| Matter of Robert D. |
| 2010 NY Slip Op 00254 [69 AD3d 714] |
| January 12, 2010 |
| Appellate Division, Second Department |
| In the Matter of Robert D., Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and SusanB. Eisner of counsel), for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal isfrom an order of disposition of the Family Court, Kings County (Freeman, J.), dated April 16,2007, which, upon a fact-finding order of the same court dated January 18, 2007, made upon theappellant's admission, finding that the appellant had committed an act which, if committed by anadult, would have constituted the crime of criminal possession of a controlled substance in theseventh degree, adjudged him to be a juvenile delinquent and placed him on probation for aperiod of 12 months. The appeal from the order of disposition brings up for review thefact-finding order and the denial, after a hearing (Spodek, J.), of that branch of the appellant'somnibus motion which was to suppress physical evidence.
Ordered that the appeal from so much of the order of disposition as placed the appellant onprobation for a period of 12 months is dismissed as academic, without costs or disbursements;and it is further,
Ordered that the order of disposition is reversed insofar as reviewed, on the law and thefacts, without costs or disbursements, that branch of the appellant's omnibus motion which wasto suppress physical evidence is granted, the fact-finding order is vacated, the petition is denied,the proceeding is dismissed, and the matter is remitted to the Family Court, Kings County, forfurther proceedings in accordance with Family Court Act § 375.1.
The appeal from so much of the order of disposition as placed the appellant on probation fora period of 12 months has been rendered academic, as the period of placement has expired (see Matter of Terrance D., 44 AD3d656 [2007]). However, because there may be collateral consequences resulting from theadjudication of delinquency, that portion of the appeal which brings up for review thefact-finding order and the denial of that branch of the appellant's omnibus motion which was tosuppress physical evidence is not academic (id.).
On March 9, 2006, the appellant was arrested and thereafter the presentment agency filed apetition against him pursuant to Family Court Act article 3. The presentment agency alleged thatthe appellant committed acts constituting, inter alia, criminal possession of a controlledsubstance in the seventh degree (see Penal Law § 220.03). Annexed to the petitionwas a supporting deposition from the arresting officer, Police Officer Jerry Bowens.[*2]
In his supporting deposition, Officer Bowens averred,among other things, that while on patrol, he "observed [the appellant] plac[ing] a canister-likeobject in his pocket." Officer Bowens added that, after he arrested the appellant and recoveredthe canister, he found crack cocaine inside the canister.
The appellant moved to suppress all physical evidence obtained as a result of the arrest onthe ground that the evidence recovered was the product of an illegal search and arrest. At apretrial Mapp hearing (see Mapp v Ohio, 367 US 643 [1961]) the hearing courtdenied the appellant's motion to suppress physical evidence, finding that Officer Bowens "was acredible witness with extensive drug transaction experience." The hearing court found thatOfficer Bowens "did not waiver [sic] in his testimony," was "very forthright," and that"the officer would know what to look for when approaching a group of people and would be ableto recognize even the small plastic bag of drugs involved in this case." Thereafter, the appellantmade an admission to criminal possession of a controlled substance in the seventh degree(see Penal Law § 220.03), and the Family Court issued a fact-finding order inaccordance therewith. By order of disposition dated April 16, 2007, the Family Court adjudgedthe respondent a juvenile delinquent and placed him on probation for a period of 12 months. Wefind that the appellant's motion to suppress the physical evidence should have been grantedbecause the presentment agency failed to establish that the police had probable cause to arresthim.
At a suppression hearing, the presentment agency bears the burden of establishing thelegality of police conduct in the first instance (cf. People v Hernandez, 40 AD3d 777, 778 [2007]). "Implicit inthis concept is that the testimony offered by the [presentment agency] in first presenting theircase must be credible" (People v Quinones, 61 AD2d 765, 766 [1978], citing Peoplev Berrios, 28 NY2d 361, 368 [1971]). Once the presentment agency establishes the legalityof police conduct by credible evidence, the appellant bears the burden of establishing that thearrest was not based on probable cause or that the police conduct was otherwise illegal (cf.People v Thomas, 291 AD2d 462, 463 [2002]). A police officer has probable cause to makean arrest when that officer possesses information which would lead a reasonable person whopossesses the same expertise as the officer to conclude, under the circumstances, that a crime isbeing committed or was committed (see People v Kennedy, 282 AD2d 759 [2001]).
In reviewing a hearing court's factual determinations based largely upon an assessment ofcredibility, the determination of the trier of fact is ordinarily accorded great weight (cf. People v Bennett, 57 AD3d912, 912 [2008]; People v Lopez, 95 AD2d 241 [1983]). However, when theAppellate Division finds that the trier of fact incorrectly assessed the evidence, "the AppellateDivision has the power to make new findings of fact" (People v Lopez, 95 AD2d at 253;see CPL 470.15). This fact-finding province is generally exercised in the context of anample record made at a suppression hearing in which the issues were presented fully enough toallow review (see People v Neely, 219 AD2d 444, 447 [1996]). Further, an appellatecourt is free to reject a hearing court's finding that suppression is not warranted "[w]here. . . an officer's testimony at a suppression hearing betrays all appearances ofhaving been patently tailored to nullify constitutional objections" (Matter of Bernice J.,248 AD2d 538, 539 [1998] [internal quotation marks omitted]; see People v Lebron,184 AD2d 784, 787 [1992]; see also People v Lewis, 195 AD2d 523 [1993]).
The evidence adduced at the hearing was contradictory and not credible with respect to thematerial facts necessary to establish probable cause (see Matter of Bernice J., 248 AD2d538 [1998]; People v Lebron, 184 AD2d 784 [1992]). For example, during the hearing,Officer Bowens gave testimony that was inconsistent with his supporting deposition. OfficerBowens testified that he arrested the appellant after observing him putting the red canister intohis pocket, and that the drugs were recovered after the arrest. However, for the first time oncross-examination, Officer Bowens testified that he actually observed the drugs prior to thearrest and that he "saw [the appellant] place something into the canister." It is impossible for thatportion of Officer Bowens' supporting deposition, taken under oath, and his hearing testimony, toboth be true, and the presentment agency failed to put forth a satisfactory explanation for thatcontradiction. In addition, the record contains further indicia that suggest that Officer Bowens'statements were not credible. Thus, upon the exercise of our factual review power, we find thatthe presentment agency failed to meet its burden of establishing probable cause to support thearrest because Officer Bowens' testimony was not credible and "has all appearances of havingbeen patently tailored to nullify constitutional objections" (People v Garafolo, 44 AD2d86, 88 [1974]). Accordingly, the hearing court erred in denying that [*3]branch of the appellant's omnibus motion which was to suppressthe physical evidence. Without the physical evidence, there is no basis to find that the appellantcommitted an act which, if committed by an adult, would have constituted the crime of criminalpossession of a controlled substance in the seventh degree (cf. Penal Law §220.03). Skelos, J.P., Covello, Leventhal and Roman, JJ., concur.