The People were represented by Bronx County Assistant District Attorney Jessica Winik.
The Defendant was represented by The Bronx Defenders: Matthew Caldwell, Esq. and Trudy Strassburger, Esq.
DECISION AND ORDER
James M. Kindler, J.
Defendant, charged with Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03) and related offenses, moves in an omnibus motion to suppress a gun recovered from the waistband of his pants and statements he made to law enforcement officials, after the car in which he was a passenger was stopped by the police. A Dunaway/Mapp/Huntley hearing was held on June 11, 12 and 13, 2013, at which Sergeant Brian Holshek, of the New York City Police Department, testified for the People. Defendant presented no evidence.
Based on the evidence adduced at the hearing, and for the reasons discussed below, defendant's motion to suppress the firearm and the oral statements that he made to the police at the scene is denied.
Findings of Fact
The Court credits the testimony of Sergeant Holshek and makes the following findings of fact:
On December 18, 2011, at approximately 1:00 a.m., Sergeant Holshek (who, at the time, was a Police Officer assigned to the 44th Precinct) and his fellow officers, Michael Greaney and Eric Miller, were on patrol in plain clothes and an unmarked car, in the area of Webster Avenue and East 173rd -174th Streets, in the Bronx. They had just completed a traffic stop of a car and were walking back to their car, an unmarked police vehicle stopped in the roadway. Holshek and his partners noticed defendant's car, a green two-door Honda Accord,  stopped at a red light on Webster Avenue.The officers were about 20 yards in front of the Honda. While the Honda was stopped at the light, Holshek saw the driver get out of the car and switch positions in the car with the driver's side rear passenger. When the light turned green, the car sped off, causing the car's tires to screech; the music coming from the car and the car's muffler were each also very loud. The Honda, which was "pretty beat up, " was making enough noise to be heard blocks away, noise that Holshek believed was "unreasonable, " meaning to him that it would be "bothersome to a normal person" (H  83).
Holshek and his partners returned to their vehicle and, with the lights still on from the prior car stop, put the car's siren on. Officer Greaney drove the car, Holshek was in the front passenger seat and Officer Miller sat in the backseat. The officers followed the car and pulled it over after driving about 10-20 yards. The officers got out of their car about 10 feet behind the Honda and Holshek approached the passenger side of the car, while his partners approached on the driver's side. There were four people in the car (three men and one woman, who was seated in the front passenger seat) and Holshek could see all of them moving around inside the car; the people in the front seat turned toward the backseat, while the two people in the backseat "lean[ed] down and into the middle of the car" (H 49). Holshek could not see any of the occupants' hands and, because he did not know what they were doing, feared for his safety. The Honda's windows were not tinted, the area was lit by street lamps and buildings and nothing obstructed the interior of the car from view. As Holshek got closer, he focused on defendant, "the larger of the four people" (H 18), who was sitting in the rear passenger side seat, closest to Holshek. Defendant was not wearing a jacket, though he had a jacket with him in the backseat. He further saw that defendant was "shuffling, " and "moving his body" (H 11). Defendant also lifted his left side in the air and off of the seat, and then lowered himself by "shifting his weight into the middle of the vehicle and coming back over to the right side of the vehicle" in a "quicker" manner (H 19).
When Holshek reached the car, all of the car's occupants stopped moving. He pointed his flashlight into the car and looked down at defendant through the window, who was at that point sitting normally and leaning back. The car was low to the ground and the officer was "standing on top of him" with "an easy view of what's inside, going on inside the car" (H 20). Holshek saw a small to medium sized bulge at defendant's right hip, at the waist area.  Seeing that defendant had his cell phone in a case on the left side of his hip, outside of his shirt, he believed the bulge on the right hip may have been a weapon. The officers asked the four people to get out of the car for the officers' safety and Holshek frisked the area of defendant where he had seen the bulge, at his waist area. He felt the butt of a firearm, lifted defendant's shirt, removed the firearm from defendant's waistband and put it in his own pocket. The firearm was loaded; a bobby pin had been placed in the cylinder to keep it in place. He asked defendant to lay on the ground and cuffed him; his partners cuffed the other three occupants. Holshek also recovered six live.22 caliber rounds from defendant's front, left pants pocket. The sergeant then picked defendant up off of the ground and moved him over to the side. Defendant volunteered, in sum and substance, that the gun belonged to him and the officers should release the other three occupants of the car. His statements were not in response to any questions asked by the officers, the officers' guns were not drawn at the time he made the statements and no promises or threats were made to him to induce him to make the statements.
Holshek issued the driver a summons, charging disorderly conduct, for "mak[ing] an unreasonable noise" in violation of Penal Law § 240.20 (2), which was the reason the officers stopped the car that night. The officers transported all four people back to the 44th precinct for investigation. Defendant was given his Miranda warnings and agreed to answer the officers' questions. He again told the officers that the gun was his and that he was taking responsibility for it. At the precinct, Holshek tested the muffler and found it "very loud" (H 84).
Conclusions of Law
After he and his fellow officers heard loud noises — music, screeching tires and a loud muffler — emanating from the car defendant was riding in, Holshek stopped the car, believing he had sufficient cause to cite the driver for disorderly conduct. He later issued a summons to the driver for disorderly conduct, in violation of Penal Law § 240.20 (2), for making "unreasonable noise." The court credits Holshek's testimony that the car was making an unreasonably loud noise. Penal Law § 240.20 (2) requires, however, not only that a person "make an unreasonable noise, " but that he or she act "with intent to cause public inconvenience, annoyance or alarm or recklessly creat[e] a risk thereof." This mens rea requirement imports a "public harm" element into the disorderly conduct statute. People v Baker, 20 N.Y.3d 354, 359-360 (2013). Accordingly whether a person is guilty of disorderly conduct under Penal ...