People v Plagianakos

[*1] People v Plagianakos 2008 NY Slip Op 50554(U) [19 Misc 3d 1104(A)] Decided on March 4, 2008 Supreme Court, Kings County Di Mango, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 4, 2008
Supreme Court, Kings County

The People of the State of New York

against

Aristotle Plagianakos, Defendant.



6231/2006

Patricia DiMango, J.

The defendant herein is charged with Manslaughter in the Second Degree, Criminally Negligent Homicide, Reckless Endangerment in the Second Degree, Leaving the Scene of an Incident Without Reporting, Reckless Operation of a Vessel (two counts), and [Failing to Render] Aid to one in Distress. The charges arise from a jet ski collision which occurred on June 30, 2006 and resulted in the drowning death of one Paul Zaccaria.

A combined Dunaway-Huntley-Mapp hearing [FN1] was held before this court on February 5, 2007. Upon this hearing the defendant sought to suppress statements he made on June 30, 2006 to law enforcement officials prior to his formal arrest, as well as to suppress physical evidence seized by the police, namely a green and white motor jet ski recovered from the body of water located behind the defendant's home.

The People called one witness at the hearing, Sergeant Thomas Horvath of the NYPD Harbor Unit, and entered into one stipulated set of facts. The Defense did not present any witnesses.

The court finds the People's witness, Sergeant Horvath, to be candid, credible and forthright. Based upon the unrefuted credible evidence, this court makes the following findings of fact.

The Hearing Evidence[*2]

Sergeant Thomas Horvath (Shield No. 4233), of the Harbor Unit, testified that on June 30, 2006 he was called at home by Lieutenant John Smerina to assist in the investigation surrounding a submerged person from a jet ski accident in Mill Basin. The Sergeant arrived at 2556 National Drive, Brooklyn, New York, Kings County, the home of one Nick Grabowski, at 8:00 PM on June 30th. There, at the dock behind that location he was first briefed by Lieutenant Smerina. At that time, Lieutenant Smerina was aboard a police boat, along with one Police Officer Diana Mooney, Aristotle Plagianakos, family members of Mr. Plagianakos, and Vincent Muscarella. They were attempting to pinpoint in the channel the location of the collision which had taken place between Plagianakos' green and white colored jet ski and the yellow jet ski of the victim, Paul Zaccaria. (The victim's jet ski was still on the water, floating in an area filled with weeds, and was subsequently recovered by the police.)

Sergeant Horvath had boarded the boat to speak with the Lieutenant and to learn where the victim was last seen and where the jet skis were located. After briefly speaking to one civilian witness on land, Sergeant Horvath reboarded the boat and the afore-mentioned group all headed for the Plagianakos home, which was down the canal. Mr. Plagianakos was returned home by boat in an attempt to avoid the media and crowds gathered at the location. The Sergeant testified that, at that time, the police did not consider Mr. Plagianakos to be involved in any wrongdoing, he was not a suspect, nor was he under arrest [FN2].

Upon arriving at the dock behind the Plagianakos home, 2690 National Drive, Sergeant Horvath noticed the defendant's green and white jet ski. He had not yet seen that of the victim. The Sergeant, along with two detectives (one of whom was Detective Pepe, who was in charge of the investigation), entered the Plagianakos home in order to speak with the defendant regarding the incident. Aristotle Plagianakos, his mother and father, Vincent Muscarella [FN3], Muscarella's mother, the two detectives and Sergeant Horvath were all present during this part of the investigation, which took place at the Plagianakos' dining room table. Shortly thereafter, they were joined by Detective Murphy. Sergeant Horvath testified that, while he was unaware if any police personnel had asked permission of the defendant's parents to speak with him, the parents did not object to their son's participation in the investigation. Sergeant Horvath stated that he believed Aristotle Plagianakos to be 16 years old at the time.

