Opinion
3192/2015
05-18-2018
The PEOPLE of the State of New York, Plaintiff, v. Shamar TURNER and Ujhoni Cruz, Defendants.
OFFICE OF THE DISTRICT ATTORNEY, BRONX CO. (by Edward Christian Uy, Esq.), Attorney for the People, 198 East 161st St., Bronx, NY 10451 THE BRONX DEFENDERS (by Jeremiah Rygus and Tania C. Brief, Esqs.), Attorney for Defendant Ujhoni Cruz, 360 East 161st St., Bronx, NY 10451 THE LEGAL AID SOCIETY (by Nyiesha Hudson, Esq.), Attorney for Defendant Shamar Turner, 200 East 161st St., Bronx, NY 10451
OFFICE OF THE DISTRICT ATTORNEY, BRONX CO. (by Edward Christian Uy, Esq.), Attorney for the People, 198 East 161st St., Bronx, NY 10451
THE BRONX DEFENDERS (by Jeremiah Rygus and Tania C. Brief, Esqs.), Attorney for Defendant Ujhoni Cruz, 360 East 161st St., Bronx, NY 10451
THE LEGAL AID SOCIETY (by Nyiesha Hudson, Esq.), Attorney for Defendant Shamar Turner, 200 East 161st St., Bronx, NY 10451
Lester B. Adler, J.
On October 22, 2015, officers with the Bronx Community College Department of Public Safety (DPS) stopped defendants Ujhoni Cruz and Shamar Turner on campus grounds. The officers searched a backpack which belonged to Turner, but which Cruz had been wearing, and recovered two pistols. Defendants were arrested and later indicted for Criminal Possession of a Weapon in the Second Degree ( Penal Law § 265.03 [3 ] ) and related charges.
This Court is mindful of the present state of affairs concerning gun violence on school campuses. However, nothing in this case suggests that the motivation for the officers' conduct was in any way connected to that subject. Moreover, the People do not allege that either defendant posed an imminent threat to public safety.
Cruz is also charged with Criminal Trespass in the Third Degree (Penal Law § 140.10 [a] ).
Thereafter, defendants separately moved to suppress the pistols and statements they had made to the officers. In connection with the suppression motions, Mapp/Dunaway and Huntley hearings were directed. A combined hearing was held before this Court on April 12, 13, and 17, 2018.
During the hearing, defendants moved under CPL 710.30 (3) for an order precluding the People from, at trial, offering evidence of certain statements that defendants made because the People did not serve timely notice of those statements. This Court reserved decision on the preclusion motion and shall address it in this Decision and Order.
Findings of Fact —At the hearing, DPS Investigation Lieutenant Saul Fraguada, Sergeant Pedro Soto, and Investigator Angel Irizary testified. At about 6:35 p.m., Fraguada was in his DPS office in the College's Loew Hall. He received a radio call from a patrolling officer that a student, Cynthia Cruz, had reported to the officer that her stepbrother, Ujhoni Cruz, had spat on her on campus grounds. The student said that Cruz was with another man that she did not identify. She provided a description of the two men's appearance and clothing, and also said that Cruz was wearing a camouflage—patterned backpack.
In their testimony, the officers sometimes called the item a "book bag."
Cynthia Cruz was brought to the DPS offices and spoke with Fraguada's partner, Investigator Alexandra Torres. Meanwhile, officers canvassed the campus to locate Cruz and his companion, later identified as Turner. Irizary and Soto radioed that they had observed two men matching the complaining student's description in a building on the other side of the campus. Fraguada directed Irizary and Soto to follow them while they exited the building and walked through the campus, and sent more officers to assist the operation. Fraguada and Torres left the DPS offices to rendezvous with the officers.
When defendants reached the Brown Annex, another campus building, Fraguada, Torres, Soto, Irizary, and about three to six other officers, some of whom were in a marked patrol car, converged on Cruz and Turner. About three of the officers were in uniform.
