Opinion
No. 2016QN048731.
10-16-2017
The PEOPLE of the State of New York, Plaintiff, v. Hassan CLARKE, Defendant.
Queens County District Attorney's Office by ADA Brianne Richards, Esq., for the People. Queens Law Associates by Emily Gordon, Esq., for the Defendant.
Queens County District Attorney's Office by ADA Brianne Richards, Esq., for the People.
Queens Law Associates by Emily Gordon, Esq., for the Defendant.
ALTHEA E. DRYSDALE, J.
The defendant, Hassan Clarke, is charged with criminal possession of a weapon in the fourth degree ( Penal Law § 265.01[2] ), consumption or possession of an open alcoholic beverage in a public place ( N.Y.C Admin Code § 10–125[a][2][b] ), possession of a knife with a blade of more than four inches ( N.Y.C Admin Code § 10–133[b] ), and unlawful possession of marihuana ( Penal Law § 221.05 ).
On September 26, 2017 and September 28, 2017, a Dunaway/Mapp/Huntley hearing was held before this court. Police Officer Joseph Degirolamo testified for the People. Based on his credible testimony, the court makes the following findings of fact and law.
Findings of Fact
Officer Degirolamo has been a New York City Police Officer for almost six years. He is currently assigned to the 103rd Precinct's Anti–Crime Unit. As testified, the main objective of the Anti–Crime Unit is to focus on weapons and violent felonies.
On November 2, 2016, Officer Degirolamo was on anti-crime patrol in the confines of the 103rd Precinct from noon until 8:35pm. He was in plain clothes and in an unmarked police vehicle, a black Suburban. Officer Degirolamo was seated in the front passenger seat, while Officer DeFalco drove the vehicle. Sergeant Humberg was also in the vehicle. At approximately 7:50pm, while driving southbound on Guy Brewer Boulevard and turning left onto 110th Avenue, Officer Degirolamo observed a group of individuals outside of a bodega. From a distance about five feet, Officer Degirolamo observed one member of the group with an open container of alcohol. Specifically, he observed a 50–milliliter clear bottle with a black cap, which appeared to be a clear alcohol bottle. Officer Degirolamo could not recall if the cap was on the bottle, but he did admit that there was no liquid in the bottle, only a residue of liquid.
Based on these observations, Officer Degirolamo and his team left their vehicle and approached the group. As they approached, a female member of the entourage signaled towards the officers, where the defendant left the group and walked into the bodega. Officer Degirolamo and the team entered the bodega. Sergeant Humberg and Officer DeFalco blocked the entrance of the bodega so that no one could enter. The defendant's friends were yelling and "being adamant." The defendant continued to walk away from Officer Degirolamo despite his commands to walk to him. The defendant was not following Officer Degirolamo's commands, and backing away while "moving his hands a lot." The defendant continued to back away from Officer Degirolamo, and exclaimed that he could not be stopped because he did not do anything wrong. Officer Degirolamo testified that the defendant never complied with his commands. So, Officer Degirolamo approached the defendant, to which he smelled the strong odor of alcohol coming from the defendant's breath, and also observed that the defendant was unsteady on his feet and slurred his speech. Officer Degirolamo frisked the defendant and recovered a folding knife from his pants pockets because, as he testified, he feared for his safety. Officer Degirolamo then asked the defendant why he had the knife, and the defendant stated, "I have to protect myself, I got jumped the other day." Officer Degirolamo continued his search of the defendant's body, where he recovered four bags of marijuana from his left front jacket pocket. The defendant was then placed under arrest.
Findings of Law
The defendant argues that Officer Degirolamo did not have probable cause to approach him because Officer Degirolamo did not observe the defendant drink from the bottle, and did not observe any liquid in the bottle. But, as the Appellate Division held in People v. Bothwell, 261 A.D.2d 232 [1st Dept 1999], holding the People to such evidentiary standards is improper at the hearing stage.
