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People v. Desmornes

Criminal Court of the City of New York, Queens County

July 24, 2018

The People of the State of New York, Plaintiff,
v.
Julner Desmornes, Defendant.

          Yanique Williams, Esq. The Legal Aid Society Shannon Riordan Assistant District Attorney Office of the Queens District Attorney.

          David J. Kirschner, J.C.C.

         On June 7, 2018, a Mapp/Dunaway hearing was held in Part T-2 of Queens County Criminal Court. At the close of the hearing, the parties were directed to submit memoranda of law to the Court in support of their respective positions. After review of the arguments contained in those filings, the accusatory instrument and other papers on file with the Court, the entirety of the record, and prior court proceedings, this Court granted defendant's motion to suppress by decision and order dated July 19, 2018. That decision and order is recalled and replaced by this decision and order dated, also granting defendant's motion to suppress.

         I. Background and Procedural History

         On March 18, 2017, at approximately 4:00 PM, Police Officers Loverdi (PO Loverdi) and Olivares (PO Olivares) of the Metropolitan Transit Authority Police responded to Sergeant Singh's (Sgt Singh) request for the assistance of an additional unit in front of Jamaica Station at 93-02 Sutphin Boulevard, Queens County. Upon arriving at that location, the officers observed a white sedan with no occupants illegally parked in an active bus lane. Both Sgt Singh and defendant informed the officers that the car belonged to defendant.

         The three officers requested pedigree information from defendant a combined total of approximately 15 times. Defendant refused each request and instead asked the officers for their identification. The officers then attempted to rear cuff defendant to take him aside, ascertain his identity, run a warrant check, and inquire after the reason for his illegal parking. Defendant tucked his hands into his armpits to prevent the officers from placing him in handcuffs. While attempting to rear cuff defendant, PO Loverdi cut his finger on the car keys defendant was holding. Defendant subsequently dropped his keys during the ensuing struggle. By the time the officers managed to rear cuff defendant, the attempted investigative detention had evolved into an arrest. After defendant had been rear cuffed, PO Olivares collected defendant's keys from the ground and took the keys and defendant for processing.

         By an accusatory instrument filed on May 2, 2017, defendant was charged with assault in the third degree (Penal Law § 120.00 [3], a class A misdemeanor), obstructing governmental administration (Penal Law § 195.05, a class A misdemeanor), resisting arrest (Penal Law § 205.30, a class A misdemeanor), and parking in violation of a posted sign (Vehicle and Traffic Law § 1200 [D], a violation).

         As noted, a Mapp / Dunaway hearing was held on June 7, 2018, to determine whether the evidence obtained is the fruit of an improper search and seizure in violation of the Fourth Amendment's warrant requirement, and the Fourteenth Amendment's Due Process Clause (US Const Amends IV, XIV; see also NY Const, art I, § 6). The People presented PO Olivares as their only witness; defendant called no witnesses. This Court finds the testimony of PO Olivares credible to the extent indicated herein. At the close of his testimony, the Court directed the parties to submit written memoranda in lieu of oral arguments.

         Defendant contends that the People have failed to make a showing of probable cause for defendant's March 18 arrest, and accordingly, that the physical and testimonial evidence are the product of an unlawful search and seizure, thus requiring suppression.

         The People contend that there was no Fourth Amendment violation. They argue that CPL 140.10 authorizes a police officer to arrest an individual even for a parking violation. The People further argue that there was probable cause for defendant's arrest based on the car being illegally parked in front of the main entrance of Jamaica Station, defendant's admission that he owned the car, and defendant's refusal to provide pedigree information. The People submit that the arrest was not only authorized, but required. Premised on the validity of this arrest, the People contend that the warrantless seizure is proper under the plain view doctrine, and alternatively, as incident to a lawful arrest.

         II. Discussion

         On a motion to suppress evidence secured by the police, the initial burden falls on the People to make a showing of probable cause (People v Hernandez, 40 A.D.3d 777, 778 [2d Dept 2007], first citing People v Berrios, 28 N.Y.2d 361, 367-368 [1971], and then citing People v Moses, 32 A.D.3d 866, 868 [2006] ["[T]he People bear the burden of going forward to establish the legality of police conduct in the first instance."]). Once the People make this showing, the burden of proving the illegality of police conduct falls to defendant (see People v Baldwin, 25 N.Y.2d 66, 70-71 [1969]). If the People fail to meet their initial burden of proving that both the search and the arrest are lawful, or defendant meets the ultimate burden of proving the unlawfulness of the search or seizure, the evidence must be suppressed (see generally Mapp v Ohio, 367 U.S. 643');">367 U.S. 643 [1961]; Dunaway v New York, 442 U.S. 200');">442 U.S. 200 [1979]). Thus, the People's arguments that the search in the instant case falls under one of those "few specifically established and well-delineated exceptions" to the per se unreasonableness of warrantless searches need not be reached if the arrest is determined unlawful (Katz v United States, 389 U.S. 347, 357 [1967]; see also People v Cantor, 36 N.Y.2d 106, 114 [1975] ["Having concluded that the initial seizure of the defendant was unlawful, the fruits of that unconstitutional seizure must be suppressed."]; People v Edmond, 17 Misc.3d 1130');">17 Misc.3d 1130 [A], 2007 NY Slip Op 52212[U], *9 [Sup Ct, Queens County 2007], citing People v Hicks, 68 N.Y.2d 234');">68 N.Y.2d 234 [1986] ["The arrest of an individual, and any search made incident to the arrest, are unlawful unless supported by probable cause."]).

         In attempting to justify the officers' actions, the People confuse distinct legal theories and obfuscate the factual allegations. The People argue that defendant's arrest was authorized by CPL 140.10 (2) (a), which permits arrests where an officer has reasonable cause to believe a petty offense was committed in his or her presence, and CPL 1.20 (39), which defines traffic infractions and violations as petty offenses. The People further assert that the combined force of defendant's claim of ownership of the vehicle in the bus lane, the location of the bus lane, and defendant's refusal to provide additional information provided the officers with probable cause to arrest defendant.

         It is necessary to clearly define the People's arguments. Though their reply papers leaves some ambiguity, the People are presumably arguing, first, that Officers Loverdi and Olivares were authorized by statute to arrest defendant for parking illegally. Under this theory, the officers only required reasonable cause to believe that defendant parked illegally; the location of the bus lane and defendant's refusal to provide additional information are irrelevant. The People's second argument is that the claim of ownership, location of the vehicle, and refusal to provide additional information provided the officers with probable cause for an arrest. Specifically, ...


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