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People v. Cooper

Criminal Court of the City of New York, Kings County

November 25, 2013

The People of the State of New York
v.
Robert Cooper, Defendant

Unpublished Opinion

For the People:

ADA Luis F. Segura, King's County District Attorney's Office 718-250-2915

Second Seat: ADA Michael Boykin 718-250-5241

For the Defendant:

Edward Daniels, Esq. Brooklyn Defender Services 718-254-0700, ext. 149

Second Seat: Betty Baez, Esq. 718-254-0700 ext. 238

GEORGE A. GRASSO, Acting Supreme Court Justice

Defendant is charged with attempted criminal possession of a weapon in the fourth degree (Penal Law § 110/265.01 [1] - a class B misdemeanor). [1] On November 14, 15, and 19, [2] 2013, a Dunaway/Mapp hearing was held before this court. Defendant's motion to suppress the physical evidence seized by law enforcement officers is denied for the reasons set forth below.

FINDINGS OF FACT

Based on the evidence, I have determined the following to be the relevant facts:

Two witnesses testified at the hearing, Police Officer Angelo Pizzarro and Police Officer Jermaine Taylor. This court finds the testimony of each officer to be credible. [3]

Police Officer Pizzarro testified that he has been a member of the New York Police Department (NYPD) for nine years. He further testified that for the last 7 1/2 years to present, he has been assigned to the Anti-Crime Unit in Public Service Area One (PSA1). The officer testified that his patrol unit specifically targets problematic areas and addresses quality of life issues.

Police Officer Pizzarro testified that he had training and experience with firearms based on his being in the military for twenty years, a corrections officer for eleven years and eight years as a member of the police department.

Police Officer Jermaine Taylor testified that he has been a member of the NYPD for nine years and is currently assigned to the Anti-Crime Unit in PSA1. He testified that his assignment entails patrolling housing developments with attention given to violent crimes and drugs. The officer testified that he had training and experience in how people carry firearms and how to approach individuals suspected of carrying firearms.

During the routine patrol of their tour of duty commencing on January 12, 2012, from 4:00 PM to 12:35 AM, the officers patrolled the Gravesend Housing Development (Kings County). At approximately 7:10 PM, Officer Pizzarro drove an unmarked vehicle, to wit, a black Ford van, with windows on the side, accompanied by Police Officer Michael Walsh, who sat in the front passenger seat, and Police Officer Jermaine Taylor who sat in the middle of a bench positioned behind the front driver and passenger seats. The officers entered Gravesend Housing Development from the east side into a parking lot. Officer Pizzarro observed, from a distance of approximately a car length and a half, a group of 4-6 males standing in the walkway of 3144 Bayview Ave., a building in the Gravesend public housing development. The officer's view was unobstructed, the area was well lit and the headlights of the van were on, when he observed one of the individuals with his jacket up revealing the butt of a firearm that was "L" shaped and dark in color in the male's waistband. Officer Pizzarro yelled while in the van, "oh shit, that guy got a gun." Officer Pizzarro identified that individual as defendant, Robert Cooper.

Officer Taylor also observed the group of males as the van entered the parking lot. Upon hearing Officer Pizzarro's exclamation, his attention was drawn to the individual that he observed with his right hand on his waistband as if he was gripping something. Officer Taylor identified the male he observed as defendant, Robert Cooper.

The defendant walked on the pathway in a southerly direction as the officer drove the van out of the parking lot and onto the pathway. The other males dispersed in different directions. Officer Pizzarro was driving at about 20-30 mph as he proceeded toward defendant. The defendant started running as the officer drove onto the pathway. The officer drove the van faster and pursued defendant until he reached scaffolding that stopped him from driving any further.

