People v Bennasr

[*1] People v Bennasr 2009 NY Slip Op 52372(U) [25 Misc 3d 1232(A)] Decided on November 19, 2009 Supreme Court, Bronx County Price, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2009
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Mohammed Bennasr, Defendant.



1005-2008



Appearances of Counsel:

Lewis E. Alperin, Esq.

Alperin & Hufjay

Counsel for the Defendant

Eric Chartan

Assistant District Attorney

Office of the Bronx District Attorney

Richard Lee Price, J.

Defendant moved, among other things, pursuant to CPL 710.60 (1) and (4) for suppression of 18,064 counterfeit cigarette tax stamps on the grounds that they were seized without probable cause and after arresting officers unlawfully entered his residence. Defendant was subsequently indicted and charged with ninety-seven counts of criminal possession of a forged instrument in the first degree (PL 170.30) and ninety-seven counts of the New York State Tax Law (NYSTL 1814 [i]). By decision dated November 5, 2008, Justice Steven Barrett, upon reviewing the grand jury minutes for legal sufficiency, found that each of the one hundred ninety-four counts were supported by the evidence presented to the grand jury and ordered that a Mapp hearing be conducted, which commenced before me on October 22, and concluded October 28, 2009.[FN1]

At the hearing, the People called two witnesses: New York City Police Department Detective Gloria Chavez and Lieutenant James Davis both assigned to the Bronx Vice Enforcement Unit. The defendant also testified. This court finds the testimony of all the People's witnesses credible, and the defendant's testimony credible only to the extent noted below. Upon hearing oral argument from both the defendant and the People, and after reviewing their respective papers submitted in support thereof, prior court proceedings and documents on file, defendant's motion to suppress is denied in its entirety.

[*2]Findings of Fact

On July 31, 2007, the New York City Police Department received a telephone call from an individual who identified herself as Maria Rao, the defendant's wife, stating that she observed cigarette tax stamps, which she believed to be counterfeit, inside her home (H: 14, 63-64, 126). Pursuant to this information, Lieutenant Davis commenced an investigation and had several subsequent telephone conversations with Rao where she indicated that the tax stamps belonged to the defendant (H: 124-126). Rao also informed him that she and the defendant had a history of domestic violence (H: 138-222). Rao further indicated that she would soon be leaving the United States for two years (H: 138).

On September 11, 2007, an undercover police officer went to the defendant's residence, located at 616 Van Nest Avenue, Apartment One, in Bronx County and attempted to purchase cigarettes from him containing counterfeit tax stamps. The defendant, however, declined to sell any cigarettes to the undercover officer (H: 132).

On September 25, 2007, Rao called Lieutenant Davis and arranged to meet with him at her residence (H: 135-220). On September 26, 2007, Lieutenant Davis, accompanied by Police Officer Schudde, also assigned to the Bronx Vice Enforcement Unit, arrived at the defendant's residence where they interviewed Rao (H: 136-138). The defendant was not there (H: 137). Rao handed them two sheets of counterfeit tax stamps (three hundred and twenty stamps) stating that they belonged to the defendant. Using a "pen light," Lieutenant Davis and Officer Schudde confirmed that the stamps were in fact counterfeit, after which Officer Schudde vouchered them. Rao then provided written consent permitting Lieutenant Davis and Officer Schudde to search the apartment for additional counterfeit tax stamps (H: 140-143). Upon doing so, however, no additional stamps were recovered (H: 146). Nevertheless, based on his prior conversations with Rao, her demeanor and her desire to assist in the investigation, Lieutenant Davis testified that he found Rao's information regarding the tax stamps to be forthright and truthful (H: 139).

Subsequent to the search of defendant's apartment, Detective Chavez was assigned to continue the investigation and briefed by Lieutenant Davis and Officer Schudde. Detective Chavez testified that she then attempted to arrest the defendant at his home on several occasions but was unsuccessful because the defendant did not answer the door. Lieutenant Davis testified that while knew the defendant had a taxi license and could have apprehended him through identifying his vehicle, he believed it would be safer and more efficient to do so while the defendant was at home (H: 181).

