The People of the State of New York, Appellant, v. Jason Diaz, Respondent

Martin Schoenfeld, J.

(dissenting in part). The relevant police testimony elicited at the suppression hearing is summarized as follows. On June 21, 2002, at approximately 11:00 p.m., four police officers assigned to an anti-crime unit were on patrol in an unmarked police car when they observed a Chevrolet-model car, with what appeared to be excessively tinted windows, idling next to a fire hydrant on Morris Avenue in the Bronx. Turret lights activated, all four officers exited the police car. Two of the officers approached the driver and lone occupant of the idling vehicle — defendant Jason Diaz — and requested pedigree information. Defendant “stalled” and “hemm[ed] and haw[ed]” in response, identifying himself variously as “Joseph Perez” and “Jose Manuel Perez Rivera” and haltingly providing the officers with two different dates of birth. A contemporaneous computer check yielded no “license under that information.” Apparently at that point the police ordered defendant out of his car and conducted a search of the vehicle (supposedly on consent) that produced “nothing.” Eventually admitting that he did not have his driver’s license with him, defendant indicated that he had a “Puerto Rican license” at his Bronx apartment — a location at least two miles away — and asked the officers whether he could go home to get it. Despite the supervising police officer’s apt acknowledgment that police typically are “dealing with the unknown” in connection with citizen encounters involving automobiles, the police acceded to defendant’s request and allowed him to “drive off,” unaccompanied, with the four officers following him in the unmarked patrol car. When the two vehicles arrived in tandem at the appointed address approximately 10 minutes later, defendant “invited” the police to accompany him into his apartment. Again accepting the defendant’s offer, the police entered the apartment and in short order proceeded to recover several items of contraband situated in plain view, including “gun and ammo” magazines, 9 millimeter bullets, and a small amount of marihuana. Defendant, unable to produce the promised driver’s license, was arrested on various charges, including driving without a license in violation of Vehicle and Traffic Law § 509. The police obtained a search warrant for the apartment and ultimately recovered additional rounds of ammunition, various types of drug paraphernalia, cocaine residue, and well over $100,000 in cash.

The Judicial Hearing Officer (JHO) who presided over the hearing credited the police testimony outlined above and recommended the denial of defendant’s suppression motion. Criminal Court rejected a number of the JHO’s factual findings and granted defendant’s suppression motion in toto, expressing substantial and, in my view, well-founded concerns about “the believability of the story of the officers with respect to their following the defendant to his home, after he gave them two false names and dates of birth and failed to produce a driver’s license, or with respect to any of the events subsequent thereto.” The People now appeal, and I would affirm.

On a motion to suppress evidence claimed to have been unlawfully obtained, the prosecution bears the burden of going forward to show the legality of the police conduct in the first instance (see People v Berrios, 28 NY2d 361, 367 [1971]; People v Malinsky, 15 NY2d 86, 91 n 2 [1965]). “Implicit in this concept is that the testimony offered by the People in first presenting their case must be credible” (People v Void, 170 AD2d 239, 241 [1991], quoting People v Quinones, 61 AD2d 765, 766 [1978]), and that neither the defendant nor the reviewing court need proffer an alternative version of events in circumstances where the prosecution evidence is inherently implausible. Although issues of credibility are ordinarily for the trier of fact — here the JHO — to determine (see People v Hierro, 5 Misc 3d 48, 49 [2004], lv denied 3 NY3d 757 [2004]), that rule must give way when the testimony under consideration is viewed as incredible as a matter of law (see People v Garafolo, 44 AD2d 86, 88 [1974]).

