People v Reese

[*1] People v Reese 2018 NY Slip Op 51413(U) Decided on July 13, 2018 Criminal Court Of The City Of New York, Bronx County Pitt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 13, 2018
Criminal Court of the City of New York, Bronx County

The People of the State of New York, Plaintiff,

against

Otis Reese AKA John Little, Defendant.



2016BX011960



For the People: By ADA Lourdes Vetrano, Darcel D. Clark, District Attorney of Bronx CountyFor the Defendant: Bruce R. Birns, Esq., of the Law Offices of Bruce Birns
Bahaati E. Pitt, J.

The defendant is charged with Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03) and Unlawful Possession of Marijuana (Penal Law § 221.05). The defendant has made a motion pursuant to Criminal Procedure Law (CPL) §§ 710. 20 to suppress any and all statements made by the defendant and any evidence recovered as a result of the defendant's alleged illegal arrest.

On June 1, 2018, June 4, 2018, June 5, 2018, and June 11, 2018, a Dunaway/Mapp/Huntley hearing was held before this court. Police Officer Michael Cautillo testified for the People. For the foregoing reasons, the defendant's motion to suppress is GRANTED.

Findings of Fact

Officer Cautillo testified generally, indicating that he has been employed by the New York City Police Department for approximately six (6) years. During his tenure, officer Cautillo has made approximately one hundred and forty arrests (140), assisted in approximately one hundred and fifty (150), eighty (80) to ninety (90) of which were in relation to controlled substance related offenses. He further indicated that he received special training in the recognition of various controlled substances, marijuana, and summonsable offenses. Officer Cautillo testified that he had issued approximately thirty-five 35 summons, twenty-five (25) of which were for open container law violations.

On March 16, 2016, Police Officer Cautillo and Sergeant Bletcher, of the PSA7 conditions team, were on patrol in an unmarked police car. Their assignment as part of the PSA7 control team was to address all problems in the area that were causing problems for residents, ranging from drug sales to shots fired.

At approximately 6:50 P.M., Police officer Cautillo was driving northbound on Third Avenue when he observed the defendant walking northbound on the westbound sidewalk toward 3103 Third Avenue-New York's Finest Deli. From the driver's seat of the unmarked police car, Officer Cautillo stated that the defendant, who was approximately 15 feet away, captured his attention because he was walking with an open container in his right hand.

Based on his observation, the officer described the container as a clear bottle within a brown paper bag with the head of the bottle sticking out of the top. Although the officer could [*2]not see the label on the bottle, he indicated that based on his training and prior experience he recognized the bottle as a beer bottle. He further indicated that he could tell it was open because he did not see a cap on the top.

After observing the defendant walking on the sidewalk, Officer Cautillo observed the defendant walk into New York's Finest Deli and place the beer bottle on top of the front counter. Officer Cautillo indicated that after the defendant went into New York's Finest Deli, he parked the police car and walked into the deli while never losing sight of the defendant.

The officer and his partner approached the defendant in the rear of the establishment by the deli/sandwich area. Officer Cautillo indicated that he approached the defendant and asked him "where the bottle was."[FN1] According to the officer, the defendant responded that he "didn't have a beer." After his partner walked into New York's Finest Deli and stood next to the defendant, Officer Cautillo walked to the counter and confirmed the bottle was open by putting his hand on the top to make sure the cap was off. Officer Cautillo observed that there was no seal and there was liquid missing from the bottle.

Officer Cautillo then brought the bottle back to the defendant and asked for his identification. Officer Cautillo stated that the defendant did not have an ID so he asked him for his name and date of birth. The defendant provided his date of birth and stated that his name was "John Small." Sergeant Bletcher relayed this information to dispatch on a department issued phone. The name and date of birth did not generate a result so Officer Cautillo asked the defendant further questions about the information provided. The defendant then advised that his name was "Otis Reese" and this information was relayed to dispatch. Dispatch provided the officer with the defendant's arrest history and information indicating the defendant was an assault flight risk.

