People v. Bryant

Legal Aid Society, New York City (Jennifer Nevins of counsel), for defendant. Robert M. Morgenthau, District Attorney of New York County, New York City (Rachel Hochhauser of counsel), for plaintiff.

OPINION OF THE COURT

GABRIEL W. GORENSTEIN, J. The defendant in this case is charged with criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1]) and the aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511 [1] [a]). On December 8, 2000, a hearing was held on the defendant's motion to suppress evidence as the fruit of an unlawful seizure (commonly referred to as a Mapp hearing). Police Officer William Thide testified on behalf of the People. The defendant testified on his own behalf. As described further below, the court finds Officer Thide to be a credible witness and rejects the testimony of the defendant in material respects. The following are the court's findings of fact and conclusions of law:

Findings of Fact

On June 13, 2000, the defendant was operating a motor vehicle, a 1998 two-door Chevrolet Cavalier. The defendant pulled over to the curb to turn into a parking garage. Officer Thide, who was operating with a partner out of a yellow cab, ran the license plate of the defendant's vehicle on a mobile digital computer and discovered that the registration on the vehicle was suspended. The officer stopped his vehicle behind and to the right of the defendant's vehicle. The officer indicated through flashing red lights that the vehicle was being detained by the police. The officer approached the window on the left side of the defendant's vehicle and asked for his license and registration. The defendant provided these documents and the officer took them back to his car. Upon running the defendant's license through the mobile digital computer, he discovered that the defendant was driving with a suspended license. The officer thereupon returned to the defendant and instructed him to exit the vehicle. The defendant stated that the officer allowed him to collect his change and cellular phone from the well of his car. While the officer did not recollect this, it is not material to this case. The defendant exited the vehicle and, while he was still between the car and the open door, the officer placed handcuffs on him. At this point, the officer observed an object in plain view in the space between the front seat and the front door. Based on his police training, the officer recognized this object to be a blackjack. The officer moved the defendant away from the car and shut the door. The officer subsequently recovered the blackjack and vouchered it. The blackjack was admitted into evidence at the hearing as People's exhibit 1. The defendant testified that he did not have the blackjack in the space between his seat and the car door. He asserted that he knew this to be true because he must look into that area and place his own arm into that area in order to open the broken window on that side. He also stated that once he was put in the yellow cab after his arrest, he in fact saw other officers at the scene "rambling around" in his car and pulling a blackjack from what appeared to be underneath the front seat. He also "saw" them give a triumphant cry when they found it and "saw" them "laughing and joking around" about how they found it. He conceded he could not hear them. All this is alleged to have occurred while Officer Thide was talking to the defendant in the yellow cab. The court chooses to credit the testimony of the officer regarding his observation and recovery of the blackjack for several reasons. First, the defendant seemed to have tailored his testimony on more than one occasion to fit what he thought would be a good story. For example, he estimated that when he was asked to leave his vehicle (a critical moment in the narrative since it was the time the officer stated he observed the blackjack) the officer was six to eight feet away—a distance that seems incredibly large given the situation. He testified that he spoke to Officer Thide while he was inside the yellow cab for "ten to fifteen minutes," again an incredible claim given that there is no reason whatsoever for the officer to have spoken to the defendant for this length of time and the defendant offered no evidence at all to indicate what they could have been talking about for such a lengthy period. In addition, while he said he had no idea where the blackjack was in his car, he insisted that it could not have been in the one place the officer testified he found it. In judging the defendant's credibility, the court took into account that he had five criminal convictions in the last nine years, including convictions for criminal possession of stolen property, attempted criminal possession of stolen property, assault and resisting arrest. All of these suggest that he is ready to put his own interests above those of society. Finally, the defendant's ability to observe what was going on in his own vehicle is highly questionable. Putting aside the distance involved, the yellow cab was behind and to the right of his own vehicle, suggesting that he had no clear view at all of what the officers in this area were doing.

Conclusions of Law

The defendant argues that the motion to suppress the Department of Motor Vehicles (DMV) abstract,^[1] the blackjack, and the officer's observations of the defendant must be granted because the People failed to establish reasonable suspicion justifying the stop of his vehicle. Additionally, the defendant burden, albeit through hearsay evidence, of showing probable cause. The defendant has not rebutted this showing. The motion to suppress is denied.^[3] [1] The DMV abstract is a document generated by the DMV which contains information regarding the revocation and suspension of drivers' licenses. (See, e.g., People v Wray, 183 Misc 2d 444 [Sup Ct, Kings County 2000].) [2] In an amended filing of their posthearing memorandum, the defendant also requested that the court draw an adverse inference from the People's failure to call certain witnesses. Posthearing briefing was due from the defendant on January 12, 2001. The defendant sought and received an extension until January 17, 2001. Nonetheless, this request was not made until two days before the People's papers were due, on January 31, 2001. Because the defendant's request was untimely filed and was not accompanied by any application for an extension showing good cause for the failure to meet the court-imposed deadline, the court does not consider it. [3] In a separate argument, the defendant asserts that there may have been a Rosario violation at the hearing due to the People's failure to produce a "sprint report" or "radio run" of any call made by Officer Thide to other officers regarding the stop of Mr. Bryant. The People asserted at the hearing that Officer Thide made no such call. The People are directed to verify this information if it is possible to do so and to produce, on or before March 8, 2000, any written record of the testifying officer's calls. If no such record exists, the People are directed to so certify to defense counsel in writing. If the People in fact discover a record of a call made by Officer Thide relating to the stop of the defendant, the defendant has leave to make a written motion seeking appropriate relief. Any such motion shall be referred to the trial court.