Criminal Court of the City of New York, Kings County
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. ...