People v Chavez

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[*1] People v Chavez 2006 NY Slip Op 52357(U) [13 Misc 3d 1246(A)] Decided on December 8, 2006 Criminal Court Of The City Of New York, New York County Ferrara, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2006
Criminal Court of the City of New York, New York County

The People of the State of New York


Marta Chavez, Defendant.


The defendant was represented by:

Stephen Robert Scott, Esq.

305 Broadway

Suite 805

New York, New York 10007

The People were represented by:

Jennifer Gilhuly

Assistant District Attorney

New York County District Attorney's Office

One Hogan Place

New York, New York 10013

Anthony J. Ferrara, J.

The defendant is charged with criminal possession of stolen property in the fifth degree (PL  165.40) and petit larceny (PL  155.25) arising out of an alleged shoplifting at a retail store. She has filed an omnibus motion seeking, among other forms of relief, suppression of any physical evidence recovered as a result of a store detective's search and recovery of store merchandise or, in the alternative, a Mapp hearing to determine the legality of the store detective's actions. Her motion raises the question of the factual allegations necessary for granting a "state action" hearing to explore whether a private person is in fact a "state actor" subject to constitutional constraints.

The information alleges that on October 18, 2006, at about 4:44 PM while the defendant was inside the H&M Store located at 47 West 34th Street, a store detective watched her take three shirts and two jeans from a display, place them inside a bag and try to leave without paying. The store detective stopped the defendant and recovered the three shirts and two jeans. The defendant did not have a receipt for the merchandise.

The defendant argues because the store detective was a state actor he had to [*2]abide by the Fourth Amendment of the United States Constitution and Article One, Section Twelve of the New York State Constitution when performing a search and seizure (see Mapp v. Ohio, 367 U.S. 643 [1959]).

In New York, the general rule is that private store detectives and other employees are permitted to arrest or detain individuals suspected of shoplifting (see General Business Law § 218). Store detectives are also relieved of civil liability for false arrest if they can show reasonable grounds for their suspicion (see Jacques v Sears, Roebuck & Co., 30 NY2d 466 [1972]). In exercising this authority store detectives and other employees are generally held to act as private individuals and not as police officers or State officials (see People v Horman, 22 NY2d 378, cert den 393 U.S. 1057 [1968]; compare People v Smith, 82 Misc 2d 204 [1975] [holding that store detectives in New York City who are appointed by municipal officials as "special patrolmen" are governmental agents for Fourth Amendment purposes]). Case law also teaches that an unauthorized search or seizure by private individuals, including store detectives, does not render the evidence inadmissible at subsequent civil or criminal proceedings (see Horman, 22 NY2d at 381-382; Burdeau v McDowell, 256 U.S. 465 [1921]; Sackler v Sackler, 15 NY2d 40 [1964]; People v Gleeson, 36 NY2d 462 [1975]). A store policy, reflecting a practice of turning an accused shoplifter over to authorities after investigation and after the decision to prosecute has been made privately, is constitutionally immaterial and consistent with the customary procedures involved in all citizens' arrests (see People v Adler, 50 NY2d 730, 737 [1980]). Because the Fourth Amendment only regulates government activity, an unauthorized act by a private person does not violate these constitutional limitations as long as the individual acted entirely on his own "without the participation or knowledge of any governmental official" (see Horman, 22 NY2d at 382).

To compel a hearing to explore whether the private actions alleged in this complaint violated constitutional safeguards, the defendant must allege specific facts establishing that the store detective acted: (1) under the close supervision of the police, (2) at the instigation of the police, or (3) the private actions at issue were undertaken on behalf of the police or in order to further a police objective (see People v Adler, 50 NY2d 730, 737 [1980]; People v. Ray (65 NY2d 282 [1985]). As explained more fully below, because defendant's factual allegations do not implicate any State law enforcement entanglement with the store detective in this case the request for a "state action" hearing is denied.