Fraguada questioned Cruz, who was wearing the backpack, while Soto spoke with Turner, who stood about three feet nearby. When Fraguada asked Cruz for identification, he produced Turner's student identification card, and identified himself as Turner. Torres then told Fraguada that she knew Turner, and that the man Fraguada spoke with was not he. Instead, Torres informed Fraguada, he was speaking with Cruz. Having confirmed Cruz's identity and determined that he was not a College student, Fraguada told Cruz he was under arrest for trespassing on campus grounds after hours. The People have served notice of their intent to introduce evidence of Cruz's pre-arrest statements to Fraguada at the trial.
Fraguada directed two uniformed officers to arrest Cruz. As the officers approached him, he removed the backpack and gave it to Turner. There is differing testimony about what, if anything, Cruz said to the officers at that point. Fraguada testified that Cruz did not speak, and immediately thereafter uniformed officers seized him, handcuffed him, and transported him away from the scene to the DPS offices. Soto, however, testified that, when Cruz gave the backpack to Turner, he asked Cruz what he was doing, and Cruz replied, "I am giving him the [backpack] because it's his [backpack]" According to Soto, he then told Cruz, "[W] have to check the [backpack,]" and Cruz responded, "[O]kay, check the [backpack,]"
Regardless of whether this Court credits Fraguada's or Soto's account, the conclusion that Cruz lacked both standing to seek suppression of the pistols in his case and the authority to permit the officers to search the backpack is unaffected (see infra at 4–7).
Once Turner had the bag, Soto told him that "we have to check that [backpack.]" Turner said, "I don't know why." Soto responded, "Because Cruz had it, he's given it to you, he's under arrest. We have to check to see if it is your [backpack.]"
Turner then said "[O]kay, you can check the [backpack]" and then walked into the Brown Annex.
On cross examination, Soto testified that Turner walked into the building without responding.
Soto and Corporal Sixto Velasquez followed Turner, wearing the backpack, into the Brown Annex. Irizary was waiting for them inside the building. Soto and Velasquez then spoke to Turner in the lobby of the building while Irizary sat on the nearby stairs. Soto and Velasquez both told Turner again that they "needed" to or "had" to search the backpack. Turner acquiesced and gave it to the officers, saying, "[I]t's my [backpack], but I don't know why but here, take it." Soto searched the backpack and recovered a pistol. The officers then handcuffed and arrested Turner.
The officers then brought Turner and the backpack to the DPS offices, and placed Turner in a holding cell. Irizary searched the backpack again and found a second pistol. At the DPS offices, Turner made a statement to Soto; the People have served notice of their intent to introduce that statement at Turner's trial.
Thereafter, defendants were transferred to the 46th Precinct and questioned separately in the Precinct interview room. Before Turner and Cruz made statements, Irizary administered Miranda warnings to them by reading them from printed forms, both of which were received into evidence. Each defendant acknowledged that he understood his rights by answering "yes" when asked, and by initialing his answers and signing the respective forms. Defendants then made videotaped statements in the presence of Irizary and Police Detective William Seligson of the 46th Precinct. These were also entered into evidence. There was no evidence of any threats, coercion or intimidation during the questioning. The People have served notice under CPL 710.30 of their intent to use defendants' statements at trial.
On October 23, 2015, at about 6:35 p.m., Cruz made another videotaped statement before ADA Anthony Defreitas of the Office of the Bronx District Attorney. The interview took place at the District Attorney's office. At the hearing, Defreitas authenticated the videotape, which was also received into evidence. The videotape shows that Defreitas re-administered Miranda warnings to Cruz before he made his statement. The People have also served notice of their intent to use this statement at trial.
Legal Conclusions: Mapp/Dunaway hearing —The threshold question is whether defendants have standing to seek suppression of the pistols recovered from the backpack. Cruz lacks standing because he did not have a legitimate expectation of privacy with respect to the bag (see People v. Ramirez–Portoreal , 88 NY2d 99, 108 [1996] ). If a defendant disclaims that he owns an object, and the disclaimer was not "coerced or precipitated by unlawful police activity," he or she voluntarily waives any privacy expectation in it (see Ramirez–Portoreal at 110; People v. Ross , 106 AD3d 1194, 1195–1196 [3d Dept 2013], lv denied 22 NY3d 1090 [2014] ). Here, Cruz explicitly stated that the backpack belonged to Turner, and Turner's ownership is not in dispute. Moreover, the officers' questioning and subsequent arrest of Cruz were lawful (see infra at 6–7). Since Cruz cannot contest the admissibility in his case of the seized pistols, his motion for their suppression is denied.
