People v Martinez
Annotate this CaseDecided on July 26, 2023
Supreme Court, Kings County
People of the State of New York
against
Joseph Martinez, Defendant.
Indictment No. 74557-22
Raymond Rodriguez, J.
The defendant, Joseph Martinez, is charged with the Criminal Possession of a Weapon in the Second Degree, in violation of New York Penal Law § 265.03(3).
On March 29, 2023, this Court conducted a Dunaway and a Mapp hearing (Dunaway v. New York, 442 U.S. 200 [1979]; Mapp v. Ohio, 367 U.S. 643 [1961]). The Dunaway hearing pertained to the defendant's arrest for Criminal Possession of a Weapon in the Second Degree, and the Mapp hearing pertained to the firearm that was recovered from the defendant's person at the time of his arrest.
The People called one witness at the hearing, Detective Jorge Ramos (hereinafter "Det. Ramos") of the New York Police Department (hereinafter "NYPD"), and presented the body worn camera footage of Det. Ramos and Police Officer Abdelfattah (hereafter "P.O.") at the time of the arrest. The Court found Det. Ramos's testimony to be reliable and credible. The defendant did not call any witnesses but did, on cross examination, submit a still image of P.O. Abdelfattah's body worn camera. Based on the testimony of the sole witness, Det. Ramos, and the evidence presented during these hearings, the Court makes the following Findings of Fact and Conclusion of Law.
I. FINDINGS OF FACT
Testimony of Detective Jorge Ramos:
Det. Ramos has worked for the NYPD for the past five and one-half years. He is assigned to Police Service Area 3 (hereinafter "PSA3"). PSA3 includes the areas of Bed Stuy, Fort Green, Downtown Brooklyn, and Bushwick. Det. Ramos has served as a detective, as of the date of these hearings, March 29, 2023, for six months. As of July 2022, Det. Ramos held the command of P.O. assigned to the Neighborhood Safety Team (hereinafter "NST"). The NST was deployed in high crime areas with the intent to make violent felony arrests. Det. Ramos held the command of P.O. at the NST for approximately one year. Det. Ramos has made approximately one-hundred arrests involving the recovery of firearms as of the date of these hearings.
Det. Ramos testified that on July 31, 2022, at approximately 3:10 a.m., he was on patrol with his partner P.O. Abdelfattah and Sergeant Ramos (hereinafter "Sgt. Ramos"). Det. Ramos [*2]was driving an unmarked, four door, black sedan. P.O. Abdelfattah was seated in the front passenger seat and Sgt. Ramos was seated in the back seat directly behind the driver. Det. Ramos testified that he was driving on Van Buren St., moving from Lewis Ave. to Marcus Garvey Blvd. when he observed two individuals illegally cross Van Buren St. in front of him. From Det. Ramos's vantage point, the individuals crossed Van Buren St. from left to right on a diagonal path to the corner of Van Buren St. and Marcus Garvey Blvd. Det. Ramos was approximately three car lengths away from the individuals when he made this observation. Det. Ramos testified that there were no other pedestrians on the street at the time and very little vehicle traffic as well. Det. Ramos testified that the area was dark but otherwise clear. Det. Ramos then notified the other officers in the vehicle what he had observed.
