The People, Respondent,v.Gregory Lee, Appellant.BriefN.Y.August 30, 2017 To be argued by GRACE VEE New York Supreme Court Appellate Division - First Department THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - GREGORY LEE, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 (212) 335-9000 danyappeals@dany.nyc.gov GRACE VEE ASSISTANT DISTRICT ATTORNEY Of Counsel TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii INTRODUCTION................................................................................................................ 1 THE SUPPRESSION HEARING ..................................................................................... 3 The People’s Case ....................................................................................................... 3 The Hearing Court’s Decision ................................................................................ 13 POINT THE HEARING COURT PROPERLY DENIED DEFENDANT’S MOTION TO SUPPRESS THE ITEMS RECOVERED FROM HIS CAR. ............................................... 16 CONCLUSION ................................................................................................................... 28 TABLE OF AUTHORITIES FEDERAL CASES Illinois v. Lafayette, 462 U.S. 640 (1983) ........................................................................... 21 United States v. Chadwick, 433 U.S. 1 (1977) ................................................................... 21 STATE CASES People v. Badger, 52 A.D.3d 231 (1st Dept. 2008) .......................................................... 26 People v. Belton, 55 N.Y.2d 49 (1982) .............................................................................. 25 People v. Berrios, 28 N.Y.2d 361 (1971) ........................................................................... 17 People v. Berry, 27 A.D.3d 201 (1st Dept. 2006) ............................................................. 17 People v. Blasich, 73 N.Y.2d 673 (1989) ........................................................................... 25 People v. Brown, 91 N.Y.2d 854 (1997) ............................................................................ 17 People v. Cesar, 111 A.D.2d 707 (1st Dept. 1985) .......................................................... 20 People v. Chestnut, 43 A.D.2d 260 (3d Dept. 1974), aff’d 36 N.Y.2d 971 (1975) ............................................................................................ 25 People v. Cirigliano, 15 A.D.3d 672 (2d Dept. 2005) ...................................................... 26 People v. Davis, 240 A.D.2d 309 (1st Dept. 1997) .......................................................... 20 People v. De Bour, 40 N.Y.2d 210 (1976) ........................................................................ 17 People v. Edwards, 250 A.D.2d 442 (1st Dept. 1998) ..................................................... 20 People v. Etheridge, 175 A.D.3d 739 (1st Dept. 1991) ................................................... 27 People v. Feili, 27 A.D.3d 318 (1st Dept. 2006) ............................................................... 26 People v. Gaines, 57 A.D.3d 1120 (3d Dept. 2008) ......................................................... 26 People v. Galak, 80 N.Y.2d 715 (1993) ................................................................. 21-22, 24 People v. Galak, 81 N.Y.2d 463 (1993) ............................................................................. 25 -ii- People v. Garafolo, 44 A.D.2d 86 (2d Dept. 1974) ......................................................... 20 People v. Gomez, 13 N.Y.3d 6 (2009) .......................................................................... 21-22 People v. Gonzalez, 62 N.Y.2d 386 (1984) ....................................................................... 21 People v. Holland, 48 N.Y.2d 861 (1979) ......................................................................... 17 People v. Ingram, 19 A.D.3d 101 (1st Dept. 2005).......................................................... 17 People v. Jackson, 175 A.D.2d 751 (1st Dept. 1991) ....................................................... 17 People v. Johnson, 1 N.Y.3d 252 (2003) ..................................................................... 21, 24 People v. Lightner, 56 A.D.3d 1274 (4th Dept. 2008) ..................................................... 26 People v. Ortiz, 90 N.Y.2d 533 (1997) .............................................................................. 17 People v. Padilla, 21 N.Y.3d 268 (2013) ............................................................................ 21 People v. Prochilo, 41 N.Y.2d 759 (1977) ................................................................... 17, 20 People v. Samuels, 68 A.D.2d 663 (1st Dept. 1979), aff’d, 50 N.Y. 1035, cert. denied, 499 U.S. 984 (1980) .................................................................................. 19 People v. Sanchez, 248 A.D.2d 306 (1st Dept. 1998) ...................................................... 20 People v. Smith, 187 A.D.2d 267 (1st Dept. 1992) .......................................................... 20 People v. Stroman, 83 A.D.2d 370 (1st Dept. 1981) ....................................................... 20 People v. Ventura-Almonte, 78 A.D.3d 524 (1st Dept. 2010)........................................ 25 People v. Yancy, 86 N.Y.2d 239 (1995) ....................................................................... 14, 25 STATE STATUTES Penal Law § 165.45(2) ............................................................................................................ 1 Penal Law § 170.10(1) ............................................................................................................ 1 Penal Law § 170.25 ................................................................................................................. 1 Penal Law § 190.78(1) ............................................................................................................ 