Opinion
0873-09.
Decided March 10, 2010.
Camille Abate, Esq., The Bronx Defenders, Counsel for the Defendant.
Wayne Gosnell, Assistant District Attorney, Office of the Bronx District Attorney.
The defendant is charged with criminal possession of a weapon in the second degree (PL 265.03) and criminal possession of a weapon in the fourth degree (PL 265.01). Defendant moved, among other things, for suppression of a gun, a latex glove and statements made to the arresting officers on the grounds that they were obtained without requisite probable cause and were therefore the fruit of an unlawful arrest. By decision dated June 18, 2009, and filed on June 25, 2009, Justice Joseph Dawson ordered that a combined Mapp/Huntley/Dunaway/ hearing be conducted on those issues. On November 17, 2009, this case was administratively transferred from Justice Lorenzo, Part 30, to this court for hearing and trial. The hearing commenced before this court on November 17, 2009, and concluded December 4, 2009.
This hearing continued on November 18, 2009, November 19, 2009, and November 23, 2009.
Upon hearing oral argument from both the defendant and the People, and after reviewing their respective papers submitted in support thereof, prior court proceedings and documents on file with the court, this court denied defendant's motion in its entirety. This decision expands the written decision rendered on December 15, 2010.
Findings of Fact
At the hearing, the People called four witnesses: New York City Police Department Detective Cesar Marinelli, New York City Police Officer Frank Siciliano, Bronx District Attorney Stanley Schiffman and the Bronx Borough Coordinator for the New York City Parks Department, Antonios Mickelakis. The defense called two witnesses: New York City Police Officer Rafael Tosado and Bronx Defenders Investigator William Snowden. In general, no issues necessitating suppression were raised.
On December 7, 2008, at approximately 10:45 p.m., Police Officers Siciliano, Tosado, and Sergeant Scanlon, all assigned to the Bronx Anti-Crime Unit, were on routine patrol in an unmarked vehicle when they observed the defendant and an individual known only as "Danny" walking into the park located opposite 1889 Billingsley Terrace within the confines of the 46 Precinct (H: 9-11, 20, 23). Upon observing them enter the park, Officer Siciliano and Sergeant Scanlon, dressed in plain clothes with their shields visible, exited the vehicle, identified themselves and requested that they stop. Although Danny complied, the defendant, ignoring their request, walked away (H: 23-24). While Sergeant Scanlon remained with Danny, Officer Siciliano followed the defendant and noticed that he was wearing a white latex glove on his right hand. He stated that he observed the defendant "raise up his left hand, which had another glove on it . . . [and] saw a black object in his left hand, which he tossed into the fence, and I heard a metal to metal sound (H: 25-26). According to his testimony, he observed that object travel from the defendant's hand, hit the fence top and fall to the ground (H: 31, 89-90). Officer Siciliano then apprehended the defendant (H: 28).
Officer Tosado, who had remained in the vehicle that was blocking the entrance to the playground, exited and walked to where Sergeant Scanlon was standing with Danny (H: 337-338, 340, 352). Officer Siciliano and the defendant then joined Officer Tosado, who placed the defendant in handcuffs (H: 85, 349). Both Siciliano and Scanlon then searched the area where the defendant threw the object and found a firearm on the other side of the playground fence (H: 31-32). The white latex gloves were also recovered from the defendant. Both the gun and the gloves were vouchered (H: 35-36).
Officer Siciliano testified that when he first observed the defendant and Danny entering the park, at approximately 10:45 p.m., the park was closed. He stated that he was familiar with the Billingsley Terrace Park having been there on approximately thirty to forty prior occasions (H: 9, 55, 60). Officer Siciliano testified that upon arriving on December 7, he observed that the portions of the park area were illuminated, the source being both street lights and spotlights from the buildings surrounding the park.
Officer Siciliano further described the park as having two entrances, one opposite 1889 Billingsley Terrace and another further down, which is where he observed the defendant enter. He noted the entrance was large and had two gates that remained open (H: 14-16, 19-21). Adjacent to it is a stairway with several steps and a handrail that leads to an elevated area (H: 232, 228).
The park, originally named Billingsley Terrace Park, was renamed in 1998 to "Beanstalk Playground" as part of a city capital construction project (H: 293-294). An exterior fence approximately ten to fifteen feet tall surrounds the park and separating it from the street (H: 223, 227, 235-236). Within the exterior fence are several basketball courts, tables, benches and a jungle gym enclosed by a three-foot fence (H: 103-104, 224). Significantly, while there are no signs inside the park, near the jungle gym or elsewhere, indicating or demarcating a separate playground area, a sign posted outside exterior fence adjacent to the park entrance states (H: 234-235; People's Exhibit 2):
PLAYGROUND
Welcome to your New York City Playground. This playground is a shared public space provided for your enjoyment and recreation. We want you to have a fun and safe time. Be courteous and respectful to others, and please keep the park clean.
