| People v France |
| 2008 NY Slip Op 02892 [50 AD3d 266] |
| April 1, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Donald France, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Susan Axelrod of counsel), forrespondent.
Judgment, Supreme Court, New York County (Budd G. Goodman, J.), rendered August 11,2005, convicting defendant, upon his plea of guilty, of robbery in the third degree, and sentencinghim, as a second felony offender, to a term of 2½ to 5 years, affirmed.
The court's summary denial of defendant's suppression motion was proper. Defendant wasprovided with sufficient information to rebut the People's position that the police had probablecause to search him. The felony complaint alleged that defendant was identified by an informant,who was also the victim, as the perpetrator of the charged crime, and the voluntary disclosureform asserted that the victim pointed defendant out to the police moments before his arrest. Thereliability of the victim's information was bolstered by defendant's statement indicating that hehad sold the very rings the victim had told the police defendant stole from him. Accordingly, itwas not enough for defendant to deny that he committed the crime and to state that he was doingnothing unlawful at the time of his arrest (see People v Roldan, 37 AD3d 300 [2007], lv denied 9NY3d 850 [2007]). Rather, he was required to demonstrate that the police acted unreasonably inrelying on the victim (see Spinelli v United States, 393 US 410 [1969]; Aguilar vTexas, 378 US 108 [1964]). Since defendant did not dispute that the victim had pointed himout to the police or deny giving the statement, the allegations in his motion papers did not raiseany factual issue warranting a hearing (see People v Mack, 281 AD2d 194 [2001], lvdenied 96 NY2d 903 [2001]).
This is not a case where "[b]ased upon . . . meager information, defendant coulddo little but deny participation in the [crime]" (People v Hightower, 85 NY2d 988, 990[1995]). Moreover, it differs from People v Bryant (8 NY3d 530 [2007]), which the dissent relies onto support its position that the People provided insufficient information. In that case, thevoluntary disclosure form stated that "a [w]itness picked out [defendant's] photo" (id. at532) which the defendant contended made unclear whether he was identified as a person whocommitted a crime or as a person who frequented the area where the crime was committed, knewthe victim, or was seen in the area at the time of the incident. The court found that the People didnot sufficiently establish "the factual predicate for [defendant's] arrest" and that "[t]he Peoplecould not both refuse to disclose the informant's identity, or at least some facts showing abasis for the informant's knowledge the police relied upon to establish probable cause for thearrest, and [*2]insist that defendant's averments in hispleadings were insufficient to obtain a Mapp/Dunaway hearing" (id. at534 [emphasis added]). Here, the People's pleadings clearly disclosed that the police relied on theinformant having been the victim of the crime, his having identified defendant as the perpetrator,and defendant's own statement, to establish probable cause. Accordingly, defendant's challenge to"the sufficiency and reliability of the persons and/or information that [led] to his arrest" wasinsufficiently specific to require a hearing (see People v Long, 8 NY3d 1014 [2007]).
We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P., Buckley,Sweeny and McGuire, JJ.
Andrias, J., dissents in a memorandum as follows: Because defendant's averments in supportof his motion to suppress physical evidence are sufficient to warrant a hearing, I would hold theappeal in abeyance and remit the matter for such hearing.
It is now well settled that, in determining the sufficiency of a defendant's factual allegations,a court must read the defendant's suppression motion in the context of the case and "[w]hether adefendant has raised factual issues requiring a hearing can only be determined with reference tothe People's contentions." (People vBryant, 8 NY3d 530, 533 [2007], quoting People v Mendoza, 82 NY2d 415, 427[1993].) A court must also consider "the degree to which the pleadings may reasonably beexpected to be precise in view of the information available to defendant" (id. at 534,quoting Mendoza at 429).
The felony complaint alleges that the arresting officer had been informed by an unnamedindividual known to the District Attorney's Office that defendant approached the informant andstated in substance: "TAKE OFF THE RINGS. TAKE THEM OFF OR ELSE YOU WILL DIE. IHAVE A WEAPON WITH ME IF YOU DON'T WANT TO DIE YOU SHOULD GIVE MEWHAT YOU HAVE DO IT SLOWLY SO NO ONE WILL NOTICE." The informant also toldthe officer that while defendant was threatening him, defendant's hand was inside his jacketpocket as if he was holding something and pushing it outward. The informant stated that he thenremoved the rings and gave them to defendant.
The voluntary disclosure form (VDF) states that the alleged robbery occurred on January 3,2005 at approximately 1:30 p.m. in front of Jackie Robinson Park near the corner of St. Nicholasand Edgecomb Avenues, which is located at 135th Street; that, at approximately 3:05 p.m., therewas a "non-police arranged point out" identification of defendant in front of 561 West 145thStreet; that, at approximately 3:08 p.m., defendant told Police Officer Alimonos, "I have thereceipt and money from the pawnshop for the rings"; and that defendant was arrested atapproximately 3:10 p.m. in front of 561 West 145th Street. The VDF further alleges that"$106.00 and a receipt from the pawn shop" had been obtained from defendant.