1 -iii- Penal Law § 190.80(3) ............................................................................................................ 1 OTHER AUTHORITIES Kamins, New York Search and Seizure, § 5.05(6)(a) ....................................................... 22 Muldoon, Handling a Criminal Case in New York, § 9:82 ............................................. 22 -iv- SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- GREGORY LEE, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION Defendant Gregory Lee appeals from a judgment of the Supreme Court, New York County, rendered on August 7, 2013, convicting him, following his plea of guilty, of six counts of Forgery in the Second Degree (Penal Law § 170.10[1]), six counts of Identity Theft in the First Degree (Penal Law § 190.80[3]), two counts of Criminal Possession of a Forged Instrument in the Second Degree (Penal Law § 170.25), eight counts of Criminal Possession of Stolen Property in the Fourth Degree (Penal Law § 165.45[2]), and seven counts of Identity Theft in the Third Degree (Penal Law § 190.78[1]). Defendant was sentenced to concurrent terms of three to six years on each count of forgery in the second degree, identify theft in the first degree, and criminal possession of a forged instrument in the second degree; two to four years on each count of criminal possession of stolen property in the fourth degree; and one year on each count of identity theft in the third degree. Defendant is currently incarcerated pursuant to the judgment. Defendant’s conviction of the above-enumerated crimes, upon his plea of guilty, arises from the recovery by the police of numerous items of stolen property from his car on November 16, 2012. Prior to the search of his car, pursuant to a lawful inventory search, the police had arrested defendant, who was a known pickpocket recidivist, for criminal possession of stolen property related to his possession of stolen property and his use of stolen credit cards on October 25 and November 13, 2012. In addition, before the police conducted the inventory search of his car, defendant was arrested for unlawfully possessing marijuana that he kept on the front console of his car, which the police both saw and smelled when his car door was open. On appeal, defendant claims that the hearing court erred in denying his motion to suppress the various items which the police recovered from his car. -2- THE SUPPRESSION HEARING1 The People’s Case At the time of the suppression hearing, Sergeant JIMMY FREYRE had been working for the New York City Police Department (“NYPD”) for about eight and one-half years and had spent almost his entire police career in the Transit Division (Freyre: H4-5). For approximately the past six years, Sergeant Freyre had been assigned to the Transit Manhattan Intelligence Field Office, where he regularly conducted investigations into grand larcenies, pickpocketing, and sexual abuse incidents that took place in the subway system (Freyre: H4-5). At the time of the hearing, “about a hundred or so” of Sergeant Freyre’s investigations involved “pickpockets and stolen credit cards and the like” (Freyre: H4). In June of 2012, Sergeant Freyre began investigating a grand larceny that had taken place on June 10th in the subway station at 42nd Street and Eighth Avenue. Freyre reviewed a video of the incident in which he saw two individuals remove a wallet from the victim in the subway station. When Freyre compared the faces of the two assailants to photographs in “a book of known grand larceny, pickpocket recidivists,” he was able to identify defendant, whom he got “a clear shot of” in the video, as one of the assailants; the other suspect, who wore a hat during the crime, 1 Parenthetical numerical references preceded by “H” are to the minutes of the Mapp/Dunaway suppression hearing held before Justice Melissa C. Jackson on April 25 and 26, 2013. -3- was identified as “Walter Young” (Freyre: H5-6, H13-14). Freyre contacted defendant’s parole officer and found out when defendant’s next parole visit would be. During that visit, Freyre observed defendant, accompanied by Young, meet with the parole officer. At that time, Freyre called the detective, who had been assigned to the June 10th grand larceny, to inform him that defendant was on parole (Freyre: H6, H14).2 On October 25, 2012, defendant was arrested with Young for committing an attempted grand larceny in the 14th Street and Union Square subway station (Freyre: H7). Sergeant Freyre was summoned to “debrief” defendant and Young, but they refused to speak to him (Freyre: H7). While defendant was being searched pursuant to that arrest, a MetroCard was recovered from him. Upon further investigation, Sergeant Freyre determined that the MetroCard had been purchased with a stolen credit card. In addition, Sergeant Freyre and the assigned detective reviewed surveillance video which showed that defendant was the person who had purchased the MetroCard at a subway vending machine (Freyre: H7-8, H15-16). A “wanted poster” was then issued for defendant seeking his arrest for “criminal possession of stolen property” in connection with the Metrocard that had been purchased with a stolen credit card (Freyre: H8, H15, H26-27). 