The People in this case urge the court to accept that the police eschewed what by all accounts would have been a valid on-the-scene arrest (see CPL 140.10 [1] [a]; see also People v Van Buren, 4 NY3d 640 [2005]), and elected to “exercise forbearance” in allowing an uncooperative and prevaricating suspect who was unable to produce proper identification to “drive off’ and lead the officers at nighttime to a supposed residence that the officers knew to be “far” away. The suppression record provides no plausible explanation, and none readily comes to mind, as to why police would be willing to afford such largesse to a potential arrestee in the context of this street encounter, especially when the caravan procedure employed, hardly a textbook investigative approach, was so obviously fraught with uncertainty and danger. In this regard, one is hard pressed to believe that experienced police officers would risk the potential flight of a suspect whose identity and criminal background were then unknown but easily ascertainable, upon a speculative (and unarticulated) hunch that the suspect might somehow “lead them to evidence of more serious criminal activity” (majority op at 13), particularly in these circumstances where any attempt by the suspect to flee would necessarily raise the specter of a high-speed automobile chase through a residential neighborhood. The court is also asked to believe that the defendant voluntarily suggested that he be allowed to return home in order to retrieve a valid driver’s license which we now know did not exist and, further, that defendant consented to a police search of an apartment where various items of contraband and incriminating evidence were stored, many of them in plain view. I agree with the experienced and able suppression judge that the officers’ testimony strains credulity to the breaking point and has all of the indicia of a story tailored to overcome constitutional objections to what otherwise would be a clearly illegal apartment search (see People v Flores, 181 AD2d 570, 572 [1992]; People v Void, 170 AD2d 239 [1991], supra).

Inasmuch as the People failed to meet their “heavy burden” of establishing defendant’s consent to entry into the apartment (see People v Gonzalez, 39 NY2d 122, 128 [1976]), and since the unlawful entry led directly to the discovery of contraband and to defendant’s statements and provided no basis for obtaining a search warrant (see People v Perez, 266 AD2d 242 [1999], lv dismissed 94 NY2d 923 [2000]), Criminal Court properly granted defendant’s suppression motion in its entirety.

Suarez, EJ., concurs with McCooe, J.; Schoenfeld, J., dissents in part in a separate opinion.

The police later learned that defendant’s New York driver’s license was suspended.

OPINION OF THE COURT

William P. McCooe, J.

Order dated September 17, 2003 modified, on the law, by deleting the provisions thereof granting those branches of the defendant’s motion which were to suppress the marijuana recovered from the apartment living room and defendant’s statements to the police and substituting therefor a provision denying those branches of the motion; as so modified, order affirmed.

At a Huntley/Mapp/Dunaway hearing before Judicial Hearing Officer (JHO) Harold Enten, Sergeant William Planeta, Detective Earl Lynch, Police Officer Russell Argila and Police Officer John Baumeister of the Bronx Anti-Crime Unit testified that while in plain clothes driving an unmarked vehicle they observed a car idling at a hydrant which had excessively tinted windows. The officers exited their car and Detective Lynch asked the defendant, who was alone, for his license and registration. The defendant did not have a license and he gave his name as “Joseph Perez,” and date of birth as July 3 but “stalled” on the year. Sergeant Planeta told him that if he lied about his name and date of birth he was committing a crime. Defendant then gave his name as “Jose Manuel Perez Rivera” and date of birth as December 3, 1971. After a computer check failed to locate a license with that information, defendant then said he had a “Puerto Rican” license at his apartment which his mother could bring downstairs. The police agreed to follow the defendant home.

When they arrived at the apartment house, the defendant told them his mother was in Puerto Rico and asked the officers to come upstairs. While Planeta and Lynch parked the car, Argila and Baumeister were invited into the studio apartment and waited while defendant unsuccessfully looked for the identification and the license, called his mother who was in Puerto Rico, and “buzzed” Planeta and Lynch into the building. When Planeta arrived at the front door to the studio apartment, it was ajar. He entered and heard the television playing and shower “running.” He walked to the bathroom and found that the shower was “broken.” As a “security measure” to determine “if anyone else was inside the studio apartment,” he walked into the kitchen area and saw a bed where he noticed a Sprint bill in the name of “Jose Diaz” on the bedside table together with two 9 millimeter bullets in an ashtray. Planeta returned to the living room and when defendant offered no explanation for the name “Jose Diaz” on the Sprint bill, Detective Lynch arrested him for driving without a license and possession of ammunition. The defendant began to “scream” that the police should leave the apartment. Defendant also made some statements regarding money. He said that he had $4,000 in cash to pay bills and $28,000 in cash from music promotion gigs, and told the officers that he gave a false name because of an outstanding warrant. After the arrest, Planeta “made some other observations,” noticing a “gun and ammo” magazine and five individual barrel bolts going under and in the floor on the front door, in addition to two or three other locks in the frame which he deemed “excessive.” Officer Baumeister told Planeta that he found a “small amount of marijuana” in the living room ashtray. Defendant, still screaming that the police had illegally searched, was taken to the police station and gave a statement that was memorialized but which he refused to sign.

