People v Marrow

[*1] People v Marrow 2018 NY Slip Op 51287(U) Decided on September 12, 2018 City Court Of Mount Vernon Armstrong, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 12, 2018
City Court of Mount Vernon

The People of the State of New York, Plaintiff,

against

Aubrey Marrow, Defendant.



18-1562



Westchester County District Attorney

Mount Vernon Branch

Jeffrey Scaggs, Esq.

Attorney for Defendant

301 Old Tarrytown Road

White Plains, New York 10603
Adrian N. Armstrong, J.

The defendant stands before the Court on two separate unrelated accusatory instruments. Under both dockets, he is charged with one count of Criminal Possession of a Controlled Substance in the Seventh Degree in violation of Penal Law § 220.03. The defendant is also charged under one of the two dockets with Aggravated Unlicensed Operation in the Second Degree in violation of VTL § 511.2 and Driver's View Obstructed in violation of VTL § 1213(A).

Defendant moves separately under each docket for an order 1) suppressing physical evidence on the grounds that such evidence was unlawfully seized, or in the alternative, granting a Mapp/Dunaway hearing to determine the admissibility of tangible evidence; 2) suppressing evidence of his statements to police, or in the alternative, granting a Huntley hearing; and 3) precluding the People from use at trial defendant's prior criminal history or prior uncharged criminal, vicious, or immoral conduct. The People oppose the motions and cross-moves for an order pursuant to CPL §§ 100.45(1) and 200.20(2) consolidating docket numbers 18-1562 and 18-1892 for trial. This Court did not receive any papers in opposition to the cross-motion from defendant Aubrey Marrow.

The first accusatory instrument, docket 18-1562 alleges in part that the defendant on or about May 29, 2018, at approximately 4:26 P.M., at or near 21 Gramatan Avenue, City of Mount Vernon, County of Westchester, did possess 2 glassine envelopes containing heroin, a tan/brown powdery substance on his person. The defendant said the following to the deponent, "I do not sell heroin, all I have is what I personally use."

The second accusatory instrument, docket 18-1892 alleges that on June 28, 2018, at approximately 2:15 P.M., at 29 West 3rd Street, City of Mount Vernon, County of Westchester, the defendant did knowingly and unlawfully possess one plastic straw containing heroin residue, a white substance, which was located in the defendant's left front pocket. Defendant, at the scene is alleged to have stated to the deponent, "I haven't smoke since last week. It's just been in my pocket."

In considering first the People's cross-motion for consolidation, pursuant to CPL § 100.45[1] and § 200.20[4], a court may consolidate separate misdemeanor accusatory instruments for purposes of trial. Consolidation is permissive and "committed to the sound discretion of the trial judge in light of the circumstances of the individual case." People v. Lane, 56 NY2d 1, 8 [1982]. In exercising their discretion, "[t]rial courts should generally weigh the public interest in avoiding duplicative, lengthy and expensive trials against the defendant's interest in being protected from unfair disadvantage. Id at 8. In general, "compromise of a defendant's fundamental rights to a fair trial free of undue prejudice as the quid pro quo for the mere expeditious disposition of criminal cases will not be tolerated." Id.

CPL § 200.20[2] provides, in pertinent part, that two offenses are joinable when:

(a) They are based upon the same act or upon the same criminal transaction, as that term is defined in subdivision two of section 40.10; or(b) Even though based upon different criminal transactions, such offenses, or the criminal transactions underlying them, are of such nature that either proof of the first offense would be material and admissible as evidence in chief upon a trial of the second, or proof of the second would be material and admissible as evidence in chief upon a trial of the first; or(c) Even though based upon different criminal transactions, and even though not joinable pursuant to paragraph (b), such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law.

On a motion to consolidate offenses for a single trial, the burden is on the movant to "demonstrate to ... the court not only that the offenses charged in the separate indictments are joinable in accordance with the statutory criteria set forth in CPL § 200.20 (sub.2) but also that combination for a single trial is an appropriate exercise of discretion." People v. Lane, supra, at 7.

Based upon the circumstances of this case, the Court exercises its discretion and denies the People's application for the consolidation of the above charges for trial pursuant to CPL 200.20(2)(b), (c) and 200.20(4). Courts are encouraged and afforded reasonable latitude in exercising discretion to consolidate charges when justice, economy and convenience can be achieved ( People v. McHugh, 126 Misc 2d 116 (1984)). However, "the compromise of a defendant's right to a fair trial free of undue prejudice as the quid pro quo for the mere expeditious disposition of criminal cases will not be tolerated" ( People v. Lane, 56 NY2d 1 [*2](1982)).

Although the offenses charged are "defined by the same or similar statutory provisions", both of the criminal possession of a controlled substance incidents constitutes two separate criminal transactions. The cumulative effect of a single trier of fact considering evidence of two unrelated criminal possession of a controlled substance incidents would unduly prejudice defendant. In addition, there is no indication that proof from one case would be material and admissible as evidence upon trial of the other. Notwithstanding instructions to the jury to consider the evidence of each crime separately, there is a substantial likelihood that a jury would be swayed by evidence of defendant's general propensity to commit the offenses charged. This Court will not impinge upon defendant's right to a fair trial for the sake of expediency.