Det. Ramos then proceeded to pull the patrol vehicle over in front of the individuals with the right side of the vehicle facing them. Det. Ramos testified that he only intended to write the individuals a summons for Jaywalking at this time.[FN1] All three officers exited the vehicle and began to approach the individuals. Det. Ramos testified that he commanded the individuals to stop walking, to which they complied. The officers were approximately one car length away from the individuals when Det. Ramos gave the command. While approaching the individuals, Det. Ramos had his flashlight out. He testified that one of the individuals was wearing a white shirt and blue jeans (hereinafter "the defendant') and the other was wearing blue shorts and a "wife-beater".[FN2] When approaching the individuals, Det. Ramos testified that the defendant had a red bag and was visibly positioning the bag over his left pants pocket. The defendant began to open the bag as the officers began to approach. Det. Ramos also testified that he "observed a bulge [i]n his front left side pants pocket," and that the left side of the defendant's pants were hanging lower than the right side.[FN3] Det. Ramos testified that "I got closer with my flashlight and I grabbed his pants and I felt a hard metal object and then with my flashlight I went over the pants pocket and I opened it and that's when I saw a black handle in his pocket."[FN4] When Det. Ramos saw the black handle in the defendant's pocket, both his hand and P.O. Abdelfattah's hand were touching the defendant's pocket. Det. Ramos testified that he then instructed P.O. Abdelfattah to "let go".[FN5] Det. Ramos testified that what he felt was "L-shape[d]" and that "with [his] right hand [he] reached inside, the inside of [the defendant's] pants pocket and [Det. Ramos] pulled out a firearm."[FN6]
On cross examination, Det. Ramos testified that he did not recall whether the defendant had any other items inside of his left pants pocket.[FN7] When presented with Defense Exhibit A, a still shot of the defendant before being arrested, captured by P.O. Abdelfattah's body worn camera, he testified that he did not notice anything regarding the defendant's left pants pocket from the image.[FN8]
After recovering the firearm from the defendant, Det. Ramos and the other supporting officers placed the defendant under arrest and brought him back to PSA3. The recovered firearm was a loaded, semi-automatic, pistol.
II. CONCLUSION OF LAW
Probable Cause to Arrest
The People possess the burden of proving that the officer had probable cause to arrest the defendant (People v. Wise, 46 NY2d 321, 329 [1978]). "Probable cause exists if the facts and circumstances known to the arresting officer warrant a prudent man in believing that the offense has been committed" (People v. Oden, 36 NY2d 382, 384 ([1975]).
Here, defendant's arrest stemmed from the search of defendant and the recovery of a firearm from the defendant's person. Thus, in determining the issue of whether Det. Ramos had probable cause to arrest the defendant, the Court must first decide the legality of Det. Ramos's conduct during his initial encounter with the defendant.
Seizure of Defendant's Property
Standing:
A Mapp hearing was conducted to determine whether evidence was unlawfully seized and should be suppressed. As a threshold matter, the defendant has the initial burden to prove a legitimate expectation of privacy in the place or item searched to establish standing (People v Rodriguez, 69 NY2d 159 [1987]). The Court finds that the defendant has standing to contest the search and recovery of the firearm from the defendant's person.
Stop and Frisk of Defendant:
In a Mapp hearing, the People have the initial burden of going forward with credible evidence tending to show the legality of the police conduct which led to the recovery of the property (People v Berrios, 28 NY2d 361 [1971]). In determining the admissibility of evidence seized from a defendant, the Court must consider the full extent of the conduct between the police officer and the defendant during the time in which the evidence was seized. This consideration is one that focuses on both fact and law. In People v. De Bour, (40 NY2d 210 [1976]), the Court of Appeals outlined the procedure in which Courts must consider the lawfulness of police-citizen encounters. The Court of Appeals established four levels of street encounters between police officers and citizens. Each level articulates the necessary circumstances to justify specific officer authority and action.
The first level is predicated on an objectively credible reason not indicative of criminality. Under level one, the encounter between the officer and the citizen must be brief and non-threatening (People v Hollman, 79 NY2d 181 [1992]). There should be no indication of harassment or intimidation by the officer (id). The interaction cannot cause the citizen to reasonably believe that they are suspected of a crime, no matter how calm and polite the officer's tone may be (id). Any request for information must be supported by an objective credible reason, not necessarily indicative of criminality (id).
Level two is the common law right of inquiry that is predicated on a founded suspicion of criminality. This level authorizes the officer to ask pointed questions that would reasonably lead a person to believe that he/she is suspected of a crime (Hollman at 185). At this level, the officer can request permission to search (Hollman, 79 NY2d 181). Questions can be more extended and [*3]accusatory and focus on possible criminality (id).
Level three is predicated on a reasonable suspicion of criminal activity, permitting an officer to stop and frisk the individual if the officer is fearful of a weapon (Terry v. Ohio, 392 U.S. 1 [1968]). An officer has reasonable suspicion if there is a "quantum of knowledge sufficient to induce an ordinary prudent and cautious man under the circumstances to believe criminal activity is at hand" (People v. Cantor, 36 NY2d 106, 112-113 [1975]). (See also People v. Dantzler, 208 AD3d 590, 591 [2022]; People v. Bowers, 148 AD3d 1043 [2017]). In order to justify the intrusion, "the officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion. Vague or unparticularized hunches will not suffice." Cantor at 113.
Level four is predicated on probable cause that a crime has been, is being, or is going to be committed. Under level four, the officer has the authority to arrest the individual and conduct a full search incident to a lawful arrest (De Bour at 223).
Det. Ramos testimony in this case established an objective credible reason to approach the defendant to request information. Specifically, Det. Ramos testified that while patrolling on July 31, 2022, at approximately 3:10 a.m., he observed two males jaywalk across Van Buren St., heading to the corner of Van Buren St. and Marcus Garvey Blvd., an area that Det. Ramos identified as a high crime neighborhood. At this point, Det. Ramos possessed the authority to approach the defendant and issue a summons for jaywalking. Additionally, Det. Ramos possessed the authority to request identification from the defendant so that he could issue the summons and check for any outstanding warrants.
Det. Ramos testified that he pulled his unmarked squad car in front of the two individuals and exited the vehicle along with supporting officers, P.O. Abdelfattah and Sgt. Ramos. With the intent to issue the individuals a summons for jaywalking, Det. Ramos proceeded to order the two males to stop walking, to which they complied. Det. Ramos testified that he approached the two individuals with his flashlight drawn and noticed the defendant shield his left side pants pocket with a red bag. Det. Ramos also testified that the defendant's left pants pocket contained a "bulge" and seemed to be hanging lower than the right. Upon reaching the defendant, Det. Ramos immediately began to frisk the defendant's left pants pocket. Det. Ramos testified that he felt a metal-like, L-shaped-object. He then noticed what seemed to be the handle of a firearm peeking out of the defendant's pocket. Det. Ramos then reached into the defendant's left pants pocket and removed a firearm.
The Court finds that the People failed to meet their burden of establishing the legality of the officer's conduct, namely the frisk and search of defendant which led to the recovery of the firearm. Det. Ramos's search of the defendant and seizure of the firearm would have required reasonable suspicion of criminal activity under De Bour, which, based on Det. Ramos's testimony and evidence presented, he did not possess.[FN9] Det. Ramos did not lawfully possess a reasonable suspicion "sufficient to induce an ordinary prudent and cautious man under the [*4]circumstances to believe criminal activity [was] at hand" (Cantor, 36 NY2d at 112-113). The bulge in the defendant's pocket, and the sagging of it, could have been caused by any object not indicative of a crime. Even considering all the circumstances surrounding the initial encounter, including the high crime neighborhood, shapeless bulge in the pants pocket, sagging of the left pants pocket, and shielding of the pocket with the bag, the facts do not arise to the level of reasonable suspicion of criminality. Det. Ramos's frisk and subsequent search of the defendant was an unlawful intrusion. Therefore, the Court grants the defendant's motion to suppress the firearm recovered from defendant.
This constitutes the Opinion, Decision, and Order of this Court.
_________________________________
HON. RAYMOND L. RODRIGUEZ.
ACTING JUSTICE, SUPREME COURT
Dated: July 26, 2023
Brooklyn, NY Footnotes
Footnote 1:P. 43 L. 23-25
Footnote 2:P. 18 L. 11-12
Footnote 3:P. 24 L. 22-24 and P.25 L.6-9
Footnote 4:P. 25 L. 21-24
Footnote 5:P. 48 L. 1
Footnote 6:P. 25 L. 21-24, P. 26 L. 7, and P. 26 L. 13-14
Footnote 7:P. 46 L. 5
Footnote 8:P. 47 L. 12-15
Footnote 9:See People v. Rhames (2023 NY Slip Op 03805 [2023]), court finds officer's observation of a V-shaped object weighing down defendant's sweatshirt did not provide reasonable suspicion of criminal activity. See also People v. Holmes (81 NY2d 1056, 1058 [1993] citing People v. De Bour, 40 NY2d 210, 221), court found that "a pocket bulge, unlike a waistband bulge, 'could be caused by any number of innocuous objects,'" and "is hardly indicative of criminality."
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