Officers Argila and Baumeister secured the apartment that night and the following morning Detective Lynch obtained a search warrant. In the subsequent search, the police recovered 31 9 millimeter bullets under the defendant’s mattress, a knapsack under the bed with $42,000 in cash, additional bags of money underneath the sink and in the dresser (total cash: $188,000), a black duffle bag containing drug paraphernalia (cutting agents, lactose, lidocaine, metal strainers, tape, etc.), scales, rubber bands and gloves. On cross-examination, Planeta stated that although Lynch might have seen additional rounds of ammunition during Lynch’s initial “sweep,” he did not know about them prior to executing the search warrant. Detective Lynch’s affidavit in support of the search warrant stated that he saw two bullets in the ashtray and “a clear plastic bag of ammunition containing at least 20 rounds.”

Defendant’s neighbor, Carol Morales, the only witness for the defense, testified that she looked through the peephole and saw defendant’s apartment door open, with a man outside and other individuals inside. After opening her front door she saw defen dant handcuffed on the floor, who told her the police were “looking illegally.” The officer in the hallway told her to go back inside her apartment.

The JHO, finding the officers’ testimony credible, denied the defendant’s motion to suppress the physical evidence and the statements. He found that after being invited into the studio apartment the officers observed the marijuana and ammunition, arrested the defendant, and then seized the remaining items after obtaining a warrant. He found that the statements were either spontaneously made at the scene and did not require Miranda warnings or were made after defendant was arrested and the Miranda warnings were given.

The Criminal Court Judge agreed with the JHO that the police had probable cause to arrest “from the time they came across [defendant’s] illegally parked vehicle [and after he] gave them false information consisting of two different names, which . . . could not be confirmed by . . . computer record check.” The court rejected the JHO’s further credibility determinations, stating that it was not “persuaded as to [the] believability of the story of the officers with respect to their following the defendant to his home after he gave them two false names and dates of birth and failed to produce a driver’s license, or with respect to any of the subsequent events thereto.” This included whether the officers gained access to the apartment with defendant’s “permission or [if] defendant invited them into his home.” The court was “not convinced that the contraband” was discovered after the search warrant was obtained, rather than “at the time” of the arrest. Also, “significant discrepancies” existed between Planeta’s testimony and Lynch’s affidavit “with respect to what the officers found in the apartment” on the night of the arrest and prior to the search the next morning. The court held the contraband was “illegally obtained” and the statements after defendant’s arrest “derived from that illegality” although the Miranda warnings had been given.

The People claim that the court had “no basis to controvert the [JHO’s] credibility findings” when the officers’ testimony was not “incredible as a matter of law.” Defendant has not submitted an appellate brief.

At the hearing, defendant’s counsel argued that the officers’ testimony was “incredible” based on their “conflicting accounts” concerning the initial observation of the tinting on defendant’s car and his subsequent questioning, as well as how the officers gained access to the apartment. He argued that the police would not permit someone with a felony warrant who provided different names and dates of birth to obtain identification at his apartment nor would he invite the officers inside. Also “incredible” was the police claim that security sweeps only uncovered two bullets and the marijuana. Finally, defendant argued that the police searched on the date of the arrest without a warrant. Once the trial court and our dissenting colleague concluded that the police explanations as to how and why the police came to the defendant’s apartment were unbelievable or incredible, they in effect applied the falsus in toto rule and rejected the balance of the police testimony.