On November 27, 2007, at approximately 5:00 p.m., Lieutenant Davis, Detective Chavez, along with Sergeant Powers and Officer Sienko, both of whom were also assigned to the Bronx Vice Enforcement Unit, arrived at defendant's apartment dressed in plain clothes with their police shields displayed. Although they neither sought nor obtained an arrest or search warrant, Detective Chavez testified that they went there specifically to arrest the defendant. Standing a few feet from defendant's apartment door, they knocked and identified themselves (H: 19-21). Defendant opened the door and stood in the doorway (H: 81, 209-210). They asked him his name to which he replied, "Mohammed Bennasr." They then requested identification and he presented his driver's license (H: 21-22). When asked whether he had anything illegal inside, the defendant stated that he did not. According to Detective Chavez, she "asked him to come with us because we wanted to place him under arrest." Both Detective Chavez and the defendant [*3]testified that from where the officers were standing, they were unable to see any tax stamps inside the apartment. In fact, Lieutenant Davis and Detective Chavez stated that they had no plan to go inside of defendant's apartment since they did not think he would have counterfeit tax stamps laying in plain view (H: 96).

The defendant then asked if he could get dressed, to which Detective Chavez testified that while she permitted him to do so, she informed him the officers would need to accompany him because of security concerns (H: 23-24). Upon following the defendant inside, she observed 95 sheets containing 18,064 counterfeit cigarette tax stamps in plain view on the kitchen table, coffee table, and living room couch (H: 25-26). The officers took possession of the sheets and vouchered them. Indeed, defendant concedes that he kept them in plain view (H: 90).

Detective Chavez testified that they neither forced their way into the defendant's apartment nor conducted any search until after the defendant provided written and signed consent to do so (H: 95). Upon searching his apartment, however, no additional sheets of tax stamps were recovered. The defendant was then escorted to the PSA-7 precinct without handcuffs until immediately prior to entering (H: 49).

Conclusions of Law

i. Probable Cause

Fundamental to American Jurisprudence is the precept of the Constitution's Fourth Amendment that police may arrest a person without a warrant when they have probable cause to believe that such person has committed a crime. In New York, probable cause may be based, in whole or part, on hearsay information (People v Johnson, 66 NY2d 398 [1985]; People v Landy, 59 NY2d 369, 375 [1983]; People v Rodriguez, 52 NY2d 483, 488-489 [1981]). Such hearsay, however, must satisfy the two-prong test set forth in the Aguilar-Spinelli rule; that is the informant has some "basis of knowledge" for the information transmitted to the police and that it is reliable (Spinelli v United States, 393 US 410 [1969]; Aguilar v Texas, 378 US 108 [1964]; see also People v Malinsky, 19 NY2d 262 [1967]). The first prong is satisfied when the informant has personal knowledge of the criminal conduct (People v Parris, 83 NY2d 342 [1994]; People v Hetrick, 80 NY2d 344 [1992]; see also People v Bingham, 263 AD2d 611 [3rd Dept 1999]). Regarding the reliability prong, information provided by an identified citizen informant is a legally sufficient basis to provide the police with probable cause (Parris, 83 NY2d 342; Hetrick, 80 NY2d 344; see People v Griffin, 15 AD3d 502 [2nd Dept 2005]; People v Hart, 4 Misc 3d 105 [App Term, 2nd Dept 2004]) since such persons are presumed to be personally reliable (Johnson, 66 NY2d 398; People v Bell, 5 AD3d 858 [3rd Dept 2004]. Moreover, "under the fellow-officer rule,' an arresting officer may act upon information received from another officer provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest'" (Bell, 5 AD3d 858). Thus, that Detective Chavez was assigned to the investigation subsequent to its commencement and was briefed by Lieutenant Davis is of no moment.

