People v Pabellon
Annotate this CaseDecided on December 16, 2016
County Court, Westchester County
The People of the State of New York
against
Jose Pabellon, Defendant.
16-0450
Honorable James A. McCarty
Acting Westchester County District Attorney
County Courthouse
111 Dr. Martin Luther King, Jr. Blvd.
White Plains, New York 10601
Attn: A.D.A. Graham R. Chapman
Office of Clare Degnan, Esq.
The Legal Aid Society
of Westchester County
Attorneys for Defendant
150 Grand Street, Suite 100
White Plains, New York 10601
Attn: Matthew H. Feinberg, Esq.
Susan Cacace, J.
Upon consideration of the People's present motion seeking to reargue this Court's Decision and Order, as filed and entered October 19, 2016, which granted the defendant's pre-trial applications seeking the suppression of the physical evidence which was seized from his person, and the statement evidence obtained subsequent thereto, the Court has considered the following submissions: the affirmation in support with annexed exhibits and memorandum of law of Assistant District Attorney Graham R. Chapman, and the affirmation in opposition of counsel for the defendant, Matthew H. Feinberg Esq., and the file maintained by the Court concerning this matter.
Procedural History
By Decision and Order, filed and entered on August 15, 2016, the Supreme Court, Westchester County (Neary, J.), granted the defendant's omnibus motion to the limited extent that (1) a pre-trial hearing was ordered pursuant to Mapp v Ohio (367 US 643) and Dunaway v New York (442 US 200) to determine whether any search resulting in the seizure of physical evidence was conducted in violation of the defendant's rights under the Fourth Amendment to the United States Constitution, and (2) a pre-trial hearing was ordered pursuant to People v Huntley (15 NY2d 72) and Dunaway v New York (442 US 200) to determine whether any statements allegedly made by the defendant were involuntary within the meaning of CPL 60.45, and/or were obtained in violation of the defendant's rights under the Fourth and Sixth Amendments to the United States Constitution. In accordance therewith, this Court conducted a combined suppression hearing on October 10, 11 & 12, 2016, and thereupon, by Decision and Order filed and entered on October 19, 2016, this Court granted the defendant's suppression applications concerning the handgun and ammunition magazine which were seized from his person, and the statement evidence which was obtained from him subsequent thereto, upon determining that the seizure of all such evidence was conducted in violation of the defendant's rights under the Fourth Amendment to the United States Constitution (hereinafter, the challenged decision).
In support of the challenged decision, this Court scrutinized the hearing testimony of Police Officer Richard DeVito and concluded that his testimony regarding what he observed when he encountered the defendant on the street in front of 43 Linden Street in the City of Yonkers on April 5, 2016, failed to reflect that he possessed any level of suspicion that the defendant possessed a handgun on his person. Thereupon, the Court determined that P.O. DeVito's hearing testimony failed to establish that he possessed the reasonable suspicion of past or present criminal activity by the defendant that was necessary to lawfully pursue, seize and search the defendant's person pursuant to the requirements of the Fourth Amendment to the United States Constitution, leading this Court to grant the defendant's application seeking the suppression of the handgun and ammunition magazine which were seized by P.O. DeVito from the defendant's person. In further support of the challenged decision, this Court determined that all three of the defendant's noticed statements were precipitated by the illegality of the pursuit and seizure of the defendant by P.O. DeVito and were not attenuated from those constitutionally infirm actions, leading this Court to grant the defendant's application seeking the suppression of [*2]those noticed statements due to their derivation from the underlying constitutionally infirm pursuit and seizure of the defendant.
On November 6, 2016, the People filed the instant order to show cause pursuant to CPLR 2221, seeking leave to reargue the challenged decision to the extent that this Court therein granted the defendant's applications seeking the suppression of physical evidence and statement evidence. Upon due consideration, the People's motion to reargue the challenged decision of this Court pursuant to CPLR 2221 is hereby resolved as follows:
Conclusions of Law
With respect to the People's present application seeking reargument, same is properly addressed to the sound discretion of the Court and may only be granted upon a showing that the Court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law and thereby mistakenly reaching its earlier decision (see CPLR 2221[d][2]; see also Pahl Equip. Corp. v Kassis, 182 AD2d 22, lv. denied, app. dismissed 80 NY2d 1005; Schneider v Solowey, 141 AD2d 813; Foley v Roche, 68 AD2d 558, 567). Moreover, CPLR 2221(d) explicitly provides that a motion to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion". Such statutory restrictions governing the availability of a motion to reargue reflect the well-settled view that a motion to reargue is not designed to serve as a vehicle which may enable an unsuccessful party to re-litigate an issue which was previously decided, nor to present arguments which differ from those asserted in support of the original motion (see Mazinov v Rella, 79 AD3d 979, 980; see also McGill v Goldman, 261 AD2d 593, 594).