At this point in time Officer Cautillo stated that the defendant was not under arrest. The officer indicated that he smelled a strong odor of marijuana coming from the defendant and asked him if he had anything on him he wasn't supposed to have. According to the officer, the defendant replied that he had "a little bit of marijuana." Officer Cautillo asked the defendant more questions about where he was from and what he was doing in the deli. The officer indicated that at this point in time, the defendant began to sweat profusely, started to move his body away from the officer and then proceeded to take off his jacket. The officer then advised the defendant that he was going to be taken to the precinct to be issued a summons.

The defendant was placed in handcuffs at which time the officer felt a large golf ball size ball in the defendant's butt cheeks. The officer asked the defendant what the "ball" was and the defendant responded that it was "just a little weed." The defendant was then brought back to command where a strip search was conducted. A total of 24 bags of marijuana and 21 bags of crack cocaine were recovered.

Conclusions of Law:

It is well settled that for a governmental intrusion to satisfy the standard of reasonableness mandated by both the Federal and State Constitutions, there must be a proper basis justifying the action at its inception, and the intrusive action must be fairly related in scope to the circumstances known to the police (Terry v Ohio, 392 US 1, 19-20 [1968]; People v De Bour, 40 NY2d 210, 217-218, 386 NYS2d 375, 381-382, 352 NE2d 562, 568-569 [1976]). At a suppression hearing, the People have the burden of going forward by presenting evidence of the legality of police conduct (People v Malinsky, 15 NY2d 86, 92 n 2, 62 NYS2d 65, 72, 209 NE2d 694, 699 [1965]; see also People v Whitehurst, 25 NY2d 389, 391, 254 NE2d 905 [1969]). The burden of persuading the court that the police conduct was unreasonable is upon the defendant (Whitehurst, 25 NY2d at 391; see also People v Berrios, 28 NY2d 361, 367 321 NYS2d 884, 888, 270 NE2d 709, 712 [1971] ["where a defendant challenges the admissibility of physical evidence or makes a motion to suppress, he bears the ultimate burden of proving that the [*3]evidence should not be used against him"]; People v Love, 57 NY2d 998, 999, 457 NYS2d 238, 239, 443 NE2d 486, 487 [1982]; People v Di Stefano, 38 NY2d 640, 652, 382 NYS2d 5, 345 NE2d 548, 555 [1976]).

A "crucial factor" in evaluating street encounters between a police officer and a civilian is whether the officer acted reasonably under all the circumstances (De Bour, 40 NY2d at 217). In De Bour, the Court of Appeals set forth a four-tiered framework to evaluate police encounters with the public. A crucial factor in any De Bour analysis is that at each stage of an encounter, the level of police intrusion must be justified by the factual basis leading to it (People v Grunwald, 29 AD3d 33, 37, 810 NYS2d 437, 440 [1st Dept 2006]). First the court must consider whether the police action was justified in its inception and secondly whether or not that action was reasonably related in scope to the circumstances which rendered its initiation permissible (De Bour, 40 NY2d at 215).

At the first level, law enforcement may engage in the minimal intrusion of approaching a person to request information "when there is some objective credible reason for that interference not necessarily indicative of criminality" (Id. at 223). The second level, the common-law right to inquire, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary "to gain explanatory information, but short of a forcible seizure" (Id.). The third level, "a forcible stop and detention," requires that the "officer entertain[ ] a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor," and "[a] corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that [they are] in danger of physical injury by virtue of the detainee being armed" (Id. [citation omitted]). "Finally[,] a police officer may arrest and take into custody a person when [the officer] has probable cause to believe that person has committed a crime, or offense in [the officer's] presence" (Id. [citation omitted]).

The People assert that the police officer had probable cause to stop the defendant for an open container in violation of Administrative Code § 10—125. Section 10—125(b) of the Administrative Code makes it an offense to possess "an open container containing an alcoholic beverage in any public place" with intent to consume it. The statute also creates a rebuttable presumption that anyone possessing an open container of alcohol intends to consume it (Administrative Code § 10—125[c]).

