People v Cephas

[*1] People v Cephas 2016 NY Slip Op 50655(U) Decided on April 25, 2016 City Court, Westchester County Seiden, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 25, 2016
City Court, Westchester County

The People of the State of New York,

against

Shawn Cephas, Defendant.



16-0126



Westchester County District Attorney

Mount Vernon branch

Judith Permutt, Esq.

Attorney for Defendant

571 White Plains Road

Eastchester, New York 10709
Adam Seiden, J.

In this proceeding where the defendant has been charged by misdemeanor information with criminal possession of marihuana in the fifth degree (P.L. 221.10) and unlawful possession of marihuana (P.L. 221.05), the defendant makes this omnibus motion seeking: 1) suppression of physical evidence recovered based upon lack of probable cause for his arrest, or a Mapp hearing; and 2) a Sandoval hearing.

The People consent to a Sandoval hearing, but otherwise oppose the motion.

Defendant argues that on the date and time alleged, he was verbally expressing his disapproval of how the police were treating his nephew. He states that he was then threatened with arrest and pursued by the police. Defendant argues that he was not in any possession of drugs or any other contraband when the police approached him. He argues that any alleged abandonment of marihuana and plastic bags was not intentional, knowing or voluntary but rather a spontaneous reaction to the unlawful pursuit, stop and seizure. Defendant argues that he has standing to move to suppress seized physical property, despite his failure to admit possessing such property. Accordingly, defendant seeks suppression, or in the alternative, a Mapp hearing.

The People oppose the motion to suppress. The information charges that Officer Hutchins "observed the defendant holding 2 plastic bags of marihuana, a green leafy substance emanating the strong odor of marihuana in public view from the public [*2]sidewalk. Defendant threw the bags to the ground. The bags were recovered." The People argue that when the defendant took two bags of marihuana out from his coat pocket and tossed them to the ground, he voluntarily relinquished his expectation of privacy in the property. Thus, the People argue that the defendant does not have standing to challenge the recovery of the evidence.

A defendant seeking suppression of evidence has the burden of establishing standing by demonstrating a legitimate expectation of privacy in the premises or object searched (People v Ramirez-Portoreal, 88 NY2d 99 (1996)). Here the People argue that the defendant abandoned the marihuana while the police were in pursuit, and thus relinquished his expectation of privacy. However, the law is clear that mere abandonment or surrender does not automatically establish a waiver of privacy (Id.). If the abandonment is coerced or precipitated by unlawful police activity, then the seized property may be suppressed because it constitutes "fruit" of the poisonous tree (Id.) (citing Wong Sun v United States, 371 US 471). The Court must determine if defendant's abandonment of the marihuana "was revealed as a direct consequence of the illegal nature of the stop" (People v Cantor, 36 NY2d 106, 114) . . . or a calculated decision which attenuated the discovery of the evidence from the illegal police conduct (Id.). In People v Brogdon, 8 AD3d 290 (2d Dept 2004), the court reviewed whether the police had legal cause to stop and pursue a defendant they had observed carrying two plastic bags in a drug prone location and in the company of a man the police had arrested several times for drug related offenses. The officer indicated that when he approached the defendant and the other individual, the defendant made eye contact with him and fled. The officers pursued him. During the pursuit, the defendant dropped a bag, from which the officers recovered a handgun and ammunition. In suppressing the recovered evidence, the court concluded that under these facts, "there was no specific circumstances that the defendant might be engaged in criminal activity . . . [thus] the pursuit of the defendant was unlawful" (Brogdon at 292); see also People v Jones, 46 Misc 3d 1214(A) (Sup. Ct. Queens Co. 2015)).

In consideration of the factual allegations raised by defendant and the procedural history of this case, the Court finds that a Mapp hearing is warranted (People v Mendoza, 82 NY2d 415 (1993)).

The motion for a Sandoval hearing is granted and shall be renewed before the trial Judge

This constitutes the Decision and Order of this Court.

Dated:April 25, 2016

Mount Vernon, New York

_____________________________

HON. ADAM SEIDENCity Judge of Mount Vernon