| People v Maiwandi |
| 2019 NY Slip Op 01618 [170 AD3d 750] |
| March 6, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Zabi Maiwandi, Appellant. |
Paul Skip Laisure, New York, NY (Cynthia Colt of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Ellen C. Abbot, and Aurora Alvarez-Calderon of counsel), for respondent.
Appeal by the defendant from a judgement of the Supreme Court, Queens County (Steven A.Knopf, J.), rendered September 8, 2015, convicting him of criminal possession of a controlledsubstance in the third degree (four counts), criminal possession of a controlled substance in thefourth degree, criminal possession of a controlled substance in the fifth degree, criminally usingdrug paraphernalia in the second degree, and unlawful possession of marihuana, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after a hearing(Steven W. Paynter, J.), of that branch of the defendant's omnibus motion which was to suppressphysical evidence.
Ordered that the judgment is reversed, on the facts, that branch of the defendant's omnibusmotion which was to suppress physical evidence is granted, the indictment is dismissed, and thematter is remitted to the Supreme Court, Queens County, for further proceedings consistent withCPL 160.50.
On July 5, 2013, the defendant was arrested and, incident to his arrest, the police recoveredvarious controlled substances from the defendant's motor vehicle. After the defendant wasindicted, he moved, inter alia, to suppress all of the physical evidence recovered from his vehicleon the ground that the police lacked probable cause to arrest him.
At a pretrial suppression hearing, the People proffered the testimony of Detective MatthewBorden to establish that there was probable cause for the defendant's arrest. Borden testified thathe was parked in his unmarked police vehicle, approximately 1
The Supreme Court denied the defendant's motion to suppress the physical evidencerecovered from the defendant's vehicle and, after a jury trial, he was convicted of criminalpossession of a controlled substance in the third degree (four counts), criminal possession of acontrolled substance in the fourth degree, criminal possession of a controlled substance in thefifth degree, criminally using drug paraphernalia in the second degree, and unlawful possessionof marihuana. The defendant appeals, and we reverse.
On a motion to suppress physical evidence, the People bear the burden of going forward toestablish the legality of police conduct in the first instance (see People v Hernandez, 40 AD3d 777, 778 [2007]). "A hearingcourt's determination as to witness credibility is accorded great weight on appeal, as it saw andheard the witnesses, and its determination will not be disturbed unless clearly unsupported by theevidence" (People v Fletcher, 130AD3d 1063, 1064 [2015], affd 27 NY3d 1177 [2016]). " 'The rule is thattestimony which is incredible and unbelievable, that is, impossible of belief because it ismanifestly untrue, physically impossible, contrary to experience, or self-contradictory, is to bedisregarded as being without evidentiary value, even though it is not contradicted by othertestimony or evidence introduced in the case' " (People v Garafolo, 44 AD2d 86,88 [1974], quoting 22 NY Jur, Evidence § 649).
Under the circumstances of this case, we find that the People failed to establish the legality ofthe police conduct in the first instance, as Borden's testimony was incredible and patently tailoredto meet constitutional objections. Borden's claim that he observed the alleged transaction throughhis rearview mirror with sufficient clarity to see that the object passed between the occupants ofthe car was Suboxone strains credulity and defies common sense (see People v Feingold,106 AD2d 583, 584-585 [1984]; People v Garafolo, 44 AD2d at 88-89; see alsoPeople v Carmona, 233 AD2d 142, 144 [1996]). Rather, common experience dictates thatthe dashboard of the defendant's vehicle would have obscured Borden's view of a hand-to-handtransaction between the defendant and the front-seat passenger. Borden's testimony that thetransaction occurred at a height sufficient for "public view" lacked credibility and suggested thathis testimony was tailored to meet constitutional objections (see People v Lebron, 184AD2d 784, 787 [1992] ["Where a testifying officer claims to have seen that which common sensedictates could not have been seen, courts have repeatedly deemed this testimony patently tailoredto meet constitutional objections"]). Moreover, the difference in size between the eight-inch bytwo-inch object Borden claimed to have seen passed between the occupants of the vehicle, andthe two-inch by one-inch object recovered by Katris, casts significant doubt on Borden'stestimony that he recognized the object as Suboxone. Accordingly, exercising our independentpower of factual review, we conclude that the defendant's motion to suppress the physicalevidence recovered incident to his arrest should have been granted.
Without the suppressed evidence, there would not be legally sufficient evidence to prove thedefendant's guilt. Accordingly, the indictment must be dismissed (see People v Jones, 164 AD3d1363, 1367 [2018]; People vGraham, 134 AD3d 1047, 1048 [2015]).
In light of our determination, we need not reach the defendant's alternate contention that hisattorney was ineffective for failing to move to reopen the suppression hearing in light of Borden'strial testimony, which differed from his suppression hearing testimony with regard to, inter alia,the angle at which he purportedly viewed the transaction, his purported viewing of thetransaction through his rear window as opposed to using his rearview mirror, and the size of theobject he observed the defendant pass to the woman in the front passenger seat. Leventhal, J.P.,Duffy, Connolly and Christopher, JJ., concur.