Initially, the People bear the burden of proof at a suppression hearing to demonstrate the legality of the police conduct. Once this burden is satisfied, which it was, the burden then shifts to the defendant to prove the illegality of the arrest by a preponderance of the evidence (see People v Berrios, 28 NY2d 361 [1971]). In this case, Maria Rao, an obviously identified informant, told Lieutenant Davis that she had personal knowledge her husband, the defendant, [*4]possessed counterfeit cigarette tax stamps. Upon receiving this information, the police commenced an investigation, which included several telephone conversations with Lieutenant Davis and culminating in a personal interview at the home she shared with the defendant. During that meeting, Lieutenant Davis corroborated Rao's information by obtaining two sheets of counterfeit cigarette tax stamps from inside the apartment, which led Lieutenant Davis to conclude that Rao was a reliable source of information.

Defendant's argument that the People failed to establish he possessed those stamps is unpersuasive. Lieutenant Davis testified that prior to the meeting Rao, he learned that the only persons residing in the apartment were Rao, the defendant and their minor son. The police reasonably concluded, therefore, that the tax stamps were the defendant's. It is significant to note, however, that even if Lieutenant Davis had not recovered the two sheets of tax stamps, probable cause would nevertheless have been established as both Aguilar-Spinelli prongs were satisfied. It is of no moment, therefore, that the undercover officer failed to purchase cigarettes containing counterfeit tax stamps from the defendant.

Also unpersuasive is defendant's claim that his history of domestic conflicts with Rao means she was untruthful. Defendant's argument is premised on the presumption that the mere existence of prior domestic conflicts, by itself, necessarily renders her an unreliable informant under Aguilar-Spinelli. Such a premise is simply untenable and this court refuses to accept it.

ii. Staleness

Defendant's argument that the information upon which Lieutenant Davis relied in establishing probable cause was stale is without merit. It is axiomatic throughout American jurisprudence that while searches predicated on stale probable cause are unlawful, no such concern exists relative to arrests (see Searches and Seizures, Arrests and Confessions, Database updated October 2009, William E. Ringel, Chapter 4). Indeed, nothing obligates a police officer who learns of a defendant's criminal conduct to immediately effect an arrest without further inquiry (see People v Middleton, 54 NY2d 474 [1981]). Defendant's contention, therefore, that when he was arrested on November 27, 2007, the information obtained from July 2007 through September 2007 upon which the officers relied was stale is meritless.

iii. Arrest

The Fourth Amendment also prohibits police from making warrantless and non-consensual entries into a suspect's home to effect his arrest (Payton v New York, 445 US 573 [1980]). A Payton violation then, precludes the introduction of evidence obtained at the time of that arrest. Conversely, warrantless arrests made by police officers in public places that are otherwise supported by probable cause are legal. The issue then, is whether a suspect may waive the warrant requirement while physically remaining in his home. In US v Santana, 427 US 38 [1976], the Supreme Court held:

[w]hile it may be true that under the common law of property the threshold of one's dwelling is "private," as is the yard surrounding the house, it is nonetheless clear that under the cases interpreting the Fourth Amendment, Santana was in a "public" place . . . [w]hat a person knowingly exposes to the public, even in his own house or office, is not a subject of Fourth Amendment protection" Katz v. US, 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576 [*5](1967). She was not merely visible to the public but was as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house. Hester v. US, 265 U.S. 57, 59, 44 S. Ct. 445, 446, 68 L. Ed. 898 (1924)."

Applying Santana, the Court of Appeals in People v Kozlowski, (69 NY2d 761 [1987]), held that the defendant's constitutional rights were not violated when the investigating officer knocked on his door and asked questions he chose to answer primarily because the defendant's front door was "made available for public access to his house, and [the officer] did not intrude into any area in which defendant had a legitimate expectation of privacy. . . Absent evidence of intent to exclude the public, the entryway to a person's house offers implied permission to approach and knock on the front door."

Moreover, when a suspect is arrested in his doorway and requests permission to retrieve something from inside, the arresting officers are certainly justified in following him into the apartment for legitimate safety reasons, not the least of which is the fear that having just been arrested, he would obtain a weapon (People v Burke, 24 AD3d 129 [1st Dept 2005], citing Santana at 427 US 38; People v Reynoso, 2 NY3d 820 [2004]; Kozlowski at 69 NY2d 761; People v Andino, 256 AD2d 153 [1st Dept 1998]). Where such an "appropriate security measure led to the discovery of evidence in open view," there is no Payton violation (Burke at 129).

