People v Wright

[*1] People v Wright 2012 NY Slip Op 50829(U) Decided on May 11, 2012 Supreme Court, Nassau County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 11, 2012
Supreme Court, Nassau County

The People of the State of New York

against

Ronald Wright, Jazmyne Wright And Megan Stallinger, Defendants.



82N-12

Norman St. George, J.

Defendant Ronald Wright is charged with: one (1) count of violating Penal Law §265.03(3), Criminal Possession of a Weapon in the Second Degree as a class C felony; one (1) count of violating Penal Law §265.02(3), Criminal Possession of a Weapon in the Third Degree as a class D felony; three (3) counts of violating Penal Law §265.02(1), Criminal Possession of a Weapon in the Third Degree as a class D felony; three (3) counts of violating Penal Law §265.01(1), Criminal Possession of a Weapon in the Fourth Degree as a class A misdemeanor; one (1) count of violating Vehicle and Traffic Law §1128(c), Driving on Roadways Laned for Traffic, as a traffic violation; one (1) count of violating Penal Law §221.05, Unlawful Possession of Marihuana as a violation; one (1) count of violating Penal Law §220.03, Criminal Possession of a Controlled Substance in the Seventh Degree as a class A misdemeanor; three (3) counts of violating Penal Law §220.03, Criminal Possession of a Controlled Substance in the Seventh Degree as a class A misdemeanor; and one (1) count of violating Public Health Law §3345, Unlawful Possession of a Controlled Substance Outside an Original Container.

Defendant Jazmyne Wright is charged with: one (1) count of violating Penal Law §265.03(3), Criminal Possession of a Weapon in the Second Degree as a class C felony; one (1) count of violating Penal Law §265.02(3), Criminal Possession of a Weapon in the Third Degree as a class D felony; and three (3) counts of violating Penal Law §265.01(1), Criminal Possession of a Weapon in the Fourth Degree as a class A misdemeanor.

Defendant Megan Stallinger is charged with: one (1) count of violating Penal Law §265.03(3), Criminal Possession of a Weapon in the Second Degree as a class C felony; one (1) count of violating Penal Law §265.02(3), Criminal Possession of a Weapon in the Third Degree as a class D felony; and three (3) counts of violating Penal Law §265.01(1), Criminal Possession of a Weapon in the Fourth Degree as a class A misdemeanor. [*2]

On April 3, 4, 5, and 17, 2012, upon stipulations by the parties, this Court conducted a Huntley, Mapp, and Dunaway hearing. (See People v Huntley, 15 NY2d 72 [1965]; Mapp v Ohio, 367 US 643, 81 SCt 1684, 6 LEd2d 1081 [1961]; and Dunaway v New York, 442 US 200, 99 SCt 2248, 60 LEd2d 824 [1979]). The Huntley hearing pertained to oral and written statements allegedly made by defendants Jazmyne Wright and Megan Stallinger, to the Police after their respective arrests.The Mapp portion of the hearing was regarding a gun holster and a blue pill box containing various pills, determined to be prescription drugs, allegedly seized from defendant Ronald Wright. In addition, the Mapp hearing pertained to several items allegedly recovered from the Honda that the defendants were traveling in; namely, a loaded handgun recovered from a pocketbook, a BB gun, a bag containing marihuana, two knives, and a grinder.

The People called four (4) witnesses at the hearing: Police Officer John Gill, a five (5) year veteran of the Nassau County Police Department; Detective Stephen Abruzzo, a nineteen (19) year veteran of the Nassau County Police Department; Police Officer Samuel Augello, a seven (7) year veteran of the Nassau County Police Department; and Police Officer Andrew Huksloot, a four (4) year veteran of the Nassau County Police Department. The defendants did not call any witnesses. Based on the testimony of the witnesses, this Court makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

This Court finds the testimony of Officers Gill, Augello, Huksloot, and Detective Abruzzo to be credible.

