The People, Respondent,v.David Bookman, Appellant.

Brief

N.Y.Sep 7, 2016

To be argued by BARRY STENDIG ( l 0 minutes) New York Supreme Court APPELLATE DIVISION - SECOND DEP ARTMEl'ff PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - DAVID BOOKMAN, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT BARRY STENTIIG Of Counsel ____ _ L YN"N W.L. FA.HEY Attorney for Defondant- Appcllant 111 John Street, 9th Flr. New York, N.Y. 10038 (212) 693-0085 TO BE HEARD ON THE ORIGINAL REUJRD Queens County Ind. No. 2921/10 A.D. ~o. 14-01787 TABLE OF CONTENTS 5531 STATEMENT ................................................... 1 PRELIJ\HNARY STATEJ\1ENT ......................................... 2 QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS ............................................. 3 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The People's Case at the J\fapp-Huntley Hearing . . . . . . . . . . . . . . . . . . . . . . 4 Arguments and the Hearing Court's Decision . . . . . . . . . . . . . . . . . . . . . . . . . 5 Appellant's Guilty Plea, Appeal \Vaiver. and Sentence . . . . . . . . . . . . . . . . . . 7 ARGUMENT ........................................................ 8 POINT I POINT II APPELLANT'S WAIVER OF HIS RIGHT TO APPEAL WAS NOT VOLUNTARY, KNO\VING AND INTELLIGENT (U.S. CONST., AMEND. XIV; N.Y. CONST., ART. 1, §6) ........................................ 8 APPELLANT'S RIGHT TO BE FREE FROJ\I UNREASONABLE SEARCHES AND SEIZURES WAS VIOLATED WHEN AN OFFICER STOPPED THE CAR IN \VHICH APPELLANT WAS A PASSENGER BECAUSE ORNAJ\;fENTS WERE HANGING FROJ\f THE REAR VIEW i\HRROR AND A CENTER REAR BRAKE LIGHT DID NOT WORK, NEITHER OF WHICH VIOLATED THE VEHICLE AND TRAFFIC LA\Xl (U.S. CONST., AJ\fENDS, IV; XIV; N.Y. CONST., ART. 1, §12).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 CONCLUSION ..................................................... 16 SUPREivfE COURT OF THE STATE OF NE\'V YORK APPELL\ TE DIVISION: SECOND DEPARTivfENT ---------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- DAVID BOOKlvL\N, Defendant-Appellant. ---------------------------------------------------------------------x STATEivfENT PURSUANT TO RULE 5531 1. The indictment number in the Court below Was 2921/10. 2. The full names of the original parties were People of the State of New York against David Bookman, :Michael Reedy, and Abdoul Robinson. Only David Bookman is a party on this appeal. 3. These actions were commenced in Supreme Court, Queens County. 4. This action was commenced by the filing of an indictment on September 25, 2009. 5. This appeal is from a judgment convicting appellant, after a guilty plea, of attempted second- degree criminal possession of a weapon. 6. This is an appeal from a judgment of conviction rendered January 31, 2014. Appellant has been granted permission to appeal as a poor person on the original record. The appendix method is not being used. 1 PRELI~HNARY STATEr.H::NT Appellant appeals from a judgment of the Supreme Court, Queens County, rendered on January 31, 2014, convicting him, after a guilty plea, of attempted criminal possession of a weapon in the second degree (P.L. §§110 265.03 [3]) and sentencing him to a determinate 3-year prison term and 5 years of post-release supervision (Lasak,J., at hearing; Griffin,]., at plea, and sentence). Timely notice of appeal was filed and on May 6, 2014, this Court granted appellant leave to appeal as a poor person and assigned Lynn W. L. Fahey as counsel on appeal. He is currently on parole supervision. No stay has been sought. Appellant had no codefendants in the court below. QUESTIONS PRESENTED 1. \Vhether appellant's waiver of his right to appeal was not voluntary, knowing and intelligent. (U.S. Const., :\mend. XIV; N.Y. Const., Art. 1, §6). 