Criminal Court of the City of New York, Kings County
December 12, 2013
The People of the State of New York
Robert Cooper, Defendant.
For the People: ADA Luis F. Segura King's County District Attorney's Office, ADA Michael Boykin.
For the Defendant: Edward Daniels, Esq. Brooklyn Defender Services, Betty Baez, Esq.
GEORGE A. GRASSO, J.
Defendant is charged with attempted criminal possession of a weapon in the fourth degree (Penal Law § 110/265.01  - a class B misdemeanor). On November 14, 15, and 19, 2013, a Dunaway/Mapp hearing was held before this court. In a written decision by this court dated November 25, 2013, defendant's motion to suppress the physical evidence seized by law enforcement officers, to wit, a firearm, was denied. 
On December 3, 2013, defense counsel filed with the court and served on the People a copy of the cover page of a memo book belonging to Police Officer Angelo Pizzarro that indicated that it was opened on August 16, 2012 and was closed on December 13, 2012. In his prior testimony at the held hearing on November 14, 2013, Police Officer Pizzarro testified that his memo book from January 12, 2012, the date of defendant's arrest, to on or around November 1, 2012, had been destroyed by Hurricane Sandy.  (Testimony of P.O. Pizzarro, November 14, 2012, at 37).  The cover page (defense exhibit E) submitted by defense counsel showed the existence of a memo book that Police Officer Pizzarro opened August 16, 2012 and closed on December 13, 2012, approximately six weeks after Hurricane Sandy, in contradiction with the officer's testimony of November 14, 2013. Based on the unexplained contradictions of Officer Pizzarro's testimony with the copy of the cover page of his aforementioned memo book, this court granted defendant's motion to reopen the previously held Dunaway/Mapp hearing. Criminal Procedure Law (CPL) 710.40 (4).
Police Officer Pizzarro's Testimony at Reopened Hearing
On December 4, 2013, a reopened hearing was held before this court for the specific purpose of giving defense counsel an opportunity to cross examine Officer Pizzarro with respect to the newly discovered evidence of a copy of the cover page of the officer's memo book opened on August 16, 2012 and closed on December 13, 2012. (Hereinafter defense exhibit E). Prior to Police Officer Pizzarro being cross examined the assistant district attorney filed with the court and served on defense counsel a copy of the officer's previously missing memo book entry for January 12, 2012. (People's exhibit 1).
At the reopened hearing Officer Pizzarro testified that he previously testified that his memo book containing entries concerning the defendant's arrest on January 12, 2012, appeared in his open memo book that included dates up to late October 2012. (Testimony of P.O. Pizzarro, December 4, 2013, at 10). Officer Pizzarro testified that his previous testimony was that as a part of his normal practice he would leave his open memo book in his locker at the end of a tour and resume using the open memo book on the following tour. He further testified that his previous testimony was that he did not work on the day of Hurricane Sandy but worked on the following day. (Testimony of P.O. Pizzarro, December 4, 2013, at 11). It was Officer Pizzarro's testimony that he previously testified that his locker and its contents, including his open memo book, "were washed away" [due to Hurricane Sandy]. Id. at 12.
When provided with defendant's exhibit E, Officer Pizzarro testified that exhibit E was his memo book that was opened on August 16, 2012 and closed on December 13, 2012, and had not been lost in Hurricane Sandy. Id. at 13. Officer Pizzarro stated that, the memo book at issue "was loss (sic) during the clean up efforts and everything when (sic) Sandy, After (sic) Sandy or during Sandy." (Testimony of P.O. Pizzarro, December 4, 2013, at 13). It was the officer's testimony that he lost this memo book during "the Sandy era" (Id.) and found this specific memo book early last week. Id. at 14.
When squarely asked by defense counsel if he had testified previously that he had put his memo book in his locker on the day before Sandy, Officer Pizzarro testified that it was after Hurricane Sandy. Id. at 15. Officer Pizzarro then testified he doesn't remember if he put his memo book in his locker or not prior to Hurricane Sandy, although he had previously testified that it was a common practice for him to leave his open memo book in his locker. Id.