It was at this time, at approximately 9:00 PM [FN4], when asked by Sergeant Horvath as to what had happened, that Aristotle Plagianakos proceeded to give a statement that he had been driving his jet ski at idle speed, with Mr. Muscarella on the back, and that Mr. Zaccaria had [*3]come towards him driving his jet ski fast. The two collided, and Mr. Zaccaria fell into the water and went under. According to Aristotle Plagianakos, prior to impact he had called out to Paul Zaccaria, who had his head turned away, and therefore probably did not hear him. Although he swerved, the two collided and Paul Zaccaria became immediately submerged and never resurfaced. Mr. Plagianakos stated that Paul Zaccaria was not wearing his flotation device at the time and that he looked around for Paul for a bit, but then went home to call 911.

Sergeant Horvath found both Aristotle Plagianakos and Vincent Muscarella to be withdrawn and clearly affected by this incident, although the defendant was coherent and not crying or trembling. At no point did the parents interrupt the interview; and the defendant's father said that his son would be available for the continuing investigation.

Regarding the jet ski, Sergeant Horvath testified that he had noticed it at the Plagianakos' dock when the group first pulled up in the harbor boat. However, at that time, it was "getting dark" and the jet ski's underside was in the water. The Sergeant did not know who owned the jet ski [FN5] but he testified that he had generally announced to all in the room (referring to the Plagianakos' dining room) that the police would be taking the jet ski for examination and no one voiced any objections to this. Sergeant Horvath explained that it was necessary to take the jet ski to the Harbor Unit's launch repair shop in order to view the damage which was underneath and could not otherwise be observed. According to the Sergeant, whenever there was a boating accident with a fatality or near fatality, it was Harbor Unit "policy" to take the vessel out of the water for a thorough examination, which included inspecting its underside. He termed this the "vouchering of property for the investigation."

It was not until July 3, 2006 that Sergeant Horvath was first able to examine both of the jet skis involved in this incident and, upon such examination, he found that the physical evidence was not consistent with the defendant's account of what had happened. He then determined that the police would need to speak further with both Aristotle Plagianakos and Vincent Muscarella. It was his understanding that, on July 6, 2006, Detectives Murphy and Pepe had gone to the homes of Messrs. Plagianakos and Muscarella, but the police were unable to speak to either of them because both were allegedly away in Florida. Nevertheless, the Sergeant testified that he was still treating this as an accident investigation, although there was a possibility that reckless operation was involved as well as a possible failure to render aid at the accident scene.

Since both the defendant and his passenger, Muscarella, were unavailable, the Sergeant did not speak further with either of them and his participation in the case was completed following his physical examination of both jet skis. It was some time after July 3rd that Detective Pepe, without consulting the Sergeant, arrested defendant Plagianakos and charged him with offenses pertaining to the collision with Paul Zaccaria. Sergeant Horvath had, however, informed Detective Pepe (at some point after July 3rd) of his findings that the physical [*4]evidence, namely the damage to the jet skis, was not consistent with the defendant's original statement of how the accident occurred.

At the conclusion of Sergeant Horvath's testimony, both sides rested upon the hearing.

Analysis

As noted above, the court credits the account rendered by Sergeant Horvath (which was unimpeached by the defense), regarding the circumstances and the manner in which the statements and the physical evidence were obtained from the defendant. Further, since the defendant did not testify upon his own behalf at this hearing and did not present any witnesses to contradict or refute the testimony of the Sergeant, his testimony stands unrebutted and constitutes the evidence upon which this court bases its decision and makes the following conclusions of law.

Huntley

The defense seeks suppression of the statements the defendant made to the police upon the interview which took place at approximately 9:00 PM in his home the same day of the incident, in which he gave his account of how the jet ski collision of earlier that day had occurred.

In order to obtain the suppression of these statements, the defendant must establish either that they were the product of custodial interrogation in the absence of either Miranda warnings or of a waiver of the Miranda rights (see, Miranda v Arizona, 384 U.S. 436, 444-445; Rhode Island v Innis, 446 U.S. 291, 300-301); or that they were otherwise involuntarily given (People v Huntley, 15 NY2d 72, 78; see also, People v Anderson, 42 NY2d 35, 38-39).

