People v Lawson

[*1] People v Lawson 2012 NY Slip Op 51257(U) Decided on June 27, 2012 Supreme Court, Queens County Kohm, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2012
Supreme Court, Queens County

The People of the State of New York, Plaintiff,

against

Thomas Lawson, Brandon McDonald, Roy Worth, Defendants.



3078/2011



Appearances of Counsel:

For the Defendant Lawson:

Steven Sternberg, Esq.

Queens Law Associates

118-21 Queens Blvd. - Ste 212

Forest Hills, NY 11375

718-261-3047

For the Defendant McDonald:

Joseph Sulik, Esq.

125-10 Queens Blvd.

Kew Gardens, NY 11415

718-544-5404

For the Defendant Worth:

Robert DiDio, Esq.

80-02 Kew Gardens Road - Ste 307

Kew Gardens, NY 11415

718-575-5145

For the People:

Hon. Richard A. Brown

District Attorney - Queens County

125-01 Queens Blvd.

Kew Gardens, NY 11415

By: Anisha Abraham, Esq. 718-286-6976

Robert Charles Kohm, J.

In an 18 count indictment, the defendants have been charged with various robbery and weapons offenses arising from their alleged participation in an armed robbery of one Derwin Spencer and an attempted armed robbery of one Neville Louison, early on the morning of August 24, 2011; in addition, the defendant McDonald was charged with one count of Reckless Endangerment in the First Degree, and the defendant Worth was charged with two VTL violations.

Contending that their Constitutional rights were violated by the police during the stop of the vehicle in which they were traveling; the subsequent search of the vehicle and the seizure of two loaded weapons and a "Joe Rodeo" watch from within the vehicle, together with a silver necklace recovered from the person of McDonald; and the custodial interrogation of each defendant at the 114th Precinct after their arrest which, in turn, resulted in all of the defendants making written and/or oral inculpatory statements to the police, the defendants filed motions to suppress the physical evidence and their oral and written statements.

A Dunaway/Mapp/Huntley hearing was held before this Court on March 21, 23, and 27, 2012. The People presented two witnesses: Police Officer Dennis Mogelnicki and Detective David Chianese, both of whom the Court found to be credible and worthy of belief. Post-hearing memorandums of law in support of Worth's and McDonald's motions to suppress, dated May 1, 2012 and June 22, 2012, respectively, were submitted by defense counsel.[FN1] A memorandum of law in opposition to the motion to suppress, dated June 1, 2012, was submitted by the People.

Findings of Fact

On August 24, 2011, at approximately 3:30 a.m., Officers Mogelnicki and Duong were in uniform in a marked police car and were responding to a radio call of "shots fired" at a strip club named "Starlets," located at 49-05 25th Ave. At approximately 4 a.m., while in the process of setting up a crime scene, Mogelnicki testified that he heard the sound of gunshots that appeared to be coming from a few blocks away to the south. Mogelnicki would later learn that the shots had been fired near a second strip club known as "Perfection," located at 62-05 30th Ave., but, as he testified on re-direct examination, the only establishment that would have been open at that time of the morning, in the direction where the shots had been fired, was "Perfection."The two officers returned to their vehicle and proceeded south on the service road of the Brooklyn-Queens Expressway (hereinafter the BQE), in the direction of the sound of the shots. At approximately 4:02 a.m., at the intersection of the BQE and Bulova Ave., traveling toward him from the direction of the shots, Mogelnicki observed a white 2002 GMC Denali truck, traveling west on Bulova Ave., "blow" a stop sign and turn left onto the BQE without signaling. Activating their turret lights and siren, the officers gave chase and pulled the Denali over about 100 feet from the stop sign. With their weapons drawn, Mogelnicki and Duong approached the truck whose back and rear windows were darkly tinted. The driver of the vehicle, Worth, had his hands out the driver's side window and, while pointing, stated that "there had been a shooting over there and someone may be shot."