2. Whether appellant's right to be free from unreasonable searches and seizures was violated when an officer stopped the car in which appellant was a passenger because ornaments were hanging from the rear view mirror and a center rear brake light did not work, neither of which violated the vehicle and traffic law (U.S. Const., Amends, IV; XIV; N.Y. Const., Art. 1, §12). -2- STATEI\1ENT OF FACTS Introduction Appellant was indicted for second-degree criminal possession of a weapon after an officer stopped the car in which he was a passenger because a novelty sandal and a heart-shaped necklace were hanging from the rear view mirror and the middle rear brake light was not working. The officer then noticed what he believed to be cocaine residue in a plastic bag in the front console, and arrested appellant and co-defendants 1\1ichael Reedy and Abdoul Blackman. Later, the officer recovered a loaded operable gun from the trunk of the car. Although Reedy's counsel pointed out that there was no tesumony that the objects hanging from the rear view mirror obstructed the driver's view thorough the windshield, and that the VTL does not require that a passenger car have an operating rear center brake light, the hearing court ruled that the officer had probable cause to stop the car based on the "obstruction" hanging from the rear view mirror and a "defective tail light." The hearing court denied defense counsel's motion to suppress the gun, holding that the officer had probable cause to search the car based on his belief that the plastic bag contained cocaine residue. Appellant later pled guilty to attempted second-degree weapon possession after the court told him only that his appeal waiver was a condition of the plea agreement. -3- The People's Case at the l'vfapp-Huntley Hearing At about 4:40 p.m. on November 2, 2010, police officer Colin Sparks and Sgt. J\fontague were driving on Hillside A venue in Queens when Sparks noticed a car ahead of them with a non-operating center brake light and an "obstruction" - a "novelty sandal and a big heart shaped necklace" - hanging from the rear-view mirror (5-7, 20-23) .1 The novelty sandal, hanging by a string four to five inches below the mirror, was "between 4 and 5 inches in length .... [and) possibly about 2 inches in width" and the heart was "approximately two to three inches in length and one or two inches in height" (23, 44- 45). Sparks could not remember the distance between the bottom of the rear view mirror and the dashboard or the length of the string attaching the sandals to the mirror ( 44). The two rear tail brake lights were both working (22). Sparks pulled the car over after it turned onto Parsons Boulevard (7, 9, 22-23, 45, 54, 58). In response to the officer's demand for the car's documents, the driver, codefendant Michael Reedy, volunteered that his license was suspended (8, 50, 52, 60). During this conversation, Sparks, who was on routine patrol "for small things, minor traffic infractions, small criminal violations," noticed a clear plastic folded sandwich bag that "looked almost cloudy" - "it was clear and cloudy" - containing "like a white powdery substance" in the center console rear cup holder (5, 9-11, 26, 28-29, 33-35, 47- 1References are to the Mapp-Huntley hearing. Those preceded by "A'', "P", and "S" are to the hearing argument, plea and sentence, respectively. -4- 48, 70). Based on his training in the identification of controlled substances 3 years before in the Police Academy and "encounters" with controlled substances in plastic bags, Sparks "believed" the bag contained cocaine residue (10-11, 29, 32, 53, 63). Sparks arrested Reedy, codefendant Abdoul Robinson, the front-seat passenger, and appellant, the rear-sear passenger (8-9) At the precinct, Sparks recovered a loaded 9 mm pistol wrapped in newspaper from the trunk of the car (12-14, 36-39, 51, 55-57, 70-71 ). After waiving his l\firanda rights, appellant told Sparks that Robinson wrapped the gun in appellant's newspaper and put it in the trunk (15-20, 42-43). Although he supposedly intended to, Sparks did not issue a VTL citation to Reedy concerning the ornaments, and he allowed Reedy's girlfriend to drive the car from the precinct with the ornaments still hanging from the rear view mirror (23, 44). Lab tests determined that the plastic bag, which was in the same condition at the hearing as when Sparks recovered it, contained no drug residue (29, 31-32, 70; Def. Ex. A). Arguments and the Hearing Court's Decision Counsel for appellant argued that neither of the reasons Sparks claimed for pulling over the car amounted to traffic violations (l\femorandum, p. 2, ,-rs 13-17). 