Pursuant to CPL 140.10[1][a], a police officer is authorized to arrest a person for any offense when he has "reasonable cause to believe that such person has committed such an offense in his presence."[FN2] "[Reasonable] cause exists if the facts and circumstances known to the arresting officer warrant a prudent [person] in believing that the offense has been committed" (People v Baker, 20 NY3d 354, 359, 984 NE2d 902 [2013], quoting People v Oden, 36 NY2d 382, 384, 368 NYS2d 508, 329 NE2d 188 [1975]) and it must "appear to be at least more probable than not that . . . the one arrested is its perpetrator . . . " (People v Carrasquillo, 54 NY2d 248, 254 [1981]; see also People v Clarke, 57 Misc 3d 1216(A), 2, 71 NYS3d 923 [Crim Ct, Queens County, 2017]). In determining whether a police officer has probable or reasonable cause to justify his or her action, "the emphasis should not be narrowly focused on any [ ] single factor, but on an evaluation of the totality of the circumstances, which takes into account 'the realities of every day life unfolding before a trained officer who has to confront, on a daily basis, similar incidents'" (People v Bothwell, 261 AD2d 232, 234, 690 NYS2d 231, 234 [1st Dept 1999], lv denied 93 NY2d 1026, 697 NYS2d 585, 719 NE2d 946 [1999], quoting People v Graham, 211 AD2d 55, 58, 626 NYS2d 95 [1st Dept 1995]).

In People v. Bothwell, the First Department of the New York Appellate Division [*4]evaluated the reasonableness of police conduct and considered what constitutes probable cause to arrest someone under the City's open container law (261 AD2d 232). In that case, the police officer observed a man "leaning against a wall, . . . holding in front of him a brown paper bag containing a partially concealed open green bottle with a white label on it." (Id. at 232). The court held that the officer was not unreasonable in concluding that the man was violating the City's open container law, "since the concealment of the bottle suggested that it was an alcoholic beverage and the manner in which [the man] held it in front of him while engaged in conversation suggested that the bottle was not empty." (Id. at 234). The court also held that the defendant's reaction, placing the brown paper bag on the ground and ducking into a nearby luncheonette, when the police officers stopped and exited their car "heightened their suspicion that defendant had committed an offense" (Id.).

A finding of probable cause or reasonable suspicion is predicated on the fact that the testifying witness is credible (see Berrios, 28 NY2d at 368; see also People v Quinones, 61 AD2d 765, 402 NYS2d 196, 197 [1st Dept 1978]). In evaluating testimony, the reviewing court should not "discard common sense and common knowledge." (People v Garafolo, 44 AD2d 86, 88, 353 NYS2d 500 [2d Dept 1974] [quoting from 22 NY Jur. Evidence, §649]). The question of credibility takes on exceptional importance when the only evidence presented by the People is the testimony of one individual (see People v Smith, 77 AD2d 544, 545, 430 NYS2d 95 [1st Dept 1980]). In such cases, the outcome of the hearing hinges on that individual's credibility or lack thereof (Id.; see also Quinones, 61 AD2d at 765). If testimony appears "manifestly untrue, physically impossible, contrary to experience, or self contradictory" it must be rejected "even though it is not contradicted by other testimony or evidence introduced in the case" (Garafolo, 44 AD2d at 88 [citations omitted]; see also People v Lebron, 184 AD2d 784, 787, 585 NYS2d 498 [2d Dept 1992] [such as where a police officer "claims to have seen that which common sense dictates could not have been seen."]).

Here, Officer Cautillo, a trained officer on assignment to address the problems attributed to the "drug prone"[FN3] neighborhood in question, stated that while driving an unmarked patrol car, and from a distance of about 15 feet, he observed the defendant walking northbound on the westbound sidewalk of Third Avenue. The officer's testimony indicates the defendant captured his attention because he was holding a partially concealed, clear, uncapped bottle, which resembled a beer bottle in his right hand. The officer further testified that there were no cars parked on the street where the defendant was walking so he had an unobstructed view of the defendant as he walked approximately 20 to 25 feet to New York's Finest Deli. Officer Cautillo also indicated that he never lost sight of the defendant from when he initially noticed him, to when the defendant walked into the deli, placed the container on the counter, and walked to the back. Based on the aforementioned conduct, Officer Cautillo stated that he had reasonable suspicion that the defendant had an open container of alcohol.[FN4]