2 The detective then notified the parole officer to “hold on” to defendant until the detective “showed up” (Freyre: H6). Sergeant Freyre “believe[d]” that “an arrest” was made on June 19, 2012 in connection with the June 10th grand larceny (Freyre: H15). -4- On November 13, 2012, at about 5:00 or 6:00 p.m. during “rush hour,” Sergeant Freyre, along with a partner, was on plainclothes patrol in the subway station at 42nd Street and Seventh Avenue when he observed defendant and a black female— later identified as Deion Grinds—board a northbound train. Freyre, but not his partner, was able to get on the “very crowded” train to follow the pair (Freyre: H8-10, H17-20, H31-33). Defendant and Grinds got off the train at 125th Street and Lenox Avenue, and went into a Starbucks on that corner. From outside the store, Sergeant Freyre observed defendant and Grinds “at the cash register attempting to purchase something.” After they left Starbucks, Sergeant Freyre saw defendant and Grinds walk to 123rd Street and Seventh Avenue, where they got into a white, four-door Yukon car with Louisiana license plates, and drove away (Freyre: H9-10, H20, H23- 24). Although Sergeant Freyre believed he had probable cause to arrest defendant on November 13th for possession of stolen property, he did not arrest defendant on that day because he was by himself and he “didn’t want to take police action alone.” Moreover, because of problems with cell phone and radio reception in the subway system, Freyre was unable to call for back-up assistance in making an arrest (Freyre: H12, H21-22, H31, H46). Later in the day on November 13th, Sergeant Freyre created a wanted poster for defendant which: identified him as a “pickpocket”; had his photographs and pedigree information; indicated that he had been observed that day in the subway system “casing for possible victims”; described the vehicle he had -5- entered and drove away in; noted that he had several grand larceny and pickpocket arrests in the subways and on street level; and stated that he was currently wanted by the Transit Manhattan Robbery Squad for criminal possession of stolen property. At the bottom of the poster, in capital letters, it stated there was “probable cause to arrest” defendant (Freyre: H24-27, H33-35; Defense Exhibit A [Nov. 13, 2012 wanted poster]). The next day, Sergeant Freyre went to the same Starbucks and reviewed video surveillance footage showing defendant and Grinds at the cash register the previous day. Freyre spoke with the cashier who had been at the register the day before. She “absolutely” remembered defendant, recalling that he had attempted to make a purchase using a credit card which had the photograph of another person on it, and she therefore “declined” processing the transaction (Freyre: H9-10, H23). On November 16, 2012, Sergeant Freyre returned to 123rd Street and Seventh Avenue, where he again saw the white Yukon vehicle with Louisiana plates parked at the location (Freyre: H10, H35, H37, H40). At approximately 6:30 to 7:00 p.m., Sergeant Freyre was joined by Police Officer GABRIEL DONES, of the Transit Manhattan Task Force, and the two officers, who were in plain clothes and waited in an unmarked vehicle together, conducted surveillance of the Yukon SUV from across the street (Freyre: H10-11, H36-38, H42, H47; Dones: H95-96, H132-136, H146- -6- 148).3 Sergent Freyre told Officer Dones that they were looking for a man who was “wanted” and a “known pickpocket” (Dones: H134). About 45 minutes to an hour later, the officers saw defendant and Deion Grinds enter the Yukon, and defendant drove off (Freyre: H11, H38-41; Dones: H97-98, H135, H147). Sergeant Freyre and Officer Dones followed in their vehicle as: defendant drove and stopped outside a deli, went into the store, came back out, and reentered the car; defendant then drove up to 145th Street, where he went to a gas station and got gas for the car; and defendant then drove south on the FDR Drive to 55th Street between Lexington and Third Avenues, where he parked the Yukon. Defendant and Grinds exited the car and walked to a restaurant located on the corner of 53rd Street and Third Avenue (Freyre: H11, H41-43; Dones: H98-99, H142-145). As defendant and Grinds were in the restaurant having dinner, Sergeant Freyre and Officer Dones watched them through a window from outside the restaurant (Freyre: H12; Dones: H99). Sergeant Freyre then contacted Lieutenant Callaghan and Sergeant ALFRED RICCI and requested that they meet him and Officer Dones at the restaurant (Freyre: H12, H44; Ricci: H55, H69; Dones: H99).4 When Sergeant Ricci 3 At the time of the hearing, Dones had been a police officer in the NYPD for 13 years, including five years in the Transit Manhattan Task Force, where, as an anticrime officer, he investigated robberies, grand larcenies, and sex abuse cases (Dones: H95). 4 An 18-year veteran of the NYPD, Sergeant Ricci had worked in the Transit Manhattan Task Force for about eight years. As a sergeant in the plainclothes, anticrime unit, Ricci’s investigations targeted robberies and grand larcenies, including MetroCard and credit card thefts (Ricci: H54). -7- arrived at the restaurant, he and Officer Dones were informed by Sergeant Freyre that defendant was “wanted” for “criminal possession of a stolen property” regarding possessing a MetroCard that had been purchased with a stolen credit card (Freyre: H12; Ricci: H55-56, H69-70; Dones: H97-98, H156-157). Sergeants Freyre and Ricci spoke with the manager of the restaurant and told him that when defendant paid for the dinner bill, they wanted to know whether he used a credit card or paid by cash; they were later informed that defendant paid with cash (Freyre: H12, H45-47; Ricci: H56, H70). The officers then devised a plan on how to arrest defendant. Sergeant Ricci and Officer Dones would wait by defendant’s parked car, and when he and Grinds left the restaurant and went back to the car, Ricci and Dones would arrest defendant (Freyre: H12, H49; Ricci: H56-57; Dones: H99). Sergeant Ricci and Officer Dones went to where defendant’s car was parked on 55th Street between Third and Lexington Avenues. Ricci stood by the car, while Dones waited across the street (Ricci: H57, H69; Dones: H99-100, H148). When defendant and Grinds left the restaurant, Sergeant Freyre notified Ricci and Dones that the pair was heading to the car (Freyre: H13; Ricci: H57, H71). Sergeant Freyre and Lieutenant Callaghan followed defendant and Grinds part of the way and then “back[ed] off” as the pair approached the car (Freyre: H48-49). Defendant used a remote access key fob to unlock the car doors, and Grinds got into the front