On December 20, 2011, Officers Augello and Huksloot were on routine motor patrol within the confines of the First Precinct of Nassau County. Both Officers were dressed in uniform and driving together in a marked Nassau County Police car. At approximately 4:25 p.m., they were located at the intersection of Washington Avenue and Willet Place, in Roosevelt. Officers Augello and Huksloot each testified that they observed a dark green Honda (hereinafter referred to as "Honda") traveling northbound on Willet Place, in the southbound lane of traffic. They also indicated that the Honda was traveling at a slow rate of speed. The Officers noticed that the rear door windows and rear window of the Honda were tinted. Officer Augello described Willet Place as a residential street, with one (1) lane running north and one (1) lane running south. He also stated that there were parking lanes on either side of the street. Both Officers testified that there were no road markings on Willet Place which would designate the north and south traffic lanes and that there were no road markings designating the parking lanes. Officer Augello testified that he observed the Honda traveling on the wrong side of the road for approximately "a house and a half." Officer Augello testified that based upon the manner in which the Honda was being operated, he believed that the occupants might be "canvassing" the neighborhood. Officer Huksloot described the area as a "high crime" area. Officer Augello testified that he activated his Police lights and siren and pulled the Honda over. Both Officers exited the Police vehicle and approached the Honda. Officer Augello testified that he went to the front driver side door and Officer Huksloot went to the front passenger side door. Officer Augello stated that as he was approaching the front driver side door, he noticed [*3]that the driver was moving around in the front seat and making movements towards the right side of his body. Officer Augello testified that the front driver side window was halfway down and he detected the strong odor of marihuana emanating from inside the Honda. Officer Augello spoke with the driver, whom he identified, in Court, as defendant Ronald Wright, and informed defendant Ronald Wright that he pulled him over for driving on the wrong side of the road. Officer Augello requested defendant Ronald Wright's driver's license, registration and insurance card, which he produced. Officer Augello instructed defendant Ronald Wright to keep his hands on the steering wheel, and both Officers returned to their Police vehicle to check defendant Wright's driver's license.

Officer Augello testified that, while back in his Police vehicle, he observed defendant Ronald Wright, inside the Honda, again making movements to his right side and leaning over to the right side of the Honda. Officer Augello testified that based on defendant Ronald Wright's movements, he did not feel safe. Officers Augello returned to the front driver side of the Honda and ordered defendant Ronald Wright out of the car. Officer Huksloot returned to the passenger side of the Honda and watched the front and rear passengers who were still seated in the Honda. The front passenger was identified by both Officers, in Court, as defendant Stallinger. The rear passenger was identified by both Officers, in Court, as defendant Jazmyne Wright. Officer Augello testified that as defendant Ronald Wright stepped out of the car, he observed a bulge at his right side waistband area, which was covered by a sweatshirt or sweater. Officer Augello testified that he patted the area of defendant Ronald Wright, where he observed the bulge, and felt what he believed to be a holster. Officer Augello testified that he reached under defendant Ronald Wright's clothing, pulled out a holster, which was empty, and yelled "Gun" to his partner. Officer Augello took defendant Ronald Wright to the back of the Honda, handcuffed him, and radioed for back up. Officer Huksloot testified that upon hearing his partner yell "Gun," he opened the front and rear passenger side doors to remove defendants Stallinger and Jazmyne Wright. As Officer Huksloot was removing defendant Stallinger from the front passenger seat, he smelled the odor of marihuana emanating from inside the Honda. He also observed a pocketbook lying on the floor in the front passenger seat foot well area, which had what appeared to be the butt of a gun sticking out. Officer Huksloot testified that he patted down both defendant Stallinger and defendant Jazmyne Wright and separately handcuffed each of them. Officer Huksloot then returned to the front passenger seat foot well area and removed the gun that was sticking out of the pocketbook. Officer Huksloot testified that he showed the gun to Officer Augello. Officer Augello stated that the recovered weapon was a loaded handgun. After other Police cars responded to the scene, Officer Huksloot searched the front passenger side seat area of the Honda, and Officer Augello searched the front driver side seat area. Officer Huksloot found a black plastic bag lying next to the pocketbook which had contained the gun. Officer Huksloot stated that the odor of marihuana was emanating from the bag. Officer Huksloot opened the black plastic bag and found a clear plastic bag which contained what Officer Huksloot believed to be marihuana. Officer Huksloot also recovered a grinder from the front passenger door pocket, which he testified was used to grind marihuana. Officer Huksloot testified that he found a knife in the center console of the Honda, and a BB gun in the front glove box. Officer Augello testified that he recovered a knife from the sunglass holder located above the front windshield. The defendants were taken from the scene by other Officers and brought to the First Precinct. [*4]