Private conduct may become so pervaded by governmental involvement that it loses its private character and invokes constitutional protections (see People v Jones, 47 NY2d 528 [1979] [finding state action when police actively participated in the arrest, an officer clearly identified himself to the defendant and two officers escorted the defendant to the place where he was interrogated by store detectives and awaited the outcome of the questioning]; People v Esposito, 37 NY2d 156 [1975] [finding customs officials were state actors when directed and supervised by a police detective]; compare People v. Ray, 65 NY2d 282 [1985] [finding the mere presence of a special police officer upon the store premises does not establish state action when there was an absence of active governmental involvement in identifying, apprehending or questioning defendant]; People v Henriquez, 214 AD2d 485, 486, lv denied 86 NY2d 873 [1st Dept [*3]1995] [affirming the trial court's finding that encouragement and slight assistance, such as the loan of recording equipment by law enforcement personal to private actors, did not warrant a finding of agency for suppression purposes]).

In this case, the defendant's allegations do not, as a matter of law, transform the private character of the store detective's actions into state action and invoke constitutional protections. Examples of private activities that crossed over into state action warranting a hearing can be found in People v. Jones (47 NY2d 528 [1979]) and People v Esposito (37 NY2d 156 [1975]).

In Jones, while the store detectives were attempting to handcuff the defendant, a police officer placed his hand on defendant's back, pressed the defendant against a wall and identified himself as a police officer both verbally and by displaying his badge (Jones, 47 NY2d at 531-32). After the defendant was in handcuffs, two police officers accompanied the store detectives to their standard questioning room and waited outside the door to the room while the store detectives questioned the defendant (id.). The Court of Appeals found that the police officers' active participation in the arrest of the defendant created the type of custodial atmosphere encompassed by the Miranda rule and transformed the private actions of the store detectives into government action for constitutional purposes.

In Esposito, custom's officials seized the defendant, a baggage handler at Kennedy Airport, at the direction of and under the supervision of a police detective. The customs officials and the police detective were under the mistaken belief that the officials could search under these circumstances without probable cause (see Esposito, 37 NY2d at 160-61). The Court of Appeals reversed the Appellate Term, vacated the judgment of conviction and dismissed the information because the factual record at trial in no way provided for probable cause to search the defendant (id. at 161).

In this case, the defendant's allegations are similar to those in Ray, and do not rise to the level of those in Jones or Esposito. In Ray, the Court of Appeals listed the following as indicators of State involvement: clear connection between the police and the private investigation (People v Horman, 22 NY2d 378, supra ), completion of the private act at the instigation of the police (People v Esposito, 37 NY2d 156, supra ), close supervision of the private conduct by the police (People v Esposito, 37 NY2d. 156, supra ) and the private act is undertaken on behalf of the police to further a police objective (People v Adler, 50 NY2d 730, supra ).

In Ray, the store detective saw the defendant remove seven designer shirts from a shelf, walk to the service desk, where store employees handled customer refunds and merchandise returns, and get in line behind five or six people. The store detective stood in line behind defendant and the defendant asked whether he worked at the store. When the store detective responded "no" the defendant placed the seven shirts in a shopping bag. The store detective then identified himself and asked the defendant to accompany him to the office. The defendant went willingly. When they reached the security office, a windowless room measuring five by seven feet, the store detective lightly patted defendant down for weapons and filled out four forms. The forms consisted of two cards reflecting defendant's general background, including name, age, birth date and address, a "criminal trespass sheet" which gave notice to defendant that if he returned to the store in the future, he could be arrested for criminal trespass, and, a [*4]"circumstances sheet" which set forth the reasons why defendant had been taken to the security room. Defendant was not free to leave during the period of questioning, and the store detective did not administer Miranda warnings to defendant at any time. The store detective wrote in the "circumstances sheet": "I concealed seven Evan Picone shirts totaling $ 175 in my shopping bag without paying for said merchandise." After reading the circumstances aloud, and permitting defendant to review the written statement for one or two minutes, the store detective told defendant to initial the statement to verify that what he wrote was true and to sign the bottom of the paper. Defendant initialed and signed the paper as requested and the store detective then signed his own name on the line designated "witness." The store detective took the papers to his supervisor, who made the decision whether the store would prosecute. Under store policy, the supervisor's decision on whether to prosecute was made independent of the status of the person who arrested the defendant. If the supervisor determined that the case should be prosecuted, the store detective delivered the paper-work to a special police officer who was also an employee of the store and who was licensed as a special officer by the Police Commissioner of the City of New York. The special officer administered Miranda warnings and took defendant to central booking. In accord with store policy, the store detectives did not generally administer Miranda warnings and after a decision to prosecute, the store detectives would turn the case over to a special police officer for further proceedings. The treatment of the defendant in Ray followed this policy. The defendant moved to suppress his inculpatory statement due to a Miranda violation but the Court of Appeals held that because the police participation did not occur until after the defendant signed the inculpatory statement, there was no threat of official coercion or compulsion, and the private store detective was under no duty to administer Miranda warnings (see Ray, 65 NY2d at 287).