The police testimony is not incredible. The undisputed fact that the police initially did not arrest the defendant, give him a ticket or take any action against him supports their version of the events.

There is no evidence contradicting the police officers’ testimony nor is there an alternative version of the factual events offered by the defense. The dissent relies upon the frequently cited case of People v Garafolo (44 AD2d 86 [2d Dept 1974]) for the proposition that the findings of the trier of facts should be disregarded when the evidence is incredible as a matter of law. Garafolo is readily distinguishable. As stated (at 88), “The defendant told a very different story of the events preceding the arrest.” There is absolutely no evidence of the “events preceding the arrest” by the defendant in this case since he did not testify. Therefore a finding of incredibility must be based solely upon the testimony of the police officers.

The logical reason that the anti-crime police officers did not then arrest the defendant and accepted his offer to go to the apartment was that the officers were playing a cat and mouse game with him. Based upon the officers’ extensive experience which was established at the hearing, the preceding circumstances regarding their encounter with him in a high crime area aroused the officers’ suspicions that this defendant, who was clearly rattled by them, would lead them to evidence of more serious criminal activity. The officers gave the defendant enough rope to hang himself. Neither the Criminal Court Judge nor the dissent has offered an alternative explanation as to why the police allowed the defendant to simply drive away or to explain how and why they arrived at his apartment house and entered his apartment. Nor is there any testimony contradicting the police testimony.

“While the Criminal Court is required to indepen dently review the report of the Hearing Officer (CPL 255.20 [4]), it is established that issues of credibility are primarily for a hearing court to resolve (People v McCormick, 162 AD2d 878; People v Prochilo, 41 NY2d 759). The uncontradicted testimony of the police officer, the sole witness at the hearing, was not incredible as a matter of law (cf., People v Quinones, 61 AD2d 765). Criminal Court was therefore not warranted in rejecting the Hearing Officer’s findings on credibility because of the court’s own general skepticism” (People v Jones, 152 Misc 2d 113, 114 [App Term, 1st Dept 1992], appeal dismissed 80 NY2d 833 [1992]).

That there were some discrepancies among the four police officers’ testimony, including the sequence of events, is understandable. The events took place in a very short period of time, the officers were acting independently and the hearing was held 10 months later. The fact that the defendant could not locate the Puerto Rican license after his search and talking to his mother does not establish that he does not have it, only that he could not locate it. It is not surprising that once his New York license was suspended he got a Puerto Rican license.

The record supports the JHO’s finding that the police entry into the apartment was based on consent in the form of defendant’s conduct in first asking the police to accompany him to the apartment and then inviting Officers Argila and Baumeister inside to wait while he obtained his license and identification (see People v Benton, 13 AD3d 97 [1st Dept 2004]). The seizure of the marijuana in the living room was permissible under the plain view doctrine because the police were lawfully in a position to view the marijuana in that room after the defendant invited them inside (People v Diaz, 81 NY2d 106, 110 [1993]; People v Polanco, 292 AD2d 29, 34 [1st Dept 2002]). The bullets must be suppressed because they were viewed in an area where the police were not lawfully present. The People have not shown sufficient exigent circumstances that a “security sweep” of the balance of the studio apartment was necessary since there was no proof of an emergency (People v Garrett, 256 AD2d 588 [2d Dept 1998], lv denied 93 NY2d 924 [1999]). The arrest was valid and the spontaneous statements made in the apartment and those made after the giving of the Miranda warnings should not be suppressed. Probable cause did not exist to issue the search warrant absent the admission of the bullets. While there is a presumption of validity attached to the warrant and the court has “applied ordinary common sense” (see People v Traymore, 241 AD2d 226, 230-231 [1st Dept 1998], lv denied 92 NY2d 907 [1998]), there is a lack of an adequate basis “even under the more relaxed standard of proof sometimes suggested for warrant cases” (People v Bigelow, 66 NY2d 417, 424 n [1985]).