| People v Barnes |
| 2015 NY Slip Op 05200 [129 AD3d 981] |
| June 17, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael Barnes, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Ronald Zapata of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Jeanette Lifschitz, and Tina Grillo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Latella, J.), rendered August 18, 2011, convicting him of criminal possession of aweapon in the second degree and possession of burglar's tools, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing (Gavrin,J.), of that branch of the defendant's omnibus motion which was to suppress physicalevidence.
Ordered that the judgment is affirmed.
The defendant contends that the hearing court improperly denied that branch of hisomnibus motion which was to suppress physical evidence retrieved from the trunk of hisvehicle during a traffic stop because the testimony of the police officers at the pretrialsuppression hearing that he voluntarily opened his trunk was incredible and patentlytailored to overcome constitutional objections. Contrary to the People's contention, thedefendant preserved this argument for appellate review by, inter alia, specificallychallenging the testimony of the police officers and arguing at the hearing that thetestimony of the respective police officers was irreconcilable and inconsistent, andconflicted with testimony given before the grand jury (cf. People v Taylor, 120 AD3d519, 520 [2014]; People vInge, 90 AD3d 675 [2011]).
Nevertheless, the hearing court did not err in denying that branch of the defendant'somnibus motion which was to suppress the physical evidence. "The credibilitydeterminations of a hearing court are entitled to great deference on appeal, and will notbe disturbed unless clearly unsupported by the record" (People v Taylor, 120AD3d at 520 [internal quotation marks omitted]; see People v Prochilo, 41 NY2d759, 761 [1977]; People vRichardson, 118 AD3d 821 [2014]; People v Louis, 99 AD3d 725 [2012]). Contrary to thedefendant's contention, the respective testimony of the police officers was not incredibleas a matter of law, as it was not manifestly untrue, physically impossible, contrary toexperience, or self-contradictory (see Matter of Sherrod H., 116 AD3d 954 [2014]; People v Lynch, 63 AD3d959 [2009]; People vJames, 19 AD3d 617 [2005]). Moreover, in exercising our factual review power,we find no basis in the record to disturb the hearing court's credibility determination (see People v Granger, 122AD3d 940 [2014]). Any inconsistencies in the officers' testimony did not establishthat the testimony was tailored to nullify constitutional objections and did not render thetestimony incredible or unreliable (see People v Blake, 123 AD3d 838 [2014]; People vHopkins, 244 AD2d 357 [1997]; People v Gonzalez, 224 AD2d 322 [1996];People v Thomas, 175 AD2d 852 [1991]). Mastro, J.P., Dickerson and Maltese,JJ., concur.
[*2]Barros, J., dissents, and votes to reverse thejudgment, on the law and the facts, grant that branch of the defendant's omnibus motionwhich was to suppress physical evidence, and dismiss the indictment, with the followingmemorandum: Since the People failed to meet their heavy burden in establishing that thedefendant voluntarily consented to the search by law enforcement officials, I dissent.
When the People rely on consent to justify a search or seizure, "they bear the 'heavyburden' of establishing that such consent was freely and voluntarily given" (People v Marcial, 109 AD3d937, 938 [2013], quoting People v Gonzalez, 39 NY2d 122, 128 [1976];see People v Whitehurst, 25 NY2d 389, 391 [1969]; People v Quagliata, 53 AD3d670, 671 [2008]; People v Vasco, 191 AD2d 602, 603 [1993]). "Implicit inthis concept is that the testimony offered by the People in first presenting their case mustbe credible" (People v Quinones, 61 AD2d 765, 766 [1978]; see People vBerrios, 28 NY2d 361, 368 [1971]). "[C]onsent to a search is voluntary when it is atrue act of the will, 'an unequivocal product of an essentially free and unconstrainedchoice' " (People v Richardson, 229 AD2d 316, 316 [1996], quotingPeople v Gonzalez, 39 NY2d at 128). "Voluntariness is incompatible withofficial coercion, actual or implicit, overt or subtle" (People v Gonzalez, 39NY2d at 128).
In assessing the voluntariness of a defendant's consent, the court should consider thetotality of the circumstances, including whether the defendant was in custody or underarrest, whether the defendant was confronted by a large number of police agents, whetherthe defendant had been evasive or uncooperative prior to giving consent, the pastexperience of the defendant in dealing with law enforcement, and whether the defendantwas advised of a right to refuse consent (see id. at 127-130; People v Poinvil, 47 Misc 3d79 [2015]).
Despite the presence of guns and burglar's tools in the trunk of the defendant'svehicle, the People claimed that the defendant nonetheless voluntarily consented to thesearch of his trunk. The People produced two witnesses, Officer Stanos and OfficerOliva. Officer Stanos testified that on April 10, 2009, at 4:00 a.m., he and his supervisor,Sergeant Smith, pulled the defendant's vehicle over for speeding. Officer Stanos admittedthat he did not recall the sequence of events, but refreshed his recollection by looking athis memo book. According to Stanos's refreshed recollection, the defendant produced avalid interim license, a passport, the vehicle registration, and insurance card. OfficerStanos searched for the license plate number in his computer, and found that the vehiclewas listed as "impounded." At trial, the People stipulated that the vehicle had previouslybeen impounded for unpaid parking violations, that the judgment was satisfied, a receiptwas issued, and that the vehicle had been released from impound nine days before thesubject stop.