In support of the motion in this case, defendant's counsel argues that the store detective was a state actor because:1) the "store detective . . . had already determined that defendant would be turned over to the custody of the New York City Police Department," 2) "the defendant was in fact subsequently placed in the custody of the New York City Police Department," 3) "H&M store detectives function as independent police officers trained by and supported by New York Police Department," 4) the store detectives "use forms patterned after regular police forms which are then provided to the police and the prosecution [and the form used in this case was] composed entirely by law enforcement officials working for either the District Attorney's office or the New York Police Department", 5) store detectives "have the authority to fill out police forms, . . . voucher property, hold suspected defendants, and summon the New York City Police Department", and 6) store detectives "are utilized to avoid the due process constraints of the Federal and New York State Constitution." Each of these allegations concern actions, duties, training or powers of a store detective prior to the arrest of the defendant.

Even accepting all of the defendant's allegations as true, the store detective did not become a mere puppet of government officials nor was there State entanglement sufficient to trigger defendant's constitutional protections against government actions. The defendant's attorney's allegations are insufficient to establish a connection between [*5]the store detective and law enforcement at the time of defendant's search and seizure. The defendant does not allege that any law enforcement official instigated, supervised or was even present at the time of defendant's arrest. The conduct of the store detective in this case did not become so entangled with governmental involvement that it lost its private character and was transformed into state action that invoked the full panoply of constitutional protections.

Additionally, a court may deny a defendant's suppression motion or request for a hearing where the defendant's factual allegations do not support the grounds alleged for suppression as a matter of law (see CPL  710.60[3]; People v. Mendoza, 82 NY2d 415 [1993]; People v. Parris, 220 AD2d 254 [1st Dept 1995] [motion to suppress properly denied without a hearing when defendant failed to allege facts showing a connection between store security guards and police indicative of active governmental involvement in the surveillance, apprehension or questioning of defendant]). In Parris, the defendant alleged that the store security guards resemble the police in the uniforms they wear and the tactics they use and that they run the store's "own private jail" and "operate for the sole purpose of aiding the police" in gathering and turning over the information and suspects needed to prosecute (see Parris, 632 NYS2d at 104). The First Department found these allegations of governmental involvement insufficient to warrant a hearing on whether the store security guard who watched, apprehended and questioned the defendant was a state actor (compare People v Cole, 200 AD2d 832, lv denied 83 NY2d 850 [3rd Dept 1994] [remand for a suppression hearing to determine whether a private citizen acted at the instigation of or on behalf of police officers who were present in the apartment when a locked briefcase was broken open exposing two handguns]). In this case, there are no allegations of active participation by any state actor in the search and seizure of the defendant. The allegations here merely describe a private store's policy concerning the surveillance, apprehension and questioning of shoplifters by private store detectives before there is any active involvement with State actors.

Because the defendant has made insufficient factual allegations to support that the store detective was a state actor, the defendant's motion to suppress evidence recovered from her, or in the alternative for a "state action" hearing is denied.

Motion to Preclude Unnoticed Statements and Identification Testimony

The Response and Voluntary Disclosure Form ("VDF") filed by the People show that the People do not intend to offer any statements made by the defendant to law enforcement personal or identification testimony at trial. Therefore, defendant's motion to preclude unnoticed statements or identification testimony is premature. Further motions may be renewed in the event the People attempt to offer unnoticed identification testimony or statements.

Sandoval Motion

Defendant's motion to preclude the use of defendant's criminal history or uncharged bad acts is referred to the trial court.

Motion for a Bill of Particulars and Discovery

Defendant's motion for a Bill of Particulars and additional discovery is denied. The VDF is sufficient.

The People are reminded of their continuing obligation to supply Brady material.

To the extent not addressed herein, the remainder of the motions are denied.[*6]This case is next on the calendar in Part A on December 19, 2006. A copy of this decision is being mailed to both parties on December 8, 2006.

This opinion constitutes the decision and order of the Court.

Dated:New York, New York

December 8, 2006



Judge of the Criminal Court