People v Persaud

[*1] People v Persaud 2012 NY Slip Op 50533(U) Decided on March 22, 2012 Supreme Court, Nassau County St. George, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 22, 2012
Supreme Court, Nassau County

The People of the State of New York, Plaintiff,

against

Goutam Persaud, Defendant.



2576N-10

Norman St. George, J.

Defendant Goutam Persaud is charged with two counts of violating Penal Law §160.15(4), Robbery in the First Degree as a class B felony; one count of violating Penal Law §160.10(1), Robbery in the Second Degree as a class C felony; two counts of violating Penal Law §140.30 (4), Burglary in the First Degree as a class B felony; and one count of violating Penal Law §105.10(1), Conspiracy in the Fourth Degree as a class E felony.

On February 14, 15, 16, 2012, upon stipulation by the attorneys, this Court conducted a Huntley, Mapp, and Dunaway hearing. (See People v Huntley, 15 NY2d 72 [1965]; Mapp v Ohio, 367 US 643, 81 SCt 1684, 6 LEd2d 1081 [1961]; and People v. Dunaway, 442 US 200, 99 SCt 2248, 60 LEd2d 824 [1979]). The Huntley hearing pertained to various oral and written statements allegedly made by the defendant. The Mapp hearing pertained to two cellular phones allegedly seized from the defendant. The Dunaway hearing pertained to probable cause for the arrest of the defendant.

The People called six (6) witnesses at the hearing: Police Officer Rudolph Stanganeli, a twenty-four (24) year veteran of the Nassau County Police Department; Sergeant James Molinelli, a twenty-seven (27) year veteran of the Nassau County Police Department; Detective Kevin McCarthy, a twenty-five (25) year veteran of the Nassau County Police Department; Detective Anthony Remple, a seventeen (17) year veteran of the Nassau County Police Department; Police Officer Alexandro Perez, a twenty (20) year veteran of the Nassau County Police Department; and Detective Eric Byrom, an eighteen year veteran of the Nassau County Police Department. The defendant called one (1) witness at the hearing: the defendant's mother Salonchini Persaud. Based on the testimony of the witnesses, this Court makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

This Court finds the testimony of Police Officer Rudolph Stanganeli, Sergeant James Molinelli, Detective Kevin McCarthy, Detective Anthony Remple, Police Officer Alexandro Perez, and Detective Eric Byrom, to be credible. This Court did not find the testimony of Salonchini Persaud to be credible.

Officer Stanganeli testified that on November 19, 2010, he was working a 7 am to 7 pm tour of duty for the Nassau County Police Department. He was in uniform, working alone, in a marked Nassau County Police vehicle. At approximately 1:20 pm, Officer Stanganeli was traveling [*2]on Jericho Turnpike in Woodbury, Nassau County, when he received a radio assignment for a Burglary in Progress at a residence located at 54 Orchard Drive in Woodbury. Officer Stanganeli immediately proceeded to that location. Upon arriving, Officer Stanganeli observed a tan minivan parked in the driveway. He blocked in the tan minivan with his Police vehicle. Officer Stanganeli noticed that another Police Officer, Officer Larson, had already arrived. Officers Stanganeli and Larson checked the tan minivan and noted that it was empty. Both Officers proceeded to the front door of the residence and yelled out "Police." Upon hearing no response, Officer Stanganeli entered the house and immediately saw three (3) or four (4) women who were either laying or squatting on the ground. One of the women asked Officer Stanganeli for help and told him that "they ran out the back door." Officer Stanganeli immediately exited the house through the back door. Officer Stanganeli testified that as soon as he entered the back yard he heard the sound of voices. Officer Stanganeli next saw a landscaper who pointed Officer Stanganeli to the back fence of 52 Orchard Drive. Officer Stanganeli testified that he then proceeded over the back fence and into the Woodbury Country Club. Officer Stanganeli received a radio notification that the suspects involved in the Burglary were "three (3) male blacks, two (2) with dark hoodies and a third with black pants and a white or gray hoodie." He also received a notification that another Police Officer, Officer O'Brien, had one (1) of the suspects in custody at the Woodbury Country Club driveway. The individual in custody was identified as Michael Mohammed. Officer Stanganeli testified that he proceeded to the Woodbury Country Club driveway, then he began to search for the other suspects. Officer Stanganeli received notification that a second suspect had been apprehended by another Police Officer. Officer Stanganeli testified that shortly thereafter he and a fellow Police Officer found a third suspect, identified as Randolph Chase, hiding under a row boat in the rear of the Woodbury Country Club.

