This case is not published in a printed volume and its disposition appears in a table in the reporter.
Michael R. Sonberg, J.
Defendants are charged in the indictment with one count of Bribery in the Second Degree (CPL § 200.03), one count of Bribery in the Third Degree (CPL§ 200.00), and one count of Obstructing Governmental Administration in the Second Degree (CPL§ 195.05). Defendant Rodriguez is additionally charged with one count of Criminal Possession of a Controlled Substance in the Fourth Degree [CPL§ 220.09 (1)].
Defendant Rodriguez has moved to suppress the narcotics recovered by the police, on the ground that such property was illegally seized. Defendant Taylor has moved to suppress a bag containing a quantity of United States Currency as well as certain statements made by her to the police.
A combined pre-trial Mapp/Huntley suppression hearing (granted by a court of coordinate jurisdiction) was conducted before this court on November 5, 2007 at which two witnesses, Police Officers Nestor Beaume and Hector Jimenez testified. Defendants presented no witnesses. Following completion of the hearing, the court requested that the parties submit memoranda of law regarding the legality of the stop, the subsequent seizures and the statement. Defendant Rodriguez and the People submitted memoranda of law but defendant Taylor did not. For the reasons set forth below, defendant Rodriguez's motion is granted and defendant Taylor's motion is denied.
FINDINGS OF FACT
The court credits the testimony of the two police witnesses to the extent hereafter indicated. On May 25, 2006, at approximately 8:30 PM, New York City Police Officer Nestor Beaume and his partner, Hector Jimenez, in uniform and assigned to a radio patrol car in the 43rd Precinct, responded to the location of Haviland and Castle Hill Avenues in Bronx County, in response to a radio run of a man waving a gun at the location. The radio run was predicated upon an anonymous call to a 911 operator. The man was described as a light-skinned male Hispanic, medium build, wearing a t-shirt and blue jeans. Traveling northbound from their location on Story and Fteley Avenues, it took approximately two minutes for them to arrive at the corner of Haviland and Castle Hill Avenues. From approximately two to three car lengths away, the officers observed defendant Rodriguez and another male, later identified as a Mr. Montanez, standing at the corner. They were the only two people standing at the location. No one was observed waving a gun. Officer Beaume testified that he was the driver of the vehicle and that both individuals fit the description from the radio run. He also testified that defendant Rodriguez "kind of fit the description." Officer Jimenez testified that he, not Officer Baume, was the driver of the vehicle and that Mr. Montanez did not fit the description in the radio report.
As soon as the patrol car was in front of the two individuals, Officer Beaume made eye contact with defendant Rodriguez and both individuals began walking westbound, crossing Castle Hill Avenue. They walked around the radio patrol car and, as they crossed the street, Officer Beaume testified that he asked them to stop. He proceeded to make a u-turn and again directed both individuals to stop. As defendant Rodriguez was walking away from the vehicle, Officer Beaume observed a bulge on his waist line. No facts were elicited as to the configuration of the bulge. Officer Beaume and his partner exited the vehicle and again asked the individuals to stop; they kept on walking, so Beaume walked a bit faster, went in front of them and stopped them. Officer Beaume approached defendant Rodriguez and Officer Jimenez approached Mr. Montanez. After he stopped defendant Rodriguez, Officer Beaume asked him, "Sir, where are you going?" He does not recall what, if anything defendant Rodriguez said to him in response but he told him to go up against the car and started patting him down. He touched the bulge on defendant Rodriguez's waist and, as soon as he touched it, realized that it was a cell phone, which was in a holder and was attached to defendant Rodriguez's belt.
As Officer Beaume was patting defendant Rodriguez down, defendant was moving a lot. He told defendant Rodriguez to stand still; however, defendant kept moving. Although he did not notice any other bulges on defendant Rodriguez's person, he continued to pat him down and, when he got to the area around his socks, he felt an uneven bulge in that area. He touched it and, as he candidly admitted, knew it was not a weapon. Defendant Rodriguez then pushed him to the ground, reached into his sock area and threw a package to the ground, which Officer Beaume believed to be crack/cocaine. Officer Beaume jumped up and grabbed defendant Rodriguez's leg, handcuffed him and placed him under arrest.
At no time did the police have their guns drawn while approaching or speaking with defendant Rodriguez or Mr. Montanez. Officer Beaume does not recall if he saw a bulge on Mr. Montanez because he was concentrating on defendant Rodriguez. He testified that he did not remember if Mr. Montanez was patted down but later he testified that indeed Mr. Montanez was patted down. Officer Jimenez testified that even though Mr. Montanez did not fit the description in the radio run, he patted him down because Mr. Montanez had on clothing that could conceal a weapon.
After defendant Rodriguez was placed under arrest, he was taken to the station house located at 900 Fteley Avenue and placed in a holding cell. Thereafter, defendant Rodriguez asked to speak to Officer Jimenez, who took him out of the holding cell and walked him to the restrooms. At that time, defendant Rodriguez told Officer Jimenez that he was businessman and that he had a number for him. Officer Jimenez assumed that to mean that defendant Rodriguez was going to provide him with information regarding a drug location or a number to a drug location such as a telephone number. Defendant Rodriguez then stated "ten" and Officer Jimenez proceed to ask him, " $10,000?" to which defendant Rodriguez replied, " Yes." Officer Jimenez told defendant Rodriguez that he would discuss it with his partner and get back to him in a few minutes. As he proceeded to walk defendant Rodriguez back to the cell, defendant Rodriguez whispered that he would make it "15."
After placing defendant Rodriguez back in his cell, Officer Jimenez contacted his supervisor, Lieutenant Guimeras, and advised him of the conversation he had with defendant Rodriguez. Subsequently, a recording device was placed on Jimenez's person and he had another conversation with defendant Rodriguez, during which defendant Rodriguez requested to make a telephone call to defendant Taylor, which request was granted. In that conversation, he told her to get a black bag that was "upstairs," not ask any questions but to do so in an expeditious manner, and then get to the station house as soon as possible and see Officer Jimenez. Officer Jimenez then spoke to the person on the telephone whom he believed to be defendant Taylor and provided her with directions to the 43rd Precinct. Approximately thirty minutes later, defendant Taylor arrived and identified herself as the person on the telephone. Officer Jimenez had a conversation with defendant Taylor regarding the black bag and she told him that she was not sure that she was supposed to give him all of the contents in the bag. At the completion of that conversation, it was agreed that Officer Jimenez would try to get defendant Rodriguez out of the precinct on a summons or a desk appearance ticket. Officer Jimenez left defendant Taylor and returned with Lieutenant Guimeras, who took the bag from defendant Taylor and gave it to Officer Jimenez who vouchered the bag containing approximately $12,000. Defendant ...