Playground Rules Prohibit:
bull; Adults Except in the Company of Children
bull; Littering and Glass Bottles
bull; Bicycles, Roller Skates, Scooters or Skateboards
bull; Pets
bull; Using Illegal Drugs, Alcohol or Smoking
bull; Amplifying Sound, Except by Permit
bull; Disorderly Conduct
bull; Feeding Birds or Squirrels
bull; Entering the Playground After it is Closed
bull; Standing on Swings
bull; Engaging in Commercial Activity, Except by Permit
bull; Performing or Rallying, Except by Permit
bull; Rummaging Through Trash Receptacles
bull; Vehicles Without Specific Authorization From Parks Recreations
bull; Barbecuing or Open Fires
bull; Bare Feet
This Playground Closes at Dusk
This court takes particularly note of the testimony of Antonios Mickelakis, the Department of Parks and Recreation's Bronx Borough Coordinator, who testified that the entire park falls within the City's definition of a playground (H: 292-293, 301). This court also took judicial notice of the following (H: 107-109, 198):
New York City Charter,
Code, Amendments and Regulations of the City of New York.
Title 56. Department of Parks and Recreation.
Chapter 1. Use of Parks.
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Section 1-03, General provisions, subsection (a)(1) reads:
Persons may enter and use the parks from 6:00 a.m. until 1:00 a.m. unless other open hours are posted at any park.
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Section 1-05, Regulated uses, subsection (s)(1) reads:
Exclusive children playgrounds: Adults allowed in playground areas only when accompanied by a child under the age of twelve (12).
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Section 1-02 Definitions.
Park. "Park" signifies public parks, beaches, waters and land under water, pools, boardwalks, playgrounds, recreation centers and all other property, equipment, buildings and facilities now or hereafter under the jurisdiction, charge or control of the Department.
Department. "Department" refers to the Department of Parks and Recreation of the City of New York or all successor agencies.
Finally, on December 8, 2008, at approximately 2:00 a.m., Detective Cesar Marinelli and his partner, Sergeant Panopoulos, both assigned to the Organized Crime Control Bureau Firearms Suppression Division, Gun Enhancement Unit, read defendant the Miranda warnings in the presence of Officer Siciliano (H: 42, 44, 99, 137; People's Exhibit 5). After verbally indicating that he understood each Miranda right and placing his initials after it, the defendant knowingly and voluntarily executed a written waiver. The defendant then denied possessing a gun and stated that he wore the latex gloves to keep his hands warm (H: 138-140). At approximately 12:00 noon on December 8, 2008, Detective Investigator Stanley Schiffman of Bronx District Attorney's Office also read defendant the Miranda warnings (People's Exhibit 6), after which the defendant made another statement, this time to ADA Lawrence Piergrossi that was recorded on videotape (H: 176-177). Both the testimony of Detective Marinelli and videotape establish that the defendant was not in any way threatened or coerced prior to making these statements nor was he promised anything in exchange for them.
Conclusions of Law i. Probable Cause
Initially, the People have the burden of commencing a suppression hearing by presenting evidence of probable, or reasonable, cause to show the legality of the police conduct ( People v Baldwin, 25 NY2d 66; People v Malinsky, 15 NY2d 86). Once the People have met this burden, it is the defendant that bears the burden of proving any illegality of the police conduct ( People v Berrios, 28 NY2d 361; People v Baldwin, 25 NY2d 66).
CPL 140.10 (1) provides:
Subject to the provisions of subdivision two, a police officer may arrest a person for:
(a) Any offense when he has reasonable cause to believe that such person has committed such offense in his presence; and
(b) A crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise.
CPL 70.10 (2) further provides:
Reasonable cause exits when evidence or information which appears reliable discloses
facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was [or is being] committed and that such person committed it. In sustaining their burden of establishing reasonable cause, the People must demonstrate that the attendant circumstances coupled with defendant's behavior justified the arresting officers' intrusion as prescribed by Debour's four-tier approach ( People v Debour, 40 NY2d 210, 223). According to this standard, the first level of intrusion permits a law enforcement officer to approach and request information provided there is an objective, credible, and articulable reason not necessarily indicative of criminality. The second level, the common-law right of inquiry, permits a momentary stop when there is a "founded suspicion that criminal activity is afoot" ( supra). When an officer has a reasonable suspicion that an individual has been involved in criminal activity, however, that officer may forcibly stop and detain that person. Finally, an officer may effect a full blown arrest when there is probable cause to believe that an individual has, is or is about to commit a crime.