Upon reargument, the People allege that the Court's challenged decision reflected a misapprehension of the body of law which governs the necessary predicates for a police officer's interference with a pedestrian, as well as the reasonableness of a police officer's suspicion or belief that a pedestrian is in possession of a firearm. Unfortunately, although the People do cite to relevant case law and do make reference to portions of the hearing testimony elicited from Police Officer DeVito during the underlying suppression hearing, the argument they advance in support of reargument fails to accurately reflect the evidence actually adduced before the Court, and thereupon fails to accurately apply the relevant law they cite. In sum, the People's argument relies upon the mistaken belief that P.O. DeVito's hearing testimony revealed that when he effectively seized the defendant by grabbing hold of his arm, he was already possessed of a reasonable suspicion that the defendant had a firearm in his right rear pants pocket. However, this Court's scrutiny of P.O. DeVito's hearing testimony when the challenged decision was rendered, as well as upon consideration of the present motion, does not support such a suspicion on the part of P.O. DeVito prior to his seizure of the defendant. Rather, P.O. DeVito's hearing testimony regarding his observations of the defendant prior to grabbing his arm and seizing him, reveals that he did not articulate any mental operations on his part which supported a reasonable suspicion that the defendant had a handgun in his rear right pants pocket, as his testimony revealed that he merely observed what appeared to him to be a "hard" object in the right rear pocket of the defendant's pants, which had caused the pocket to "sag a little", and appeared to be [*3]"something metallic".
Indeed, here, the only bases P.O. DeVito articulated for his pursuit of the defendant and the ensuing seizure of his person, were his observation of the defendant grabbing at a hard object in his right rear pants pocket while crossing the street approximately 30' - 35' away from P.O. DeVito's patrol vehicle, then crouching behind a parked vehicle, placing his hand over that pocket, and a vague and innocuous description of "something metallic" protruding therefrom in some unspecified manner and to some unspecified degree. As this Court previously determined in the challenged decision, such observations by a police officer do not constitute specific circumstances indicative of criminal activity on the part of a pedestrian so as to establish the reasonable suspicion necessary to permit the police officer to lawfully pursue, seize and detain that pedestrian (see People v Moore, 6 NY3d 496, 499; see also People v Sierra, 83 NY2d 928, 930). Rather, this Court placed significant emphasis upon the complete absence of any description by P.O. DeVito regarding the metallic object he observed, such as the color, the shape, the general dimensions, or the bulk, nor any suspicion or belief on his part that the metallic object he observed was consistent with a handgun, or any other sort of weapon for that matter, prior to grabbing the defendant by the arm and seizing his person while he was walking away (see People v Haynes, 115 AD3d 676, 676-677; see also People v Kennebrew, 106 AD3d 1107, 1109).
As recent case law regarding street encounters with pedestrians has established, where the observations made by the police regarding an object on a pedestrian's person are sufficient to support an articulated suspicion that the object could be a gun, suppression is not warranted (see e.g. People v Fletcher, 130 AD3d 1063 [based upon his observation of a rectangular shape in the defendant's waistband, police officer articulated his belief that object was a firearm]). Consequently, this Court found it fatal to the admissibility of the evidence seized from the defendant's person that P.O. DeVito's observations of the defendant were readily susceptible of an explanation that could be indicative of either innocence or guilt, as the People failed to adduce testimony from him showing that he observed the defendant to be in possession of what appeared to him to be a gun, or that the defendant's conduct in twice grabbing the object in his right rear pants pocket was indicative of gun possession (see People v Clermont, 133 AD3d 612, 614, lv. denied 27 NY3d 1149).
Accordingly, as the argument raised by the People in support of the instant motion for reargument fails to demonstrate that the Court overlooked or misapprehended the relevant facts or law, or otherwise mistakenly reached its earlier findings upon the underlying motion, the People's motion for reargument is hereby denied (see Grassel v Albany Medical Center Hosp., 223 AD2d 803, 805, lv. denied 88 NY2d 842; see also Pahl Equip. Corp. v Kassis, supra, at 594; Duque v Ortiz, 154 AD2d 333, 334; Klein v Mount Sinai Hosp., 121 AD2d 164).
Based upon the foregoing, leave having been granted by this Court for reargument of the challenged decision to the extent that this Court had therein granted the defendant's pre-trial motions seeking the suppression of both physical evidence in the form of a handgun and an ammunition magazine which were seized from the defendant's person, and testimonial evidence in the form of the three statements which were attributed to the defendant and were noticed by the People pursuant to CPL 710.30, this Court hereby denies the People's present application for reargument and adheres to its previous decision granting the defendant's pre-trial suppression [*4]motions.
The foregoing shall constitute the Decision and Order of the Court.Dated: White Plains, New York
December 16, 2016
____________________________________
Hon. Susan Cacace
Westchester County Court Judge
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