The defense does not appear to be contending that the statements were involuntarily given, but rather the defense maintains that they were the product of custodial interrogation without the benefit of the Miranda warnings. This court disagrees with the latter proposition.

Rather, this court finds that the questioning by Sergeant Horvath in the company of the other police personnel (and in the presence of the defendant's parents) was purely investigatory and that the defendant was not in custody.

No reasonable person in the defendant's position, who was innocent of any crime and who was purporting to be cooperative, would have considered himself to be in custody when he was interviewed by the police in his dining room only hours after this tragic accident had occurred. On the contrary, Mr. Plagianakos was speaking freely and voluntarily with the police regarding what had led to the jet ski collision and what happened immediately thereafter. None of these initial statements are subject to suppression as they were voluntarily given in response to [*5]investigatory, non-custodial questioning for which no pre-interrogation Miranda warnings were required (see, Matter of Kwok T., 43 NY2d 213, 217-219; see also, People v. Coggins, 234 AD2d 469, 469-470, error coram nobis denied, 255 AD2d 453). Accordingly, this court concludes that there is no basis for suppression of these statements.

Mapp

Turning next to the Mapp branch of this motion (Mapp v Ohio, 367 U.S. 643), the court determines that suppression of the jet ski or of any products of the police examination thereof does not here lie.

In seeking suppression of this item, the defense had questioned the basis for the seizure of the jet ski and clearly rejected any notion that it could have been deemed abandoned when it had been taken back to the defendant's residence. In response, the People had stated that the Sergeant's testimony would shed light on the circumstances surrounding the taking of the jet ski.

I.

In the court's view, the questions of ownership, consent, and standing are related and overlapping. While neither side squarely addressed the issue of standing, this court finds it appropriate, if not necessary, to briefly discuss the matter.

The court observes that no evidence was adduced upon the hearing regarding who, in fact, owned the jet ski and/or would have the authority to object (or consent) to a search or seizure thereof. Nor, in the court's view, does the record contain sufficient information from which this court may conclude that the defendant himself had a legitimate and reasonable expectation of privacy in the object and areas to be searched in order to have standing to seek suppression here of the jet ski and the examination results (see, People v Rodriguez, 69 NY2d 159).

That being the case, this court finds that the defense did not establish the defendant's standing to seek suppression of the fruits of the examination of the jet ski following its involvement in a fatal collision and its seizure from the Plagianakos dock at a time when it was unoccupied and not in the personal possession of any particular individual. Without having established the requisite "standing," the defendant would have no right to contest the introduction of the physical evidence obtained from the jet ski nor of the jet ski itself.

Assuming, arguendo, that the defendant even has standing to question the seizure of the jet ski, this court finds, as a threshold matter, that the jet ski was taken by the police with the implied consent of the defendant and/or of his parents. In any event, the court also concludes that the police acted properly in impounding the defendant's jet ski (in conjunction with their seizure of the victim's jet ski) for their investigation of this fatality on the water.

II. [*6]

In this court's view, assuming the defendant even had any authority over the disposition of the jet ski, the court finds that, under the circumstances here presented, the defendant effectively consented to the seizure of the jet ski (which object had not been removed or hidden by its owner[s], but rather, was in the water adjacent to the Plagianakos' dock) by voicing no objection upon being advised that the police needed to take the jet ski for their investigation of the accident (see, People v Taylor, 23 AD3d 307, lv. denied, 6 NY3d 818; see also, People v Barnhill, 34 AD3d 933, lv. denied, 8 NY3d 843). Similarly, the defendant's parents also did not object to its seizure, and, it would appear that, with no evidence to the contrary, since the defendant is a minor, they had the apparent authority to permit the police to remove the jet ski (see, People v Schof, 136 AD2d 578, lv. denied, 71 NY2d 1033). On the contrary, after being informed that the police needed the object for their investigation, no one denied the police the right to take the jet ski, thereby tacitly consenting to their taking it. Moreover, the defendant's father volunteered his assistance and that of his son to the police in aid of their investigation.