Because the name on the registration did not match the name on the insurance card,and the car was listed as impounded, Officer Stanos called for backup to assist with theinvestigation. He did not recall any conversations that he had with the defendant, and hedid not testify as to the significance of the "impounded" listing on his computer.
Despite the presence of Sergeant Smith at the scene, Officer Oliva took over theinvestigation as soon as he arrived with his partner. At that time, four officers werepresent. Officer Stanos did not recall whether the defendant was asked to open the trunk,but "at some point," the defendant and his passenger exited the vehicle, and he thoughtthat they were looking for paperwork, "something like that, maybe the registration theywere looking for."
The second witness, Officer Oliva, testified that Sergeant Smith, the patrolsupervisor, called for assistance. He testified that the defendant produced an interimlicense, insurance card, and a passport, but not a registration. As such, the officers askedthe defendant to search his vehicle for the registration. The defendant searched throughthe entire car, including the glove box, center console, magazine holders, and under theseats.
According to Officer Oliva, the defendant told him that the registration was possiblyin the trunk. Officer Oliva then asked for permission to search the trunk, and thedefendant "agreed it was okay, [and] gave us consent to go into the vehicle [to] look forany paperwork for the car." When the defendant opened the trunk, the officers were ableto see two handguns in plain view inside an unzipped gym bag. According to OfficerOliva, the vehicle's registration was also found [*3]in thetrunk.
On cross-examination, defense counsel impeached Officer Oliva's credibility with hisprior grand jury testimony that he, not Officer Stanos, pulled the defendant's vehicle overfor speeding. Officer Oliva had also previously testified that the defendant did notproduce any documentation at all. Officer Oliva did not provide any explanation for hisprior contradictory testimony, only stating that he did not recall giving it. Moreover, thecriminal complaint also contained Officer Oliva's statement that he estimated thedefendant's speed and pulled the defendant over, and that the defendant did not produceany documentation.
"Although, as a general rule, issues of credibility are primarily for the trial court[whose] determination is entitled to great weight on appeal, nevertheless, an appellatecourt will not hesitate to refuse to credit testimony which has all appearances of havingbeen patently tailored to nullify constitutional objections" (People v Lebron, 184AD2d 784, 784 [1992] [internal quotation marks omitted]; see People v Lewis,195 AD2d 523, 523-524 [1993]). An appellate court shall disregard " 'testimonywhich is incredible and unbelievable, that is, impossible of belief because it is manifestlyuntrue, physically impossible, contrary to experience, or self-contradictory. . . even though it is not contradicted by other testimony orevidence' " (People v Garafolo, 44 AD2d 86, 88 [1974], quoting 22 NYJur, Evidence § 649; see People v Blankumsce, 66 AD3d 692, 693 [2009];People v Miret-Gonzalez, 159 AD2d 647, 649 [1990]).
Here, based upon the testimony of Officers Stanos and Oliva, the record raisessignificant questions as to which officers were present at the initial stop, whatdocumentation was produced by the defendant and to whom it was presented, the reasonbackup was called to assist in the investigation, the reason the trunk was searched, and if,when, to whom, and how consent was obtained from the defendant to search histrunk.
Officer Stanos, who attested that he made the initial traffic stop, testified that hecalled for backup because the name on the registration did not match the name on theinsurance card. Yet, Officer Oliva testified that the sole reason for searching the trunkwas that the defendant had not produced the registration. The contradictory testimony ofOfficers Stanos and Oliva cannot be reconciled.
Officer Oliva's and Officer Stanos's testimony also was inconsistent on the issue ofwhether the defendant gave verbal consent to the search, or whether he just opened thetrunk without being asked.
Officer Oliva's hearing testimony, which was impeached by his prior grand jurytestimony and his statement in the criminal complaint, that he, not Officer Stanos, pulledthe defendant over for speeding, shows all the hallmarks of having been patently tailoredto nullify constitutional objections, and should have been disregarded.
Notably, Sergeant Smith, who supervised both Officer Stanos and Officer Oliva, andwas purportedly present at the scene throughout the entire transaction, did not testify atthe suppression hearing. In light of her superior rank, it would be expected that shewould have been in charge of the investigation, not Officer Oliva, and the People offeredno explanation as to why she was not produced at the hearing.
As such, the People's evidence, consisting solely of Officer Stanos's testimony,which did not address the defendant's purported consent to the search, and OfficerOliva's testimony, which was incredible as a matter of law, was not sufficient to meet thePeople's heavy burden of establishing that the defendant voluntarily consented to thesearch. Without that evidence, there could not be sufficient evidence to prove thedefendant's guilt, and the indictment should, therefore, be dismissed (see People vMiranda-Hernandez, 106 AD3d 838 [2013]; People v Carmichael, 92 AD3d 687 [2012]).
Accordingly, I vote to reverse the judgment, on the law and the facts, grant thatbranch of the defendant's omnibus motion which was to suppress physical evidence, anddismiss the indictment.