Worth complied with Mogelnicki's request for him to step out of the vehicle. A quick pat-down or frisk of Worth for weapons revealed nothing and he was brought to the rear of the truck, now watched over by other police officers who had since arrived at the scene. There was no one seated in the other front seat of the three row truck, but Mogelnicki observed that two [*2]passengers (McDonald & Lawson) were seated in the middle row, McDonald on the right and Lawson in the middle seat. After telling the two defendants remaining in the truck to come out, Mogelnicki reached inside the truck and pulled McDonald from the cabin of the truck. Once outside the vehicle, McDonald was given a quick pat-down, and in so doing Mogelnicki felt a "hard object" in this defendant's right front pants pocket. The object was revealed to be a necklace and it was returned to McDonald. Repeating his actions with Lawson, Mogelnicki leaned into the vehicle as he began to pull him out. It was at that moment that Mogelnicki observed what appeared to be the black handle of a firearm, underneath the middle row seat where McDonald had been sitting. Lawson was searched but nothing was recovered. All three men were arrested, placed in handcuffs and were sat down on the curb [FN2].

With the three defendants secured, Mogelnicki recovered the gun from beneath the middle row seat, which was found to be a loaded 45 caliber pistol with one round in the chamber and one round in the magazine. Mogelnicki proceeded to conduct a full blown search of the vehicle, which accounted for about 10-15 minutes. The third row of seats had been placed flat down and from behind the rear seat, in what was described as the cargo area, the officer saw another firearm: a 40 caliber Glock pistol, with one 40 caliber round in the chamber and eight 45 caliber rounds in the magazine. Continuing his search, Mogelnicki noticed a "bulge" in a map pocket behind the front passenger seat. Reaching inside the map pocket, he removed a "Joe Rodeo" silver watch, which he then placed back into the pocket [FN3].

Lawson, McDonald and Worth were transported to the 112th Precinct, arriving at approximately 5:30 a.m. During the trip there was no conversation between any of the defendants and the police officers. At the precinct, the defendants were separated and placed into three adjoining holding cells, and the silver necklace was removed from McDonald's possession.

As Mogelnicki passed by the cell which housed Worth, that defendant told the officer to "come over." Pointing in the direction of the other two defendants, Worth made a "motion of a gun" with his hand. Then, in a quiet whisper, he stated that the other two defendants "were the shooters." At 6:00 a.m., Mogelnicki handed Worth a sheet of paper containing a printed set of Miranda warnings. At its top, the paper contained the following legend:

114TH PRECINCT DETECTIVE SQUAD

MIRANDA WARNINGS

Directly below were the five standard Miranda warnings and the sixth and final question asking whether the person about to be questioned understood his or her rights and did the subject wish to speak to the questioner. Worth was told to read the Miranda warnings, to write yes or no if he understood each warning, and to write his initials next to each question. Mogelnicki was handed back the filled out Miranda sheet five minutes later. Mogelnicki then gave the defendant a piece of paper, a piece of cardboard and a pen. Stepping about five feet to the side of the cell to [*3]allow Worth to "write his story," the officer could not see into the cell, but he could see the front of the cell and could ascertain that no one else entered during the period of time when Worth was writing his statement. At approximately 6:10 a.m., Mogelnicki returned to the cell and wrote on the piece of cardboard, "Where did they fire the guns?" The defendant wrote a brief description of the shooting on the cardboard. Mogelnicki then wrote "Write your side of the story" on the cardboard and gave it back to Worth. The defendant did, in fact, write a statement on the cardboard which he completed on the white piece of paper. In sum and substance, the defendant claimed that he had witnessed a robbery perpetrated by two individuals (later identified as Lawson and McDonald), that the two individuals were running down the block firing their weapons, and that the same two individuals, with guns still drawn, ordered him to stop, whereupon they opened the doors of his vehicle and climbed inside. Worth wrote that he took off with the two individuals, only to be stopped by the police shortly thereafter.