passenger seat and closed the door (Ricci: H57-58, H71-72; Dones: H100, H157). Defendant then opened the driver’s side door and, in “sort of an aggressive tone,” -8- asked Sergeant Ricci – who was standing at the front of the car looking at some paperwork that was inside the car’s windshield – if he could “help” Ricci (Ricci: H57- 59, H70-71). Sergeant Ricci moved from the front of the car to the open driver’s side of the car, where he stood next to defendant. At this point, Sergeant Ricci was “hit” by the “overwhelming” and “very, very strong” smell of marijuana coming from inside the vehicle (Ricci: H59, H74). In particular, the odor coming from the car had the smell of marijuana that had “already been burned” (Ricci: H93-94). Sergeant Ricci had smelled the odor of marijuana “too many times to count” during his career, and he had made “dozens” of marijuana possession arrests as a police officer (Ricci: H59, H92-93). Meanwhile, after Grinds had entered the car, Officer Dones walked from across the street to the driver’s side of defendant’s car. As he stood behind defendant, by the open driver’s side door, Officer Dones also smelled the “strong odor” of marijuana emanating from the car (Dones: H100-101, H149-151). Officer Dones had smelled marijuana “[m]any times” during his career and he had previously arrested people for smoking marijuana. The odor emanating from the car “smelled like marijuana that had been burning previously” (Dones: H101). Sergeant Ricci asked defendant why he was smelling marijuana, to which defendant replied, “I don’t smell anything” (Ricci: H59, H76-77). In an ashtray area on the center console, between the two front seats of the car, Sergeant Ricci and Officer Dones, while standing outside the car, observed a marijuana cigarette, which -9- appeared to be “partially smoked” and “partially burned,” but not lit (Ricci: H60, H74-78; Dones: H101-103, H151). The marijuana cigarette was “in plain view sitting right out in the open” when Sergeant Ricci reached in, picked up the marijuana cigarette, and asked who it belonged to. Defendant and Grinds each said, “it’s not mine” (Ricci: H60, H75-78; Dones: H102, H151).5 At that point, at about 11:00 p.m., defendant was placed under arrest for unlawfully possessing the marijuana, as well as for criminal possession of stolen property involving the MetroCard that he had purchased with a stolen credit card, for which defendant was “wanted already” (Ricci: H60-61, H80-81, H91; Dones: H102, H105, H147, H153-154). Grinds was arrested for criminal possession of marijuana (Ricci: H60, H82; Dones: H156). After defendant’s arrest, he was searched by Officer Dones, who found two envelopes of heroin in his wallet (Ricci: H80, H89; Dones: H102). Inside Grinds’ handbag, which was on the front passenger seat of the car, the officers found “a stack” of approximately 20 or 30 gift and credit cards (Ricci: H61, H82-83, H88-89; Dones: H104, H155). Through the windows of the car, Sergeant Ricci saw “a large quantity of garments, garment bags, [and] shopping bags,” including “a lot of designer named brands,” inside the car (Ricci: H61).6 Officer Dones noticed that the car was 5 The marijuana cigarette was “field tested” and tested positive for marijuana (Dones: H104). Officer Dones later vouchered the marijuana cigarette as arrest evidence (Ricci: H78-79; Dones: H151-152). 6 In light of the fact that Sergeant Ricci knew that defendant was wanted for criminal possession of stolen property, and there were numerous gift and credit cards in Grinds’ -10- (Continued…) “full” of “a lot of shopping bags,” some of which said “Macy’s” on them (Dones: H103-104, H121). Sergeant Ricci drove defendant’s car to the Transit District 1 police command at 59th Street and Columbus Circle, where the car was “vouchered” (Ricci: H61-62, H87; Dones: H104-105).7 As Sergeant Ricci was driving the car, the smell of marijuana in the car was “so strong” that it made his throat “burn” and he had to open the windows (Ricci: H62). At the police command, Sergeant Ricci supervised Officer Dones as Dones conducted an “inventory search” of defendant’s car (Ricci: H62-63, H79, H86; Dones: H105-106, H119). The inventory search was performed to “safeguard” defendant’s possessions in his car while he was in custody, including “anything of value,” and “to protect the officer[s] and the [police] department from any liability if the property does disappear” (Ricci: H63; Dones: H106). Put another way, according to the NYPD Patrol Guide with regard to inventory searches of automobiles – a copy of which was admitted in evidence at the hearing as People’s Exhibit 1 (Patrol Guide 218-13 [“Inventory Searches Of Automobiles And Other Property”]) – the purpose of an inventory search is “[t[o protect property, ensure handbag, Ricci “had a pretty good suspicion” that “the stuff” in defendant’s car was “stolen.” However, nothing was taken out of the vehicle at the arrest location (Ricci: H87- 88). 7 Defendant’s car arrived at the police command at about 11:10 or 11:15 p.m. (Dones: H105). -11- ______________________ (…Continued) against unwarranted claims of theft, and protect the uniformed members of the service and others against dangerous instrumentalities” (Ricci: H63-64). During the inventory search, Officer Dones removed “everything” from the car, and at the direction of Sergeant Ricci, he vouchered all of the removed items as “investigatory evidence” (Ricci: H62, H65; Dones: H109-110, H112).8 As Officer Dones was removing the items from the car, Officer Marcello was “contemporaneously” writing out an “inventory list” of the items being removed from the car and from where in the car the items had been recovered. A copy of the two-page inventory list written by Officer Marcello was admitted in evidence at the hearing as People’s Exhibit 2 (Dones: H105-109, H113-114, H118-120). To itemize more specifically the property that had been removed from the car, Officer Dones documented each of the items in nine pages of property clerk invoices that he filled out when he vouchered all of the items. These property clerk invoices were admitted in evidence at the hearing as People’s Exhibits 3A, 3B, and 3C (Dones: H108-112, H114-118). Many of the items recovered from the car looked “newly purchased” and “of value,” and were in shopping bags with brand names such as Coach, Cole Haan and Ferragamo (Ricci: H65; Dones: H108-109). 