Sergeant Molinelli testified that on November 19, 2010, he was working a 6:30 am to 6:30 pm tour of duty for the Nassau County Police Department. He was in uniform and supervising other Police Officers. At 1:20 pm, Sergeant Molinello was in the 2nd Precinct when he heard the notification regarding the Burglary in Progress at 54 Orchard Drive in Woodbury. Sergeant Molinelli testified that he immediately proceeded to the location. Sergeant Molinelli testified that after the hearing notification that the suspects were seen hopping over the fence to the Woodbury Country Club, he headed to the Woodbury Country Club. Sergeant Molinelli testified that, upon arriving at the Woodbury Country Club, he observed Police Officer O'Brien arresting a suspect named Michael Mohammad. Sergeant Molinelli then began looking for other suspects in the wooded area behind the Woodbury Country Club. Sergeant Molinelli testified that while looking in the wooded area, he observed a male black wearing a gray pullover who had a cellphone in his hands. Sergeant Molinelli testified that he told the individual to "come here," and the person responded that he worked at the Woodbury Country Club and was also looking for suspects. Sergeant Molinelli again told the individual to come out of the woods and the person complied. Sergeant Molinelli handcuffed the individual who he later learned was Glenn Campbell. Sergeant Molinelli asked the manager of the Woodbury Country Club to come outside to determine if Mr. Campbell, in fact, worked at the Woodbury Country Club as he claimed. The manager told Sergeant Molinelli that Mr. Campbell did not work at the Woodbury Country Club.

Detective McCarthy testified that on November 19, 2010, at approximately 1:50 pm, he was directed to respond to 54 Orchard Drive in Woodbury. Detective McCarthy stated that he [*3]learned from the occupants of the house that there was a video surveillance system at the residence. He noted that the residence had a video surveillance camera on the front of the house, a video surveillance camera on the front stoop, and a video surveillance camera on the back of the house. Detective McCarthy testified that he viewed the taped video footage from those three (3) video surveillance cameras with Detective Nuzzo of the Nassau Country Police Department Electronic Squad. Detective McCarthy testified that the video surveillance footage depicted two (2) vehicles pulling up to the front of the house, one (1) black Mercedes Benz S.U.V., followed by a gold Honda Odyssey. Detective McCarthy testified that he observed one (1) male approach the front door of the residence carrying flowers. When the front door of the residence opened, the male rushed into the house and then three (3) other males entered the house. Detective McCarthy observed that one (1) of the individuals entering the house was holding a gun and another individual was holding duct tape. Detective McCarthy testified that the video surveillance footage from the back yard showed the men running out of the back of the house into the back yard. After viewing the video surveillance footage, Detective McCarthy returned to the 2 nd Squad. He was informed that three (3) suspects had already been arrested; Michael Mohammad, Randolph Chase, and Glenn Campbell. He was also informed that Glenn Campbell was willing to cooperate and that he had offered to contact the two (2) other individuals who he claimed had also been involved in the Burglary.

Detective Remple testified that on November 19, 2010, he was involved in investigating the Burglary at 54 Orchard Drive in Woodbury. At approximately 4:30 pm, he met with Glen Campbell. After reading to Mr. Campbell his " Miranda Warnings, " Mr. Campbell made various oral statements to Detective Remple about the Burglary, which Detective Remple reduced to writing. Detective Remple testified that Mr. Campbell gave differing and conflicting accounts regarding the planning and execution of the Burglary. Mr. Campbell also volunteered to assist in apprehending the two (2) other individuals who he claimed were involved in the Burglary. According to Detective Remple, Mr. Campbell offered to call the other suspects, which included a male named "Vicky," and to claim that he was stranded and needed them to come and pick him up in Woodbury. Detective Remple organized a "controlled call" from Mr. Campbell's mobile phone to "Vicky." During the "controlled call," Mr. Campbell told "Vicky" that he had escaped from 54 Orchard Drive and was injured. Mr. Campbell also told "Vicky" that he was hiding in the bushes at the back of a Geico parking lot on Woodbury Road in Woodbury. He asked "Vicky" to come and pick him up. After a number of phone calls "Vicky" agreed to come and pick him up at the back of the Geico parking lot on Woodbury Road in Woodbury. "Vicky" said that he would be driving his Mercedes Benz S.U.V. Police Officers from the Nassau County Bureau of Special Operations were dispatched to the Geico parking lot on Woodbury Road in Woodbury, to wait for "Vicky" and arrest him upon his arrival at the location.

