People v Stevenson
Annotate this CaseDecided on August 20, 2004
Criminal Court of the City of New York, New York County
THE PEOPLE OF THE STATE OF NEW YORK,
against
DAVID STEVENSON, Defendant.
2003NY071768
PEOPLE V DAVID STEVENSON
DOCKET NUMBER 2003NY071768
DATE OF DECISION : AUGUST 20, 2004
HONORABLE RUTH E. SMITH
NEW YORK CITY CRIMINAL COURT
NEW YORK COUNTY
APPEARANCE OF COUNSEL
FOR THE PEOPLE
ROBERT M. MORGENTHAU
DISTRICT ATTORNEY
ONE HOGAN PLACE
NEW YORK, NEW YORK 10013
BY: ADA EDGAR LOPEZ
FOR THE DEFENDANT
KAREN E. GOLDENBERG and
JUDITH PREBBLE
THE LEGAL AID SOCIETY
49 THOMAS STREET
NEW YORK, NEW YORK 10013
Ruth E. Smith, J.
Defendant is charged with Petit Larceny, (PL §155.25), and Criminal Possession of Stolen Property in the Fifth Degree, (PL §165.40). The charges arise from an incident at the Department of Health wherein defendant admitted that he had stolen a computer monitor and then led the police to his locker, where he retrieved the item. This Court has conducted a Mapp/Dunaway/Huntley hearing and for the reasons that follow, denies defendant's motion to suppress in all respects.
FINDINGS OF FACT
The People's sole witness was Police Officer Charles T. Robinson, who had been assigned to the Department of Health for the two years preceding the hearing. The Court finds Officer Robinson to be credible and credits his testimony.
On October 23, 2003, Officer Robinson was working the 4 p.m. to 12 a.m. shift at the Department of Health building located at 125 Worth Street in New York county. At about 4 p.m., Sergeant Bradley informed him that she had received a telephone call regarding a missing computer monitor on the ninth floor of the building. Within minutes, the two officers proceeded to the ninth floor and Karen McGreggor informed them that a monitor was missing from Joe Novack's desk in Room 924. She stated that defendant was the last person in the office. Officer Robinson entered the office and observed that there was no computer monitor on Novack's desk. He also noted that there were several plastic garbage bags on top of the desk.
At this point, Sgt. Bradley summoned Joseph Hines, defendant's supervisor and about two minutes later, he arrived on the ninth floor. Approximately two minutes later, as McGreggor and the Sergeant were apprising Hines of the situation, defendant appeared from the direction of the elevator and calmly walked down the hall towards the group; McGreggor said, "that's him". Neither the police nor the two civilians directed defendant to stay and speak with them. Defendant, however, remained with the police in the hallway. McGreggor repeatedly accused defendant of stealing the computer monitor and became "irate". Defendant remained calm and denied stealing the monitor. The sergeant asked everyone, including defendant, to have a seat in the office to discuss the accusation. Defendant sat with his back against the wall next to Hines. Officer Robinson left the room to make photocopies of identification from Hines and defendant. Two to three minutes later, when he returned to the room, the discussion had concluded and everyone was departing. Defendant and Hines were the first to leave the room.
Assuming that if defendant had not taken the monitor, then it might be somewhere in the hallway, the officers began an unsuccessful search of the ninth floor for the missing monitor for [*2]about three or four minutes. While the officers were searching the floor, defendant asked to speak with his supervisor, Mr. Hines, alone. The two walked over to the elevator and spoke privately so that no one else could overhear their conversation. While defendant remained at the elevator, Mr. Hines then returned to the officers and alleged that defendant had just admitted to him that the monitor was in defendant's locker.
The police asked defendant if they could "search his locker" and "he had no problem with that" (T: 16). He then led the officers and Hines up to the tenth floor to a supply closet. Officer Robinson followed about three to four feet behind and to the right of defendant; Sgt. Bradley was to Robinson's right, while Hines followed behind the two officers. When Officer Robinson attempted to open the door and found that it was locked, defendant opened the door without any apparent prompting from the officers and then stepped out of the way to allow the police access.