8 Sergeant Ricci testified that “pretty much everything” was taken out of defendant’s car (Ricci: H65). No items were either left inside the vehicle or given back to defendant (Dones: H109, H112-113). Furthermore, Officer Dones vouchered everything as investigatory, even items that one “would not characterize as investigatory,” such as nail clippers and used lotions (Dones: H112). -12- The Hearing Court’s Decision In an oral decision rendered in court on May 31, 2012, Justice Melissa C. Jackson found that all three of the witnesses who had testified at the suppression hearing – Sergeants Freyre and Ricci and Office Dones – were “seasoned” police officers whose demeanors on the stand were “candid, calm, and forthcoming” (Decision: 3). Thereafter, the court made detailed findings of fact that comported with the officers’ testimony at the hearing (Decision: 3-6). In her conclusions of law, Justice Jackson held that, when the police approached defendant by his car on November 16, 2012, they “clearly” had “probable cause to arrest” defendant for “criminal possession of stolen property” and “use of a stolen credit card to purchase a Metrocard” in connection with the incident on October 25, 2012, when defendant was found to be in possession of a MetroCard that the police subsequently determined through investigation had been purchased by defendant with a stolen credit card (Decision: 7). In addition, the court found, there was probable cause to arrest defendant based on the fact that on November 13, 2012, defendant had attempted to purchase an item from a Starbucks store using another person’s credit card (Decision: 7). Finally, yet “additional probable cause to arrest” defendant – for unlawful possession of marijuana – derived from the fact that both Sergeant Ricci and Officer Dones smelled “the strong smell of marijuana” emanating from defendant’s car, as well as observed a marijuana cigarette “in plain view” on the -13- front center console of defendant’s car, at the time they were going to arrest him for the possession of stolen property and use of a stolen credit card charges (Decision: 7). The court held that, after defendant’s arrest, “the search of [his] car at the precinct was lawful under two theories” (Decision: 8). First, the court found that the police were performing their lawful duty in arresting defendant, seizing his car, and transporting it to the precinct, where they conducted a “protocol inventory search to safeguard items found in the vehicle,” and properly vouchered all of the items recovered from the car as “investigatory evidence” (Decision: 9). Second, the court held that the search of the car was justified under “the automobile exception to the warrant requirement.” In that regard, the court noted, “It is well settled law [that] officers are permitted to search a vehicle without a warrant where evidence of contraband is observed in plain view. A valid arrest for a crime authorizes the warrantless search of a vehicle and any closed containers in the passenger compartment of the car” (Decision: 7-8 [citing People v. Yancy, 86 N.Y.2d 239, 245 (1995)]). Here, as the court found, where the police detected the strong odor of marijuana coming out of the car, as well as saw the marijuana in plain view on the car’s front center console, the police were permitted to search the car, including any closed containers, under the automobile exception to the warrant requirement. The court also found that, “given the circumstances of the arrest and the defendant’s known identity as a well[-]known pickpocket,” a warrantless search of defendant’s car was justified because there was “reasonable cause to believe” that defendant’s car -14- might contain evidence related to “the crime of criminal possession of stolen property and identity theft” for which defendant was being arrested and was subsequently indicted (Decision: 8). Accordingly, in denying defendant’s motion to suppress in its entirety, the court ruled that all of the items recovered from defendant’s car were admissible (Decision: 8). -15- POINT THE HEARING COURT PROPERLY DENIED DEFENDANT’S MOTION TO SUPPRESS THE ITEMS RECOVERED FROM HIS CAR (Answering Defendant’s Brief, Points I and II, pp. 14-42). Defendant claims that the hearing court erred in denying his motion to suppress the various items recovered from his car. Initially, he argues that the three police witnesses who testified at the hearing offered unbelievable and “patently tailored” testimony to support probable cause for his arrest, namely, Sergeant Freyre’s “dubious” account of defendant having purchased a MetroCard with a stolen credit card three weeks earlier, and Sergeant Ricci’s and Officer Dones’ “incredible” testimony that that they smelled the strong odor of marijuana emanating from defendant’s car, as well as saw a partially burned marijuana cigarette in plain view on the front center console of this car (Defendant’s Brief at 14-25). In addition, defendant claims that, even assuming he was properly arrested, the hearing court erroneously found that the search of his car would have been justified under the “automobile exception” to the warrant requirement (Defendant’s Brief at 26-30). Finally, defendant insists that that the inventory search conducted by the police, which resulted in the recovery of the various stolen items from defendant’s car, was a “pretext” and the People failed to establish that the inventory search “was carried out in conformity with reasonable police guidelines” (Defendant’s Brief at 