| People v Dortch |
| 2020 NY Slip Op 04711 [186 AD3d 1114] |
| August 20, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Bernard Dortch, Appellant. |
Timothy P. Donaher, Public Defender, Rochester, Sullivan & Cromwell LLP, NewYork City (Julia A. Malkina of counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.),rendered April 16, 2018. The judgment convicted defendant, after a nonjury trial, of criminalpossession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is reversed on the law, those parts ofthe omnibus motion seeking to suppress physical evidence and statements are granted, theindictment is dismissed, and the matter is remitted to Supreme Court, Monroe County, forproceedings pursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting him, after a nonjury trial, ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). Weagree with defendant that Supreme Court erred in refusing to suppress the physical evidencefound on his person and his subsequent statements to the police.
In his omnibus motion, defendant sought to suppress that evidence on various grounds.Specifically, he asserted that the police did not possess probable cause or reasonable suspicion tostop him, inasmuch as the police misidentified him as his brother. Defendant also asserted that"[n]o arrest warrant or search warrant had been issued against [him]." Furthermore, defendant"specifically challenge[d] both the reliability and sufficiency of hearsay information" relied on bythe arresting officers.
At the suppression hearing, the People called three Rochester police officers. One of theofficers testified that he observed defendant standing on the sidewalk in the City of Rochesterand mistakenly identified defendant for defendant's brother. That officer and another officertestified that defendant and his brother look alike and share the same general physicalcharacteristics. One of the officers testified that defendant's brother had two outstanding arrestwarrants, and that officer informed his fellow officers of the warrants. According to the officers'testimony, the police then approached defendant, who fled on foot. The police eventuallyapprehended defendant and placed him under arrest based upon the arrest warrants issued fordefendant's brother. The officers then searched defendant's person and found a loaded revolver inhis jacket pocket and, after waiving his Miranda rights, defendant made statementsadmitting to his possession of the handgun.
We agree with defendant that, under the circumstances of this case, the People failed to meettheir burden of establishing the existence of the alleged valid and outstanding warrants justifyingthe stop and search of defendant (see generally People v Jennings, 54 NY2d 518, 520[1981]). It is well settled that, although "a defendant who challenges the legality of a search andseizure has the burden of proving illegality, the People are nevertheless put to the burden ofgoing forward to show the legality of the police conduct in the first instance" (People vBerrios, 28 NY2d 361, 367-368 [1971] [internal quotation marks and emphasisomitted]).
As relevant to this appeal, " '[t]he arrest of a person who is mistakenly thought to besomeone else is valid if the arresting officer (a) has probable cause to arrest the person sought,and (b) reasonably believed the person arrested was the person sought' " (People vTejada, 270 AD2d 655, 657 [3d Dept 2000], lv denied 95 NY2d 805 [2000]). The" 'reasonableness of the arresting officers' conduct must be determined by considering thetotality of the circumstances surrounding the arrest' " (id.). Thus, to establish alawful arrest of defendant, the People were required to establish the existence of a validly issuedarrest warrant for defendant's brother or probable cause to arrest him (see People v Lee,126 AD2d 568, 569-570 [2d Dept 1987]) and, here, the People concede that the police arresteddefendant based only upon the arrest warrants issued for defendant's brother.