Officer Gill testified that on December 20, 2011, he was working a crime deterrent detail for the Nassau County Police Department. He was in plain clothes and in an unmarked Police vehicle. Officer Gill testified that at approximately 4:20 p.m., in response to a radio call for backup, he responded to Willet Place in Roosevelt. When he arrived at the scene, the individuals whom he identified, in Court, as defendants Ronald Wright, Stallinger, and Jazmyne Wright, were already in custody. Officer Gill was directed to transport defendant Ronald Wright to the First Precinct. Officer Gill testified that after he brought defendant Ronald Wright to the First Precinct, he searched him, and he recovered a blue pill box containing prescription drugs, money, and keys.

Detective Abruzzo testified that on December 20, 2011, he was working for the Nassau County Police Department as a Detective. Detective Abruzzo indicated that he was assigned to investigate the car stop at Willet Place in Roosevelt. Detective Abruzzo first responded to the scene and spoke with the Officers who were present. He looked inside the Honda and then returned to the First Precinct. Detective Abruzzo testified that when he arrived at the First Precinct, he and Detective Friel met with an individual who he identified, in Court, as defendant Jazmyne Wright. Defendant Jazmyne Wright was handcuffed and being held in a clerical room in the Precinct. Detective Abruzzo introduced himself and told defendant Jazmyne Wright that he wanted to speak with her. Detective Abruzzo testified that he read to defendant Jazmyne Wright her "Miranda Warnings" using a Miranda card, which was admitted into evidence as "People's Exhibit 8." Detective Abruzzo asked defendant Jazmyne Wright if she understood her rights and was willing to answer questions. Defendant Jazmyne Wright responded that she understood her rights, signed and initialed the Miranda card, and agreed to answer questions. Defendant Jazmyne Wright made various oral statements to Detective Abruzzo regarding the incident. At the conclusion of the discussion, Detective Abruzzo reduced defendant Jazmyne Wright's oral statements to a written statement. Detective Abruzzo testified that he read the written statement aloud to defendant Jazmyne Wright and then gave her the written statement to read. Detective Abruzzo testified that after reading the written statement, defendant Jazmyne Wright initialed and signed the written statement, which was admitted into evidence as "People's Exhibit 9."

Detective Abruzzo testified that he and Detective Friel next spoke with an individual whom he identified, in Court, as defendant Stallinger. Defendant Stallinger was handcuffed and in a separate clerical room in the Precinct. Detective Abruzzo testified that he read to defendant Stallinger her "Miranda Warnings" using a Miranda card which was admitted into evidence as "People's Exhibit 10." Detective Abruzzo asked defendant Stallinger if she understood her rights and was willing to answer questions. Defendant Stallinger responded that she understood her rights, signed and initialed the Miranda card, and agreed to answer questions. Defendant Stallinger made various oral statements to Detective Abruzzo regarding the incident. Detective Abruzzo testified that he reduced defendant Stallinger's oral statements to a written statement. Detective Abruzzo testified that he read the written statement aloud to defendant Stallinger and then gave the written statement to her to read. Detective Abruzzo testified that after defendant Stallinger read the written statement, she initialed and signed the written statement which was admitted into evidence as "People's Exhibit 11."