The voluntariness of one's consent must be assessed under the totality of the circumstances (see generally, People v Gonzalez, 39 NY2d 122, 127-130; see also, People v Rivera, 60 NY2d 910). Here, the defendant was clearly not in custody; indeed, he was in the safe and familiar surroundings of his own home, with his parents present, with no mention of even the possibility of criminal charges being lodged. Also, there was no show of force by the police, such as drawn weapons or threatening behavior, and the atmosphere was not coercive. Rather, a group of civilians and police were gathered to discuss how this terrible incident had occurred and all of the civilians involved appeared to be willing and cooperative in this investigation. Accordingly, given these circumstances, this court concludes that the jet ski and any evidence it yielded shall not be suppressed as the owner(s) allowed the police to take the object away for examination.

III.

As one has a reduced expectation of privacy in an automobile, as compared to one's home (see, People v Kreichman, 37 NY2d 693; see also, South Dakota v Opperman, 428 U.S. 364, 367-370), for all of the same reasons it follows that one has a reduced expectation of privacy in a vessel which is out in the open, on public navigable waters and, therefore, a search of one's vehicle or vessel is deemed to be less intrusive and subject to less stringent standards (id.).

More important, however, is the nature and extent of the search and seizure which here took place, namely, the impoundment of a jet ski involved in a fatal collision, for the purposes of investigating the circumstances of the accident.

IV.

In People v Quackenbush, the Court of Appeals held that, in the case of a fatal traffic accident, the police had the authority to impound vehicles for a safety inspection after involvement in a fatal accident in order to fulfill their statutory investigatory and reporting duties (88 NY2d 534, 539). The court found that Vehicle and Traffic Law § 603 "implicitly grants the [*7]police the authority to impound a vehicle in furtherance of their administrative mandate to fully investigate the cause of a fatal automobile accident, as well as to ensure the safety of those conducting the accident investigation [citation omitted]" (id. at 540) and also concluded that the "search" of the vehicle's equipment was appropriate and lawful.

The Quackenbush court had further found that the inspection necessary of the subject vehicle could not take place in the field. Such analysis applies with equal force in the matter at bar, where it was now 9:00 PM and dark outside, with the underside of the jet ski submerged in the water, rendering full observation of the object impossible and yet investigation absolutely necessary.

Pursuant to Vehicle and Traffic Law § 603, every police or judicial officer to whom is reported an accident which resulted in physical injury is required to "immediately investigate the facts . . . and report the matter to the commissioner forthwith." (The statute goes on to specify in particular situations what particular information is to be obtained.)

As there are accidents on the public highways, so too are there accidents upon New York's navigable waters and thus, not surprisingly, the Navigation Law contains a provision which mirrors Vehicle and Traffic Law § 603, and makes Quackenbush directly applicable to this case and controlling.

Navigation Law § 47-a (1) states: "Every police officer, bay constable or judicial officer receiving information of an accident involving a vessel, . . . in which any person is killed, injured or disappears under the water shall immediately investigate the facts, or cause the same to be investigated, make a written memorandum of the information received, and such additional facts relating to the accident . . . and mail the same within five days to the commissioner . . .."

Under the Navigation Law, a jet ski is a "vessel" (Navigation Law § 2 [6] and [30]; see also, Vehicle and Traffic Law § 2250).

By virtue of Navigation Law § 47-a (1), whose language is virtually identical to the provisions of Vehicle and Traffic Law § 603, the police here were under an absolute duty, a statutory mandate, to fully investigate the cause of this accident which resulted in Mr. Zaccaria's fatal disappearance under the water. Thus, this court concludes that not only were the police permitted to impound Mr. Plagianakos' jet ski in furtherance of their investigation into this accident, they were actually duty-bound to do so or would have been remiss in the performance of their administrative investigative functions.