Contrary to the People's position and the dissent's assertion, we conclude that defendantchallenged the existence and validity of the arrest warrants for his brother by questioning thepolice witnesses at the suppression hearing concerning the status of the arrest warrants andwhether they were still valid (see Peoplev Richards, 151 AD3d 1717, 1718-1719 [4th Dept 2017]; cf. People v Boone,269 AD2d 459, 459 [2d Dept 2000], lv denied 95 NY2d 850 [2000], denied uponreconsideration 95 NY2d 961 [2000]). Notably, the court acknowledged and "accept[ed] thatthe [d]efendant [was] in fact contesting the validity of [the] warrants." Once defendantchallenged the existence and validity of the arrest warrants, the People were " 'required tomake a further evidentiary showing by producing the . . . warrant[s]' "(Richards, 151 AD3d at 1719), or "reliable evidence that the warrant[s were] active andvalid" (People v Searight, 162AD3d 1633, 1635 [4th Dept 2018]). Here, the People failed to meet their burden inasmuchas they failed to produce the arrest warrants themselves or other reliable evidence that thewarrants were active and valid (see id.; People v Lopez, 206 AD2d 894, 894 [4thDept 1994], lv denied 84 NY2d 937 [1994]; cf. Boone, 269 AD2d at 459). Thedissent's reliance on the officers' testimony alone is misplaced and not supported by the caselaw.
Thus, inasmuch as the People failed to meet their burden of showing the legality of the policeconduct in arresting defendant in the first instance, we conclude that the court erred in refusing tosuppress the physical evidence seized and defendant's subsequent statements. Because ourdetermination results in the suppression of all evidence supporting the crime charged, theindictment must be dismissed (see Searight, 162 AD3d at 1635; Lee, 126 AD2dat 569-570; see also People vWallace, 181 AD3d 1214, 1217 [4th Dept 2020]).
All concur except NeMoyer and Winslow, JJ., who dissent and vote to affirm in thefollowing memorandum.
NeMoyer and Winslow, JJ. (dissenting). The majority holds that the People failed to showthat the police acted lawfully in arresting defendant. We cannot agree. We therefore respectfullydissent and vote to affirm.
The evidence at the suppression hearing established that defendant was arrested because thepolice mistook him for his brother, Sheffield Dortch, and it is undisputed that Sheffield had twooutstanding warrants. According to the hearing testimony, the officers were looking for Sheffieldon the date in question, and one officer explained that he confirmed the continued existence ofthe warrants "almost every day" and "almost every shift when [he] was looking for [Sheffield]."Notably, defendant never specifically challenged the existence or validity of Sheffield's warrants;indeed, defendant only questioned the relevant officer about his actions in checking thosewarrants. That, in our view, should be the end of the matter; defendant did not preserve theargument upon which the majority grants relief, i.e., that the People failed to prove the existenceand validity of Sheffield's warrants (see People v Dodt, 61 NY2d 408, 416 [1984]).
But even assuming that the issue is adequately preserved, the law favors upholding thesuppression court's resolution of the merits. The arrest of a person mistaken for someone else isvalid if the arresting officer was legally authorized to arrest the person sought and" 'reasonably believed the person arrested was the person sought' " (People vTejada, 270 AD2d 655, 657 [3d Dept 2000], lv denied 95 NY2d 805 [2000]).Moreover, the existence of a warrant can be established either by producing theinstrument itself or by adducing reliable evidence that the warrant was active and valid atthe time in question (see People vSearight, 162 AD3d 1633, 1635 [4th Dept 2018]). Here, as the suppression court found,the police "undertook due diligence repeatedly to assure that Sheffield Dortch's warrants were infact still active and that [the officer's] inquiry, on the date in question or the day prior, is adequateassurance that valid warrants existed for the arrest of Sheffield." Thus, given the People's reliableevidence that Sheffield's warrants were active and valid at the time of defendant's arrest, therecan be no doubt that the police were legally authorized to arrest Sheffield, and there is no disputethat the police reasonably believed that defendant was Sheffield. It follows that defendant waslawfully arrested, and that the evidentiary fruits of that arrest were properly admitted (seePeople v Boone, 269 AD2d 459, 459 [2d Dept 2000], lv denied 95 NY2d 850 [2000],denied upon reconsideration 95 NY2d 961 [2000]; see also People v Lee, 126AD2d 568, 569 [2d Dept 1987]; People v Ferguson, 115 AD2d 615, 616 [2d Dept 1985]).The judgment should accordingly be affirmed. Present—Centra, J.P., Peradotto, NeMoyer,Winslow and DeJoseph, JJ.