People v Andrews

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[*1] People v Andrews 2010 NY Slip Op 50904(U) [27 Misc 3d 1225(A)] Decided on May 21, 2010 Supreme Court, Queens County Knopf, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 21, 2010
Supreme Court, Queens County

THE PEOPLE OF THE STATE OF NEW YORK

against

RUSSELL ANDREWS & SHAWN ANDREWS, Defendant



N10423/2009



The defendant Russell Andrews is represented by David Levine, Esq.

The defendant Shawn Andrews is represented by William McDonald, Esq.

The People are represented by Assistant District Attorney Francesca Fernandez of the Queens District Attorney's Office.

Stephen A. Knopf, J.



The defendant Russell Andrews moves to challenge the stop of the vehicle he was seated in as a passenger and to suppress physical evidence. The defendant Shawn Andrews, the alleged driver of such vehicle, moves to suppress physical evidence and his statements.

The defendants are charged in a six(6) count indictment with the crimes of criminal sale of a controlled substance in the third degree (as to defendant Shalon Derrick, a co-defendant herein ), criminal possession of a controlled substance in the third degree (2 counts)(as to all defendants), criminally using drug paraphernalia in the second degree (2 counts)(as to defendants Russell Andrews and Shawn Andrews ) and unlawfully operating or driving a motor vehicle on a public highway (as to defendant Shawn Andrews ).

A suppression hearing was held before this Court on March 24, 2010. The People called Police Officer Isernia as their sole witness at this hearing. This Court finds that the testimony of this witness was inconsistent and in large measure unworthy of belief and contradicted by the sworn statements provided by him in his Criminal Court complaint. In particular, his testimony was not credible as to the material facts necessary to establish probable cause.

FINDINGS OF FACT

During his 6 ½ years with the New York City Police Department, Police Officer Isernia was assigned to the 103 precinct, having worked Conditions, the SNEU Unit (Street Narcotics [*2]Enforcement Unit) and Anti-Crime. Prior to being assigned to the SNEU Unit he received specialized training in the identification and packaging of narcotics, including cocaine. During his career as a police officer, he asserted he has made approximately 150 drug arrests, estimating that 30 to 40 were for cocaine related offenses. Prior to the date of the incident, he had been assigned to the SNEU Unit for approximately two years.

On June 19, 2009, at about 10pm Police Officer Kevin Isernia was in uniform, on patrol in a marked police van, heading southbound on Sutphin Boulevard towards Shore Avenue, in Queens. Police Officer Isernia testified that he was seated in the front passenger seat and that he was working with Police Officer Carmen, the driver, and Police Officer Martini, seated in the rear of the van. The officers were on a 5:30pm to 2:05am tour of duty, assigned to the SNEU Unit in the 103 precinct and all were in uniform.

Sutphin Boulevard is a mostly commercial area while Shore Avenue is mostly residential. Shore Avenue between Sutphin Boulevard and 154th Street was described by P.O. Isernia as a drug-prone location. At night, lighting in the vicinity of Sutphin Boulevard and Shore Avenue comes from street lamps and lights from homes.

P.O. Isernia's police van made a left turn from Sutphin Boulevard onto Shore Avenue, driving about 100ft down Shore Avenue. P.O. Isernia observed an individual (later identified as Shalon Derrick)crossing Shore Avenue from the south side to the north side of the street, and he saw him approach a 2006 Ford Focus sedan. He added that Shore Avenue is a two-way street with parking on both the north and south sides.

The Ford Focus was parked on the north side of Shore Avenue, with its motor running and with the driver's side window rolled down. Two individuals were seated in this vehicle; in the driver's seat was Shawn Andrews and in the front passenger seat was Russell Andrews. P.O. Isernia testified that as defendant Derrick reached the parked Focus' driver side window, he appeared to engage in conversation with one or more people in the car and he held an object in his right hand. He described such object differently at various times in his testimony, as either a loose white snowball, about the size of a baseball, a tennis ball-size or smaller than a baseball-size or snowball-like object greater than 2" in diameter. Additionally, P.O. Isernia testified that the defendant was holding this object (which he said was in a clear plastic bag and then when probed by the Court, immediately retracted and said he could not see a bag) up to the car window with his hand outstretched. The officer testified that he was able to tell that this object was cocaine, but later claimed this assumption was based on the location and time of night. This Court repeatedly questioned P.O. Isernia on the issue of not seeing the defendant Derrick do anything with this object and only when bombarded with multiple questions did the officer relate any detail about such object leaving the defendant's hand.