Officer Pizzarro testified on December 4, 2013, that November 13, 2013 was the first time he met with prosecutors in connection with this case. Id. He testified that he was told by a representative of the District Attorney's to look for his memo book and that he searched the entire Police Service Area One for his memo book with the January 12, 2012 entry between November 13, 2013 and November 14, 2013, but he doesn't recall the dates. Id. at 18.
Officer Pizzarro further testified that on November 14, 2013, he told prosecutors that he could not find his memo book and he assumed it was lost during the "Hurricane Sandy area" (sic). Id. at 21. Officer Pizzarro testified that he found his memo books, including defense exhibit E and the memo book containing the January 12, 2012 entry, along with numerous other memo books (seven to eight old memo books stemming from mid 2011 to late 2012), on November 24, 2013. He testified that he went on vacation on November 25, 2013 and returned early afternoon on December 3, 2013. Officer Pizzarro testified that he did not tell the District Attorney's Office about the memo books until December 4, 2013. The officer testified that he found his memo books in a big empty storage room that contained huge plastic bags of memo books, equipment and other items that belonged to officers from the precinct. According to Officer Pizzarro's testimony, he asked specific officers involved in the clean up during "the Hurricane Sandy period" where he might find items lost in Hurricane Sandy and he was then directed to the storage room. Id. at 22-23.
Officer Pizzarro testified that he spoke with ADA Segura on December 3, 2013, but did not inform the assistant district attorney that he had found his memo book on November 24, 2013 until the day of this hearing, December 4, 2013. (Testimony of P.O. Pizzarro, December 4, 2013, at 27). The officer testified that he was aware that ADA Segura and this court relied on his representation that his memo book was destroyed in Hurricane Sandy. Id. at 28.
Officer Pizzarro testified that he did not remember testifying previously at the hearing that the memo book containing the January 12, 2012 entry, was the same memo book that he used during Fall 2012. He testified that his prior testimony with respect to that specific testimony was based on assumptions, but he wasn't trying to deceive the court. He testified that he was confused because of all the dates being mentioned. Id. at 33. After inquiry by ADA Segura and the court, the officer testified that he used the dates of Hurricane Sandy, including November 1st, 2012, to indicate that he lost the memo book closed on December 13, 2012, after that date because of Hurricane Sandy. Id. at 39-40.
FINDINGS OF FACT
Upon consideration of Police Officer Pizzarro's testimony of December 4, 2013, due to multiple and significant inconsistencies inherent in his testimony on December 4th, 2013, when compared to his testimony on November 14th, 2013, this court does not deem Police Officer Pizzarro to be a credible witness. On November 14, 2013, the following colloquy took place during cross examination of Officer Pizzarro at the first hearing (Testimony of P.O. Pizzarro, November 14, 2013, at 37-38):
Q. Now, it's come to my attention that your memo book from January 12, 2012 no longer exists. Is that correct?
Q. And I understand that it was in your locker?
A. It was in the locker that I had on the first floor and it was victimized by Hurricane Sandy, yes.
Q. And when was the last time you saw your memo book?
A. In regards to that date?
Q. Well, let me ask you this question. The memo book from January 12, 2012?
Q. What dates did that memo book include?
A. It would have dates of the incident, dates leading up until Hurricane Sandy came and destroyed my command.
Q. Was it still the memo book that you were using on that date?
A. Up until that point, I believe so.
Q. When did you open the memo book?
A. I'm sorry?
Q. When did you open it?
A. I don't recall, just to tell you what date I opened it
Q. When was the last time you saw it?
Mr. SEGURA: Objection your Honor.
THE COURT: Overruled.
A. When was the last time I saw that?
Q. Yes? (Sic)
A. Sometime before Hurricane Sandy November - - 1st of 2012.
Q. Well, where did you see it?
A. I believe it was in my locker that floated away.
Q. Have you ever seen your locker again?
A. I didn't.
Further colloquy took place during cross examination of Officer Pizzarro at the first hearing (Testimony of P.O. Pizzarro, November 14, 2013, at 39):
Q. Let me ask this question.
Were you working - - you never keep your memo book on your person; correct?
