People v Confessore

[*1] People v Confessore 2006 NY Slip Op 51537(U) [12 Misc 3d 1192(A)] Decided on August 2, 2006 District Court Of Nassau County, First District 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 2, 2006
District Court of Nassau County, First District

The People of the State of New York

against

Mark T. Confessore, Defendant.



4433/06

Norman St. George, J.

The Defendant is charged with one (1) count of violating Penal Law §120.45(1), Stalking in the fourth degree as a Class B Misdemeanor, one (1) count of violating Vehicle and Traffic Law §1180(D), Speeding as a Traffic Infraction, and one (1) count of violating Penal Law §221.05, Unlawful Possession of Marijuana as a Violation.

On April 11, 2006, the Defendant moved this Court to suppress five marijuana cigarettes which were recovered from the center console of the car that the Defendant was driving; or in the alternative for a Mapp hearing. The motion was granted to the extent of ordering a Mapp hearing.

On July 20, 2006, this Court conducted a Mapp hearing. The People called one (1) witness at the hearing, Police Officer McGauley. The Defendant did not call any witnesses. Based on the testimony of Police Officer McGauley, this Court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT:

This Court finds the testimony of Police Officer McGauley to be credible. Officer McGauley has been a Nassau County Police Officer for two (2) years and was previously a New York City Police Officer for two (2) years.

On February 26, 2006, between the hours of 7 p.m. and 5 a.m., Officer McGauley was in uniform working Radio Motor Patrol in the area of Oceanside, Nassau County. At approximately 8:30 p.m., Officer McGauley was involved in an unrelated Vehicle and Traffic Law stop at Long Beach Road and Atlantic Avenue, in Oceanside. As Officer McGauley was attending to the V.T.L. stop, a female motorist (Christine Cutinella, the complainant herein) pulled up to him in her vehicle and indicated that her ex-boyfriend (Mark Confessore, the Defendant herein) had been and was [*2]following her, and that she wanted him stopped. As the complainant was speaking to Officer McGauley, the Defendant drove by them in a gold Lincoln Aviator and the complainant simultaneously identified him to Officer McGauley. Officer McGauley immediately got into his marked Police patrol car and pursued the Defendant with his lights and siren activated. As Officer McGauley followed the Defendant, the Defendant began operating his vehicle at a high rate of speed. Officer McGauley estimated that the Defendant was traveling at a rate of 70 miles per hour. The Defendant eventually pulled over at the intersection of Davidson Avenue and Long Beach Road, in Oceanside. Officer McGauley approached the Defendant's car and requested his license and registration. The Defendant produced his driver's license and the car registration which indicated that the car was registered to the Defendant's father. Shortly thereafter, other Police Officers responded to the scene along with the complainant Christine Cutinella, a friend of the complainant, and the complainant's father. Officer McGauley directed the Defendant to remain in the car which he had been operating while he interviewed the complainant. The complainant disclosed that she had an open case against the Defendant for Aggravated Harassment with the First Precinct of Nassau County Police Department. She further indicated that the Defendant had been waiting around for her earlier in the day, that he had been following her around and asking her what she was doing at various locations, that he had chased her at high speeds, that he had called her numerous times on her cellular phone, and that she was afraid of the Defendant.

After discussing the events with the complainant, Officer McGauley removed the Defendant from the car and placed him in hand cuffs. After arresting the Defendant, Officer McGauley entered and searched the vehicle which the Defendant had been driving, namely the gold Lincoln Aviator that was registered to the Defendant's father. There is no evidence that Officer McGauley requested or obtained the Defendant's consent to search the vehicle. Officer McGauley specifically searched under the seats, the closed center console, and the rear of the vehicle. In order to search the closed center console it was necessary for him to open the console's lift top. From inside the center console, Police Officer McGauley removed a cigarette box which had the names of the complainant and the Defendant written on it. Officer McGauley opened the cigarette box and discovered five marijuana cigarettes. Police Officer McGauley testified that he did not know what happened to the cigarette box after he found the marijuana cigarettes but he thought that it was left in the vehicle. There was no testimony that any other items were removed from the vehicle. No other testimony was elicited by the People as to the conduct of the search or the procedures followed by Officer McGauley, or the policies or procedures of the Nassau County Police Department regarding same.

Officer McGauley testified that the reason for the search of the vehicle was that he was impounding the vehicle. He explained that the vehicle had been used by the Defendant to follow the complainant; therefore, his search of the vehicle was an inventory search. On cross examination Police Officer McGauley testified that the Nassau County Police Department does not have a policy as to inventory searches. He testified that his general method of conducting an inventory search was to "go through the vehicle and secure any belongings that could be valuable to the Defendant, fill out an impound form, call the 32 room and have the tow truck pick the vehicle up." Officer McGauley indicated that he did not follow that method when searching the vehicle the Defendant had been operating. He did not fill out any paperwork regarding the search. The vehicle was not impounded. Eventually the vehicle was released to the Defendant's father who at some point arrived [*3]at the scene.