[*5]CONCLUSIONS OF LAW

Defense counsels argue that there was no reason or basis for the stop of the Honda. Defense counsels point out that the only Vehicle and Traffic Law (hereinafter referred to as "V.T.L.") violation that was charged was a violation of V.T.L. § 1128 (c). Defense counsels contend that V.T.L. § 1128 (c) is wholly inapplicable. Defense counsels further submit that there was no basis to remove the defendants from the Honda, and no basis to search the Honda. Defense counsels conclude that since there was no basis for the Police to stop the Honda and no basis to remove the defendants from the car, everything occurring after the defendants were removed from the car should be suppressed as the "fruit of the poisonous tree." The People respond that the Officers had a basis to stop the Honda based upon a V.T.L. violation; namely, driving on the wrong side of the street. The People argue that the defendants were properly removed from the car for Police Officer safety. The People further argue that the search of the car was permitted based upon the Officers finding a holster on defendant Ronald Wright's hip.

REASONABLE SUSPICION FOR THE STOP OF THE DEFENDANTS' VEHICLE:

It is clear that a Police Officer may stop a moving vehicle if he or she suspects that the occupants had been, are then, or are about to be engaged in conduct in violation of the law (see People v Spencer, 84 NY2d 749 [1995]; People v Sobotker, 43 NY2d 559 [1978]; People v May, 81 NY2d 725 [1992]). A Police Officer may also stop a car upon reasonable suspicion that a violation of the V.T.L. has occurred (see People v Ingle, 36 NY2d 413 [1975]).

In this case, the defendants were charged with violating V.T.L. § 1128(c). Said section provides as follows:

"Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply: when official traffic-control devices direct slow-moving traffic, trucks, buses or specified types of vehicles to use a designated lane or designate those lanes to be used by traffic moving in a particular direction regardless of the center of the roadway, drivers of vehicles shall obey the directions of every such sign, signal or marking."

This Court agrees with defense counsels that V.T.L. § 1128 (c) is inapplicable to the driving alleged in this case. Both Officers Augello and Huksloot testified that they observed the Honda driving on Willet Place on the wrong side of the street; i.e., northbound on the southbound side of the street. Both Officers also testified that there were no lane markings on Willet Place. Hence, the absence of lane markings prohibits a finding that the defendants were violating V.T.L. § 1128(c), which requires lane markings. When confronted on cross-examination with this anomaly, both Officers testified that the incorrect section of the V.T.L. was charged. Notwithstanding the fact that the Officers charged an inapplicable section of the V.T.L., the issue is whether based on the testimony of the Officers, they had a valid reason to stop the Honda. The conduct, which the Officers testified that they observed, was a vehicle driving on the wrong side of the street; namely, [*6]on the left side of a two-way residential street. Although the absence of lane markings makes it more difficult to determine an exact lane of travel, the absence of lane markings does not in any way obviate the requirement of a motorist to drive on the right side of a two direction roadway. The observations and testimony of the Officers establish that the Honda was, in fact, violating the V.T.L., namely, V.T.L. § 1120, "Drive On Right Side of Roadway." V.T.L. § 1120 provides in pertinent part as follows:

"Upon all roadways of sufficient width a vehicle shall be driven upon the

right half of the roadway, ..."

Both Officers testified that the Honda was being operated on the left side of a two way road. They also testified about other suspicious behavior; i.e., driving slowly in a residential area that they characterized as a "high crime" area. Based on the testimony of Police Officers Augello and Huksloot, this Court finds that there was a legal basis for them to stop the Honda for violating Vehicle and Traffic Law § 1120.

REMOVAL OF DEFENDANT RONALD WRIGHT FROM THE VEHICLE:

Officer Augello testified that after he pulled over the Honda, and was approaching the front driver side door, he observed defendant Ronald Wright making movements to his right side. Officer Augello then smelled the odor of marihuana. Officer Augello saw similar movements after telling defendant Ronald Wright to keep his hands on the steering wheel. Officer Augello indicated that it appeared that defendant Ronald Wright was attempting to conceal something. In addition, Officer Augello testified that defendant Ronald Wright's movements made him feel unsafe.