Here, the People presented evidence that the basis of defendant's stop was Officer Siciliano's and Sergeant Scanlon's observation of him and "Danny" entering the Beanstalk Playground at 10:40 p.m. The posted sign, which was conspicuously located in close proximity to the entrance of Beanstalk Playground, provided sufficient constructive notice of the unlawful nature of entering or remaining in it after dusk. Thus, Officer Siciliano and Sergeant Scanlon were justified in concluding that the defendant and Danny were trespassing. As such, the officers were entitled to engage effecting a level two common-law right of inquiry by exiting their vehicle, approaching the defendant and Danny, identifying themselves and requesting they stop. While Danny complied, the defendant did not. Ignoring the officers' request, the defendant continued walking.
Flight from police officers, where it is accompanied by some indication of criminality, may indeed constitute reasonable suspicion thus justifying pursuit ( People v Holmes, 81 NY2d 1056, 1058; People v Martinez, 80 NY2d 444). Consequently, defendant's unlawful presence in the park justified, indeed entitled, Officer Siciliano to follow the defendant as he continued walking. Upon doing so, he observed the defendant wearing white latex gloves. Moments later, he observed the defendant toss a metal object that struck the fence. According to Officer Siciliano, it produced a distinctive metal sound. Such observations raised a reasonable suspicion that the defendant was involved in criminal activity and was attempting to conceal it, thus justifying his detention in accordance with the third level.
Once detained, the officers recovered the object they observed the defendant throw toward the fence, which appeared to be a loaded firearm. Accordingly, this court finds that the observations of the defendant, as well as recovery of the loaded firearm, provided the officers with sufficient reasonable cause to arrest the defendant. Pursuant to the fourth level then, defendant's arrest for criminal possession of a weapon was entirely justified.
Defendant contends that entering the Beanstalk Playground failed to provide Officer Siciliano with reasonable suspicion because the sign, which states "This Playground Closes at Dusk," pertains only to the playground area only not the entire park area. He predicates this claim on the dubious argument that the sign repetitively refers to "playground" and not "park" and contains rules that necessarily refer to matters exclusively limited to the playground area.
For instance, it is prohibited to stand on the swings and adults not accompanied by a child are prohibited from entering the playground (see NY City Charter § 1-05). That area, surrounded by a three-foot fence, contains a jungle gym and swings, apparatuses obviously designed specifically for young children. By negative implication then, defendant argues that posted sign must therefore, in its entirety, be limited to the playground area.
Finally, relying on People v Bell ( 306 NY 110, 113 [1953]), defendant claims that because the park gates were neither closed nor locked and lights illuminated the entire area, he enjoyed an implicit license to enter. Such reliance, however, is misplaced. Bell merely provides that "[t]he existence of a [subway] station implies an invitation or license to enter." A subway station, presumably intended to remain open during at all hours to serve the public, is hardly analogous to a park with a conspicuously posted sign clearly prohibiting entrance after dusk. Accordingly, this court finds defendant's argument entirely unpersuasive.
This court notes that the Court of Appeals, in People v Bright, ( 71 NY2d 37 [1988]) overturned Bell on other grounds (finding a statute unconstitutional that permits a police officer to arrest a person for loitering if that person refuses, fails or is unable to give a satisfactory explanation of his presence).
As noted above, the NY City Charter § 1-03 provides that "[p]ersons may enter and use the parks from 6:00 a.m. until 1:00 a.m. unless other open hours are posted at any park." The Charter also defines park as "public parks, beaches, waters and land under water, pools, boardwalks, playgrounds [emphasis supplied] . . ." (NY City Charter § 1-02). The sign posted outside the exterior fence adjacent to the park's entrance indicates that the entire park area is named Beanstalk Playground.
The City Charter notwithstanding, it is patently unbelievable that the spirit of the posted sign could in any way be limited to the jungle gym/ swing area. To begin with, the sign welcomes people to a "New York City Playground . . . [which] is a shared public space provided for your enjoyment and recreation. . . . Be courteous and respectful to others, and please keep the park clean." Does defendant suggest that people should only be courteous and respectful within the three-foot fence containing the jungle gym and swings but not in the park? Would he further suggest that only the children's playground should be kept clean but littering in the park is acceptable? Certainly, he does not. More emphatically, the sign explicitly prohibits activities such as "Bicycles, Roller Skates, Scooters or Skateboards . . . Using Illegal Drugs, Alcohol or Smoking . . . Disorderly Conduct . . . [and] Barbecuing or Open Fires." Should this court accept defendant's position, the inescapable conclusion would be that while using illegal drugs in the playground is prohibited, using them in the park is not. Surely, the defendant does not seriously expect this court to render such a ruling.