Turner, however, had a legitimate expectation of privacy with the backpack and accordingly has standing to challenge its warrantless search. Under the circumstances of this case, the legality of the warrantless search hinges on (1) whether the officers were entitled to ask Cruz and Turner if they could search the bag and (2) whether Cruz's and Turner's acquiescence constituted consent which authorized the search.
No other exceptions to the requirement of a search warrant apply to this case. For example, Matter of Gregory M. (82 NY2d 588 [1993] ), to which the People cite in support, is inapposite. In Gregory M. , a high school student left his book bag with a security officer who, when tossing the bag onto a metal shelf, heard a metallic "thud" which he characterized as "unusual." The officer ran his fingers over the outer surface of the bottom of the bag and felt the outline of a gun. The Court of Appeals found that the "thud" provided reasonable suspicion that the bag contained a weapon, which justified first feeling the outside of the bag and the resulting warrantless search. Here, none of the officers testified that anything about Turner's backpack gave rise to a suspicion that it contained weapons.
Under the circumstances presented here, and contrary to defendants' argument, the officers had a legitimate basis to ask both Cruz and Turner if they could search the backpack. Under the four-level standard for intrusive police conduct which the Court of Appeals set forth in People v. De Bour (40 NY2d 210, 223 [1976] ), a request by an officer to search a person's bag constitutes a level-two intrusion (see People v. Dunbar , 5 NY3d 834, 835 [2005] ; People v. Hollman , 79 NY2d 181, 191–192 [1992] ). The intrusion is permitted when there is "a founded suspicion that criminality is afoot" (De Bour at 223). A founded suspicion is that "quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand" ( People v. Cantor , 36 NY2d 106, 112–113 [1975] ).
Here, Soto had a founded suspicion of criminality that justified his request to search the backpack. When he spoke to Cruz and Turner, he had already observed the following events: Cruz, wearing the backpack, had walked across campus with Turner; when asked for identification, Cruz presented Turner's identification card and impersonated him; when placed under the arrest for trespassing, Cruz took off the backpack and gave it to Turner, explaining that it belonged to him. Given that, for unexplained reasons, Turner had apparently given Cruz both his student identification card and his backpack, and Cruz gave the bag back to Turner upon his arrest, Soto had a reasonable basis to suspect ongoing criminal behavior by both Cruz and Turner that was connected with the bag.
However, even if Soto was entitled to seek permission for a warrantless search from Cruz and Turner, he did not obtain the necessary consent for that search. As a preliminary matter, Cruz lacked the authority to consent to a search because, as he stated to the officers and as his actions indicated, the bag belonged to Turner and he lacked any authority over it (see People v. Adams , 53 NY2d 1 [1981] ).
As noted, it was unclear from the hearing testimony whether Soto told Cruz that he needed to check the bag and, if so, whether Cruz responded (see supra at 3.)
In any event, and contrary to the People's claim, the prosecution failed to show that Turner voluntarily consented to the search. The prosecution has a heavy burden to show voluntary consent to a search by "clear and positive evidence." ( People v. Zimmerman , 101 AD2d 294, 295 [2d Dept 1984] ; see also People v. Gonzalez , 88 NY2d 289, 295 [1996] ). "Consent to search is voluntary when it is a true act of the will, and unequivocal product of an essentially free and unconstrained choice" ( People v. Gonzalez , 39 NY2d 122, 128 [1976] ). Further, "[v]oluntariness is incompatible with official coercion, actual or implicit, overt or subtle" ( Gonzalez , 39 NY2d at 128 ).