This Court holds that the continued conduct of defendant Ronald Wright was sufficiently suspicious enough to warrant Officer Augello to remove him from the vehicle for Police Officer safety concerns. (See People v. Robinson, 74 NY2d 773, 774-775 [1989] cert denied 493 US 996, 110 SCt 411, 107 LEd2d 376 [1989]; People v Douglas, 42 AD3d 756 [3rd Dept 2007] appeal denied 9 NY3d 922 [2007]). In addition, the presence of an odor of marihuana provided Officer Augello with reasonable suspicion to remove the defendants from the vehicle to conduct an investigation regarding same. (See People v Badger, 52 AD3d 231 [1st Dept 2008] leave denied 10 NY3d 955 [2008]; People v Chestnut, 43 AD2d 260 [3rd Dept 1974] affirmed 36 NY2d 971 [1975]).

PAT DOWN AND SEARCH OF DEFENDANT RONALD WRIGHT AND REMOVAL OF DEFENDANTS STALLINGER AND JAZMYNE WRIGHT FROM THE VEHICLE:

Officer Augello testified that when defendant Ronald Wright exited the vehicle, he observed a bulge in defendant Ronald Wright's waistband area. This is the same area that Officer Augello testified that he saw defendant Ronald Wright making movements towards while he was still seated

in the Honda. Officer Augello then patted down that area to determine if defendant Ronald Wright possessed a weapon. Once Officer Augello felt what he believed was a gun holster, he immediately removed same. This Court finds the pat down of the area where Officer Augello saw a bulge was legally permissible for Police Officer safety. Similarly, the removal of the holster was also legally [*7]permissible for Police Officer safety. (See People v Rose, 159 AD2d 600 [2nd Dept 1990] appeal denied 76 NY2d 742 [1990]).

Based on the escalating circumstances; i.e., the manner of operation of the vehicle, the odor of marihuana emanating from the car, defendant Ronald Wright's initial suspicious movements in the car, the continued suspicious movements by defendant Ronald Wright while the Officers were checking his driver's license, and his possession of an empty gun holster, the Officers had a justifiable basis to remove all of the occupants from the car for Police Officer safety and to conduct a further investigation. (See People v Shackleford, 57 AD3d 578 [2nd Dept 2008], lv denied 12 NY3d 762 [2009]; People v. Sutherland, 40 AD3d 890 [2nd Dept 2007]); People v Livigni, 88 AD2d 386 [2nd Dept 1982] affirmed 58 NY2d 894 [1983] reargument denied 58 NY2d 1114 [1983]).

PROBABLE CAUSE FOR THE ARREST OF THE DEFENDANTS:

Officer Huksloot testified that as he was removing defendant Stallinger from the vehicle, he observed what he believed to be the butt of a gun sticking out of a pocketbook on the floor of the front passenger side foot well. Since the gun was in plain view, Officer Huksloot's action, in retrieving the gun, was legally sufficient. Once the gun was recovered, the Officers had probable cause to arrest all of the defendants for possession of the gun. (See People v Lemmons, 40 NY2d 505 [1976]).

SEARCH OF THE VEHICLE AFTER ARREST:

It is well settled that "[a] police officer's entry into a citizen's automobile . . . is a significant encroachment upon that citizen's privacy interest" (see People v Torres, 74 NY2d 224, 229-30 [1989]; People v Acquino, 119 AD2d 464, 465 [1st Dept 1986]). An ordinary traffic infraction standing alone will not justify a search of the vehicle. However, when there is probable cause to arrest a defendant, "where the police have reason to believe that a car may contain further evidence relating to a crime, they need not stop with the initial recovery of . . . contraband, but may search the entire vehicle, including closed containers . . . for additional contraband" (see People v Belton, 55 NY2d 49 [1982], rearg denied 56 NY2d 646 [1982]); People v Ellis, 62 NY2d 393 [1984]; People v Cruz, 7 AD3d 335 [1st Dept 2004] leave denied 3 NY3d 672 [2004]; People v Powell, 32 AD3d 544, 545 [2nd Dept 2006 ]).