At the outset, this court finds it highly improbable that as the officer drove his unmarked police car down Third Avenue at 6:50 P.M. on the date in question, he had a totally unobstructed view of the defendant as he walked on the sidewalk. Further, during the hearing, the People introduced a surveillance video (People's Exhibit 1) which shows the defendant enter the deli and his actions up until Officer Cautillo walks to him with the alleged open bottle. Based on this Court's interpretation of the video footage of when the defendant enters the deli, which in fact is supported by Officer Cautillo's testimony, the bottle in defendant's possession has a cap on it's [*5]top. When the officer was questioned about this footage on cross-examination, he stated that he did not see the defendant place the cap on the bottle. By itself, this discrepancy might not preclude the People from showing probable cause existed. However, it undermines the officer's testimony because it directly contradicts two material statements the officer made regarding his reasonable suspicion of an open container- that the bottle was uncapped and his initial testimony that he never lost sight of the defendant.

Likewise, throughout the hearing, Officer Cautillo changed his testimony regarding whether he lost sight of the defendant during this encounter. On direct examination, he testified that he never lost sight of the defendant. On cross-examination, he altered his testimony and stated that he never lost sight of the defendant when he placed the bottle down on the counter. Upon further questioning regarding the sequence of events, the officer could not recall if the defendant was "already in or going" into the store when the officer exited his car. Despite this uncertainty, he reiterated that he never took his eyes off the defendant when he put the bottle down.

Based on this court's interpretation of the video footage provided, the defendant placed the beer bottle on the counter as soon as he walked into the deli. While the officer's testimony is unclear about the sequence of events that unfolded, it provides a general time frame for what the officer was doing when the defendant entered the deli. When comparing the officer's testimony to the footage provided, the defendant placed the bottle on the counter around the same time as when the officer states he parked his vehicle in a space on the opposite side of the street from the deli, got out of the car, admitted to looking both ways before crossing the street, and ultimately walked into the store some 20-21 seconds after the defendant.

While this does not directly contradict the officer's statements that he knew where the bottle was and he never lost sight of the defendant when he placed the bottle down on the counter, when combined with the fact that the officer bypassed the bottle on the counter, walked to the defendant, checked within the defendant's jacket, and by his own testimony asked the defendant where the bottle was, it is clear that his contention defies the hallmarks of "common sense and common knowledge." (Garafolo, 44 AD2d at 88). Therefore, this court rejects the officer's testimony because it is absent logic and contradictory to what any reasonable person would have done if they knew where the bottle was (see Lebron, 184 AD2d at 787) ("Where a testifying officer claims to have seen that which common sense dictates could not have been seen, courts have repeatedly deemed this testimony patently tailored to meet constitutional objections").

Similarly, while inside the deli, Officer Cautillo stated that he walked up to the counter and confirmed the bottle was open by putting his hand on the top and making sure the cap was off. The officer stated that this action confirmed that the bottle was open, there was no seal on the bottle and there was liquid missing. However, on cross-examination, Officer Cautillo explained that "Corona" beer bottles are not twist off bottles and must be opened with a bottle opener. When asked why he twisted the cap if he knew the bottle was not a twist off, he explained that he both twisted and lifted the cap off the bottle in an effort to confirm the container was open. However, Officer Cautillo's account is inconsistent with this Court's interpretation of the footage provided. While the surveillance footage does show the officer grabbing the bottle and bag, it is clear that upon the officer "twisting the cap" it does not move, let alone lift or come off the bottle. Not only is this account inconsistent with the officer's statement that the cap lifted off the bottle, it also calls into question the officer's statement that the top was merely placed on the top of the bottle because it was titled open from when the defendant used a bottle opener. More importantly it casts doubt on the officer's only evidence to establish his reasonable suspicion that the defendant had an open container of beer as he walked down the sidewalk.