Accordingly, given that the governing City Charter clearly defines a park as a playground, the sign's numerous rules that obviously apply to the entire park, it is of no moment that two of the rules exclusively related the jungle gym/ swing area, that the entrance gates were open or that the street lights were on.
Defendant further contends that his arrest was unlawful because the arresting officers were patrolling beyond the boundaries of the 48th Precinct. Defendant's claim, however, presupposes that the arresting officers' authority was limited to the confines of the 48th Precinct; in fact, it is not. While the Bronx Anti-crime Unit is indeed based at the 48th Precinct, it is a borough-wide unit. As such, Officers Siciliano, Scanlon and Tosado were not improperly patrolling in the 46th Precinct.
More significantly, CPL 140.10 (3) provides:
A police officer may arrest a person for a crime, pursuant to subdivision one, whether or not such crime was committed within the geographical area of such police officer's employment, and he may make such arrest within the state, regardless of the situs of the commission of the crime. . . .
Here, the defendant was arrested for alleged possession of a firearm and subsequently charged with criminal possession of a weapon in the second degree (PL 265.03), a Class C felony. Having possessed the requisite probable cause as noted above, Officer Sicilliano was in fact authorized to arrest the defendant pursuant to CPL 140.10 (3), irrespective of his assigned command ( see People v Bethune , 65 AD3d 749 [3rd Dept 2009] court found that defendant's arrest in Schenectady by Coeymans police officers was authorized pursuant to CPL section 140.10).
Regarding defendant's claim that Officer Tosado's testimony lacked credibility because he was involved in a traffic accident the time of the arrest is patently absurd, particularly when it occurred near the playground while maneuvering his vehicle to cover the entrance to the playground.
ii. Statements
Fundamental to American jurisprudence is the precept that any custodial interrogation conducted by law enforcement agents must be preceded by the warnings enunciated by the Supreme Court of the United States in Miranda v Arizona, 384 US 436. Specifically, such agents must inform a person in custody of his right to remain silent and to have an attorney present during any questioning ( Miranda v Arizona, 384 US 436). A suspect may, of course, waive his Miranda rights by voluntarily, knowingly, and intelligently relinquishing those rights after having been made aware of them ( People v Anderson, 42 NY2d 35; People v Leonti, 18 NY2d 384, cert denied 389 US 1007; People v Medina, 123 AD2d 331 [2nd Dept 1986]). The burden, however, of establishing the voluntariness of a suspect's statement beyond a reasonable doubt at a Huntley hearing is on the People ( People v Holland, 48 NY2d 861; Anderson, 42 NY2d 35; People v Huntley, 15 NY2d 72) and here, this courts finds that they have satisfied it.
a. Custody
"In deciding whether a defendant was in custody prior to receiving his warnings, the subjective beliefs of the defendant are not to be the determinative factor. The test is not what the defendant thought, but rather what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position" ( People v Yukl, 25 NY2d 585, 589; People v Rodney P., 21 NY2d 1; People v DeJesus , 32 AD3d 753 [1st Dept 2006]; People v Robbins, 236 AD2d 823 [4th Dept], lv denied 90 NY2d 863; People v Lynch, 178 AD2d 779, 781 [3rd Dept 1991), lv denied 79 NY2d 949).
In making such an assessment, courts must consider the "totality of the circumstances" ( People v Centano, 76 NY2d 837; see also Minnesota v Murphy, 465 US 420 (1984). Among such circumstances is whether the defendant voluntarily appeared at, or accompanied officers to, the police precinct and whether questioning is conducted in a non-coercive atmosphere ( People v Acquaah, 167 AD2d 313 [1st Dept 1990], app denied 78 NY2d 961; People v Davis, 161 AD2d 395 [1st Dept], app denied 76 NY2d 955). Based on this court's findings of fact stated above, it is axiomatic that the defendant was in custody.