CONCLUSIONS OF LAW:

This Court finds that the initial information received by Police Officer McGauley from the complainant, i.e., that the Defendant had been following her combined with the Defendant driving by them, provided reasonable suspicion for the Police Officer to stop the Defendant for further investigation. The Court of Appeals has long held that a police officer may stop a moving vehicle if he or she at least reasonably suspects that the occupants had been, are then, or are about to be engaged in conduct in violation of the law (People v. Spencer, 84 NY2d 749, 622 N.Y.S.2d 483, 646 N.E.2d 785 [1995]; People v. Sobotker, 43 NY2d 559, 563, 402 N.Y.S.2d 993, 373 N.E.2d 1218 [1978].) Therefore, the pursuit of the Defendant by the Police Officer was justified. Once the Defendant was stopped, based on the additional comments of the complainant at the scene of the stop, and the observations by the Officer of the Defendant operating the vehicle at an excessive speed, this Court finds that Officer McGauley had probable cause to arrest the Defendant for violating Penal Law §120.45(1), Stalking in the fourth degree as a Class B Misdemeanor, and violating Vehicle and Traffic Law §1180(D), Speeding as a Traffic Infraction.

IMPOUND OF THE VEHICLE.

In determining whether tangible property was lawfully seized during an inventory search, the Court must first decide whether the Police had the authority to impound the car (People v. Quackenbush, 88 NY2d 534, 539, 647 N.Y.S.2d 150, 670 N.E.2d 434 [1996] .)

Officer McGauley testified that since he was impounding the vehicle, he conducted an "inventory search." The arrest of the Defendant by itself does not justify the impounding of the vehicle. In order for the impounding of a vehicle to not violate the Fourth Amendment, there must be probable cause to believe that the car is connected to criminal activity or it furthers Police community caretaking functions ( South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, [1976].) Valid reasons for impounding a vehicle include a reasonable basis to believe that the car itself is evidence of a crime, the car cannot be operated because it is unregistered, uninsured or uninspected, the car was involved in a fatal automobile accident, or the car was driven by an unlicensed driver or a driver whose license is suspended and there is no one who is legally able to drive the car.

In this case, the People failed to establish a valid reason for impoundment. Officer McGauley testified that the Defendant produced a license and proof of registration; therefore, there was no reason that the vehicle could not have been left legally parked at the scene. The vague testimony that the vehicle needed to be impounded because it was used "in the commission of a crime", i.e., the Defendant following the complainant around, is tenuous at best. This Court heard no testimony that the alleged stalking of the complainant by the Defendant occurred in the car which [*4]the Defendant was pulled over in. Neither was there any testimony that the car itself possessed some evidentiary importance and consequently needed to be seized. Moreover, the vehicle did not belong to the Defendant, it was properly registered to the Defendant's father who appeared at the scene. There was also no testimony that the impounding of the vehicle was an exercise of police community care taking functions, i.e., safeguarding the streets from traffic congestion, parking violations or road hazards Absent any justification for impounding this vehicle, the People have not satisfied their initial burden of showing that impoundment was lawful. Without a valid reason for impounding the vehicle, the inventory search is without basis.

INVENTORY SEARCH OF THE VEHICLE:

Even assuming the Police had a valid basis for impounding the vehicle, the contention that the search thereafter can be construed as an "inventory search" is without factual support or legal merit. It is well established that the purposes of an inventory search are to protect the owner's property, to protect the Police against false claims for missing property, and to protect the Police from possible danger posed by weapons and other contraband. The Court of Appeals has repeatedly held that inventory searches must be conducted pursuant to "an established procedure clearly limiting the conduct of individual officers that assures that the searches are carried out consistently and reasonably"( People v. Galak, 80 NY2d 715, 719, 594 N.Y.S.2d 689, 610 N.E.2d 362 [1993]; People v. Johnson, 1 NY3d 252, 771 N.Y.S.2d 64, 803 N.E.2d 385 [2003].) Further, "an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence" (People v. Johnson, 1 NY3d 252, 771 N.Y.S.2d 64, 803 N.E.2d 385 [2003], citing Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 109 L. Ed. 2d 1 [1990].) [FN1]

Although Officer McGauley demonstrated some knowledge of the general objectives of an inventory search and described what he generally does, there was no testimony or evidence regarding Nassau County Police Department procedures limiting the discretion of individual officers and assuring that searches are conducted consistently and reasonably as required. Astonishingly, Police Officer McGauley testified that the Nassau County Police Department does not have any policy or procedure for inventory searches of motor vehicles. He testified as to his general method of conducting an inventory search which he indicated, and the facts reflect, that he did not follow. Not only was there a failure to fill out or file an inventory checklist or any other paperwork regarding the search, nothing other that the marijuana cigarettes was removed and seized from the vehicle. The vehicle was not even impounded. The cigarette box in which the marijuana cigarettes were found was not retained. None of the purposes of an inventory search were accomplished and none of the minimum safeguards were observed or satisfied. Assuming that the Police Officer was [*5]mistaken and there is an established inventory search procedure, the People failed to establish same through their witness and the Officer certainly did not follow it. The lack of inventory search policies and procedures permits arbitrary searches for evidence which clearly violates Constitutional requirements.

The People have failed to satisfy their initial burden of going forward to show that the inventory search was valid or justified. Therefore, Defendant's motion to suppress the marijuana cigarettes recovered from the Lincoln Aviator in granted.

This constitutes the decision and order of the court.

Dated: August 2, 2006

ENTER:

____________________________________

Norman St. George, District Court Judge

cc: Nassau County District Attorney's Office

Law Offices of Conrad D. Singer, P.C. Footnotes

Footnote 1:Although the People did not contest the Defendant's standing to challenge the search of the vehicle, it is clear that the Defendant was the operator and sole occupant of the vehicle, the vehicle belonged to his father, and he had the keys and the apparent authority to operate the vehicle. Since Defendant had a reasonable expectation of privacy while operating the vehicle, this Court finds that the Defendant has standing to contest the search of the vehicle.