A. Yes. But when I'm off my memo book stays in the locker. I don't need to take it home. And my locker I said the book was in the locker. I was off the day of Hurricane Sandy when everything was destroyed. So my memo book went along with the locker and everything else.
During redirect examination of Officer Pizzarro by the People at the reopened hearing the following colloquy occurred (Testimony of P.O. Pizzarro, December 4, 2013, at 38-40):
THE COURT: Read your testimony. Read your testimony where it appears to be saying that the memo book you were in fact using object (sic) November first you no longer saw again after Sandy.
A. That is what I believed.
THE COURT: Why did you believe - - how did you believe if in fact you are still using that same memo book until December 13?
THE WITNESS: Because like I said, when I testified I didn't know what dates were on the book until I actually saw the front of the book when I found it.
THE COURT: You were off by six weeks.
THE WITNESS: Guess so, yes.
THE COURT: Then you are saying subsequently (sic) to December that it was closed on December 13 because of Hurricane Sandy.
THE WITNESS: From November 13, 14, 2013, I will not specifically remember what I wrote on my memo book, what dates I wrote on my memo book over a year and change ago. I don't remember that.
THE COURT: Question is; are you telling the Court, are you testifying now under oath that the memo book that you were using on the dates of Hurricane Sandy including November first of 2012 that you loss (sic) that memo book after December 13th of 2012, that the reason you loss (sic) that memo book was because of (sic) after December 13th of 2012 is because of Hurricane Sandy, that is what you are testifying too?
THE WITNESS: Yes.
Having been unable to reconcile diametrically opposed testimony of the two dates and finding the explanation provided by Police Officer Pizzarro citing "the Hurricane Sandy era"  for the first time during the reopened hearing, this court has reason to find the officer not worthy of belief. People v Martinez, 44 A.D.3d 795 (2nd Dept 2007), lv denied 10 N.Y.3d 768 (2008).
I find that the entirety of his testimony regarding a so called "Hurricane Sandy era" to be bizarre and implausible. When Police Officer Pizzarro testified before this court on November 14, 2013 as to why he did not have his memo containing the date of the subject incident, he did not hedge. He testified clearly and directly that the reason he did not have it is because it was in his locker when Hurricane Sandy arrived, his command was "destroyed" and his locker floated away along with his memo book. He testified to this sequence of events in detail. Only when confronted by defense counsel's finding of a memo book supposedly swept away by a storm of historic proportions did he change his testimony and attempt to articulate something he named the "Hurricane Sandy era", and only at that point did he come to court with the missing and allegedly "destroyed" memo books. His manner in attempting to articulate this stark change in testimony was evasive and defensive. In sum, it was not worthy of belief by the court. People v Martinez, 44 A.D.3d at 796, supra.
Having rejected the sum and substance of Officer Pizzarro's testimony on December 4th, this court is now constrained to take another look at the entirety of this officer's testimony. This is a case where Officer Pizzarro was not mentioned in any of the arrest paperwork of the arresting officer, P.O. Jermaine Taylor. In fact, during his testimony Officer Taylor admitted that he never even mentioned Officer Pizzarro and his alleged sighting of a firearm and exclamation to the District Attorney's Office at ECAB. Significantly, Officer Pizzarro's alleged sighting of a firearm and exclamation are noticeably absent from both officers' memo book entries for January 12, 2012.
In sum, the initial police action that led to the recovery of the firearm in this case now is based in large part on the testimony of an officer that this court believed, for the reasons stated, testified in a manner that was not worthy of belief on December 4, 2013. Therefore, taking the record as a whole this court will not credit one part of Officer Pizzarro's testimony while rejecting another substantial portion of his testimony. People v Martinez, 44 A.D.3d at 796, supra. This is especially true in a circumstance where none of the police records created in a contemporaneous manner by Officers Pizzarro and Taylor offer independent support to Officer Pizzarro's assertions regarding a firearm.