In support of defendant's motion to suppress the physical evidence seized, defendant'scounsel stated, in pertinent part:
"22. Mr. France has not been provided with police reports or other Rosario materialthat may be necessary to support suppression of physical evidence; the defendant shouldtherefore not be denied a Mapp hearing on the grounds that the defendant is unable togive precise factual averments in support of this motion . . .
"23. It is alleged that on January 3, 2005 at about 1:30 p.m. Mr. France stole rings [*3]from someone else. He was arrested an hour and [a] half later infront of 561 West 145th Street . . . .
"24. Mr. France states that at or around 1:00 p.m. to 1:30 p.m. he was walking in the vicinityof 145th Street and near either Convent Avenue or St. Nicholas Avenue. He may have spoken tosomeone he knows from the neighborhood for a few minutes, then continued to walk along 145thStreet. Sometime later that afternoon Mr. France was forcibly seized by uniformed police officersand searched resulting in the aforementioned items taken from his possession. Mr. France deniestaking any property from anyone on that day, January 3, 2005; pretending he had a weapon, orpossessing property without the permission or consent of the owner. Mr. France denies doinganything illegal at that time or prior to, 1:30 p.m., or at the time of his arrest. Since Mr. France'sconduct can only be described as innocent, there was no probable cause for his arrest. . . Mr. France challenges both the sufficiency and reliability of the persons and/orinformation that lead [sic] to his arrest."
In support of his motion to suppress his statement, defendant asserted that any statementsmade "were involuntary as they were elicited by coercion and the force of police authority;pursuant to police questioning, while the Defendant was in police custody and prior to Mirandawarnings."
The court granted defendant's suppression motion to the extent of ordering a hearing withrespect to the voluntariness of his statement, but denied it with respect to the identification on theground that it "was a point-out and that no police arranged identification occurred." As to thephysical evidence seized, the court denied defendant's motion without a hearing, finding thatdefendant failed to make any sworn allegations of fact to contest the People's factual allegationsin the felony complaint, VDF and indictment and that his failure to address the factual allegationsin the felony complaint may be deemed a concession that renders a hearing unnecessary.
The People allege that not only did their papers provide defendant with sufficient informationregarding his arrest, but that he had personal knowledge of such events inasmuch as he waspresent at the time the witness identified him to the police "in a face-to-face encounter" and,"quite obviously, was also present when he made his statement to the police officer." Thus, theyargue, those facts reveal that probable cause for his arrest was based on "a civilian's tip and hisown statement." However, nothing in the information provided to defendant by the Peoplesupports a conclusion that defendant was aware at the time of his arrest that someone hadidentified him as a robber, or that he saw the unidentified informant point him out to the police(compare People v Lopez, 5 NY3d753 [2005] [the defendant's written postarrest statement described events very close in timeand place to one of the charged crimes, but defendant failed to controvert such statement, whichon its face showed probable cause for his arrest]). As in People v Bryant (8 NY3d 530 [2007], supra), theinformant's identity was never disclosed to defendant.
Moreover, the circumstances surrounding defendant's statement, which by itself did not givethe police probable cause to search or arrest defendant, cannot be discerned from either thefelony complaint, VDF or the indictment. The statement was allegedly made to Officer Alimonosnot to the arresting officer, Officer Gonzalez, who swore to the felony complaint. The Peopleasserted in opposition to defendant's motion that "the identification was not police-[*4]arranged. Rather, the witness was following the defendant, flaggeddown the police and pointed out the defendant." Not only is there no basis in the record for suchstatement, but it is seemingly implausible, since defendant was apparently arrested more than anhour and a half after the alleged robbery, approximately 10 or more blocks from the scene of thecrime, and after he supposedly pawned the rings stolen from the unidentified informant.Nevertheless, the People unconvincingly argue that from the VDF defendant "knew" that "acivilian witness had followed him, then flagged down the police and identified him to thepolice."
Not only did defendant deny participating in any robbery that day or doing anything illegal ator prior to 1:30 p.m., or at the time of his arrest, but he stated that at or around 1:00 p.m. to 1:30p.m. (the time of the alleged robbery in front of Jackie Robinson Park) he was 10 blocks away,walking along 145th Street. Thus, inasmuch as the court already ordered a hearing with regard tothe voluntariness of defendant's statement made just before or at the time of his arrest, I see noplausible reason to deny defendant a hearing with regard to the physical evidence seized fromhim at the same time (see People v Mendoza, 82 NY2d at 429; see also People v Rivera, 42 AD3d160, 161 [2007] [while technically not part of the test for determining the sufficiency of adefendant's factual allegations, since CPL 710.60 (3) merely permits, but does not mandatesummary denial, the interest of judicial economy militates in favor of the court's holding ahearing on the suppression motion despite a perceived pleading deficiency]), particularly wherethe People argue that such statement, by itself, was so inculpatory that it alone provided thepolice with probable cause to arrest defendant.