Here, as in Burke, the defendant opened the door of his apartment knowing the police were standing outside since they had knocked and identified themselves. Standing in the doorway, he chose to answer them when asked his name. And, when advised that he was being placed under arrest, requested permission to go inside and change his clothing, which he was allowed to do. Having just been arrested, the officers followed the defendant into his apartment. It is certainly apparent that the defendant made himself available to public access thus waiving his expectation of privacy.

iv. Plain View

The Court of Appeals has clearly stated that police may properly seize an item in plain view without a warrant if: "(1) the police are lawfully in the position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object's incriminating nature is immediately apparent" (People v Diaz, 81 NY2d 106 [1993]).

It is undisputed that from where the officers were standing outside defendant's apartment, they were unable to see any tax stamps inside the apartment. In fact, they had no plan to go inside or seek to conduct a search since they did not think that he would have them laying in plain view. Nevertheless, the officers lawfully entered the defendant's apartment and observed 95 sheets containing 18,064 counterfeit cigarette tax stamps scattered throughout the kitchen and living room.

v. Marital Privilege of Confidentiality

Finally, defendant's claim that his marital privilege right was abrogated is entirely without merit. CPL 60.10 provides in pertinent part that "[u]nless otherwise provided by statute or by judicially established rules of evidence applicable to criminal cases, the rules of evidence applicable to civil cases are, where appropriate, also applicable to criminal proceedings." CPLR 4502 (b) further provides in pertinent part that "a husband or wife shall not be required, or, [*6]without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage." Thus, the statutory marital privilege protects communication that would not have been made but for the absolute confidence in, and induced by, the marital relationship as distinguished from the daily and ordinary exchanges between spouses.

While New York requires that the spousal communication privilege extend further than simple speech, it also embraces knowledge derived from the observation of acts by one spouse done in the presence of the other. In order for such acts to be privileged, they must be confidential (see People v Dudley, 24 NY2d 410 [1969]; People v Sullivan, 42 Misc 2d 1014 [Sup Ct, Queens County 1964, Shapiro J]). This privilege, however, must be clearly distinguished from situations where the source of the spouse's knowledge is his/her own observations of their partner's acts and conduct.

Here, whether the disclosure made by Rao to Lieutenant Davis is subject to the marital privilege depends on whether it was offered outside of trial; clearly it was. Such disclosure is universally considered inapplicable to the marital privilege of confidential communication. In People v Scull, (37 NY2d 833 [1975]), the Court of Appeals held that "[t]he marital privilege did not preclude the police from acting, and indeed it was their duty to act, on the wife's information and the house search consented to by her." In People v Kemp, 59 AD2d 414 [1st Dept 1977], the Appellate Division held the marijuana that defendant's wife showed to the police did not violate marital privilege between the spouses but was in the nature of real evidence. Other New York courts have also reached similar conclusions concerning applicability of the marital privilege outside of trial (see People v Le Grand, 84 Misc 2d 985 [Sup Ct, Kings County 1975, Hellenbrand J]; People v Helmus, 50 Misc 2d 47 [Co Ct, Nassau County 1966, Kolbrener J]).

It is evident that Rao provided the police with information concerning her husband's possession of counterfeit tax stamps as well as the stamps themselves, which incriminated her husband was used by the police to establish probable cause for his arrest. The doctrine of spousal communication privilege is, therefore, inapplicable to this proceeding.

For these reasons, this court finds that the information Rao gave to police provided sufficient probable cause to believe the defendant indeed possessed counterfeit cigarette tax stamps. Defendant's motion to suppress the 95 sheets containing 18,064 counterfeit cigarette tax stamps recovered from inside his apartment is therefore denied.

This constitutes the decision and order of the court.

Dated:November 19, 2009

E N T E R

________________________________

Richard Lee Price, J.S.C. Footnotes

Footnote 1: This hearing continued on October 27, 2009.