2 Counsel pointed out that VTL §375 [40] [b] does not require a rear center brake light; instead, that section of the VTL stated that a vehicle only needs to have two functioning brake 2Since counsel's Memorandum is not ill the Supreme Court file, appellant is submitting it as an Exhibit on appeal. -5- lights, one on each side of the vehicle Qd., at i-f 14). Citing VTI, §375 (30), which states, inter a!ia, that "It shall be unlawful ... to operate a motor vehicle with any object placed or hung in ... such a manner as to obstruct or interfere with the view of the operator through the windshield .... ", counsel for codefendant Reedy pointed out that there was "no testimony that from the operator's [driver's] point of view of the roadway ahead of the vehicle was obstructed" (A. 8, 10). Observing that drivers with GPS devices attached to their windshields are not stopped, appellant's and Reedy's counsel reasoned that the claimed VTL infractions were a "pretext" to stop the car since it was released to codefendant Reedy's girlfriend with the VTL infractions "still in place" - the center rear brake light was not operating and the ornaments on the rear view mirror had not been removed (i\:femorandum, supra, i-fs 15-16; A. 10). The People responded, inter a!ia, that the objects dangling from the rear view mirror gave Sparks "reason to stop" the car (A. 17). In a written opinion, the hearing court denied the motion to suppress the gun. It held that Sparks had probable cause to stop the car based on its "defective tail light and an obstruction hanging from the rear view mirror," which constituted VTL violations (p. 5). The court also ruled that Sparks had probable cause to search the car "based on the recovery of the ziploc bag which appeared to him to contain narcotics" -6- Qd.).3 Appellant's Guilty Plea, Appeal Waiver, and Sentence After appellant agreed to plead guilty to attempted second-degree weapon possession, the court purported to elicit a waiver of appellant's right to appeal. THE COURT: Do you understand that even when you plead guilty you still have a right to appeal; however, here as part of the plea bargain arrangement, you are giving up that right? Do you understand that? THE DEFENDANT: Yes, sir. THE COURT: Do you freely give up your right to appeal? THE DEFENDANT: Yes, sir (P. 5-6). The standard appeal waiver form that appellant signed did not specifically mention that the hearing court's decision was encompassed by the waiver (see Waiver of Right to Appeal). The court never asked appellant ifhe understood the written waiver or whether he had even read it before signing it, and neither the court nor defense counsel ever mentioned the written waiver. On January 31, 2014, the court sentenced appellant to a determinate 3-year prison term and 5 years of post-release supervision (S. 2-3). 3Ruling that appellant had waived his Ivfiranda rights, the court also denied the motion to suppress his statements (p. 6-7). ARGU.MENT POINT I APPELLANT'S WAIVER OF HIS RIGHT TO APPEAL WAS NOT VOLUNTARY, KNOWING AND INTELLIGENT (U.S. CONST., ArvfEND. XIV; N.Y. CONST., ART. 1, §6). For a waiver of the right to appeal to be knowing, intelligent, and voluntary, a defendant must understand the nature of the right he is waiving and the full consequences of the waiver. People v. Lopez, 6 N.Y.3d 248, 256 (2006); People v. Seaberg, 74 N.Y.2d 1, 11 (1989). Otherwise, it does not satisfy the requirement as the "intentional relinquishment ... of a known right," Johnson v. Zerbst, 304 U.S. 458, 464 (1938), or "a knowing and voluntary choice." People v. Callahan, 80 N.Y.2d 273, 280 (1992). Although no particular litany is required, the trial court must "ensure that defendants understand what they are surrendering when they waive the right to appeal." People v. Lopez, supra, 6 N.Y.3d at 256. To do that, the trial court must elicit from the defendant that he grasps the concept of the waiver and the nature of the right he is foregoing. People v. Bradshaw, 18 N.Y.3d 257, 267 (2011); People v. Springer, 104 A.D.3d 794, 795 (2°