When assessing whether a defendant's consent was voluntary, a court should consider (1) whether the defendant was in police custody, and how many officers were present; (2) the defendant's personal background, including his age and prior experience with the law; (3) whether the defendant offered resistance; and (4) whether the police advised the consenter of his or her right to refuse consent ( Gonzalez , 39 NY2d at 128–130 ; Matter of Daijah D. , 86 AD3d 521, 521–522 [1st Dept 2011] ).
Applying these factors, we find that the People failed to prove that Turner's consent was "more likely to be the product of calculation than awe" (Gonzalez at 129). According to Soto, he first raised the subject of searching the backpack with Turner immediately after officers had arrested Cruz in his presence. A number of officers were in Turner's immediate vicinity; some were in uniform and some were armed. When, in the Brown Annex, Soto and Velasquez told Turner that they "had" to search his bag, he knew that additional officers were outside the building. Under the circumstances, Turner could reasonably believe that he had no choice but to allow the search.
As for Turner's personal background, he had no prior criminal record, and no evidence suggests that he had significant previous experience with the law. Moreover, Turner showed initial resistance by either first pointing out that the bag was his and that he didn't know why the officers needed to search it, or by walking into the Brown Annex without responding to Soto.
Finally, no officers testified that they advised Turner of his right to refuse consent. In fact, the circumstances suggest otherwise. When Turner entered the Brown Annex, Soto and Velasquez followed him into the building. A surveillance videotape of Turner's encounter with Soto and Velasquez inside the Brown Annex, which was received into evidence, shows that Soto and Velasquez immediately stood close by Turner, on either side of him, and spoke to him in what appears to be a confrontational manner. Once again, Soto told Turner that he needed to search the bag; Velasquez also told Turner that he needed to search it. Velasquez wore a visible firearm. Under the circumstances, Soto's statements could be reasonably interpreted both as a demand as opposed to a request, and as a claim that the officers were entitled to search the backpack without Turner's permission.
In sum, after taking the testimony and reviewing all the other evidence, this Court finds that the prosecution has not met its burden of proof that Turner voluntarily consented to the search. Accordingly, the physical evidence recovered from the search is suppressed with respect to Turner's case.
In reaching this determination, this Court is not taking into account Turner's testimony at the hearing that Soto and other officers threatened him with arrest if he did not consent to the search.
Huntley hearing —This Court finds that Cruz's videotaped statements on October 22 and October 23, 2015 were voluntarily made within the meaning of CPL 60.45. At the start of the sessions, and before Cruz was asked any questions or made any statements, he was fully advised of his right to silence and the assistance of counsel in accordance with Miranda . Cruz waived his Miranda rights and acknowledged, when asked, that he was voluntarily and knowingly waiving them.
The People also noticed a third statement by Cruz. According to the notice, Cruz made the statement to Irizary on October 22, 2015, at approximately 6:35 p.m., "INSIDE OF 2051 UNIVERSITY AVENUE, COUNTY OF BRONX." The People acknowledge that the notice is inaccurate because it was intended to refer to a statement Cruz made to Fraguada, not Irizary. Moreover, the notice was meant to refer to Cruz's statement outside the Brown Annex before he was arrested, and not to any statement he made at Loew Hall after his arrest. However, the notice adequately indicates the substance and the time of the statement, and at the hearing Fraguada's testimony established that Cruz did not make the statement while he was in custody or under interrogation. Accordingly, the statement is admissible.
This Court will now address Turner's two noticed statements. As a threshold matter, the statements must be suppressed as the direct result of the illegal search (see People v. Nichols , 117 AD3d 881 [2d Dept 2014] [suppressing the defendant's statement to law enforcement officials as "the fruit of the poisonous tree" in connection with the unlawful search of the defendant's backpack, from which a handgun was recovered]; People v. Isaacs , 101 AD3d 1152 [2d Dept 2012] [suppressing the defendant's statement about his ownership of a gun found in an unlawfully searched purse; People v. Turriago , 219 AD2d 383, 392–394 [1st Dept 1996], affd as mod , 90 NY2d 77 [1997] [suppressing a murder confession as the tainted fruit of an unlawfully instituted consent search of a van in which the victim's body was found] ). Here, Turner's noticed statements in response to his questioning directly resulted from the officers' recovery of the firearms from his backpack when it was unlawfully searched.