31-42). -16- Defendant’s claims are without merit. As the hearing court found, the testimony of the People’s police witnesses was entirely credible and amply supported the propriety of their actions and the subsequent recovery of the items from defendant’s car. “[A] determination as to whether police conduct is reasonable rests on articulable facts, credible objective evidence, and the rational inferences that flow therefrom.” People v. Jackson, 175 A.D.2d 751, 753 (1st Dept. 1991) (internal quotation marks and citations omitted); see also People v. De Bour, 40 N.Y.2d 210, 223 (1976). Where evidence seized is challenged by means of a suppression hearing, the People bear the “initial burden of going forward” to prove the propriety of police conduct. See People v. Ortiz, 90 N.Y.2d 533, 537 (1997); People v. Holland, 48 N.Y.2d 861, 862 (1979); People v. Berry, 27 A.D.3d 201, 202 (1st Dept. 2006). However, the defendant “bears the ultimate burden of proving that the evidence should not be used against him.” People v. Berrios, 28 N.Y.2d 361, 367 (1971). Furthermore, on appeal, a hearing court’s determinations are entitled to great deference, and should not be disturbed so long as they are supported by the evidence and are not clearly erroneous. See People v. Brown, 91 N.Y.2d 854, 856 (1997); People v. Prochilo, 41 N.Y.2d 759, 761 (1977); People v. Ingram, 19 A.D.3d 101, 101 (1st Dept. 2005). To begin, as the hearing court correctly held (Decision: 7-8), the police had ample probable cause to arrest defendant on November 16, 2012, for criminal -17- possession of stolen property and identity theft related to defendant’s actions on October 25, 2012 and November 13, 2012. The hearing evidence, credited by the court, revealed that Sergeant Freyre was familiar with defendant as a recidivist pickpocket, and was involved in the arrest of defendant on October 25, 2012 for an unrelated attempted grand larceny, during which a MetroCard was recovered from defendant. Upon further investigation, Sergeant Freyre determined that the MetroCard had been purchased with a stolen credit card, and Freyre also reviewed surveillance video of subway vending machines which confirmed that defendant himself had purchased the MetroCard in question (Freyre: H7-8, H15-16). Furthermore, after interviewing a cashier at Starbucks on November 14, 2012, Sergeant Freyre learned that on the previous day, defendant had attempted to purchase items at the store using a credit card that belonged to another person and the cashier therefore had declined to authorize the transaction (Freyre: H9-10, H23). Based on the information garnered from Sergeant Freyre’s investigation into both the Metrocard and Starbucks incidents, there can be no question that the police had probable cause to arrest defendant for criminal possession of a stolen property and identity theft, in connection with possessing the MetroCard itself and possessing stolen credit cards which were used to purchase the MetroCard and to attempt to make an unauthorized purchase at Starbucks. Therefore, on November 16, 2012, when Sergeants Freyre, along with Sergeant Ricci and Officer Dones, devised a plan -18- to arrest defendant when he returned to his parked car, there was ample probable cause to arrest him for criminal possession of stolen property and identify theft. Second, as the hearing court also properly found (Decision: 7), there was probable cause to arrest for unlawful possession of marijuana. The court rightly credited Sergeant Ricci’s and Officer Dones’ credible and mutually corroborative testimonies that, when they stood by the open door to defendant’s car, they both smelled a very strong odor of marijuana emanating from the vehicle. Specifically, Sergeant Ricci testified that he was “hit” by the “overwhelming” and “very, very strong” smell of marijuana coming from inside the car, and the odor had the smell of marijuana that had “already been burned” (Ricci: H59, H74, H93-94). Officer Dones testified that he smelled the “strong odor” of marijuana that seemed like it “had been burning previously” (Dones: H100-101, H149-151). Confirming their detection of burnt marijuana was both officers’ observation of a marijuana cigarette, in plain view, on the center console between the front seats of the car. The marijuana cigarette appeared to be partially burned or smoked (Ricci: H60, H74-78; Dones: H101-103, H151). At this point, therefore, there was certainly probable cause to arrest defendant for possessing the marijuana in his car. Defendant argues on appeal that the three police witnesses’ testimonies at the suppression hearing should not be credited regarding their reasons for arresting defendant on November 16, 2012. However, it is well settled that credibility determinations are generally left to the hearing court, People v. Samuels, 68 A.D.2d -19- 663, 666 (1st Dept. 1979), aff’d 50 N.Y. 1035, cert. denied 499 U.S. 984 (1980), and that findings of fact by a hearing court are entitled to great deference on appeal, see People v. Prochilo, 41 N.Y.2d at 761; People v. Edwards, 250 A.D.2d 442, 442-43 (1st Dept. 1998). This is because, in contrast to an appellate court which merely reads a printed record, People v. Stroman, 83 A.D.2d 370, 372 (1st Dept. 1981), the hearing judge enjoys the “peculiar advantages of having seen and heard the witnesses,” and thus, is in a superior position to gauge credibility, People v. Prochilo, 41 N.Y.2d at 761; People v. Sanchez, 248 A.D.2d 306, 306-07 (1st Dept. 1998). Therefore, an appellate court should not generally substitute its own judgment for that of a hearing judge. See People v. Cesar, 111 A.D.2d 707, 710 (1st Dept. 1985). Rather, reversal of a hearing court’s findings with respect to credibility is unwarranted unless a defendant has established that the testimony of a witness was “manifestly untrue, physically impossible, contrary to experience, or self- contradictory,” or “patently tailored to nullify constitutional