The defendant's written statement was completed by 6:30 a.m., and the piece of cardboard and the paper containing his statement were given back to Mogelnicki. With regard to the Miranda sheet, Mogelnicki testified that he observed that Worth had printed "Yes" next to each warning, indicating that he understood the warnings, and "Yes" where he indicated that he wanted to speak with Mogelnicki. He had also placed his initials (RW) after each warning. Although Mogelnicki had placed the date (8/24/11), the time (0600) and the location (114 Precinct) at the top of the Miranda sheet, he neglected to sign his name at the bottom of the sheet [FN4].

At approximately 8:45 A.M., Officer Mogelnicki escorted Worth to the detective's squad room on the second floor of the precinct, and informed Detective Chianese that Worth had already been Mirandized, had given a "sketchy" statement, and wanted to speak to a detective. The defendant was seated in the interview room and confirmed that he had received Miranda warnings, that he was aware of his rights, and that he wanted to speak with Chianese. The defendant orally repeated the basic exculpatory statement that he had given to Mogelnicki and then wrote out a nearly full page written statement, again claiming that he had nothing to do with the robbery or the guns that were found in his vehicle. However, when Worth was told that there was video surveillance from the club, he changed his story and admitted that he "knew" the two guys, that they had "jumped out" of his truck and "did a robbery," but that he "didn't know this was going to happen" and he "was very sorry" for what happened.

At approximately 10:00 a.m., an individual named Derwin Spencer arrived at the 114th Precinct and imparted information to Mogelnicki and Chianese concerning an armed robbery that had occurred earlier that morning, in which he and his friend, Neville Louison, had been the victims. Spencer stated that as they left a strip club name "Perfection," two males approached him and one of them put a gun to his chest. A silver chain and a "Joe Rodeo" watch were forcibly taken from him by the perpetrators, after which Spencer and Louison, fled to their vehicle and drove away. However, as they hurriedly attempted to leave the scene, Spencer stated that several shots were fired at his vehicle. Spencer showed cell phone pictures of the subject watch and chain to Mogelnicki, who then retrieved the watch that he had earlier discovered in the [*4]map pocket of the truck that the three defendants were stopped in. When Spencer was shown the watch, and the chain that had been seized from McDonald, he identified both items as being the property that had been stolen from him outside of "Perfection."

At approximately 12:45 p.m., Mogelnicki escorted Lawson to the detective's interview room and the defendant was seated at a table. Upon being advised by Mogelnicki that this defendant had not been Mirandized, the detective provided Lawson with a printed Miranda warning sheet and orally read the Miranda warnings to him from a duplicate copy. Lawson replied that he understood each warning and printed the word "Yes" and his initials, "TL," next to each warning, signing his name at the bottom of the sheet next to those of Chianese and Mogelnicki. The defendant was given a piece of paper and, over the next 30-45 minutes, wrote out a statement admitting that he was present and witnessed the robbery, but claiming that he did not participate in the crime and that he had no prior knowledge that there were firearms in the truck.

The last defendant to be interviewed was McDonald, who was brought up to the interview room at approximately 3:50 p.m. that afternoon. After being advised of his Miranda warnings by Chianese, in the same manner that he had advised Lawson, this defendant acknowledged that he understood his rights and agreed to speak to the detective, signing the warnings sheet accordingly. McDonald refused to write a statement, claiming that would "make me a rat," but orally admitted to having committed the robbery and having shot at the victim's vehicle because it had "clipped" him as it sped away and he "feared" for his life.

Conclusions of Law

The Stop of the Truck - (Dunaway)

Having observed the truck that Worth was operating drive through a stop sign without coming to a complete stop and then proceed to make a left turn without signaling, the police were justified in lawfully stopping the vehicle because of the operator's violation of Sections 1172(a) - "Failure to Stop at a Stop Sign" and 1163 (a) - "Turning Movements and Required Signals" of the Vehicle and Traffic Law (People v Robinson, 74 NY2d 773, cert den 493 US 966; People v Ingle, 36 NY2d 413). Although the officers had heard gunshots from the direction in which they saw the defendants' vehicle approaching and it would have been natural for them to have been "entertaining more serious suspicions" (People v Ortiz, 265 AD2d 579, lv to app den 94NY2d 865; People v Dougherty, 251 AD2d 344, 345; see also Whren v United States, 517 US 806), the stop of the truck was "objectively valid" based upon Officer Mogelnicki's personal observation of two traffic violations (People v Ortiz, supra) and survives any challenge by the defendants contending that the stop was a mere pretext (see People v Wilson, 250 AD2d 788).