The People argue that the mere discovery of a holster on defendant Ronald Wright gave the Police a basis to search the entire car. The Appellate Division in People v Drayton, 172 AD2d 849 appeal denied 78 NY2d 921 [1991], has specifically disagreed with this argument. As such, in the case at bar, the discovery of the holster did not provide the Police a basis to search the entire car. However, in addition to the discovery of the holster, the Police smelled marihuana and actually recovered a loaded handgun which was observed in plain view. Therefore, the Officers had a founded suspicion that there might be guns and drugs in the vehicle. Moreover, based upon the totality of the circumstances, the Officers were permitted to search the grab area of each of the defendants. (See People v Carvey, 89 NY2d 707 [1997]). The grab area included the foot well area, the glove box, the center console, and the sunglass holder. In addition, this Court finds that the [*8]Officers had probable cause to search the vehicle based on the defendants being arrested for Criminal Possession of a Weapon.

In light of the foregoing, defendants' motions to suppress the loaded handgun, the marihuana, the knives the grinder, and the BB gun, all seized from the Honda is hereby denied.

SEARCH OF DEFENDANT RONALD WRIGHT AT THE PRECINCT:

Officer Gill testified that he searched defendant Ronald Wright at the First Precinct. Since this Court finds that there was probable cause to arrest each of the defendants, the search of defendant Ronald Wright was legally permissible as a search incident to a lawful arrest. (See People v Weintraub, 35 NY2d 351 [1974]; People v Anderson, 91 AD3d 789 [2nd Dept 2012] leave denied -NE2d -[2012]). Therefore, defendant Ronald Wright's motion to suppress the pill container and its contents is hereby denied.

STATEMENTS BY THE DEFENDANTS:

Defendant Jazmyne Wright

Detective Abruzzo testified that he introduced himself and read to defendant Jazmyne Wright her "Miranda Warnings" using a Miranda card, which was admitted into evidence as People's Exhibit 8. Detective Abruzzo asked defendant Jazmyne Wright if she understood her rights and was willing to answer questions. Defendant Jazmyne Wright indicated that she understood her rights, signed and initialed the Miranda card, and agreed to answer questions. Defendant Jazmyne Wright made various oral statements to Detective Abruzzo. Detective Abruzzo reduced defendant Jazmyne Wright's oral statements to a written statement. Defendant Jazmyne Wright read and signed the written statement. Defendant Jazmyne Wright was in custody at the time she made the oral and written statements to Detective Abruzzo. This Court holds that defendant Jazmyne Wright was properly advised of her "Miranda Warnings" by Detective Abruzzo, and that she knowingly, intelligently and voluntarily waived her right to remain silent, and agreed to answer the questions of Detective Abruzzo. This Court finds that defendant Jazmyne Wright voluntarily provided the oral and written statements. This Court concludes that the oral and written statements made by defendant Jazmyne Wright to Detective Abruzzo were voluntarily made without any threats, physical force or coercion. Consequently, defendant Jazmyne Wright's motion to suppress the oral and written statements is hereby denied.

Defendant Stallinger

Detective Abruzzo testified that he introduced himself and read to defendant Stallinger her "Miranda Warnings" using a Miranda card, which was admitted into evidence as People's Exhibit 10. Detective Abruzzo asked defendant Stallinger if she understood her rights and was willing to answer questions. Defendant Stallinger indicated that she understood her rights, signed and initialed the Miranda card, and agreed to answer questions. Defendant Stallinger made various oral [*9]statements to Detective Abruzzo. Detective Abruzzo reduced defendant Stallinger's oral statements to a written statement. Defendant Stallinger read and signed the written statement. Defendant Stallinger was in custody at the time she made the oral and written statements to Detective Abruzzo. This Court holds that defendant Stallinger was properly advised of her "Miranda Warnings" by Detective Abruzzo, and that she knowingly, intelligently and voluntarily waived her right to remain silent, and agreed to answer the questions of Detective Abruzzo. This Court finds that defendant Stallinger voluntarily provided the oral and written statements. This Court concludes that the oral and written statements made by defendant Stallinger to Detective Abruzzo were voluntarily made without any threats, physical force or coercion. Consequently, defendant Stallinger's motion to suppress the oral and written statements is hereby denied.



This constitutes the Opinion, Decision and Order of the court.

Dated: May 11, 2012

ENTER:

____________________________________

Hon. Norman St. George

Acting Supreme Court Justice