b. Interrogation
A suspect is subjected to interrogation when he is confronted with "express questioning or its functional equivalent" ( Rhode Island v Innis, 446 US 291). The "functional equivalent" of express questioning is "words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect" ( Innis at 301). The Court of Appeals has similarly held that "[w]hat constitutes interrogation' of a suspect . . . is determined not by the subjective intent of the police, but by whether an objective observer with the same knowledge concerning the suspect as the police had would conclude that the remark or conduct of the police was reasonably likely to elicit a response" ( People v Ferro, 63 NY2d 316, cert denied 427 US 1007). Statements made at a preliminary stage of an investigation in response to a law enforcement agent's general inquiry are not usually considered the product of an interrogation ( People v Johnson, 59 NY2d 1014; People v Chestnut, 51 NY2d 14; People v Huffman, 41 NY2d 29). Also exempted from interrogation are spontaneous statements that were essentially forced upon law enforcement agents and not the product of any inducement, provocation, encouragement or acquiescence on their part ( People v Maerling, 46 NY2d 289).
The testimony presented during this hearing clearly establishes that defendant's written statement to Detective Marinelli and videotape statement to the District Attorney were the products of an interrogation intended to elicit an incrimination response thus subject to the Miranda rule. As such, the defendant was read the Miranda warnings before giving both statements. Indicating that he understood each Miranda right provided to him, he knowingly and intelligently waived them both in writing and on videotape. Defendant then denied possessing a gun and stated that he wore the latex gloves to keep his hands warm. Based upon the evidence presented, this court finds that the Miranda warnings were properly administered and the defendant knowingly waived his Miranda rights.
iii. Voluntariness
As noted, it is the People's burden to prove that the defendant voluntarily, knowingly, and intelligently waived his Miranda rights. Traditionally, the issue of voluntariness centers around whether through the use of coercive techniques, law enforcement agents extract a statement "with complete disregard of whether or not (the accused) in fact spoke the truth" ( Rogers v Richmond, 365 US 534). CPL 60.45 (2) (b) (1) provides that law enforcement agents' use promises that create a risk of false incrimination to obtain a confession or admission are not the product of a rational intellect and a free will. Indeed, under those circumstances, a suspect's will is overborne ( Brewer v Williams, 430 US 387; Townsend v Sain, 372 US 293; People v Anderson, 42 NY2d 35; People v De Jesus, 63 AD2d 148, lv denied 48 NY2d 734). Such statements, therefore, are deemed to have been obtained involuntarily and are inadmissible for any and all purposes including impeachment or rebuttal ( see, People v Walker, 67 NY2d 776; Maerling, 64 NY2d 134). Even absent a risk of false incrimination, suppression may nevertheless be warranted where the promise is so deceptive or egregious as to violate due process ( People v Tarsia, 50 NY2d 1; People v Everett, 10 NY2d 500, cert denied 370 US 963; People v Rossi , 26 AD3d 782 [4th Dept 2006]; People v Peters, 157 AD2d 806 [2nd Dept], lv denied 76 NY2d 740; People v Taber, 115 AD2d 126 [3nd Dept], lv denied 67 NY2d 657.
Generally, the test for determining voluntariness is the "totality of the circumstances" standard ( United States v Bye, 919 F2d 6 [2nd Cir 1990]; Terry v LeFevre, 862 F2d 409 [2nd Cir 1988] Anderson, 42 NY2d 35). Among the circumstances to be weighed are interrogation techniques such as physical abuse ( see Anderson at 35), psychological pressure ( Davis v North Carolina, 384 US 737; see also Arizona v Fulminante, 499 US 279; Blackburn v Alabama, 361 US 199), food or sleep deprivation ( Ashcraft v Tennessee, 322 US 143; Greenwald v Wisconsin, 390 US 519) and promises of immunity or payment ( People v Dunbar, 53 NY2d 868; People v Urowsky, 89 AD2d 520 [1st Dept 1982].
Here, the People clearly established that defendant's waiver of Miranda, and subsequent statements, were nothing other than voluntary and defendant fails to advance any credible basis suggesting otherwise. No promises were made by any police officer or the District Attorney nor was he threatened, forced or compelled to waive his Miranda rights. At no time did the defendant request to consult with counsel. Moreover, notwithstanding that the videotaped statement occurred approximately 13 hours after his arrest, no evidence was presented that the defendant was deprived food, water, sleep or bathroom use. Defendant's motion to suppress both his written and videotape recorded statements is accordingly denied.
For the reasons explained above, this court concludes that defendant's arrest was supported by the requisite probable cause and entirely justified. His motion to suppress both the gun and statements made to law enforcement authorities is therefore denied. His motion to suppress those statements For the same reasons, his motion to suppress statements as having been involuntarily obtained and in violation of Miranda is denied as well.
This shall constitute the decision and order of this court.