objections.” People v. Garafolo, 44 A.D.2d 86, 88 (2d Dept. 1974); accord People v. Davis, 240 A.D.2d 309 (1st Dept. 1997) (this Court “will not, without good reason, find a police officer’s testimony incredible or patently tailored to overcome constitutional objections” [internal citations omitted]); People v. Smith, 187 A.D.2d 267 (1st Dept. 1992) (same); People v. Stroman, 83 A.D.2d at 372-73 (“[t]here is no inherent incredibility or improbability in the police testimony that might justify this court on the record herein in doubting the rational basis of the hearing court’s findings as to credibility”). By no -20- stretch of the imagination can it be said that defendant has met that burden. Given such consistent, straightforward, and logical testimony from three experienced police officers, the hearing court had every reason to credit their accounts which amply supported probable cause for defendant’s arrest. In addition, the hearing court correctly determined that, upon lawfully arresting defendant, the police were entitled to seize his car and transport it to the precinct, where they conducted a proper inventory search (Decision: 9). Following the lawful arrest of the driver of an automobile that must be impounded, the police may conduct an inventory search of the vehicle. People v. Padilla, 21 N.Y.3d 268, 272 (2013); People v. Johnson, 1 N.Y.3d 252, 255 (2003). The specific objectives for such a search are: to protect the owner’s property; to guard against claims of loss, theft or vandalism; and to guarantee the safety of officers detailed to drive the car. Id. at 256; People v. Galak, 80 N.Y.2d 715, 718 (1993). As such, the justification for an inventory search does not rest upon probable cause, but rather is determined by the “reasonableness” of the police procedures utilized. Illinois v. Lafayette, 462 U.S. 640, 643 (1983); United States v. Chadwick, 433 U.S. 1, 20 n.5 (1977); People v. Gonzalez, 62 N.Y.2d 386, 390 (1984); see People v. Galak, 80 N.Y.2d at 719. An inventory search is reasonable where the police officers are guided by agency procedures which are “rationally designed” to meet the legitimate objectives of the search, and which limit the officer’s “discretion in the field.” People v. Galak, 80 N.Y.2d at 716-17, 720-21; see People v. Gomez, 13 N.Y.3d 6, 10-11 (2009). So long -21- as the search is conducted according to a “single familiar standard,” it is proper. People v. Galak, 80 N.Y.2d at 716; see People v. Gomez, 13 N.Y.3d at 10. Finally, when the hearing court determines that “the inventory search . . . was conducted pursuant to a standard departmental procedure” and there is “support in the record for that factual finding,” an appellate court should adhere to such a finding. People v. Galak, 80 N.Y.2d at 718. Judged by these standards, the inventory search in this case was wholly reasonable. At the outset, the police were entitled to impound defendant’s car following his arrest. Notably, at the time of defendant’s arrest, there were no other passengers in his car who might have been permitted to take possession of the vehicle. See Muldoon, Handling a Criminal Case in New York, § 9:82 (police may impound a car where there is “no one else available who can legally drive the car”); Kamins, New York Search and Seizure § 5.05[6][a]. The suppression court also correctly held that the police conducted a lawful inventory search of defendant’s car. At the Transit District 1 police command, Sergeant Ricci supervised Officer Dones as Dones conducted an inventory search of defendant’s car (Ricci: H62-63, H79, H86; Dones: H105-106, H119). The inventory search was performed to “safeguard” defendant’s possessions in his car while he was in custody, including “anything of value,” and “to protect the officer[s] and the [police] department from any liability if the property does disappear” (Ricci: H63; Dones: H106). Indeed, according to the NYPD Patrol Guide with regard to -22- inventory searches of automobiles – a copy of which was admitted in evidence at the hearing as People’s Exhibit 1 (Patrol Guide 218-13 [“Inventory Searches Of Automobiles And Other Property”]) – the purpose of an inventory search is “[t[o protect property, ensure against unwarranted claims of theft, and protect the uniformed members of the service and others against dangerous instrumentalities” (Ricci: H63-64). During the inventory search, Officer Dones removed “everything” from the car, and at the direction of Sergeant Ricci, he vouchered all of the removed items as investigatory evidence (Ricci: H62, H65; Dones: H109-110, H112). No items were either left inside the vehicle or given back to defendant (Dones: H109, H112-113). Furthermore, Officer Dones vouchered every item he found in the car, even items that one “would not characterize as investigatory,” such as nail clippers and used lotions (Dones: H112). As Officer Dones was removing the items from the car, Officer Marcello was “contemporaneously” writing out an “inventory list” of the items being removed from the car and from where in the car the items had been recovered. A copy of the two-page inventory list written by Officer Marcello was admitted in evidence at the hearing as People’s Exhibit 2 (Dones: H105-109, H113- 114, H118-120). To itemize more specifically the property that had been removed from the car, Officer Dones documented each of the items in nine pages of property clerk invoices that he filled out when he vouchered all of the items. These property -23- clerk invoices were admitted in evidence at the hearing as People’s Exhibits 3A, 3B, and 3C (Dones: H108-112, H114-118). Between the actual inventory list that was being recorded at the time of the search of the car and the detailed vouchers itemizing what was recovered, the police in this case compiled a proper inventory of the items in the car and satisfied the “hallmark” of an inventory search: “a meaningful inventory list” of the items the recovered from defendant’s car. People