Having discredited the testimony of Officer Pizzarro in its entirety, it would be inappropriate for this court to permit his alleged exclamation regarding the firearm to stand as a basis for the initial pursuit of the defendant through the of the testimony of Officer Taylor. At the time this court initially credited Officer Taylor's testimony as to having heard that statement, it was corroborated by the testimony of Officer Pizzarro. At this juncture that alleged statement, lacking any corroborating police records to support it, will not be given credibility as a partial basis for the initial pursuit of the defendant by Officers Pizzarro and Taylor. This court will not permit an uncorroborated statement of an otherwise discredited officer to be utilized by another officer as a basis for police action. Remaining for the court's consideration are Officer Taylor's personal observations that he conveyed to the District Attorney's Office at ECAB as well as in his testimony before this court.
Essentially, Officer Taylor testified he saw the defendant put his right hand outside his winter coat and that he looked like he "possibly" had been holding something in the area of his waistband and that to him provided reasonable suspicion. The following colloquy is the testimony of Officer Taylor (at the first hearing) on cross examination on November 15, 2013 at 93 and108-113.
Testimony at 93:
Q: You didn't see a gun, right?
A: When I saw - - when Officer Pizzarro drew my attention to him, he had already put his coat down and had, you know, his hand over it. That's what I saw. I saw his hand like he was gripping something in his waistband.
Q. By gripping?
A. Holding something.
Q. The grip area of the gun?
Testimony at 108-113:
Q. Let me ask you this question, then on January 13, you spoke with a representative of the District Attorney's office about the case?
MR. SEGURA: Objection.
THE COURT: Overruled.
Q. And you told them what happened in the case?
Q. You told them that the location of this case was 3112 Bayview?
Q. And you told them that before you saw a gun at 3112 Bayview, you saw a group of men walking from one building to another.
A. Yes. That's about what I told them.
Q. You told them you saw Mr. Cooper grab his waistband?
Q. You told them that Mr. Cooper looked in your direction?
A. Yes, I did.
Q. You told them that it was at that moment that Mr. Cooper ran?
A. Yes. Once we got up on the sidewalk, you know, he looked at us and started going southbound.
Q. That's what you told the district Attorney's office (sic) right?
Q. And you didn't tell the District Attorney's office that your partner saw a gun in front of 3114 Bayview; did you?
A. I don't think so.
MR. SEGURA: Again this question has been asked and answered.
THE COURT: Overruled.
This is in the context now immediately subsequent to the arrest?
MR. SEGURA: Correct.
THE COURT: The earlier line of questioning was not tied in to the immediate aftermath of the arrest. So, I'm going to permit it.
Q. You did not tell the person in the District Attorney's office that your partner, Officer Pizzarro saw Mr. Cooper with a gun.
A. From what I remember, I don't think so. But it's not unusual for, you know, to give our, you know, view of what happened We (sic) tell them like this is what I saw, you know, I saw this is, you know, my view. I saw Mr. Cooper's actions and, you know, I gave that to the assistant district attorney.
Q. When you speak to the District Attorney's office it's important to be truthful; right?
THE COURT: Overruled.
THE WITNESS: Yes, it is.
Q. It's important to be complete?
A. Yes, it is.
Q. That's because this information will serve as the basis for prosecution; right?
Q. And that applies to both whether a crime is committed, right?
Q. As well as to the basis for the stop?
Q. The legality of the stop?
A. (sic) Now, when you spoke to the District Attorney's office you didn't tell them that your partner said oh shit there's a gun?
A. I didn't. Sometimes, you know, when you're up all night processing the arrest you forget to say things, you know, you're going down to speak to the assistant district attorney at a later time you know, and you tell them everything that you remember. I mean you're up for ten, twelve hours You're (sic) exhausted. We're all human. We sometimes forget to say one thing at one point, and you know, correct it at a later point.
Q. You didn't tell them that Officer Pizzarro saw Mr. Cooper with a gun?
A. The assistant district attorney knew who I was working with. I told them all the officers that, you know, I was with at the time.
Q. Did the District Attorney's office ask you who you were working with at that time?
A. I believe they did.
Q. Did you provide Officer Pizzarro's name?
A. Yes? (sic).
Q. Officer Walsh?
Q. But you didn't (sic) them that Officer Pizzarro saw a firearm?
THE COURT: I think that you asked that question numerous times.
