124 Misc. 2d 840 | N.Y. Sup. Ct. | 1984
OPINION OF THE COURT
The People’s request for reargument is granted. Upon reconsideration, the court adheres to its original decision and defendant’s motion requesting a hearing as to the suppression of physical evidence is granted.
This court believes there is no merit to the People’s position. The People contend that when the defendant raises a prima facie issue of an illegal arrest, or a search without probable cause, they can summarily overcome and satisfy their burden by the mere assertion of facts in their affirmation, thereby causing a hearing to be unnecessary. This position is not only novel, but wrong.
Let us begin at the beginning. Who has the burden of proof? The defense must first make a prima facie showing of an illegal arrest by lack of probable cause to have made such an arrest. How may this be done? In a variety of ways, but the most popular initial way it arises is on defense affirmation. A general recital of constitutional rights violated is not enough.
“ ‘A motion to suppress * * * made before trial must be in writing * * * The motion papers must state the * * * grounds of the motion and must contain sworn allegations of fact, whether [by] the defendant or of another person * * * supporting such grounds. Such allegations may be based upon personal knowledge of the deponent or upon information and belief, provided that in the latter event the sources of such information and the grounds of such belief are stated * * *
“‘3. The court may summarily deny the motion if:
“ ‘(a) The motion papers do not allege a ground constituting legal basis for the motion; or
“‘(b) the sworn allegations of fact do not as a matter of law support the ground alleged’ * * *
“It is apparent * * * that the Legislature did not intend the motion to suppress to be a pro forma response to every criminal indictment * * * [T]he papers in support of such motions frequently consist * * * of conclusory allegations * * *
“With regard to the remaining portions of the motion to suppress, defense counsel [said in part]
“ ‘[S]o as to deny him due process of law in violation of the “fourth”, “fifth”, “sixth” and “fourteenth” Amendments’ * * *
“ ‘That upon information and belief * * * an illegal and unlawful search was conducted’ * * *
“It is abundantly clear from these excerpts * * * that defendant failed to comply * * * The affirmation fails to allege any facts whatsoever, let alone facts in support of the grounds for the motion * * *
“The criminal * * * bar is on notice that the CPL does not require a hearing on a motion to suppress without regard to whether there is any basis for such motion, and without regard to the factual showing made in support of such motion. Pro forma applications [are the] significant [reason] of summary denial.” (Emphasis added.)
In People v Allweiss (48 NY2d 40, 49), Judge Wachtler said: “Here it is sufficient to note that at the time the application was made there was no factual support in the record for the contention that the identification procedure was suggestive. There was only speculation. Under these circumstances the court did not err in denying the motion (CPL 710.60, subd 1).”
Similar in tone and law was People v Leftwich (82 Misc 2d 993, 996), wherein Justice Sise stated: “A preliminary determination is not required in every instance where the identification of the defendant is in issue * * * Therefore, in a case such as the one at bar where the procedure followed does not constitute an identification but rather a confirmation, the viewing does not fall within the ambit of the statute requiring a pretrial hearing.”
In that case, the defendant constitutionally attacked the impermissive suggestiveness of what he called a “show-up” between two police officers, one an undercover, the other the arresting officer. While Justice Sise’s case did not turn on an insufficient affidavit or affirmation in support of the motion, it quite bluntly shows that ordering hearings on constitutional motions is far from automatic. The factual allegations, as well as the legal grounds must be spelled out. The problem from a defense standpoint arises very often when defense counselor, working for a large law firm, has prepared an excellent treatment of the constitutional law aspects, abundantly, if not at times overstating the legal grounds into a lecture. These “forms” are then run off on a Xerox-type machine boiler plate. New lawyers join the firm and run them off. They look so good that they would be worth an “A” in constitutional law in law school. Counselor, a bit rushed, a bit dazzled by the glossy array of constitutional argument submits same with not a scintilla of a factual allegation. When he is reminded of same, it takes him a bit of recall to get out of this clerical-like habit, and get back to the black letter law.
Therefore, a clear-cut statement of fact related to the defense counselor, as in the instant case at bar, that Mr. Hernandez, the defendant, “was approached by the police
So why then should the People respond at all? Answer: If the defense has made out a prima facie showing and the People do not allege facts which would show probable cause, then there may not be any issue joined. No hearing may be necessary and it is legally conceivable that a final order excluding the evidence could evolve upon the default of the People, and findings of fact and conclusions of law may possibly be filed at that time.