Police Officer Perez testified that on November 19, 2010, he was working a 3:30 pm to 1:30 am tour as part of the Nassau County Bureau of Special Operations. He was assigned to proceed to the rear of the Geico parking lot in Woodbury and wait for the arrival of a suspect who was wanted in connection with the Burglary at 54 Orchard Drive in Woodbury. Officer Perez testified that when he arrived at the parking lot at 8:00 pm, he positioned his vehicle in the back of the parking lot. Officer Perez testified that eventually a Mercedes Benz S.U.V. entered the parking lot and drove towards the back of the parking lot. Officer Perez noticed two (2) individuals in the vehicle. Officer Perez testified that he received notification, over the Police radio, that the vehicle [*4]which had entered the parking lot was the target vehicle. Officer Perez pulled up behind the vehicle with his Police lights activated. Officer Perez ordered the individuals out of the car, at gunpoint, and handcuffed both the driver and the passenger. Officer Perez identified the passenger, in Court, as defendant Goutam Persaud. Defendant Persaud was taken into custody and placed in the rear of Officer Perez's vehicle. Officer Perez stated that defendant Persaud immediately began talking to him, stating: "I'm not stupid, I know what's going on." Defendant Persaud also stated that since he didn't go into the house, he is not going to get in trouble. Officer Perez testified that defendant Persaud indicated that he wanted to cooperate and that he wasn't going to be the only one (1) to get in trouble, that he got the gun, but Glenn used it. Officer Perez told defendant Persaud to relax and that they would bring him to speak with the Detective. Officer Perez testified that he brought defendant Persaud to the 2 nd Precinct. Defendant Persaud was searched and cellular phones were recovered from him. Officer Perez turned defendant Persaud over to Detective McCarthy.

Detective McCarthy testified that on November 20, 2010, at 1:00 am, he met with an individual that he identified, in Court, as defendant Goutam Persaud. Defendant Persaud was handcuffed in one of the Bureau of Special Operations Offices. Detective McCarthy introduced himself and asked defendant Persaud if he wanted to give a statement. Defendant Persaud responded "yes." Detective McCarthy testified that he read to defendant Persaud his "Miranda Warnings"using a Miranda card, which was admitted into evidence as People's Exhibit 1. Detective McCarthy asked defendant Persaud if he understood his rights and was willing to answer questions. Defendant Persaud indicated that he understood his rights, signed and initialed the Miranda card, and agreed to answer questions. Defendant Persaud made various oral statements to Detective McCarthy. Detective McCarthy reduced defendant Persaud's oral statements to a written statement. Defendant Persaud read the written statement and signed the written statement. The written statement was admitted into evidence as People's Exhibit 2.

Detective Byrom testified that on November 19, 2010, he was involved in investigating the Burglary at 54 Orchard Drive in Woodbury. Detective Byrom was involved in speaking with Michael Mohammad after his arrest. Detective Byrom testified that he first read to Mr. Mohammad his "Miranda Warnings." Thereafter, Mr. Mohammad made various oral statements to Detective Byrom about the Burglary, which Detective Byrom reduced to writing. The written statement was admitted into evidence as People's Exhibit 5.

The defendant's mother, Salochini Persaud, testified that the defendant does not really read or write English.

CONCLUSIONS OF LAW

Defense counsel contends that the stop of the defendant's vehicle and the subsequent arrest, were not legally permissible because the Police exclusively relied on information from an unreliable source, namely, Mr. Campbell. Defense counsel points out that the Police witnesses testified that Mr. Campbell provided false information to them throughout their interaction with him. First, Mr. Campbell claimed that he worked for the Woodbury Country Club. After his arrest, Mr. Campbell gave differing accounts of how the Burglary was planned and executed. Defense counsel argues that the Police cannot base an arrest on the statement of a co-defendant who has repeatedly given false information. As to the defendant's statements, defense counsel argues that the defendant's written statement was not voluntarily given because the defendant does not read or write English. Defense [*5]counsel points to the testimony of defendant's mother to substantiate this claim.

The People state that the stop of the defendant's vehicle and his subsequent arrest were proper in light of the statements of Mr. Campbell. The People argue that the statements of an accomplice implicating another in criminal activities provides probable cause for the arrest of the other individual. The People rely on People v Berzups, 49 NY2d 417 [1980]; People v Thomas, 103 AD2d 854 [2nd Dept 1984]; and People v Riley, 95 AD2d 926 [3rd Dept 1983]. The People add that the black Mercedes Benz S.U.V. that appeared in the Geico parking lot in response to Mr. Campbell's instruction was consistent with the vehicle which Detective McCarthy had observed on the video surveillance tape. The People conclude that there is no basis to suppress any of the statements made by the defendant.

