This decision has been referenced in a table in the New York Supplement.
Robert T. Johnson, District Attorney, Bronx County, by Alissa Kempler, Esq., Assistant District Attorney, for People.
John Vang, Esq., Bronx Defenders, for Defendant.
JOHN H. WILSON, J.
By Prosecutor's Information dated January 7, 2010, Defendant is charged with one count of Attempted Criminal Possession of a Weapon in the Fourth Degree (PL Sec. 110/265.01), a Class B Misdemeanor; and one count each of Resisting Arrest (PL Sec. 205.30), and Possession of Pistol Ammunition (AC 10-131(i)(3)), both Class A misdemeanors.
By order of the Court, dated May 24, 2010, a hearing was held before this Court in this matter on March 1, 2013 and March 7, 2013, pursuant to People v. Dunaway, 442 U.S. 200, 99
S.Ct. 2248, 60 L.Ed.2d 824 (1979), and Mapp v. Ohio, 367 U.S. 643, 81
S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
At the hearing, the People offered the testimony of two witnesses; Police Officer Alan Avella, and Police Officer Miguel Sanchez. The Defense offered no witnesses or evidence at the hearing.
Based upon the testimonial evidence offered by the People at the hearing, in its oral decision given at the conclusion of the hearing, this Court found both Officers to have been credible witnesses. See, Minutes dated March 7, 2013, p 46. However, the Court also found that the police lacked probable cause for the arrest of the Defendant, and suppressed the evidence recovered. See, Minutes dated March 7, 2013, p 50.
The People now move to reargue this determination, pursuant to CPLR Sec. 2221. In considering the People's motion, the Court has reviewed the minutes of the hearing, the Court file, the People's Motion to Reargue dated March 22, 2013, and Defendant's Affirmation in Opposition and Memorandum of Law dated May 3, 2013.
For the reasons stated below, the motion to reargue is denied. The Court reaffirms its suppression of the evidence seized by the Police in this matter.
STATEMENT OF THE FACTS
The Court makes the following specific findings of fact:
Officer Alan Avella testified that he is assigned to the 44 Precinct. See, Minutes dated March 1, 2013, p 5. He has been a member of the New York City Police Department for nine years, and has made " thousands" of arrests in his career. See, Minutes dated March 1, 2013, p 6-7. At the time of this Defendant's arrest, Officer Avella had made approximately 20 or 30 arrests for gun possession. See, Minutes dated March 1, 2013, p 7-8.
On November 22, 2009, the officer was assigned to the Anti-Crime Unit, was dressed in plain clothes and using an unmarked vehicle. He was working with Police Officer Miguel Sanchez, and another officer. See, Minutes dated March 1, 2013, p 8. Officer Sanchez was the driver, Officer Avella was the front seat passenger. See, Minutes dated March 1, 2013, p 11. Officer Avella testified that " we were literally in front of the precinct when we heard gunfire." See, Minutes dated March 1, 2013, p 12.
Traveling in the direction they believed the gun fire to have occurred, at the intersection of West 170th Street and EL Grant Highway, Bronx, New York, the officers observed the Defendant and " the two gentlemen he was with were walking eastbound on West 170th Street, literally crossing in front of the vehicle that I was in. At that point the vehicle came to a complete stop. When (Defendant) and his associates noticed who we were, their sense of direction and demeanor went from a steady course to basically bumping into each other." See, Minutes dated March 1, 2013, p 13.
After the unmarked vehicle came to a stop, Officer Avella testified that he " exited from the front seat ... I said to them, Police, guys, hold up. A couple of quick questions. We're trying to investigate the gunfire that I heard a few moments prior.' " See, Minutes dated March 1, 2013, p 15
The officer then testified that " the two gentlemen that (Defendant) was with ... walked a few steps back to myself ... (Defendant) broke off from the group and continued walking down West 170th Street."
While conducting what the officer described as a " field investigation" into the source of the gunfire, Officer Avella testified that he was " trying to see where Officer Sanchez is because (that officer was) still in the car. I saw the car rolling down the hill pretty much next to where (Defendant) was walking. As I looked up over the individual I had stopped, (Defendant) would look over his ...