Once the vehicle had been lawfully stopped for the traffic violations, the police had the right to order all of the occupants out of it (People v Robinson, 74 NY2d 773, supra, at 775; citing Michigan v Long, 463 US 1032, 1047-1048; citing Pennsylvania v Mimms, 434 US 106) because of the "inherent and inordinate danger to (the) investigating police officers in completing their authorized official responsibilities" (People v Robinson, supra, 774; People v Collado, 304 AD2d 836).

In analyzing the legal implications of what next occurred, that is, the extraction of McDonald and Lawson from the truck, the fluidity and potential for danger that the situation [*5]presented to the two officers must be afforded due deference. It was 4:00 a.m. in the morning and still dark in a relatively unpopulated section of Queens County; the police were already in the area to investigate gunshots having been fired, only to then hear additional gunshots being fired but a short distance away; a truck then appears from the direction of the second and more recent set of gunshots and ignores a stop sign; once the vehicle is stopped, the driver spontaneously volunteers information about a shooting, despite not being asked any questions by the police; and the seating arrangement of the three occupants (no one in the front passenger seat and two young men seated next to each other in the three person middle row), though not unlawful but certainly odd, bordering on suspicious.

In reaching into the vehicle to physically assist McDonald and Lawson from the truck, Mogelnicki was merely engaging in a protective measure designed to give him greater control over the two men for the safety of himself and his partner. As set forth above, both the State and Federal courts have recognized the "inherent" dangers to police officers during even routine traffic stops and have thus sanctioned the removal of a vehicle's occupants. The rationale behind that decisional policy is to protect the police from weapons which may be possessed or which may be in a grabbable area to the vehicle's occupants. By leaning into the truck and physically extracting McDonald and Lawson, Mogelnicki was better able to prevent the possible use of any weapon against himself or his partner.

With his head inside the truck, Mogelnicki observed what he perceived to be the handle of a firearm underneath the middle row of seats. The Court is mindful of the holding in People v Hernandez, 238 AD2d 131 and numerous cases in accord, which have held that if a police officer "impermissibly breach(es) the plane of a car doorway" then any contraband he may observe from that position is not in "plain view" and is subject to suppression. Here, however, the brief and limited intrusion into the passenger area of the truck was not for the purpose of a search or to discover evidence. Rather, it was to facilitate the lawful and safe removal of the two defendants and was therefore permissible. Under the specific circumstances of this case the Court concludes that the observation of the first weapon was within the purview of the "plain view" doctrine, since: (1) Officer Mogelnicki was lawfully in the position from which the 45 caliber pistol was viewed; (2) Officer Mogelnicki had lawful access to the weapon; and (3) the weapon's incriminating nature was immediately apparent to the trained police officer (see People v Diaz, 81 NY2d 106, 110; People v Polanco, 292 AD2d 29).

The Search of the Truck - (Mapp)

Upon ascertaining that the object that he had observed in the truck was a loaded 45 caliber pistol, Mogelnicki was authorized to perform a complete search of the vehicle, including the vehicle's trunk and/or baggage area, pursuant to the automobile exception to the warrant requirement. "A valid arrest for a crime authorizes a warrantless search . . . of a vehicle and of a closed container visible in the passenger compartment of the vehicle [FN5] which the arrested person is driving . . . when the circumstances give reason to believe that the vehicle or its visible contents [*6]may be related to the crime for which the arrest is being made . . . or there is reason to believe that a weapon may be discovered." (People v Ellis, 62 NY2d 393; quoting People v Belton, 55 NY2d 49, 54-55; see also People v Yancy, 86 NY2d 239).