Moreover, when Officer Cautillo was questioned about the bottle at issue and its contents, he stated that he discarded the bottle and did not take any pictures or make any notations about the amount of liquid missing. On cross-examination, Officer Cautillo could not provide any [*6]information concerning the amount of liquid that was missing from the bottle even though he used this alleged fact to help establish that the defendant's bottle was open (cf, People v Hernandez, 27 AD3d 292, 811 NYS2d 640 [1st Dept 2006], lv denied, 6 NY3d 848, 816 NYS2d 754, 849 NE2d 977 [2006] [It was reasonable for the officer to conclude that defendant was drinking in public and had committed an offense because he observed defendant with a half empty open bottle of beer]. While the lack of a beer bottle, in and of itself, does not make the officer's story "manifestly untrue, physically impossible, contrary to experience, or self-contradictory" (Garofalo, 44 AD2d at 88; see also Grunwald, 29 AD3d at 36), based on this court's interpretation of the video footage, the liquid within the bottle protrudes beyond where the bottle is covered by the brown paper bag when the officer grabbed the bottle to check if it was open. This observation combined with the fact that the officer does not tilt the bottle when attempting to twist the cap, leads this court to believe that if any liquid was in fact missing from the bottle, it was not much more than is normally missing in any bottled beverage, let alone enough for the officer to determine that the bottle was open while he drove down a city street from at least three car lengths away from the defendant.

Lastly, Officer Cautillo's testimony indicates upon viewing the defendant walking down the street, into the deli and up until being approached by the officers, the defendant did not exhibit any signs that he was trying to run or evade the police (cf, People v Moore, 6 NY3d 496, 500—501, 814 NYS2d 567, 847 NE2d 1141 [2006] [Even if drinking from a can covered by a bag could have innocent explanations, this act, coupled with defendant's active flight at the approach of the police created at least reasonable suspicion justifying pursuit]; see also Bothwell, 261 AD2d at 234—235). The officer also indicated that he did not did not observe any odor of alcohol emanating from the defendant's breath, slurred speech, or any other signs that the defendant had consumed alcohol (cf, Clarke, 57 Misc 3d at 2 [Court held that "[e]ven if the bottle were empty, it was reasonable to infer that [the] defendant had just finished consuming it[,]" considering [the officer's] observation of the odor of alcohol from the defendant's breath, his slurred speech, and unsteady feet"]). Rather, the sole basis for the officer's reasonable suspicion that the defendant had an open container is that the clear bottle contained within a brown paper bag did not have a top as the defendant walked down the sidewalk. Despite this assertion, officer Cautillo could not explain why the surveillance footage clearly shows the defendant enter the deli with a capped container.While the defendant has the ultimate burden of proving illegality on this suppression motion/hearing (see Whitehurst, 25 NY2d at 391; see also Berrios, 28 NY2d at 367), the People have the burden of going forward to show the legality of the police conduct in the first instance (Malinsky, 15 NY2d at 92, see also Whitehurst, 25 NY2d at 391). Based on an evaluation of the totality of the circumstances, this court finds that the People have failed to meet their burden of establishing the police officer's conduct was lawful. When considering the officer's testimony and the video surveillance footage introduced by the People, this court finds numerous inconsistencies were established during the suppression hearing. Based on these inconsistencies, which relate to both material testimony and collateral facts, this court does not credit Officer Cautillo's testimony and finds that the evidence does not support the conclusion that probable cause (reasonable cause) existed for Officer Cautillo to issue a summons or arrest the defendant for violating the City's "Open Container Law" (Administrative Code of the City of New York § 10—125[b]). Therefore, this encounter was not justified at its inception and consequently the intrusion that followed was not reasonably limited in scope and intensity (De Bour, 40 NY2d at 221). Accordingly, suppression of the 24 bags of marijuana, 21 bags of crack cocaine and any statements made by the defendant to law enforcement officials is required, "as such evidence was fruit of the poisonous tree" (People v Nichols, 117 AD3d 881, 882, 985 NYS2d 676 [2d Dept 2014]).