REASONABLE SUSPICION FOR THE STOP OF THE VEHICLE &

PROBABLE CAUSE FOR THE ARREST OF THE DEFENDANT:

Detective Remple testified that Mr. Campbell implicated the defendant in the planning and execution of the Burglary. Mr. Campbell volunteered to assist the Police in apprehending the defendant by participating in controlled phone calls to him. During the "controlled" phone calls, the defendant agreed to pick up Mr. Campbell in the Geico parking lot, under suspicious circumstances, evidencing his knowledge of the crime. During the controlled phone calls, the defendant stated that he would be driving his black Mercedes Benz S.U.V. Detective McCarthy testified that when he viewed the video surveillance footage from the Burglary, he observed that the suspects drove up to the house in a black Mercedes Benz S.U.V., and a Honda Odyssey. It is clear from the record that Mr. Campbell gave numerous false and misleading statements to the Police. However, Mr. Campbell's statements regarding the defendant were corroborated by the controlled phone calls. His statements were also corroborated by the video surveillance footage. Finally, his statements were confirmed by the defendant arriving at the Geico parking lot in a black Mercedes Benz S.U.V., under circumstances evidencing the defendant's knowledge of the Burglary. Based on the totality of the circumstances, this Court finds that the Police had reasonable suspicion to stop the black Mercedes Benz S.U.V. upon it entering the Geico parking lot, and probable cause to arrest the defendant.(See People v Berzups, 49 NY2d 417 [1980]).

SEARCH OF THE DEFENDANT:

Police Officer Perez testified that when the defendant arrived at the back of the Geico parking lot in a black Mercedes Benz S.U.V., he was immediately arrested and taken into custody. Since this Court finds that there was probable cause to arrest the defendant upon him exiting the vehicle, the search of the defendant was legally permissible as a search incident to a lawful arrest. (See People v Weintraub , 35 NY2d 351 [1974]; People v Anderson , 91 AD3d 789 [2nd Dept 2012]; People v Ralston, 303 AD2d 1014 [4th Dept 2003]). During of a search of the defendant, cellular phones were recovered. Defendant's motion to suppress the items recovered pursuant to said search is hereby denied.

STATEMENTS OF THE DEFENDANT:

The defendant allegedly made oral statements to Police Officer Perez and oral and written statements to Detective McCarthy. Regarding both the oral and written statements made by the defendant to the Police, defense counsel moves to suppress said statements based upon a lack of probable cause to arrest the defendant. In addition, regarding the written statement, defense counsel [*6]moves to suppress said statement based upon the defendant's contention that he does not read or write English.

Regarding the oral statements allegedly made by the defendant to Police Officer Perez, it is clear that the defendant was in Police custody at the time he made the oral statements, since he had been immediately arrested upon his exit from the black Mercedes Benz S.U.V. Although he had not been read his "Miranda Warnings" prior to making said statements, this Court finds that the defendant was neither being questioned nor interrogated by Police Officer Perez at the time he made the statements. Therefore, "Miranda Warnings" were not required. This Court further finds that said statements were spontaneously and voluntarily made by the defendant to Police Officer Perez. Therefore, defendant's motion to suppress the oral statements made to Police Officer Perez, is denied.

Regarding the oral and written statements allegedly made by the defendant to Detective McCarthy, the People elicited testimony from Detective McCarthy that he introduced himself and asked the defendant if he wanted to give a statement. Defendant responded "yes." Detective McCarthy testified that he read to the defendant his "Miranda Warnings" using a Miranda card, which was admitted into evidence as People's Exhibit 1. Detective McCarthy asked the defendant if he understood his rights and was willing to answer questions. Defendant indicated that he understood his rights, signed and initialed the Miranda card, and agreed to answer questions. Defendant made various oral statements to Detective McCarthy. Detective McCarthy reduced the defendant's oral statements to a written statement. Defendant read the written statement and signed the written statement. It is clear that the defendant was in custody at the time he made the oral and written statements to Detective McCarthy. This Court holds that the defendant was properly advised of his "Miranda Warnings" by Detective McCarthy, and that he knowingly, intelligently and voluntarily waived his right to remain silent, and agreed to answer the questions of Detective McCarthy. This Court further finds that the defendant voluntarily provided a written statement. This Court concludes that the oral and written statements made by the defendant to Detective McCarthy were voluntarily made by the defendant without any threats, physical force or coercion. (See People v Vidal, 44 AD3d 802, 844 NYS2d 55 [2nd Dept 2007] lv denied 9 NY3d 1010, 850 NYS2d 398 [2007]). This Court rejects the defendant's contention that he does not read or write English. Consequently, the defendant's motion to suppress the oral and written statements made to Detective McCarthy is hereby denied.

This constitutes the Opinion, Decision and Order of this Court

Dated:March 22, 2012Mineola, New York

Norman St. George

___________________

Hon. Norman St. George

Acting Supreme Court Justice

[*7]