Moreover, Turner's statements must be suppressed because they were involuntary within the meaning of CPL 60.45. According to the People's notice, Turner's first statement was made to Irizary on October 22, 2015, at approximately 6:35 p.m., "INSIDE OF 2051 UNIVERSITY AVENUE, COUNTY OF BRONX." The People again concede that the notice of Turner's statement is inaccurate, because the People intended to refer to Turner's statement to Soto while he was in custody, after officers had arrested him and transported him to Loew Hall. At the hearing, the People did not offer any evidence that officers had advised Turner about his Miranda rights before he made the first statement.
Turner's later, videotaped statement on October 22, 2017 at the 46th Precinct also must be suppressed because his statement at Lowe Hall gave rise to the subsequent Mirandized statement as part of a "single continuous chain of events" under the analysis set forth in People v. Chapple (38 NY2d 112, 114 [1975] ; see also People v. Paulman , 5 NY3d 122, 131–132 [2005] ). On balance, the factors to be considered in connection with the analysis, as set forth in Chapple and Paulman , weigh in favor of suppression. The following factors are most significant: (1) about four and one-half hours elapsed between the statements; (2) Soto was present for both statements; (3) and throughout, the questioning centered on the pistols recovered from the backpack. In sum, because of the lack of attenuation, Turner's statements at the 46th Precinct must also be suppressed.
Motion for preclusion : Cruz's and Turner's oral motions for preclusion are granted. The People failed to serve notice of the following statements, and accordingly they are precluded from offering evidence of them during defendants' trial:
It should be noted that, at the suppression hearing, the People could offer and this Court could consider evidence of defendants' statements, regardless of whether notice was provided (see People v. Apelbaum , 33 Misc 3d 4, 8–9 [App Term, 2d Dept 2011], lv denied 17 NY3d 857 [2011] [holding that "failure to provide ... notice [under CPL 710.30 ] did not preclude the use of such statements at a pretrial suppression hearing"]; People v. Aldrich–O'Shea , 6 Misc 3d 35, 37 [App Term, 2d Dept 2004], lv denied 4 NY3d 827 [2005] [same] ).
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(1) Outside the Brown Annex, Cruz told Fraguada that he was Turner (tr at 13).
(2) Immediately after Cruz was placed under arrest outside the Brown Annex, Cruz told Soto, "I am giving him—this is [Turner's] bookbag" (tr at 71).
(3) Inside the Brown Annex, Turner told Soto, "It's my [backpack] ... I don't know why [you need to search it] but here, take it" (tr at 69).
(4) At Loew Hall, Soto asked Turner why he hadn't told him that there was a gun in his backpack. Turner answered, "You asked me if I had anything that's going to harm me (tr at 75).
Accordingly, it is
ORDERED that defendant Shamar Turner's motion to suppress is granted to the extent that it is
ORDERED that the Bronx County District Attorney is restrained and precluded from using, in the trial of defendant Turner, any of the physical evidence recovered from the search of his backpack described above on or after October 22, 2015, and it is further
ORDERED that the Bronx County District Attorney is restrained and precluded from offering evidence, in the trial of defendant Turner, of the statements identified in its Notice dated November 6, 2015 (1) as being made by defendant Turner to "Police Officer Angel Irizariz ... on 10/22/15 at approximately 6:35 p.m. at INSIDE OF 2051 UNIVERSITY AVENUE, COUNTY OF BRONX " and (2) as being made by defendant Turner to "Police Detective William Seligson of the 46th Precinct... on 10/22/15 at approximately 10:59 p.m. at INSIDE OF 2051 RYER AVENUE, COUNTY OF BRONX ;" and it is further
ORDERED that defendant's Cruz's motion to suppress physical evidence and noticed statements is denied; and it is further
ORDERED that defendants' motion to preclude their unnoticed statements is granted, and it is further
ORDERED that the People are precluded from offering evidence at defendants' trial of the statements by defendants which are listed infra at page 11.
The foregoing constitutes the order of the Court.