Upon entering the supply closet, Officer Robinson saw only one locker, 7 feet high, in the middle of the closet, behind a chair which had lots of papers on it. The locker was open with its contents visible. Officer Robinson observed clothing hanging and papers in the "cluttered" locker, but the chair blocked his view of the bottom portion of the locker. When he moved the chair into the hallway and looked at the bottom of the locker, he "saw an item, square item, wrapped in plastic bags." He then walked towards defendant and asked "what's in the locker" or "what is that?" (T: 17; 36-37). Defendant took the item out of the locker and stated "I guess I'm going to loose (sic) my job now" (T:17). Sgt. Bradley then opened the square object, which revealed the monitor. It was only then that defendant was placed under arrest, handcuffed and given Miranda warnings. The police did not use any ruse, coercion, weapons or handcuffs prior to arresting defendant.
CONCLUSIONS OF LAW
Defendant urges that the facts do not establish probable cause to arrest him, that the People have not established his voluntary consent to search his locker, and that if there was consent, its scope did not extend to opening the square package containing the monitor. Defendant also argues that his statements were the result of police interrogation.
The People, on the other hand, counter that defendant's statement established probable cause to arrest him, that defendant consented and assisted in the search of his locker and that his subsequent statement is spontaneous and thus, not the result of illegal police conduct.
I. Probable Cause
Initially, contrary to defendant's argument, there was reasonable suspicion to detain defendant after Officer Robinson's face-to-face encounter with defendant's fellow employee, who advised that she had observed defendant in Novak's office immediately preceding the disappearance of the monitor (People v Appice, 1 AD3d 244 [1st Dept. 2003], lv denied 1 NY3d 594 [2004]). Thus, the ensuing brief investigatory stop wherein defendant spoke with the officers and his supervisor in the office was entirely appropriate (People v Hicks, 68 NY2d , 234, 239-240 [1986]). There was then probable cause to arrest defendant once he admitted to having stolen the monitor and then retrieved the item from his locker.
In any event, it is well-settled that "[o]ne of the limited exception to the warrant requirement and, indeed, to the requirement of probable cause, is voluntary consent to search" [*3](People v Gonzalez, 39 NY2d 122, 127 [1976])(citations omitted). This Court finds that since the People have demonstrated that defendant consented to the search of his locker, defendant's motion to suppress is denied on this ground as well.
II(A) Voluntariness of the Consent
Where the People claim a consent exception to the search warrant requirement, they bear a heavy burden of proving that the consent was voluntary (id. at 128). In determining whether the consent was given as a free and unconstrained choice, rather than yielding to overbearing police conduct, the court must consider the totality of the circumstances (People v Bruno, 294 AD2d 179 [1st Dept.], lv denied 99 NY2d 533 [2002]). Some of the factors the court must consider are whether the defendant was in custody, the defendant's prior contact with the police, any evasive or uncooperative behavior by the defendant prior to giving consent and, although not mandatory, whether the defendant was advised that he need not consent (Gonzalez, supra).
Turning first to the issue of custody, the standard is whether a reasonable person innocent of the crime, under the same circumstances, would believe himself to be in custody (People v Yukl, 25 NY2d 585 [1969]; People v Rivera, 4 AD3d 131 [1st Dept], lv denied NY2d [2004]). The subjective thoughts of the defendant, including whether he felt obliged to cooperate with the police to maintain the veneer of innocence, are irrelevant (Yukl at 589; 591-592). The mere fact that police confront a defendant with incriminating evidence does not turn an investigation into a custodial interrogation, (Rivera, at 511), because the subjective belief of the police likewise is irrelevant in making a determination of whether or not custody existed (People v Smallwood, 294 AD2d 229 [1st Dept], lv denied 98 NY2d 772 [2002]).
Here, defendant, when first accused by McGreggor, was asked by the police to sit and discuss the situation with them. Defendant sat in a conference room with Hines, McGreggor and Sergeant Bradly and had a discussion about the accusations. After a brief discussion, the group separated and defendant was released. Defendant was neither in handcuffs, nor was his freedom constrained in any way. In fact, it was defendant who took his supervisor over to the elevator, and away from the police, to have a private conversation, while the police continued to search for the monitor. Notably, the search was undertaken assuming that if defendant had not stolen the monitor, then it may still be somewhere on that floor. No reasonable person, innocent of the crime, having denied the theft and then having been released by the police, would believe himself to be in custody (Yukl, supra; Rivera, supra). Even if custody had existed, it was extinguished when defendant was released from the conference room and left with this supervisor. Furthermore, neither the accusation by Ms. McGreggor, a civilian, nor defendant's initial protestation of innocence establishes custody under these circumstances (Yukl, at 591-592; Rivera, at 511).