This court finds that, under the principles set forth in Quackenbush, the police had the requisite authority to impound and inspect the Plagianakos jet ski for their investigation of this incident and acted appropriately in doing so (see also, People v Christmann, 3 Misc 3d 309). [*8]While perhaps not quite as highly regulated as an automobile (see, People v Quackenbush, supra, at 542-544), the operation of a vessel upon the navigable waters of New York is regulated and there are equipment requirements for vessels [FN6]; and a jet ski [FN7], being equipped with an inboard motor and steering mechanism, is subject to mechanical failure as is any other mechanized vehicle. Thus, Sergeant Horvath appropriately impounded the jet ski here, in accordance with the standard practice of the harbor unit to so impound vessels involved in fatal and near-fatal accidents; and neither his doing so nor his inspection of the jet ski's exterior (and perhaps of its mechanical areas) were in violation of the defendant's Fourth Amendment rights (see, id., at 543-545).

Additionally, the court finds it relevant that, at the time of the jet ski's seizure, the investigation was in its infancy and the police were looking for the cause of this accident. They did not then suspect criminality or even reckless operation and, therefore, the purpose of their seizure was not to gather evidence in a criminal matter (compare, People v Scott, 79 NY2d 474, 498-499). That their investigation ultimately led to the lodging of criminal charges is immaterial to the finding that the original seizure was for administrative investigational purposes.

Dunaway

Insofar as the defendant was not in custody and was not suspected of any criminality when he voluntarily spoke with the police, in the presence of his parents, in his own dining room the evening following the accident, there was clearly no improper custodial questioning on less than probable cause during the initial interviews as would render those statements inadmissible (see generally, Dunaway v New York, 442 U.S. 200).

Thus, it cannot be said here that the defendant's "statements were obtained by exploitation of the illegality of his arrest [citations omitted]" (id. at 217). Nor was the seizure of the defendant's jet ski the product of an illegal arrest as the defendant was neither in custody nor under arrest at the time, and the jet ski was lawfully impounded by the police. Accordingly, suppression does not lie on grounds of an unlawful detention, as there was none here. And, it was not until much later that the defendant was actually arrested. However, the defense has raised no claims regarding the defendant's formal arrest over one month later. [*9]

In conclusion, this court finds that all branches of the defendant's motion for suppression of physical evidence and statements must, respectfully, be denied.

The foregoing constitutes the decision and order of the court.

Dated: Brooklyn, New York

March 4, 2008

J.S.C. Footnotes

Footnote 1: Insofar as the only identification procedure which took place involved an individual who had known the defendant for many years, the defense withdrew its application for a Wade or Rodriguez hearing, essentially conceding that the photo identification in question was confirmatory in nature and that, therefore, suppression of identification testimony by this witness would not lie.

Footnote 2: Both sides stipulated upon the hearing that the defendant was not formally arrested until August 1, 2006, at 9:45 AM, when Mr. Plagianakos was arrested by Detective Pepe at the 63rd Precinct.

Footnote 3: Vincent Muscarella was the passenger on the defendant's jet ski at the time of the incident.

Footnote 4: The statements in issue, elicited at 8:55 PM and 9:00 PM (according to police records) on June 30, 2006, all emanated from this one common meeting in the Plagianakos home.

Footnote 5: It was never adduced at the hearing who, indeed, was the owner of the jet ski nor to whom it was registered.

Footnote 6: See, Navigation Law § 40; see also, Navigation Law § 43. Additionally, vessels are required to be registered with the Department of Motor Vehicles (see, Vehicle and Traffic Law § 2251, et seq.).

Footnote 7: In conjunction with this discussion, this court observes that Mr. Plagianakos had stated that he had attempted to avoid impact by swerving but was unable to avoid colliding with Mr. Zaccaria. Thus, mechanical malfunction could have been a contributing cause of the accident.