The People's contention that this case is similar to People v. Hernandez, in that the officers were justified in conducting a protective frisk prior to bringing the defendant back to the precinct because he did not have ID, is negated by the court's finding above. Nevertheless, this court finds Officer Cautillo's testimony inconsistent as it relates to the reason for the frisk. At the [*7]hearing, the officer indicated that he conducted a frisk subsequent to arrest for the open container ticket. However, the officer also stated that the information provided by dispatch in response to Sergeant Bletcher's request, specifically defendant's arrest history and that he was an assault flight risk, lead him to fear for his safety. More importantly, the officer's memo book indicated that the frisk was done for safety, based on the defendant's demeanor [FN5] , sweating, defensive answers and after the officer learned about the defendant's arrest history.[FN6]

Officer Cautillo also presented contradictory testimony concerning whether the defendant had an ID on his persons at the time of this incident. While the officer testified that the defendant did not have an ID and provided a name that was not his own, he also indicated that the subsequent information provided by the defendant procured an accurate result when relayed to police command. Additionally, the officer could not recall whether the defendant actually had an ID on his person at the time of arrest. Further, his memo book does not contain any indication that the defendant did not have an ID. Standing alone, this omission is not harmless. However, under the totality of circumstances, it leads this court to discredit this part of the police officer's testimony, especially when combined with the inconsistencies in the officer's testimony regarding the reason for the frisk. For all the reasons stated above, the defendant's motion to suppress is GRANTED.

This constitutes the Decision and Order of the Court.

Dated: July 13, 2018

Bronx, New York

Bahaati E. Pitt, J.C.C. Footnotes

Footnote 1: During Officer Cautillo's testimony he interchanged the word beer and bottle when making this statement.

Footnote 2: "Reasonable cause" as used in CPL 140.10 is the equivalent of "probable cause" (see People v Bothwell, 261 AD2d 232, 234, 690 NYS2d 231, 234 [1st Dept 1999], lv denied 93 NY2d 1026, 697 NYS2d 585, 719 NE2d 946 [1999], quoting People v Johnson, 66 NY2d 398, 402, 497 NYS2d 618, 488 NE2d 439 [1985]).

Footnote 3: An officer may not ascribe a suspicious nature to an individual simply because the person is observed in a high crime area (see People v McIntosh, 96 NY2d 521, 526—527, 730 NYS2d 265, 755 NE2d 329 [2001] ["a discrete area of a city identified as a high crime area has not, by itself, been sufficient justification for informational requests"]).

Footnote 4: When questioned as to whether he observed the defendant drinking out of the alleged open container, Officer Cautillo testified in the negative. While he did indicate that his partner observed the defendant drink out of the alleged open container, the People chose not to call Sergeant Bletcher into court to testify.

Footnote 5: This court notes that nervousness is not an indication of criminality (see People v Garcia, 20 NY3d 317, 324, 983 NE2d 259, 263, 959 NYS2d 464, 468 [2012]; see also People v Milaski, 62 NY2d 147, 156, 464 NE2d 472, 476 NYS2d 104 [1984]; People v Gates, 152 AD3d 1222, 1223, 59 NYS3d 636, 638 [4th Dept 2017] [nervousness, fidgeting, and illogical or contradictory responses to level one inquiries do not permit an officer to escalate an encounter to a level two De Bour confrontation]; People v Banks, 85 NY2d 558, 562, 650 NE2d 833, 626 NYS2d 986 [1995]).

Footnote 6: Because the officer testified that the frisk of the defendant was a frisk subsequent to arrest, this court did not make a determination concerning the level of the officer's intrusion. Nonetheless, if the officer stated that the frisk was done for his safety, this court would find that exigent circumstances did not support this level three intrusion under De Bour, as the officer's expressed fear for his own safety, without supporting objective information, does not justify a required finding of a particularized reasonable suspicion (see People v Oquendo, 221 AD2d 223, 224, 633 NYS2d 492 [1st Dept 1995], appeal dismissed 88 NY2d 1004, 649 NYS2d 371, 672 NE2d 597 [1996]; see also, People v Blackman, 61 AD2d 916, 916, 403 NYS2d 3 [1st Dept 1978]; People v Benjamin, 51 NY2d 267, 271, 434 NYS2d 144, 414 NE2d 645 [1980]; People v Smith, 267 AD2d 98, 699 NYS2d 407 [1st Dept 1999], lv denied 95 NY3d 804, 711 NYS2d 172, 733 NE2d 244 [2000]).