In the instant case the affirmation of the People alleges the officer “who has previously made hundreds of narcotics arrests personally observed defendant hand a glassine envelope of heroin to another * * * the area is a drug prone location [and] recovered from the ground after defendant threw it”. The court simply does not have the power to arbitrarily decree this material to be its findings of fact and conclusions of law, any more than it can merely copy all of the defendant’s allegations at its affirmation as findings of fact and conclusions of law, and summarily, in this case, suppress the evidence.
The People must realize that issues of fact have been raised relevant to the determination of probable cause (People v Bittner, 97 AD2d 33; People v McRay, 51 NY2d 594; People v Alexander, 37 NY2d 202; People v Corrado, 22 NY2d 308; People v Cabot, 88 AD2d 556). People v McRay (supra) enunciates several factors which are relevant in assessing probable cause for arrest in narcotics cases (see, also, People v Bittner, supra). The Court of Appeals advises the suppression court to consider:
1) The fact that a glassine envelope is the hallmark of an illicit drug exchange;
2) Whether there is a high incidence of narcotic trafficking in a particular community;
3) The police officer’s experience and training in narcotics investigations;
4) Whether money is exchanged, and
5) Whether the participants engaged in furtive or evasive behavior.
The court in this, and most cases, cannot reach the above findings of fact and conclusions of law without taking testimony. In Bittner (cited supra), which utilized the
Again, only to show by example, questions of fact also exist as to the issue of legal abandonment (see People v Boodle, 47 NY2d 398; People v Howard, 50 NY2d 583; People v White, 92 AD2d 1033). When one drops an item, or as we say, throws it away, what then is that individual’s intent? In Boodle {supra, p 404), it was said, “Rather than a spontaneous reaction to a sudden and unexpected confrontation with the police, the defendant’s attempt to discharge the revolver was an independent act involving a calculated risk.” A brief time to reflect may circumstantially show not enough “time * * * to reflect and formulate a strategy for ridding [oneself] of the incriminating evidence” (p 404). The time passing aids in showing a sober reflection, truly intending to be rid, forever, of the goods and yet, Judge Fuchsberg dissented, saying the time in that case “could have been no more than a twinkling of time” (p 407).
An abandonment occurs when an individual disposes of property with an intent to purposely divest himself of possession (People v Brown, 40 AD2d 527; People v Anderson, 24 NY2d 12). This can be contrasted with a situation wherein it appears that the individual inadvertently dropped the item or would have retrieved it.
Let’s look at People v Howard (50 NY2d 583, supra) in passing. True, it is not an oft-cited case, and not in the ascendancy of the criminal law. So, while Howard is not
The mere assertion that the defendant has been arrested without probable cause is insufficient. The words “probable cause” are legal words of art, terms that require elaboration, sometimes explanation, the interpretation of which has been the subject of volumes of courts’ disagreements. Defendant’s raw statement to his lawyer that he was arrested without probable cause, of and in itself, absent any other statement whatsoever is insufficient. Such a phrase merely begs the question. It does not satisfy the requirements of the statute nor the cases as to what they meant by “factual allegations”. However, see People v McNeil (55 AD2d 573), where the First Department said, when the People in effect help the defendant by responding to such a conclusory statement and also setting up a question of fact, then it leaves us no choice but to order a hearing (if the People had simply stated something like “The defense statement does not set up any factual allegations required by the cases or the statute” this hearing would not have been ordered). Here is a case where the People put their foot into it by setting up a question of fact, a constitutional question that the court could not ignore. The court held that a suppression hearing should have been ordered pursuant to CPL 710.60 (subd 4) where the defendant claimed that the police lacked probable cause for arrest and the trial court summarily denied the motion based upon the prosecutor’s representation that the police responded to complainant’s cry that he was the recent victim of a crime and defendant was armed. This case is unique, however, on the fact that it reported a mere conclusory statement by defendant, not otherwise sufficient, can be bolstered by an equally conclusory type statement by
Of course, in the case at bar, the defendant has no standing to demand a hearing pertaining to any goods seized from some other person. But as to the goods seized that he allegedly threw away, or were seized from his person, there must be a hearing to resolve all of those issues of fact and constitutional issues now shown by the defense.
Accordingly, such a hearing is ordered.