It is clear to this Court that Police Officer Isernia's multiple descriptions of this object, at night, from this great distance indicates he was unclear about what, if anything, he actually observed in this defendant's hand. In fact, it is this Court's belief that P.O. Isernia did not see anything in defendant Derrick's hand, in spite of his creative descriptive testimony.

P.O. Isernia told his fellow officers to stop the car, but did not remember what words he actually spoke. P.O. Isernia claimed that he looked at defendant Derrick, who looked back at him in his direction and that this continued for a couple of seconds. This Court finds that it defies credibility that the defendant Derrick would just hold this object with his hand outstretched while [*3]looking in the direction of P.O. Isernia who was in uniform. As noted previously, it was only after repeated questioning by the Court that P.O. Isernia stated that defendant Derrick then proceeded to drop or toss this object into the front driver's side of the Focus. The officer could not recall how far the defendant's hand extended into the Focus, if it did at all. The defendant Derrick crossed back over to the southbound side of Shore Avenue, where upon Police Officer Isernia exited the van and approached him. The officer stated that they were about 30 feet away from the Focus. Prior to exiting the police van, P.O. Isernia claimed to have observed defendant Russell Andrews lean forward in his seat a couple of inches.

P.O. Isernia, along with P.O. Martini, spoke with defendant Derrick, and searched him. Defendant Derrick showed them his identification. Unbelievably, and indeed shocking to this Court is the fact that in spite of believing that the white substance supposedly dropped by defendant Derrick into the vehicle was cocaine, P.O. Isernia then released defendant Derrick, who immediately left the area and walked away. (In his sworn Criminal Court complaint, the officer stated that defendant Derrick did flee on foot'). Again, it is beyond the comprehension of this Court that how, after 150 drug arrests, 30-40 for cocaine, this officer could have simply released this defendant after claiming that he had just thrown a large amount of what was believed to be cocaine into the Ford Focus. Police Officer Carmen waited with defendants Shawn Andrews and Russell Andrews by the Focus, while defendant Derrick was questioned by P.O. Isernia.

After defendant Derrick left the scene, P.O. Isernia went over to the Focus, where Police Officer Martini preceded him and with Police Officer Carmen removed defendants Shawn Andrews and Russell Andrews from the vehicle.

P.O. Isernia testified at this hearing that he observed small loose, colored bags of the type used to package crack cocaine strewn throughout the vehicle; specifically on the driver's side, center console, the passenger side, on the front seat, on the floor and under the front seat. He claimed that standing by the front of the Focus, he was able to see that these numerous empty tinted Ziploc plastic bags were: red, green and blue, ½ inch by ½ inch in size. (However, in his sworn Criminal Court complaint, P.O. Isernia stated the Ziploc bags were inside a black bag, not scattered about the car.) P.O. Isernia also claimed to be able to see a black plastic shopping bag on the floor of the vehicle, and that this black opaque bag contained the snowball-like' object wrapped in a clear plastic bag he had seen earlier. (In his sworn Criminal Court complaint, P.O. Isernia stated the snowball-like object was found underneath the seat of the Ford Focus, not inside any black plastic bag.) This item, as well as the small empty bags, were recovered by someone at some point and vouchered as evidence. (A photograph of a circular object was introduced into evidence at this hearing).

P.O. Isernia testified that after defendant Shawn Andrews was outside the Focus in handcuffs, he was questioned, without being advised of his Miranda rights. P.O. Isernia continued that defendant Shawn Andrews told the officer that the bag was not his; it belonged to Shalon Derrick. (The People subsequently in the course of the hearing, withdrew their 710.30 (1)(a) notice as to this statement.) P.O. Isernia testified that defendant Shawn Andrews was searched; $15 in US currency was recovered from his person. P.O. Isernia testified that defendant Russell Andrews was also searched; no physical evidence was recovered from his person. Approximately 10-15 minutes later, defendant Derrick was apprehended, standing on the corner, approximately three blocks away.

This Court finds, after carefully listening to the testimony of P.O. Isernia, that such testimony is unworthy of belief as to the material facts necessary to establish probable cause. This Court simply [*4]cannot credit P.O. Isernia's claim that he saw what appeared to be cocaine in the hand of defendant Derrick or that this defendant threw such into the Ford Focus.

