Opinion
No. 2014QN060496.
04-27-2015
The PEOPLE of the State of New York, v. Garfield MYRIE, Defendant.
Seymour James, Esq., The Legal Aid Society, New York (Kimberly Sandberg of counsel), for Defendant. Richard Brown, District Attorney, Queens County, (Amy Markel of counsel), for the People.
Seymour James, Esq., The Legal Aid Society, New York (Kimberly Sandberg of counsel), for Defendant.
Richard Brown, District Attorney, Queens County, (Amy Markel of counsel), for the People.
Opinion
GIA L. MORRIS, J.
In an accusatory instrument filed on October 13, 2014, the defendant, Garfied Myrie, was charged with Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (VTL § 511[2][a] ), an unclassified misdemeanor, as well as several traffic infractions. On January 10, 2015, in AP–1, the Court orally denied the defendant's motion for a Johnson/Dunaway hearing on the grounds that the items the defendant sought to suppress were not subject to suppression. The defendant subsequently filed the instant motion seeking reargument of the court's decision pursuant to CPLR § 2221.
Counsel for the defendant initially filed a motion for suppression but withdrew the motion since such decision had already been rendered and instead filed the instant motion to reargue the court's January 10, 2015 ruling. Since the filing of this motion, the defendant has retained new counsel who has yet to appear on this case. Because this issue has arisen multiple times in the past year, the court will hear the motion as adopted.
A motion for reargument may only be granted upon 7F' “a showing that the court overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its decision,” (People v. D'Alessandro, 13 NY3d 216, 219 [2009] ). Further, a motion for re-argument must be submitted to the court that heard the original motion and a decision to hear re-argument is in the sole discretion of the hearing court. (See Mazzei v. Licciardi, 47 AD3d 774, 774 [2nd Dept 2008] ). Lastly, a decision to deny a motion for re-argument is not appealable. (See Fishman v. County of Nassau, 84 A.D.2d 806 [2nd Dept 1981] ).
The defendant has failed to set forth any applicable laws or facts that were misapprehended or overlooked. Accordingly, the Court adheres to its original decision which denied suppression of the defendant's Department of Motor Vehicle (hereinafter “DMV”) abstract, the defendant's identity, and observations that the officer observed the defendant driving.
In the instant motion for reargument, the defendant argues that this court should ignore binding precedent, and grant suppression or a hearing on the misguided theory that the Court of Appeals decision in People v. Tolentino (14 NY3d 382 [2010] ) was wrongly decided and/or this case is distinguishable. (See Defendant's mot. at 6). A review of the Tolentino decision reveals that the facts of the instant case are analogous, if not identical. More specifically, the defendant in Tolentino, like the defendant in the instant case, was involved in a car stop with a New York City Police Officer after being observed driving on a public street in New York City. From the car stop, the police officer learned the defendant's name, and ran a computer check of DMV files to look up his driving record. The defendant's DMV records revealed that the defendant's driver's license had been suspended, and the officer arrested the defendant. (Tolentino at 383–84).
In upholding the denial of suppression without a hearing, the Tolentino court held that DMV records disclosing prior suspensions of a defendant's driver's license are never subject to suppression under the exclusionary rule, since they are public records already in the possession of the authorities. (Id. at 384 ). (See also United States v. Farias–Gonzalez, 556 F3d at 1181, 1189 [2009] ; United States v. Crews, 445 U.S. 463 [1980], 475–77 [1980] finding (“[t]he exclusionary rule enjoins the Government from benefitting from evidence it has unlawfully obtained; it does not reach backward to taint information that was in official hands prior to any illegality”); United States v. Bowley, 435 F3d 426, 430–31 [3d Cir2006] ; United States v. Roque–Villanueva, 175 F3d 345, 346 [5th Cir1991] ). Moreover, the Tolentino Court reasoned that since the identity of a defendant is never itself suppressible as a fruit of an unlawful arrest, the preexisting DMV records discovered here, as the result of the police learning defendant's identity, were likewise not suppressible. (See Tolentino at 384–85 citing Immigration & Naturalization Services v. Lopez–Mendoza, 468 U.S. 1032, 1039 [1984] which held that (“the body' or identity of a defendant ... is never itself suppressible as fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred.”); see also People v. Douglas Hare 2015 N.Y. Slip Op 50506 [2015] citing Palmieri v. Lynch, 392 F3d 63, 81 [2d Cir.2004], which held that (“visual observation of an object already exposed to public view is no search at all”); People v. Moya, 4 Misc.3d 101, 102–103 [App Term, 2nd Dept 2004] (DMV records and defendant's identity not suppressible fruits of an exclusionary rule violation)).
Aside from the binding precedent set forth in Tolentino, Moya, and Lopez–Mendoza, the federal courts addressing similar fact patterns have repeatedly held that a hearing is unwarranted where, as here, there are no items to suppress. (See United States v. Crews, 445 U.S. 463,475–77 [1980] ; see also United States v. Guzman–Bruno, 27 F3d 420,422 9th Cir. [1994], cert denied 513 U.S. 975 [1994] (“there is no sanction to be applied when an illegal arrest only leads to discovery of [a person's] identity and that merely leads to the official file”); see e.g. United States v. Ortiz–Gonzalbo, 946 F.Supp. 287, 289 [S.D.NY 1996] (even when the identity of an individual is learned by way of an illegal stop, the defendant's identity is never suppressible under the exclusionary rule); but see People v. Young, 55 N.Y.2d 419 , cert. denied sub nom., Young v. New York, 459 U.S. 848 [1982] (distinguishes between admissible observation made by a police officer during an illegal arrest, and inadmissible evidence recovered as a result of an illegal arrest); see also Oliver v. United States, 656 A.2d 1159, 1171 n. 20 [D.C.App.1995] )).
Lastly, with respect to the defendant's contention that the police officer's observations of the defendant driving on a public street prior to the car stop are somehow subject to suppression, this Court disagrees. There is no expectation of privacy, nor a Fourth Amendment privacy interest, in a person driving on a public highway. (See People v. Weaver, 12 NY3d 433, 445 [2009] (a person traveling in an automobile on public thoroughfares has no expectation of privacy of his movements from one place to another); see also People v. Giglione, 34 Misc.3d 72, 74 [2nd Dept 2011] (“mere visual observations of an object already exposed to public view is no search at all”)). To the extent that the defendant relies on People v. Rossi, (80 N.Y.2d 952 [1992] ), that case is clearly distinguishable since it involved a privacy interest occurring in an individual's home, not on a public street, along with suppression of gambling materials recovered. (Id. )
Accordingly, because the defendant's identity, the DMV records and observations of him driving on a public street are not subject to suppression, the defendant's motion is denied in all respects.
This constitutes the Decision and Order of the Court.