Q. You didn't tell them. (sic).
THE COURT: So that objection is sustained grounds asked and answered.
Q. You didn't tell them that you saw Mr. Cooper holding what appeared to be an object?
A. I told them he was grabbing his waist which, you know, is indicative of holding a firearm the way he was holding it, yes that indicates to me that he was holding a firearm.
Q. You didn't tell the District Attorney's office that it indicated to you that he was holding a firearm, right?
A. From what I remember, I said that he was holding his waistband you know, that.
Q. Officer, would a copy of the screening sheet prepared by the District Attorney's office based on a conversation with you refresh your recollection?
MR. DANIELS: Your Honor, I'm asking that a copy of the Complaint Room Screening Sheet be shown to the officer.
THE COURT: Mark that for ID.
Q. Have you had an opportunity to review the Complaint Room Screen (sic) Sheet?
Q. Does that refresh your recollection as to whether you told the District Attorney's office that Mr. Cooper was holding an object?
A. I told them that he was grabbing his waistband which is indicative to me as a police office on patrol, you know, some experience with that he was holding a weapon.
Q. You didn't tell the District attorney's (sic) office that it was indicative to you that he was holding a weapon?
A. I told them that he was grabbing his waistband. You know for me that's reasonable suspicion - -
THE COURT: Let him finish. Do you want to finish the answer officer?
THE WITNESS: I'm good.
CONCLUSIONS OF LAW
A defendant who challenges the legality of a search and seizure has the burden of proving by a preponderance of the evidence that the officers acted illegally (People v Whitehurst, 25 N.Y.2d 389, 391 ), the People, however, have the burden of going forward with credible evidence tending to show that the officers acted lawfully (People v Malinksy, 15 N.Y.2d 86, 91, n.2 ). People v Whitehurst, 25 N.Y.2d at 391, supra.
As stated by the Court of Appeals in People v De Bour, 40 N.Y.2d 210, 223 (1976), "[w]here a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or a misdemeanor, the CPL authorizes a forcible stop and detention of that person (CPL 140.50, subd. 1; see Terry v Ohio, 392 U.S. 1, People v Cantor, supra)." In order to execute this level three intrusion mandated by De Bour as constitutional, an officer may pursue a defendant. People v Maritnez, 80 N.Y.2d 444, 447 (1993).
In the instant case, based on Officer Taylor's testimony that he saw the defendant grab his waistband, his actions and the other officers' actions of pursuing the defendant were not based on a reasonable suspicion that the defendant had committed, was committing or was about to commit a crime. In fact, in this case the defendant's placing his hand outside a winter coat in the area of his waistband while standing among a group of young men in early January would not appear to justify a level one intrusion. People v De Bour, 40 N.Y.2d at 223, supra.
Here, there is certainly no lawful predicate to have pursued the defendant to stop and detain him. Defendant's act of placing his hand on his waist was equally consistent with innocuous behavior. However, in a level one intrusion the defendant has the right to not answer or to walk or run away, but in any case a pursuit and forcible seizure as happened here would not be permissible. People v Howard, 50 N.Y.2d 583, 592 (1980).
In People v Cadle, 71 A.D.3d 689 (2nd Dept 2010), the Appellate Division affirmed the suppression court's granting of defendant's motion to suppress the physical evidence seized, to wit, a gun, where the officer testified at the hearing that he observed the defendant walking at night on the street while holding his waist band in a high crime area. The officer and his two partners chased the defendant and he threw away a gun as he was being pursued. In affirming the lower court's decision to suppress the gun, the Appellate Court held that, " [u]nder the circumstances of this case, the officers' pursuit of the defendant was unlawful, and the defendant's discarding of the weapon during the pursuit was precipitated by the illegality and was not attenuated from it (see People v Lopez, 67 A.D.3d 708 ; cf. People v Boodle, 47 N.Y.2d 398 , cert denied 444 U.S. 969 ". People v Cadle, 71 A.D.3d at 689-690.
Accordingly, for the reasons stated defendant's motion to suppress the physical evidence to wit, a firearm, is granted.
This opinion constitutes the decision and order of the court.