- November 1, 2016
Skip Laisure, New York, NY (Jenin Younes of counsel), for
Richard A. Brown, District Attorney, Kew Gardens, NY (John M.
Castellano, Johnnette Traill, Joseph Ferdenzi, and Heather H.
Marshall of counsel), for respondent.
PRISCILLA HALL, J.P. SANDRA L. SGROI JOSEPH J. MALTESE
COLLEEN D. DUFFY, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Queens
County (Latella, J.), rendered September 26, 2013, convicting
him of robbery in the first degree (two counts), robbery in
the second degree (three counts), criminal possession of a
weapon in the second degree (two counts), criminal possession
of a weapon in the third degree, criminal possession of
stolen property in the fifth degree, failing to stop at a
steady red signal, and making an unlawful turn, upon a jury
verdict, and imposing sentence. The appeal brings up for
review the denial, after a hearing (Paynter, J.), of those
branches of the defendant's omnibus motion which were to
suppress physical evidence and his statements to law
that the judgment is modified, on the law and the facts, by
vacating the convictions of robbery in the first degree (two
counts), robbery in the second degree (three counts),
criminal possession of a weapon in the second degree (two
counts), criminal possession of a weapon in the third degree,
and criminal possession of stolen property in the fifth
degree, vacating the sentences imposed thereon, and
dismissing those counts of the indictment; as so modified,
the judgment is affirmed, and those branches of the
defendant's omnibus motion which were to suppress
physical evidence and his statements to law enforcement
officials are granted.
suppression hearing, the People elicited testimony from the
arresting officer, the detective who interviewed the
defendant at the police station, and the officer who assisted
the arresting officer in conducting an inventory search of
the defendant's vehicle.
arresting officer testified that at approximately 3:30 a.m.
on the night at issue, a red Mitsubishi traveling at a high
rate of speed cut off the unmarked police vehicle that he had
been driving, made a left turn from the far right lane of
traffic, and then made another left turn through a red light.
The officer testified that, as a result, he directed the
vehicle, which was driven by the defendant, to stop. The
officer also testified that, at the time he stopped the
vehicle, he had no suspicion that the vehicle or its
occupants were connected in any way to a radio run he had
received approximately 20 minutes earlier describing a black
man wearing a "blue shirt and blue pants" and
carrying a firearm in his waistband who had fled on foot from
the area of "70-20 Grand Avenue."
arresting officer further testified that after the vehicle
stopped, he approached the driver's side, where the
defendant was sitting in the driver's seat, and his
partner approached the passenger's side, where a male
passenger was sitting in the front seat. The officer
testified that he observed a Coach handbag in the back seat
of the vehicle, but he also testified that, at that point, he
had no knowledge that the handbag may have been the subject
matter of a potential robbery.
arresting officer testified that as he approached the
vehicle, he thought the front seat passenger could
"possibly fit[ ]" the description from the radio
run because he was a black male wearing all dark clothing.
The officer admitted that the passenger had been wearing grey
jeans and a black jacket, not blue pants or a blue shirt, but
indicated that in his experience, witnesses easily confuse
blue and black.
officer did not immediately ask the passenger to get out of
the vehicle; instead, he asked the defendant, who was still
seated in the vehicle, if there was "anything
illegal" on him or in the vehicle. According to the
officer, the defendant replied, "No, officer. You can
check." The officer did not testify that at that time of
his inquiry he was in fear for his safety. Although the
officer testified that at the time the defendant responded to
his inquiry, the officer smelled a strong odor of alcohol
coming from the defendant, his question about "anything
illegal" was not based on the smell of alcohol or his
belief that the passenger looked like the reported gunman,
and he never performed a breathalyzer or other sobriety test
on the defendant. The officer also testified that neither he
nor his partner drew a gun even though he thought the
passenger might have matched the description of a man in dark
clothing with a gun.
officer testified that he directed the defendant to step out
of the vehicle and move to the rear of the vehicle, where he
frisked the defendant but did not recover a weapon. The
officer and his partner then switched places, and the officer
removed the passenger from the vehicle and moved the
passenger to the rear of the vehicle. The officer frisked the
passenger but did not recover a weapon.
officer testified that he asked the defendant where he was
coming from, and the defendant answered that he was coming
from a strip club and admitted that he had been drinking. The
officer testified that this discussion occurred after the
defendant had been removed from the vehicle and after the
officer had asked the defendant if there was anything illegal
on him or in the vehicle. According to the officer, at the
time he entered and looked inside the vehicle, the defendant
and the passenger were standing at the rear of the vehicle,
and he knew that they were unarmed. The defendant and the
passenger were not free to go at that point.
officer testified that although he had no knowledge that the
Coach handbag may have been involved in a robbery, the
handbag "grabbed [his] attention, " and he had a
hunch or suspicion that there might be something wrong with
two men driving with a handbag in the backseat. Next to the
handbag, he saw a camera and a cell phone. The officer looked
inside the handbag to see if there were any markings that
would identify the owner and then turned on the camera and
saw that all the photographs were of Asian people. The
officer testified that he asked the defendant who the camera
belonged to, and the defendant replied that it belonged to
his girlfriend, who he described, upon further questioning,
as "Dominican." The officer further testified that