant's] locked [office], they were merely asserting their statutory right, and [Defendant] was on notice as to their identity and the legal basis for their action. [Defendant's] submission to lawful authority and his decision to step aside and permit the inspection rather than face a criminal prosecution is analogous to a householder's acquiescence in a search pursuant to a warrant when the alternative is a possible criminal prosecution for refusing entry or a forcible entry. In neither case does the lawfulness of the search depend on consent; in both, there is lawful authority independent of the will of the householder who might, other things being equal, prefer no search at all."

In addition to obtaining entry of the locked office to complete the administrative inspection, the officers were justified in seeking entry to conduct a superficial security check for their own protection, given the observations of a one way window behind the counter and the presence of a number of individuals in rooms constructed in the rear of the premises. People v. Cornielle, 172 AD2d 681, 568 NYS2d 827 (2nd Dept.1991) lv. den. 78 NY2d 964, 574 NYS2d 943 (1991); People v. White, 259 AD2d 400, 687 NYS2d 329 (1st Dept. 1999)

Fulfilling either purpose, once the Defendant provided the key to the office and the room was opened, the police "did not engage in an exploratory rummaging[,]" People v. Green, 103 AD2d 362, 480 NYS2d 220 (2nd Dept.1984) but observed the handgun seized in plain view, sticking out between two mattresses. Having been lawfully upon the premises and the gun having been observed in plain view, its seizure was proper, requiring the denial of that branch of the Defendant's application to suppress same. People v. Wheeler, 302 AD2d 411, 754 NYS2d 563 (2nd Dept. 2003); People v. Hines, 209 AD2d 717, 619 NYS2d 330 (2nd Dept. 1994)

Similarly, the statements made by the Defendant at the time of the premises inspection were not the result of a custodial interrogation, People v. Huffman, 41 NY2d 29, 390 NYS2d 843 (1976); People v. Berg, 92 NY2d 701, 685 NYS2d 906 (1999); People v. Yukl, 25 NY2d 585, 307 NYS2d 857 (1969); People v. Paulman, 5 NY3d 122, 800 NYS2d 96 (2005), but responses voluntarily given to a proper investigative inquiry made to ascertain the nature of the situation. People v. Naradzay, 11 NY3d 460, 872 N.Y.S. 373 (2008) Accordingly that branch of the Defendant's application to suppress his statements is denied.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

June 15, 2009 [*6]

___________________________

ANDREW M. ENGEL

J.D.C.