Additionally, this is not defendant's first contact with the criminal justice system. Less than one year before the date of the instant allegations, defendant was arrested and arraigned on a similar grand larceny charge, pleaded to a violation and subsequently bench warranted on several occasions. Defendant's record indicates that, while his prior contact with the police is not extensive, he is accustomed to dealing with the police and would not readily acquiesce to police authority (People v Shaw, 8 AD3d 1106 [4th Dept. 2004]). Rather than acquiescence, defendant's calm demeanor, coupled with his denial of the theft to the police and alleged admission to his supervisor, shows that he was not intimidated by the police authority, but was acting out of [*4]interest to preserve his employment. This view is strengthened by defendant's statement when the monitor was recovered that he feared he would now lose his job.
While defendant initially denied involvement in the theft, his behavior was neither evasive nor uncooperative. To the contrary, defendant, of his own volition, approached the police and his supervisor while they were gathered in the hallway. He remained calm in the face of irate accusations against him by Ms. McGreggor and then voluntarily accompanied the police and his supervisor to discuss the allegations. He allegedly volunteered incriminating information to his supervisor only after being released by the police. He then led the police to the supply closet containing his locker. Once there, he unlocked the door without any request by the police. Furthermore, it was defendant himself who removed the stolen monitor from his locker and placed it in front of the police. There is no evidence that defendant was ever threatened or coerced by the police at any point during these events. Defendant's every action, after the initial denial, was cooperative (People v Dobson, 285 AD2d 737 [3d Dept], lv denied 97 NY2d 655 [2001]).
Moreover, in view of the foregoing, the mere fact that defendant was not advised of his right to refuse to consent does not militate against a finding of voluntary consent (see People v Caldwell, 221 AD2d 972 [4th Dept], lv denied 87 NY2d 920 [1996]).
The totality of circumstances indicates that defendant was not in custody and that not only did he admit to possessing the contraband, but he was cooperative with the police from the moment he first approached them. Thus, the People have met their heavy burden of establishing voluntary consent to search defendant's locker (People v Yukl; People v Rivera).
II(B). Scope of the Consent
The scope of consent is what "the typical reasonable person would understand by the exchange between the officer and the suspect" (People v Mitchell, 211 AD2d 553, 554 [1st Dept], lv denied 86 NY2d 738 [1995], citing Florida v Jimeno, 500 US 248, 251 [1991]). While the scope of the search cannot exceed what the consenter has agreed to, consent to search a limited area cannot be assumed to mean only a visual inspection (see People v Farrow, 168 Misc. 2d 710 [Crim. Ct. Kings Co 1996]). Rather, such scope will include containers within the search area (see People v Forte, 234 AD2d 891 [4th Dept], lv denied 90 NY2d 939 [1997]). Here, defendant consented to the search of his locker, unlocked the door to the supply closet containing his open locker and stepped out of the way to allow the police access. The locker contained only hanging clothing and the contraband. Thus, it was "objectively reasonable for the police to conclude" that consent to search the locker would include the square package containing the monitor (People v. Bruno; People v Mitchell, supra).
III. Defendant's Statements
Finally, defendant argues that his statement admitting to possession of the monitor should be suppressed because it was made while he was in custody and was not investigatory in nature. As set forth, supra, however, defendant was not in custody at the time he initiated the conversation with his supervisor and made the admission. Finally, defendant's last statement, "I guess I'm going to loose (sic) my job" was spontaneous and not in response to police questioning and is therefore, not subject to suppression (People v Morales, 281 AD2d 182 [1st Dept], lv denied 96 NY2d 922 [2001]).
CONCLUSION
Based upon the foregoing, defendant's motion to suppress is denied in all respects.This constitutes the Decision and Order of the Court.
Dated: New York, New York
August 20, 2004 Ruth E. Smith
Judge of the Criminal Court
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