The officers exited the van. Officers Walsh and Taylor pursued the defendant on foot to Neptune Avenue and Officer Pizzarro went through the building located at 3112 Bayview Avenue. As Officer Taylor pursued defendant onto Neptune Avenue, he observed the defendant throw a small black object. Subsequent to Officer Taylor's observation, defendant was no longer holding his waistband. Upon arriving in the front of the building on Bayview Ave., Officer Pizzarro received a radio transmission from Officer Walsh that he observed defendant throw a firearm at the corner of Neptune and Bayview Avenues. Officer Pizzarro went to that location and he observed a firearm. He described it as dark in color, the same color as the firearm that he saw previously in the defendant's waistband. Moments later Officer Taylor and Officer Walsh caught up with defendant and he was apprehended. Officers Taylor and Walsh proceeded with the defendant back to the area where Officer Taylor observed defendant throw the object and saw Officer Pizzarro standing over the firearm. The Emergency Service Unit (ESU) was called and arrived within five minutes. An ESU officer picked up the firearm from the ground, ascertained that the firearm was unloaded and gave the unloaded firearm to Officer Taylor. Officer Taylor placed the defendant under arrest.

CONCLUSIONS OF LAW

At the Dunaway/Mapp hearing, "the People had the burden of going forward with credible evidence tending to show that the police officers acted lawfully, and the defendant had the burden of proving by a preponderance of the evidence that the officers acted illegally." People v Modlinger, 12 Misc.3d 1188 (A), (Sup Ct Bronx County 2006). This court finds that the People have met their burden of going forward on the issues presented in the Dunaway/Mapp hearing. The defendant has not met his burden of proof on the Dunaway/Mapp issues.

In People v De Bour, 40 N.Y.2d 210, 222-223 (1976), the Court of Appeals held that, a level three intrusion is activated when an officer has a reasonable suspicion that a person has been involved in criminal activity. Pursuant to CPL 140.50 (1), the officer is authorized to forcibly stop and detain that person.

Here, the officers had at least a reasonable suspicion to pursue, stop and detain the defendant. Officer Pizzarro credibly testified that he observed and communicated to Officer Taylor and Officer Walsh, that the defendant possessed what he reasonably believed, based on his respective training and experience, to be a firearm. Based on Officer Pizzarro's specific observation, the officers were justified in pursuing the defendant when he fled from their approach. People v Martinez, 80 N.Y.2d 444, 447 (1993).

Additionally, Officer Taylor credibly testified that he observed the defendant throw a small black object during the pursuit. Having a reasonable suspicion to believe that defendant was involved in criminal activity, the firearm was discarded as a result of proper police action. People v Martinez, 80 N.Y.2d at 444, supra. Defendant's act of throwing the small black object at the location that Officer Pizzarro, moments later, observed the firearm, "amounted to a calculated strategy by the defendant to rid himself of incriminating evidence, " that he intentionally abandoned. People v Santiago, 206 A.D.2d 492, 493 (2d Dept 1994), lv denied 84 N.Y.2d 872 (1994); People v Martinez, 80 N.Y.2d at 447- 449, supra. Once defendant abandoned the firearm, his right to object to its recovery was lost and provided probable cause for his subsequent arrest. People v Martinez, 80 N.Y.2d at 449, supra.

The final level prescribed by Debour's four-tier approach is where an officer arrests and takes an individual into custody that he has probable cause to believe has committed a crime or offense in the officer's presence CPL 140.10.

"Probable cause requires the existence of facts and circumstances which, when viewed in their totality, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense or crime has been or is being committed and that the person to be arrested is the perpetrator (see, People v. Fernandez, 185 A.D.2d 944, ...; People v De Bour, 40 N.Y.2d 210, ...). People v Starr, 221 A.D.2d 488, 488 (2nd Dept 1995).

Under the totality of the circumstances, the proper police action that lead to the lawful recovery of the firearm, gave the officer probable cause to arrest defendant. People v Martinez, 80 N.Y.2d at 449, supra.

Based on the foregoing, the pursuit, stop and detention of the defendant were permissible as the officers' had a reasonable suspicion that the defendant was involved in criminal activity. Id. at 449. The arrest of the defendant was pursuant to probable cause that was based on the lawful recovery of the abandoned firearm and Officer Taylor's reasonable conclusion that the defendant had committed a criminal offense in his presence. Id.

Accordingly, defendant's motion to suppress the physical evidence to wit, a firearm, is denied.

This opinion constitutes the decision and order of the court.


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