This decision has been referenced in a table in the New York Supplement.
Robert Jones, Esq., Brooklyn, appearing on behalf of the defendant.
Anne-Marie Whelan, Assistant District Attorney, Office of the District Attorney, New York County, New York, appearing on behalf of the People.
JILL KONVISER, J.
On May 23, 2013, this Court conducted a combined Dunaway, Huntley, Mapp, and Voluntariness hearing. Police Officers Michael Susana and Andrew Smith testified for the People. The defendant did not present any evidence. The parties rested on the record. The defendant's motion is granted in part, as follows.
Findings of Fact
From the late evening of August 16, 2012, to the early morning of August 17, 2012, Police Officers Michael Susana, currently a member of the New York Police Department (hereinafter " NYPD" ) for approximately eleven years, and Andrew Smith, currently a member of the NYPD for approximately eight years, were assigned to the Street Narcotics Enforcement Unit (hereinafter " SNEU" ) of the 6th Precinct. Specifically, they were part of a team of officers conducting a narcotics surveillance operation out of an observation post located in the vicinity of Sheridan Square. Susana testified that he has been assigned to SNEU for approximately three years, that he has made over three hundred narcotics-related arrests, and that he is familiar with the area of Sheridan Square, which is a drug-prone location with a high concentration of crack/cocaine sales. At approximately 11:50 p.m. on August 16, 2012, Susana, who was located inside of a building on Sheridan Square, began to watch the defendant through a floor-to-ceiling window. The defendant was a male black, wearing " bright" red clothing, carrying a portable wooden stool. Susana testified that, based on his training and experience, he believed the defendant to be engaged in the sale of narcotics. Specifically, the defendant repeatedly approached multiple individuals, engaged those individuals in brief conversations, and motioned for those individuals to follow him to another location. A few minutes later, in each instance, the defendant then returned to the general area where Susana had first observed him. Susana observed the defendant engage in this type of behavior for approximately one hour. At approximately 12:50 a.m. on August 17th, Susana observed an individual, whom he later learned to be William Padeloford, approach the defendant. The pair engaged in a brief conversation after which the defendant motioned for Padeloford to follow him. Padeloford followed the defendant down the steps of a nearby subway station. The pair stopped before the first landing, where Susana was still able to observe them, and again engaged in another brief conversation. Susana then observed Padeloford give the defendant U.S. currency in exchange for a small item. While the defendant immediately left the subway stairs, Padeloford remained behind for approximately twenty seconds, examining the small item. Susana was unable to identify the small item, but believed it to be crack/cocaine. Susana made a radio transmission, alerting his field team that he had just observed what he believed to be a drug transaction. During that transmission, he provided descriptions of both the defendant-male black, wearing all red and carrying a wooden stool— and Padeloford— male white, wearing a green hat, blue shirt, and jeans— and the location of each of the individuals. In response to Susana's radio transmission, Smith— who recognized Susana's voice— observed both the defendant and Padeloford in the location indicated by Susana. No one else in the general vicinity matched the descriptions provided by Susana. Padeloford was apprehended and patted down, and a piece of crack/cocaine was recovered from a crack pipe in his possession. The defendant was apprehended, handcuffed, and patted down, and U.S. currency and a bag of crack/cocaine was recovered from his pocket. Within two minutes of having received Susana's radio transmission, Smith radioed back that he had the defendant and Padeloford in custody. A few minutes later, Susana observed both individuals in custody, in a police van.
Later, at the 6th Precinct, Susana was instructed by a Sergeant to conduct a strip search of the defendant. Susana testified that it was NYPD procedure to conduct such a search, and that the defendant could not be transported to Central Booking without having been searched in this manner. Susana escorted the defendant into the men's bathroom and informed him that he would be strip searched. The defendant, who was very agitated, stated, in substance, that it was not going to happen, and that Susana would have to fight him in order to accomplish the search. As the defendant was not complying with Susana's commands, Susana restrained him on the ground and forcibly removed his clothes. When Susana pulled down the defendant's shorts and underwear, he observed a wad of toilet paper protruding from the defendant's buttocks. Susana removed the wad from the defendant's buttocks and placed it on the ground. Inside of the wad were fifteen bags of crack/cocaine. As Susana pulled down the defendant's shorts and underwear the remainder of the way, a smaller wad of toilet paper fell from the defendant's genital area. Inside the smaller wad were five additional bags of crack/cocaine. Susana testified that as the strip search progressed, the defendant became more compliant. Subsequent to the strip search, as the defendant was getting dressed, he stated to Susana, in substance, not to worry, that he would go to the grand jury and beat the case.
Conclusions of Law
This Court fully credits the testimony of Police Officers Michael Susana and Andrew Smith.
The People have met their burden of demonstrating that the police had probable cause to arrest the defendant.
It is the People's burden to demonstrate that the police had probable cause to arrest the defendant by showing that they " were possessed of information which would lead a reasonable person to conclude that it was more probable than not ... that a crime has been committed and that the person being arrested is the person who committed it ... A lawful arrest does not require proof to a mathematical certainty or proof beyond a reasonable doubt." People v. Radoncic,239 A.D.2d 176 (1st Dept.1997); see People v. Mercado, 68 N.Y.2d 874 (1986); People v. Bigelow, 66 N.Y.2d 417 (1985); People v. Nunez, 61 A.D.3d 409 (1st Dept.2009); People v. Dickerson, 20 A.D.3d 359 (1st Dept.2005). In the instant matter, the uncontradicted hearing evidence establishes that Police Officer Susana, an officer with extensive experience in narcotics-related offenses, was assigned to a SNEU operation in a drug-prone location where he observed the defendant for approximately one hour, repeatedly approach multiple individuals, engage those individuals in brief conversations, and motion for those individuals to follow him to another location. Specifically, Susana observed an individual, whom he later learned to be William Padeloford, approach the defendant, engage in a brief conversation with him, and follow him down the steps of a nearby subway station, where Susana observed Padeloford give the defendant U.S. currency in exchange for a small item. Based on Susana's training and experience, coupled with his direct observations of the defendant's behavior, the police had probable cause to believe that the defendant had engaged in a drug transaction. See People v. Graham, 211 A.D.2d 55 (1st Dept.1995); People v. Jones, 219 A.D.2d 417 (1st Dept.1996). That Police Officer Smith did not personally observe the drug transaction before arresting the defendant is of ...