Therefore, the resulting search and seizure of the second weapon (the Glock pistol) from the rear cargo area and the silver watch from the map pocket [FN6] was lawful in nature, pursuant to the automobile exception and predicated upon "the diminished expectation of privacy attributed to individuals and their property while traveling in an automobile" (People v Yancy, supra, at 246; citing California v Carney, 471 US 386, 392-393).

Had Mogelnicki permanently seized, instead of immediately giving back to McDonald, the necklace that he had discovered during the pat-down of this defendant upon his removal from the truck, suppression of this evidence would be required. For at that moment, reasonable suspicion did not yet exist to believe that any of the three individuals had committed a crime or that there was contraband in the vehicle. However, since the jewelry was returned to McDonald, its later seizure at the 112th Precinct was justified as incidental to a lawful arrest (People v Bland, 302 AD2d 926, lv to app den 99 NY2d 652; People v Cummings, 291 AD2d 454, lv to app den 98 NY2d 636).

The Oral and Written Statements - (Huntley)

At the Huntley phase of this suppression hearing, the issue before the Court is whether the People have met their burden of proving that the statements allegedly made by the three defendants to Officer Mogelnicki and Detective Chianese were voluntary beyond a reasonable doubt (People v Anderson, 42 NY2d 35, 38; People v Huntley, 15 NY2d 72, 75). This "initial burden of proving, beyond a reasonable doubt, that each statement sought to be introduced was voluntary rests with the prosecution (see People v May, 263 AD2d 215, 219). Once the prosecution has established the legality of the police conduct and the defendant's waiver of rights, the burden of proof at the suppression hearing shifts to the defendant'" (People v Hughes, 280 AD2d 694, 695, lv to app den 96 NY2d 801; quoting People v Guillery, 267 AD2d 781, lv to app den 94 NY2d 920; see People v Love, 57 NY2d 995). The Court's determination as to whether any one or more of the statements were involuntary depends upon the "totality of the circumstances" (People v Williamson, 245 AD2d 966, lv to app den 5 NY3d 805; citing People v Anderson, supra, at 38).

a) Worth -The first statement attributed to this defendant was his "whispered" comment to

Mogelnicki that the other two defendants were the shooters. Though in custody and prior to receiving Miranda warnings, the defendant's statement was voluntary, since it was "spontaneous and not made in response to express questions or the functional equivalent thereof" (People v Vigil, 31 AD3d 794, lv to app den 7 NY3d 852; see Rhode Island v Innis, 446 US 291, 300-301; People v Huffman, 61 NY2d 795, 796; People v Bryant, 59 NY2d 786).

The second statement in issue is the 6:30 a.m. written statement that was made by the [*7]defendant upon a piece of cardboard and completed upon a piece of paper, subsequent to the defendant being given a printed set of Miranda warnings. The procedure employed by Mogelnicki was certainly out of the ordinary, but upon viewing the totality of the circumstances, including: 1) the fact that the defendant had initiated the conversation with Mogelnicki and was eager to provide information, true or not, to the police; 2) the fact that the defendant was understandably concerned that the two co-defendants, in close proximity, would be able to hear him talking to the officer; 3) the fact that the defendant followed Mogelnicki's instructions to print both the word "Yes" and his initials if he understood the written warnings; 4) the fact that the written statement was legible, understandable and, for the most part, exhibited correct grammar; and 5) the fact that the defendant, a few hours later, orally confirmed to Detective Chianese that he had, in fact, received Miranda warnings, that he was, in fact, aware of his rights, and that he did, in fact, want to speak with the detective, the Court finds that written statement was voluntary, having been made by the defendant after he knowingly and intelligently waived his rights.

In his memorandum of law in support of his motion to suppress, the defendant has questioned the propriety of the Miranda warnings not being actually read to him by Mogelnicki. While the Court would agree that reading the Miranda warnings to a suspect in custody is indeed the norm, it is not a legal requirement. In People v Ortiz, 3 AD3d 594 the defendant was handed a form containing Miranda warnings and was asked to read each warning aloud and initial it. Upon completion, defendant signed the form acknowledging that he was advised of his rights and told the officer that he understood what he read. Defendant then gave a statement describing his involvement in the burglary.