In Bothwell, the hearing court granted the defendant's motion to suppress. In granting the defendant's motion, the hearing court rejected the testimony that the arresting officer observed the defendant drink from a bottle, and found that the defendant possessed a bottle ( id. at 233 ). In reversing the hearing court's decision and remanding the case for reconsideration, the First Department held that pursuant to CPL 140.10[1][a], a police officer is authorized to arrest a person for any offense when he has "reasonable cause to believe that such person has committed such an offense in his presence" ( id. at 233 ). "[Reasonable] cause exists if the facts and circumstances known to the arresting officer warrant a prudent [person] in believing that the offense has been committed" ( People v. Baker, 20 NY3d 354, 359 [2013] [quoting People v. Oden, 36 N.Y.2d 382, 384] [1975] ) and it must "appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator ..." ( People v. Carrasquillo, 54 N.Y.2d 248, 254 [1981] ).
Here, the observation of what Officer Degirolamo believed to be an open container of alcoholic beverage was sufficient for Officer Degirolamo to approach the defendant to further investigate and issue a citation. "Even if the bottle were empty, it was reasonable to infer that [the] defendant had just finished consuming it[,]" considering Officer Degirolamo's observation of the odor of alcohol from the defendant's breath, his slurred speech, and unsteady feet ( id. at 234–5 ).
That being said, the recovery of the knife, the marijuana, and the defendant's incriminating statement must be suppressed.
The conduct of the officer must be analyzed according to the framework set forth in People v. DeBour, 40 N.Y.2d 210 (1976). By Officer Degirolamo's own testimony, he stopped and frisked the defendant (see People v. Perez, 224 A.D.2d 313 [1st Dept 1996] ; People v. Ayala, 265 A.D.2d 155 [1st Dept 1996] ; People v. Vaughan, 187 A.D.2d 685 [2d Dept 1992] [suspect is "seized" when police officer grabs his arm and conducts a pat-down frisk] ). "A forcible stop and detention is permissible ‘where a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor’ ( People v. Loper, 115 AD3d 875 [2d Dept 2014] [citing DeBour, 40 N.Y.2d at 223 ]. A frisk is permissible when the police possess a particularized reasonable suspicion that the suspect is armed and dangerous ( People v. Forest, 77 AD3d 511 [1st Dept 2010] ; People v. Gonzalez, 295 A.D.2d 183 [1st Dept 2002] ).
The amount of suspicion that the officer needed in these circumstances, "reasonable suspicion," has been defined as "knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe criminal activity is at hand" ( People v. Martinez, 80 N.Y.2d 444, 448 [1992] [internal quotation marks and citation omitted] ). Whether an officer possesses reasonable suspicion requires an evaluation of the totality of the circumstances (see Loper, supra ).
Here, viewed in its totality, Officer Degirolamo's frisk of the defendant was not justified. There was no evidence or testimony that the defendant was armed and dangerous. While Officer Degirolamo testified that he was in fear of his safety when he frisked the defendant, such testimony alone is insufficient for a frisk. As the court noted in People v. Cruz, 39 Misc.3d 52 (App Term, 2d, 11th & 13th Jud Dists 2013), "a police officer's fear for his [ ] safety is not dispositive of whether contraband was properly seized [citations omitted]. The propriety of a limited search is not automatic, and the detaining officer must still have knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is ‘armed and dangerous' " ( id. at 56–7 ).
The record is devoid of any facts to believe that the defendant was armed and dangerous. Instead, the record shows that defendant's hands were in Officer Degirolamo's view, and that the defendant was only walking away from the officers stating that he could not be stopped by them. Therefore, the incriminating statement and the marijuana recovered are similarly suppressed as fruits of an unconstitutional search.
Accordingly, the defendant's motion to suppress the knife, his incriminating statement, and the marijuana is granted.
The foregoing constitutes the decision and order of the Court.