CONCLUSIONS OF LAW

The issue that this Court must determine is whether or not the People have established probable cause for the arrest of the defendants. It is clear that the defendants were removed from the automobile they were in and forcibly detained based upon the claimed observation by P.O. Isernia that the defendant Shalon Derrick approached said automobile with what appeared to be cocaine and dropped or tossed said alleged contraband into such vehicle. "Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment...". People v Cantor, 36 NY2d 106,111 (1975). A seizure of an individual's person must be justified when it occurs; not as a result of information acquired at or after a stop. See, People v DeBour, 40 NY2d 210 (1976).

As to the legality of the police actions herein, "...the People must carry the burden, in the first instance, of going forward with credible evidence establishing the legality of the police conduct in question...". In the Matter of Carl W., 174 AD2d 678, 680 (2d Dept. 1991). The testimony of the witnesses must be found to be worthy of belief. See, People v Rumph, 199 AD2d 434 (2d Dept 1993).

It is well-settled that testimony may not be credited which "...has all appearances of having been patently tailored to nullify constitutional objections. In evaluating testimony we should not discard common sense and common knowledge. ... The rule is that testimony which is incredible and unbelievable, that is, impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory, is to be disregarded as being without evidentiary value, even though it is not contradicted by other testimony or evidence introduced in the case". People v Miret-Gonzalez, 159 AD2d 647, 649 (2d Dept 1990). See, also People v Garafolo, 44 AD2d 86 (2d Dept 1974). Testimony cannot be credited where it has been patently tailored to overcome or nullify constitutional objections. See, People v Rutledge, 21 AD3d 1125 (2d Dept. 2005; People v Parmiter, 55 AD2d 938 (2d Dept 1977).It has been held that "...Where the arresting officer concededly made several false statements to his supervisors about the material facts of his encounter with the defendant, and where other parts of an officer's testimony were so improbable as to be inherently unworthy of belief, the officer's claims as to probable cause to arrest the defendant cannot fairly be credited". People v Lebron, 184 AD2d 784, 785 (2d Dept. 1992).

Recently, in the Matter of Robert D., 69 AD3d 714 (2d Dept. 2010), the Second Department reversed a conviction because it found the hearing court erred in denying the suppression of physical evidence insofar as the police officer's testimony as to how he obtained the narcotics in question was incredible as a matter of law. The court found that such testimony was contradictory and not credible as to the material facts necessary to establish probable cause.

In the matter at hand, as determined by this Court in it's Findings of Fact, there were clear inconsistencies between P.O. Isernia's hearing testimony and prior sworn statements by him. Furthermore, it is clear to this Court that the officer's testimony has all the appearances of having been tailored to overcome constitutional objection. As further determined by this Court, it does defy credibity that the defendant Derrick would simply hold out cocaine with his hand outstretched while [*5]looking the direction of P.O. Isernia. It further appears that P.O. Isernia's testimony that the alleged cocaine was dropped or tossed into the vehicle in question by defendant Derrick seems to have been formulated as he testified at the suppression hearing while pressed for detail by this Court. Finally, as further determined by this Court in it's factual findings, it is indeed, beyond comprehension that P.O. Isernia would simply release defendant Derrick after observing him drop or toss a large amount of alleged cocaine into said vehicle.

Insofar as this Court cannot credit P.O. Isernia's testimony as to the material facts necessary to establish probable cause for the arrest of defendants Russell Andrews and Shawn Andrews, this Court determines that all physical evidence obtained was the product of the unlawful seizure of such defendants and must be suppressed. See, People v Young, 55 NY2d 419, 424 (1982). The fact that contraband was subsequently found in the vehicle occupied by these defendants cannot justify the prior seizure of the defendants without probable cause.

Accordingly, defendants' motions to suppress physical evidence are granted. As determined during the suppression hearing, any statements made by defendant Shawn Andrews may not be offered by the People at this trial insofar as the People have withdrawn CPL 710.30 (1)(a) notice as to such statements and moreover such statements would at any rate, be subject to suppression as the fruit of such defendant's unlawful arrest.

The foregoing constitutes the order, opinion and decision of this Court.

_________________________

STEPHEN A. KNOPF, J.S.C.