In affirming the defendant's conviction after trial, the Appellate Division, Third Department considered the validity of the hearing court's finding that the defendant's statement was admissible. The Court stated: "The landmark decision in Miranda v Arizona, (384 US 436) contains no express articulation that the warnings required must be provided orally to the accused." Citing People v Peraza, 288 AD2d 689, 690, the Third Department concluded, "(T)here is (absolutely) no rule, statutory or otherwise, requiring that (such) warnings be read to a suspect."

Here, the Court finds that the defendant understands the English language and that he understood the meaning of the Miranda warnings and the legal implications of the waiving of his rights. As was noted on page 5, footnote 4, Mogelnicki conceded that he didn't know if the defendant read the Miranda warnings or if he understood them. Notwithstanding those concessions, the defendant unequivocally later stated to Chianese that he had received Miranda warnings and was aware of his rights, rendering Mogelnicki's lack of personal knowledge immaterial.

The oral and written statements made to Chianese, at approximately 8:45 a.m., were not preceded by an additional issuance of Miranda warnings. "Where a person in police custody has been issued Miranda warnings and voluntarily and intelligently waives those rights, it is not necessary to repeat those warnings prior to subsequent questioning within a reasonable time thereafter, so long as the custody has remained continuous" (People v Legere, 81 AD3d 746, quoting People v Holland, 268 AD2d 536, lv to app den 95 NY2d 835). Here, having knowingly and intelligently waived his rights at approximately 6:10 a.m., it was not necessary to repeat the [*8]warnings some 2½ hours later, where the defendant had been in continuous police custody.

Accordingly, the Court finds that the People have met their burden of establishing by proof beyond a reasonable doubt that the oral and written statements of the defendant Worth were voluntary.

b) Lawson and McDonald -Both of these defendants were issued Miranda warnings by

Detective Chianese at 12:45 p.m. and 3:50 p.m., respectively. In the more traditional manner, the detective read the warnings from a printed form, while the defendants followed along using a form that had been provided to them. The Court finds that both defendants intelligently and knowingly waived their rights and agreed to speak with Chianese concerning the incident; Lawson writing out a one page statement and McDonald declining to write a statement, but providing the detective with an oral admission of guilt. As with Worth, the Court finds that the People have satisfied their burden of proof at this hearing, by establishing the voluntariness of the statements of Lawson and McDonald by proof beyond a reasonable doubt.

Accordingly, the motions made by all defendants to suppress the two guns are denied; the motion by Worth to suppress the watch and McDonald to suppress the chain are also denied. The motions made by all defendants to suppress their oral and written statements are denied.

The foregoing constitutes the Opinion and Decision of the Court.

Order signed herewith.

The Clerk shall forward copies of this Memorandum Decision and the accompanying Order to counsel for the defendants and to the District Attorney.

__________________________

Robert Charles Kohm

J.S.C. Footnotes

Footnote 1: Counsel for Lawson has "adopted" the memorandum of law submitted on behalf of Worth.

Footnote 2: Although the "arrest time" is listed as 4:26 a.m. in the papers prepared by the police, it was, in fact, closer to 4:02 a.m. The missing time is explained by the 10-15 minutes spent searching the vehicle until the actual arrest was called in and an arrest time was obtained.

Footnote 3: The watch would be retrieved upon its subsequent identification by the victim of the robbery, later that morning.

Footnote 4: On cross-examination, Mogelnicki conceded that he didn't know if the defendant read the Miranda warnings or if he understood them.

Footnote 5: Ellis extended the scope of the automobile exception to locked containers and containers within the trunk or baggage area.

Footnote 6: Having initially discovered the watch during a lawful search of the vehicle, it was unnecessary for the police to secure a warrant before retrieving it from the map pocket, after it had been identified by the victim later that morning.