v. Johnson, 1 N.Y.3d at 256. Accordingly, it is plain that Officer Dones recovered the items from defendant’s car following standard police procedures for inventory searches, and this Court should defer to the hearing court’s factual findings in that regard. See People v. Galak, 80 N.Y.2d at 718. Indeed, the evidence demonstrates that Officer Dones’ discretion was entirely limited, as he made no decisions as to what to remove and what not to remove, or what to voucher or what not to voucher. All items in the car were removed by him and vouchered. Furthermore, contrary to defendant’s claim otherwise, the facts surrounding the inventory search show that this was not an instance where the police were using an inventory search as “a ruse for a general rummaging to discover incriminating evidence,” but an instance where the police followed standard police procedure in order to accomplish articulable police objectives. People v. Johnson, 1 N.Y.3d at 256. The hearing court also properly determined that the search of defendant’s car was would have been justified under the “automobile exception” to the warrant -24- requirement (Decision: 7-8). The automobile exception to the warrant requirement of the Fourth Amendment allows a warrantless search of a vehicle when there is probable cause to believe the vehicle contains contraband or evidence of a crime. People v. Belton, 55 N.Y.2d 49, 53-54 (1982); accord People v. Yancy, 86 N.Y.2d 239, 245 (1995); People v. Galak, 81 N.Y.2d at 467. As the Court of Appeals has recognized, the “proper inquiry in assessing the propriety of a Belton search is simply whether the circumstances gave the officer probable cause to search the vehicle.” Id. at 467-68 (quoting People v. Blasich, 73 N.Y.2d 673, 678 [1989] [emphasis added in original]). To be sure, there must not only be probable cause to search the vehicle, but also “a nexus between the arrest and the probable cause to search.” People v. Galak, 81 N.Y.2d at 467. However, “the requirement of a connection is flexible,” and “a Belton search can be justified on grounds other than those that initially prompted police to stop the vehicle.” People v. Galak, 81 N.Y.2d at 467-468. In that regard, it is well-settled that the smell of marijuana emanating from a vehicle, by itself, is sufficient to provide police officers with probable cause to search the vehicle and its occupants. See People v. Chestnut, 43 A.D.2d 260 (3d Dept. 1974), aff’d 36 N.Y.2d 971 (1975) (“the smell of marijuana smoke, with nothing more, can be sufficient to provide police officers with probable cause to search an automobile and its occupants”); see also People v. Ventura-Almonte, 78 A.D.3d 524, 525 (1st Dept. 2010) (smell of marijuana emanating from the defendant’s car, standing alone, was sufficient to provide probable cause to search car during lawful traffic -25- stop); People v. Gaines, 57 A.D.3d 1120, 1121 (3d Dept. 2008) (same); People v. Lightner, 56 A.D.3d 1274 (4th Dept. 2008) (same); People v. Badger, 52 A.D.3d 231 (1st Dept. 2008) (distinctive odor of marijuana emanating from the defendant’s car independently established probable cause to search car and its occupants); People v. Cirigliano, 15 A.D.3d 672 (2d Dept. 2005) (same); People v. Feili, 27 A.D.3d 318 (1st Dept. 2006) (following lawful traffic stop of car in which the defendant was a passenger, the police had probable cause to search the defendant after they detected the smell of marijuana emanating from the car). Here, not only was there probable cause to search the car for marijuana, but there was probable cause to search the car for stolen property. As the hearing court aptly took into account, “given the circumstances of the arrest and the defendant’s known identity as a well[-]known pickpocket,” a warrantless search of defendant’s car was justified because there was “reasonable cause to believe” that defendant’s car might contain evidence related to “the crime of criminal possession of stolen property and identity theft” for which defendant was being arrested and for which he was subsequently charged with in court (Decision: 8). Indeed, Sergeant Freyre knew that defendant was a recidivist pickpocket who was wanted for possessing a MetroCard on October 25, 2012 which he had purchased with a stolen credit card. Furthermore, when Sergeant Freyre went to Starbucks, he ascertained after speaking to the cashier that, on November 13, 2012, defendant attempted to use a credit card which had the photograph of another person on it, prompting the cashier to deny the transaction. -26- In addition to this information, Sergeant Ricci and Officer Dones testified that they observed a large quantity of merchandise that appeared to be newly purchased and high-end inside many shopping bags in defendant’s car. And, when searching Deion Grinds’ handbag, the officers recovered approximately 20 to 30 gift or credit cards in the bag. With the quantum of information before them, it was perfectly reasonable for the police to believe that defendant’s car contained stolen property, thus entitling them to search the car under the automobile exception to the warrant requirement. See People v. Etheridge, 175 A.D.3d 739, 740741 (1st Dept. 1991). In sum, the hearing record fully supports the determination of the suppression court that the police had probable cause to arrest defendant, and thereafter conducted a valid inventory search of defendant’s car. In addition, the hearing court properly found that a search of the vehicle was justified under the automobile exception to the warrant requirement. -27- CONCLUSION The judgment of conviction should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County danyappeals@dany.nyc.gov GRACE VEE Assistant District Attorney Of Counsel April 2016 -28- PRINTING SPECIFICATIONS STATEMENT The word count for this brief is 6575, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2013. The brief is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes.