People v Canady

[*1] People v Canady 2023 NY Slip Op 50936(U) Decided on September 5, 2023 Supreme Court, Kings County Rodriguez, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 5, 2023
Supreme Court, Kings County

People of the State of New York

against

Darius Canady, Defendant.



Indictment No. 71974-23


People: Assistant District Attorney Zachary Charles Trkla (Kings County District Attorney's Office)

Defense Attorney: Luke Christopher Schram (Legal Aid Society) Raymond L. Rodriguez, J.

Defendant, Darius Canady, is charged with Criminal Possession of a Weapon in the Second Degree, in violation of New York Penal Law § 265.03(3).

On June 22, 2023, this Court conducted Dunaway, Huntley, and Mapp hearings (Dunaway v. New York, 442 U.S. 200 [1979]; People v Huntley, 15 NY2d 72 [1965]; Mapp v. Ohio, 367 U.S. 643 [1961]). The Dunaway hearing pertained to defendant's arrest for Criminal Possession of a Weapon in the Second Degree. The Huntley hearing pertained to oral statements allegedly made by defendant at the time of his arrest. The Mapp hearing pertained to firearms and other evidence recovered from a motor vehicle.

The People called three witnesses at the hearing, Police Officer Andrea Medina (hereinafter "Officer Medina"), Police Officer Christian Gutierrez (hereinafter "Officer Gutierrez") and Police Officer Anthony Fernandez (hereinafter "Officer Fernandez") of the New York Police Department (hereinafter "NYPD"). The People also presented the body worn camera footage of Officer Medina and Officer Gutierrez. Defendant did not call any witnesses. Based on the testimony of the witnesses and the evidence presented, the Court makes the following Findings of Fact and Conclusion of Law.

I. Findings of Fact

A. Testimony of Officer Andrea Medina

Officer Medina worked for the NYPD for approximately two and a half years. As of the date of the hearing, she was assigned as a police officer to the 83rd Precinct in Brooklyn, New York. Her general job responsibilities included responding to radio calls, 911s and 311 calls. During her career she responded to approximately ten firearm-related incidents and made approximately three arrests involving illegal firearms. The Court finds her testimony to be [*2]credible and reliable.

October 6, 2022, Officer Medina was working with two partners, Officer Fernandez and Lieutenant Cuevas. At approximately 8:40 PM that night, she responded to a 311 call, directing her to go to 1110 Putnam Avenue, regarding a complaint of loud music. Upon arriving outside of 1110 Putnam Avenue, in Kings County, New York, Officer Medina observed a group of two or three individuals, one of whom was later identified as defendant, Darius Canady, leaning on a parked black Chrysler sedan (hereinafter "target vehicle"), playing loud music, and drinking alcohol. The target vehicle was legally parked in front of the house at the aforementioned location. Officer Medina testified that upon exiting her marked police vehicle, the music volume was lowered, and as she approached the individuals, she observed a bottle of tequila next to defendant, who was drinking out of a clear cup, and smelled the odor of alcoholic beverage.

Officer Medina testified that as she approached defendant, she observed defendant throw something into the car, heard a heavy metal object hit the ground in the car, and observed defendant then close and lock the car. Officer Medina testified that based upon her experience with gun arrests, the sound she heard was the sound of a gun hitting the ground. She then communicated with her partners, saying "metal" to indicate to them that she believed defendant had just tossed a firearm into the car.[FN1]

Defendant picked up the tequila bottle walked away from the target vehicle and sat down on the stoop in front of 1110 Putnam Avenue. Lieutenant Cuevas approached defendant and engaged in conversation with him at which point defendant, who was holding a key fob for the target vehicle, tossed it over the officers' heads to one of the other individuals. Officer Medina testified that she ran toward the other individual, interjected, and grabbed the keys. Officer Medina testified that she then unlocked the car, opened the door, and observed a firearm on the driver's side floor. Officer Medina communicated to her partners to place defendant under arrest.

As the officers attempted to place defendant under arrest, defendant held onto a nearby gate, stiffened his body, and refused to place his hands behind his back to be handcuffed. The officers then used a taser to subdue defendant. During the interaction, defendant stated, "that's not mine, that's not my car."[FN2]

Officer Medina testified that other than the use of the taser, no other weapons were out or used during the interaction and no promises or threats were made to defendant.

Another unit arrived at the scene to transport defendant to the precinct. Officer Medina recovered the firearm and placed it in her police vehicle for safe transport back to the precinct. The target vehicle was also taken back to the precinct for safekeeping.

At the precinct, Officers Medina and Gutierrez obtained pedigree information from defendant. Aside from asking defendant for his pedigree information, the officers asked no other questions, made no threats to defendant and made no promises. Defendant however stated, in sum and substance, "[y]ou guys have nothing on me. That's not mine."[FN3]

Officer Medina testified that after the target vehicle was brought back to the precinct, an inventory search was conducted. During that search a second firearm was recovered from the [*3]rear driver side door. Also recovered were keys, sweatshirts, plastic cups, a tequila bottle, two cellphones, and Nintendo Switch controllers.

B. Testimony of Officer Christian Gutierrez

Officer Gutierrez worked for the NYPD for approximately two years. As of the date of the hearing, he was assigned as a police officer to the 83rd Precinct in Brooklyn, New York. His general job responsibilities included handling patrol, quality of life conditions, traffic condition, and responding to 911 calls. During his career he made approximately forty arrests and responded to approximately five firearm related incidents. The Court finds his testimony to be credible and reliable.

On October 6, 2022, he was working with a partner, Officer Parris. Officer Gutierrez was working in uniform that day and traveling in a marked police vehicle.

Officer Gutierrez testified that at approximately 8:45 pm on October 6, 2022, he received a radio run for backup needed at Bushwick and Putnam, in Kings County, New York. Officer Gutierrez testified that he went to 1110 Putnam Avenue and when he exited his vehicle, he observed a couple of police officers with a male in custody, who he later learned was defendant, Darius Canady.

Officer Gutierrez testified that he and his partner, Officer Parris, transported defendant back to the precinct and that the car ride took approximately five minutes. Officer Gutierrez testified that at the time of the transport, defendant was under arrest, but that Officer Gutierrez did not know what had transpired prior to the arrest. During the transport, neither Officer Gutierrez nor Officer Parris said anything to defendant, however during transport the defendant asked Officer Gutierrez what they were going to do with his car. Officer Gutierrez testified that this statement by defendant was not made in response to any questions asked by Officer Gutierrez or Officer Parris, that no force was used by either officer, and that no threats or promises were made to defendant.

After arriving at the precinct, defendant was escorted inside the police station by Officers Gutierrez and Parris, where he was search by the officers, and the officers then proceeded to obtain pedigree information. When asked where he lived, defendant stated that he lived somewhere in Georgia. When asked whether defendant said anything else during the interaction, Officer Gutierrez testified, "[h]e was just basically saying how he didn't know he had that in the car. He didn't have it on him. Stuff like that."[FN4] Officer Gutierrez testified that other than asking for basic pedigree information, defendant was not asked any other questions, that there were no guns drawn, no force used, and no threats or promises made.

C. Testimony of Officer Anthony Fernandez

Officer Fernandez worked for the NYPD for just over twelve years. As of the date of the hearing, he was assigned as a police officer, in the 83rd Precinct in Brooklyn, New York. His assignment at the time of this hearing was special operations lieutenant assistant. During his career he and approximately three hundred and forty arrests, over twenty of which were for firearm possession. He had also been involved in approximately one hundred firearm related incidents. The Court finds his testimony to be credible and reliable.

On October 6, 2022, he was assigned to patrol, and was responsible for driving the platoon commander, as well as responding to 911 and 311 calls. That day he was in uniform and [*4]was traveling in an unmarked police vehicle. He was working with two partners, Officer Medina and Lieutenant Cuevas.

At approximately 8:45 PM on October 6, 2022, while driving down Putnam Avenue, Officer Fernandez testified that he heard loud music emanating from the target vehicle and observed three to four individuals drinking in open view, while standing in front of 1110 Putnam Avenue, Kings County, New York.

Officer Fernandez testified that he later learned that the individual closest to the driver's side door of the target vehicle was defendant, Darius Canady. He further testified that he observed defendant holding a clear cup and observed an open bottle of tequila.

Officer Fernandez testified that he parked his vehicle and when he opened his car door, he observed defendant reach into the target vehicle, over the door frame, and observed what he believed to be a firearm. He observed defendant's hands go into the target vehicle, heard a loud metal bang on the floor and observed defendant close the door of the target vehicle. Officer Fernandez testified that he believed the item he observed to be a firearm based upon his experience with firearms throughout his career as well as the shape and reflectiveness of the item. Officer Fernandez testified, "[i]t was two-tone. I saw some type of metal flash with the door handle ...heard a loud bang like metal hit and kind of rattle. In my experience I believed that sounded like a loaded firearm."[FN5]

Officer Fernandez further testified that he was familiar with the sound because he had heard it before during his career, including being at the gun range. He further testified that the firearm he observed was black and silver. He was standing approximately six to eight feet away from defendant at the time of the observations, that the night was clear, the area was well lit, and that there was nothing obstructing his view.

Officer Fernandez testified that he looked into the target vehicle and observed the target vehicle to be locked. He further testified that he then began to approach defendant and when he tried to speak with defendant, defendant was behaving confrontationally, did not want to answer any questions, locked the target vehicle again in front of Officer Fernandez and then attempted to throw the key fob to his friend. Officer Fernandez stated that the key fob fell to the floor, at which point Officer Medina ran over and grabbed the key fob from the ground. Officer Fernandez then observed Officer Medina approach the target vehicle, open the target vehicle door, and signal to Officer Fernandez and the supervisor to make an arrest.

Officer Fernandez testified that when they attempted to place defendant in handcuffs, the defendant resisted, and a struggle ensued. During the struggle defendant stated in sum and substance, "that's not mine."[FN6] Officer Fernandez testified that this statement was not made in response to any question asked of the defendant by any officer on scene, that no threats or promises were made to the defendant, and the only force used was the force needed to effectuate the arrest, which included the deployment of a taser.

After defendant was arrested, a gun was recovered from the target vehicle and the target vehicle was brought back to the 83rd Precinct for an inventory search and to ascertain the owner of the target vehicle. Officer Fernandez testified that they were able to ascertain that the owner of the target vehicle was not the defendant but was an individual who lived on Long Island.

Officer Fernandez testified that defendant was placed in the holding cells. He testified that he went to the holding cells to inform defendant that a cellular phone recovered from the target vehicle was going to be vouchered and to confirm that the phone belonged to defendant so that he could voucher it in his name. He further testified that he stated to defendant that he cannot operate a vehicle with tints on the windshield. Officer Fernandez testified that defendant then stated to him that that was how he purchased the target vehicle. Officer Fernandez testified that prior to this statement being made by defendant no force was used, no guns were drawn, and no threats or promises were made.

II. Conclusions of Law

A. Search and Seizure of Property Outside of 1110 Putnam Avenue

Dunaway, Mapp, and Huntley hearings were conducted by the Court. Before this Court can determine the issues of probable cause to arrest, voluntariness of statements made, and legality of post-arrest searches, the Court must first determine the legality of the initial search of the target vehicle parked outside of 1110 Putnam Avenue, as the arrest of defendant, the subsequent statements made, and the additional property recovered all stem from the firearm recovered during that initial search.

i. Standing

A Mapp hearing was conducted to determine whether evidence was unlawfully seized and should be suppressed. As a threshold matter, 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]). Defendant is not required to testify in order to meet this burden and in fact, defendant may rely on the evidence presented by the People in their direct case (People v. Gonzalez, 68 NY2d 950, 1002 [1986]).

The Court finds that defendant has standing to contest the search and recovery of the firearm from the target vehicle. Although defendant initially denied that the target vehicle was his, the Court must consider the totality of the evidence.

When the officers arrived outside of 1110 Putnam Avenue, defendant was standing outside the driver's side door. Defendant was playing music from the target vehicle, and upon observing the officers approaching he lowered the music, locked the car and walked away from the target vehicle. Defendant had in his possession the key fob for the target vehicle. While possession of the key fob alone is not enough to determine that defendant has standing [FN7] , this fact must be taken in conjunction with the rest of the evidence in the record. In addition to defendant's possession of the key fob, Officer Fernandez testified that defendant's cellular phone was recovered from inside the target vehicle. Furthermore, defendant later made statements, both during transport and at the precinct, in which he claimed ownership of the target vehicle. Officer Gutierrez testified that during transport defendant referred to the target vehicle as "my car." Officer Fernandez testified that when he asked defendant about the tints on the windshield, defendant stated, that how he purchased the target vehicle.

The People argue that defendant abandoned the key fob therefore did not have any [*5]reasonable expectation of privacy within the target vehicle. The People rely on the testimony of Officer Fernandez who testified that he observed defendant toss the key fob towards one of his friends, observed the key fob fall to the ground, at which point Officer Medina picked it up off the ground. The Court finds that defendant did not abandon the key fob and maintained an expectation of privacy in the target vehicle. "Defendant's intention to relinquish an expectation of privacy will be found if the circumstances reveal a purposeful divestment of possession of the items searched. Standing alone, the surrender of control or disclaimer of ownership does not always establish a waiver" (People v. Ramirez-Portoreal, 88 NY2d 99, 110 [1996] [internal citation omitted]). "Property is deemed abandoned when the expectation of privacy in the object or place searched has been given up by voluntarily and knowingly discarding the property The burden rests upon the People to establish the waiver" (id.). Here, the Court finds the People did not meet this burden. It is clear from the testimony of Officer Medina and Officer Fernandez that defendant was attempting to give the key fob to one of his companions on scene when Officer Medina intervened and intercepted the property. All the testimony supports that defendant was not "voluntarily and knowingly discarding the property" (id.). Defendant did not voluntarily give up his expectation of privacy in the target vehicle, in fact his actions show just the opposite. Defendant was attempting to transfer the key fob to his friend to avoid police interception and to maintain his privacy in the target vehicle.

The Court finds that based upon all the facts in the record, defendant had a reasonable expectation of privacy in the target vehicle.

ii. De Bour Analysis

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 defendant during the time in which the evidence was seized. Here, the Court must first determine the propriety of the conduct between the officers and defendant during their initial contact outside of 1110 Putnam Avenue. 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 (id. at 181). Questions can be more extended and accusatory and focus on possible criminality (id.)

Level three is predicated on a reasonable suspicion of criminal activity, permitting an [*6]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, 112-13 [1975]).[FN8] 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).

Officer Medina's testimony in this case established an objective credible reason to approach defendant to request information. Specifically, Officer Medina testified that on October 6, 2022, at approximately 8:40 PM while on patrol she did a search for 311 and 911 calls in her patrol area, specifically Putnam Avenue. She came across a 311call complaining of loud music outside of 1110 Putnam Avenue. At that location, she observed defendant, along with other individuals, standing outside of a parked car, playing loud music and drinking. As Officer Medina walked towards defendant, she was able to observe an open bottle of tequila and observed defendant drinking from a plastic cup. She was also able to smell the odor of an alcoholic substance. At this point, Officer Medina possessed the authority to approach the defendant and issue a summons for the open alcohol container. Additionally, Officer Medina possessed the authority to request identification from defendant so that she could issue the summons and check for any outstanding warrants.

Officer Medina testified that as she approached defendant and the other individuals, the music volume was lowered, and she saw defendant toss an object into the car and heard a heavy metal object hitting the car, a sound she identified as the unique sound of a firearm. She further testified that defendant then locked the car, picked up the tequila bottle, walked away from the target vehicle, and sat on the stoop outside of 1110 Putnam Avenue. Officer Medina testified that when Lieutenant Cuevas approached defendant and began to engage him in conversation, defendant tossed the key fob to one of his friends, at which point Officer Medina interjected and grabbed the key.

Officer Medina testified that she then used the keys to unlock the target vehicle and look inside, thereby observing a firearm. Once she observed the firearm, she communicated to the other officers to place defendant under arrest.

The search of the target vehicle must be assessed under the De Bour framework detailed above. The People rely on officer Medina's testimony that she observed defendant toss something in the car and heard a heavy metal object hitting the car, which she recognized to be the sound of a firearm. In People v. Gonzalez, 212 AD2d 410 (1995), the court found that an "officer's hearing a metallic thud inside the car did not establish a reasonable suspicion to believe a gun was present inside the car." Similarly, here, Officer Medina's testimony regarding the sound of a metal object hitting the car is not enough to establish reasonable suspicion to search the target vehicle.

The People further rely on Officer Fernandez's testimony that he observed defendant holding a two-toned firearm and observed him throw the firearm into the target vehicle before locking the door. While Officer Fernandez's observations did make out a reasonable suspicion to search the target vehicle, it is clear from all the testimony in the record that Officer Fernandez never communicated those observations to Officer Medina before she intercepted the key fob and conducted her unlawful search of the target vehicle. "To justify. . . an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion (Cantor at 113). The People's reliance on the fellow officer rule in this instance is misguided. "The 'fellow officer' rule provides that even if an arresting officer lacks personal knowledge sufficient to establish probable cause, the arrest will be lawful if the officer 'acts upon the direction of or as a result of communication with a superior or [fellow] officer or another police department provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest'" (Ramirez-Portoreal at 113 [internal citations omitted]). In People v. Mortel, 197 AD3d 196, 204-205 [2nd Dept. 2021][internal quotation marks and citations omitted], the Court held, "[t]he arresting officer acts with probable cause when he [or she] arrests [an individual] on the basis of information received from a fellow officer who testifies at the suppression hearing concerning how he [or she] obtained his [or her] knowledge, which information itself or together with that [personally] known to the arresting officer establishes probable cause." For reliance on the fellow officer rule there need be some communication between officers; the acting officer must somehow obtain information from the observing officer. There also needs to be testimony regarding the transmittal of information from one officer to the other; such testimony is absent in the case before this Court. The Court in Ramirez-Portoreal, found that there was circumstantial evidence of communication between the officers and thus reliance on the fellow officer rule in that case was appropriate. Here, however there was no evidence presented of any communication, be it direct or circumstantial between Officer Fernandez and Officer Medina prior to Officer Medina's search of the vehicle. Therefore, the Court grants defendant's motion to suppress the firearm recovered from the unlawful search of the target vehicle.

B. Probable Cause for Arrest of Defendant

While a defendant has the ultimate burden of proving the illegality of police conduct, the People have the initial burden to introduce evidence that credibly establishes either a lawful rationale for the conduct of the police, or some other basis for averting suppression. (People v. Berrios, 28 NY2d 361, 367 [1971]). Additionally, the People have the burden to establish that the police had probable cause to arrest defendant (People v. Wise, 46 NY2d 321[1978]). Probable cause exists when the facts and circumstances within an officer's knowledge are sufficient to believe that a defendant has committed an offense (People v. Oqden, 36 NY2d 382 [1975]).

Here, Officer Medina testified that upon searching the target vehicle and observing a firearm inside the target vehicle, she communicated to the other officers to place defendant under arrest. Based upon the analysis above, the search of the target vehicle was unlawful and thus there was no probable cause to arrest defendant.

C. Statements Made By Defendant

Any statements made by defendant are suppressed as fruit of the poisonous tree of the unlawful arrest (Wong Sun v. United States, 371 U.S. 471 [1963]).

D. Inventory Search of Target Vehicle at Police Precinct

Because the arrest was unlawful, any and all property recovered incident to that arrest, including all property recovered from the inventory search is suppressed as fruit of the poisonous tree (id.).

Thus, the Court grants defendant's motion to suppress the evidence and statements made by defendant. Suppression of the evidence renders the evidence in this case insufficient to support the indictment and as such the indictment is dismissed. The Court will postpone sealing until 30 days after the rendering of this decision.

This constitutes the Opinion, Decision, and Order of this Court.

HON. RAYMOND L. RODRIGUEZ
ACTING JUSTICE, SUPREME COURT
Dated: September 5, 2023
Brooklyn, NY Footnotes

Footnote 1:Medina tr at 14, lines 3-16.

Footnote 2:Id. at 18, lines 16-17.

Footnote 3:Id. at 20, line 21.

Footnote 4:Gutierrez tr at 90, lines 14-16.

Footnote 5:Fernandez tr at 100, lines 1-2, 4-6.

Footnote 6:Id. at 102, line 12.

Footnote 7:See People v. Vargas, 140 AD2d 472, [1988]. In Vargas the Court stated, "[t]he fact that defendant possessed keys that fit the vehicle did not establish his right to drive or possess the car, or that he had a legitimate expectation of privacy in it, or that he has standing to dispute the validity of its search" (Vargas at 473).

Footnote 8:See also People v. Dantzler, 208 AD3d 590, 591 [2022]; People v. Bowers, 148 AD3d 1043 [2017].