Defendant moves to suppress the physical evidence recovered in both incidents. A motion to suppress evidence "must state the ground or grounds of the motion and must contain sworn allegations of fact." CPL § 710.60(1). A motion to suppress must be summarily granted where the defendant alleges a legal ground warranting suppression and the People concede the truth of the factual allegations. CPL § 710.60(2)(a). A Court may summarily deny a motion to suppress if the defendant fails to allege a proper legal basis for suppression or if the "sworn allegations of fact do not as a matter of law support the ground alleged." CPL § 710.60(3)(b).

"[T]he sufficiency of [the] defendant's factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) [the] defendant's access to information." People v. Mendoza, 82 NY2d 415, 426 (1993). However, even if the defendant's factual allegations are deficient, summarily denying a motion to suppress is disfavored. In Mendoza, supra, the Court of Appeals explained:

The CPL does not mandate summary denial of defendant's motion even if the factual allegations are deficient. If the Court orders a Huntley or Wade hearing, and defendant's Mapp motion is grounded in the same facts involving the same police witnesses, the court may deem it appropriate in the exercise of discretion to consider the Mapp motion despite a perceived pleading deficiency. Indeed, considerations of judicial economy militate in favor of this procedure; an appellate court might conclude that summary denial of the Mapp motion as improper, requiring the parties and witnesses to reassemble for a new hearing, often months or years later.

This Court finds that defendant's moving papers are "minimally sufficient" to warrant a hearing on the issue of suppression. See, People v Harris, 160 AD2d 515, 515 (1st Dept. 19990). Here, in the May 29, 2018 incident, members of the Mount Vernon Police Department observed the defendant attempting to conceal a prescription bottle in his pocket. It is alleged that when police were approaching the defendant, he stated to a member of the police department that he does not sell heroin and that he uses it personally and that he has a problem. The defendant then turned over the prescription bottle to members of the Mount Vernon Police Department. Upon a visual inspection, police observed 2 glassine envelopes to be in the defendant's possession. The defendant was then placed under arrest and transported to police headquarters.

In the other incident for which the defendant stands before the court, on June 28, 2018 officers of the Mount Vernon Police Department pulled the defendant over for a traffic infraction. It was determined that the defendant's license had been suspended, and he was then placed under arrest. A search incident to the defendant's arrest revealed him to be in possession [*3]of a straw containing heroin, a controlled substance. The defendant then stated in substance, that he had not done heroin in a week and the substance was just in his pocket.

Defendant's denial of any wrongdoing in both incidents challenges the facts relied upon by the arresting officer to establish probable cause. "When the validity of a warrantless arrest is challenged, the presumption of probable cause disappears and the People bear the burden of coming forward with evidence showing that it was supported by probable cause." People v Chaney, 253 AD2d 562, 564 (3d Dept. 1998). When material facts are in issue, a hearing must be held in order for the Court to determine whether evidence was obtained lawfully (People v Burton, 6 NY3d 584 [2006]). A hearing shall be held to determine the propriety of defendant's warrantless arrest and whether, in light of all the circumstances, probable cause existed for it. Therefore, defendant's motion for a Mapp/Dunaway hearing is granted.

Defendant argues that any and all statements allegedly made by and/or elicited from him were obtained illegally because 1) they are the tainted fruit of an unlawful arrest; 2) they were made after he was subjected to custodial interrogation without first being advised of his Miranda rights; 3) he made the statements without knowingly and intelligently waiving his right to remain silent; 4) he made the statements involuntarily; and 5) the statements were secured in violation of his right to counsel, in the alternative, defendant requests a Huntley/Dunaway hearing.

The People consent to a Huntley hearing, but oppose the Dunaway hearing request. The People maintain that the defendant failed to state a sufficient legal basis for suppression as required by the CPL.

In a motion to suppress a statement, all that is required to warrant a Huntley hearing is the mere claim that the defendant's statement was involuntary. People v. Weaver, 49 NY2d 1012 (1980); People v. Bingham, 144 AD2d 682 (2d Dept. 1988); Matter of Brian E., 206 AD2d 665 (3d Dept. 1994). Therefore, defendant's motion for a Huntley hearing is granted.

The Sandoval motion is granted on consent, and shall be renewed before the trial judge. Since the People have not indicated that they plan to introduce any evidence of defendant's prior bad acts on their direct case, the motion for a Ventimiglia hearing is denied as premature at this time. In the event the People later indicate they plan to introduce such evidence, the defendant may renew the motion before trial.

Accordingly, the defendant's motion for a Mapp/Dunaway/Huntley hearing as to each docket is granted. Defendant's motion for a Sandoval hearing is granted and respectfully referred to the trial judge. The branch of the motion for a Ventimiglia hearing is denied as premature at this time. The People's cross-motion for consolidation is denied.

This constitutes the Decision and Order of this Court.

Dated: September 12, 2018

Mount Vernon, New York

HON. ADRIAN N. ARMSTRONG

City Judge of Mount Vernon