People v. Jennings

58 Misc.3d 1207 (A)

94 N.Y.S.3d 540 (Table)

The PEOPLE of the State of New York

v.Frederick JENNINGS, Defendant.

1909/2017

Supreme Court, New York County, New York.

Decided on January 3, 2018

New York County District Attorney Cyrus R. Vance Jr. (Brendan Tracy, of counsel) for the People.

The Legal Aid Society (Thomas Klein, of counsel) for the Defendant.

Daniel P. Conviser, J.

The Defendant is charged with one count of Attempted Criminal Possession of a Weapon in the Second Degree and two counts of Attempted Criminal Possession of a Weapon in the Third Degree. A hearing was ordered to determine whether a search warrant obtained by the police leading to the recovery of a firearm was tainted by the prior conduct of parole officers who executed a search of the Defendant's apartment. Parole Officer Kimberly Williams was the only witness who testified at the hearing. The Court finds her testimony to be credible. For the reasons set forth below the Court finds that the initial search of the Defendant's apartment by parole officers unlawfully tainted the subsequent acquisition of the search warrant and the seizure of the firearm. The motion to suppress the firearm seized in the execution of the warrant is therefore granted.

STATEMENT OF FACTS

Parole Officer Kimberly Williams, a 16–year employee of the Department of Corrections and Community Supervision ("DOCCS"), testified that she is a parole officer assigned in New York County. Her responsibilities involve supervising persons who have been released from custody but are still serving sentences for their crimes. Parolees are required to abide by conditions such as living at an approved residence, going to school or work, attending mandated programs, maintaining a curfew, avoiding narcotics use, avoiding possessing dangerous weapons and avoiding committing crimes.¹ She said that in 2017 she was supervising, on average, about 70–80 parolees. Parolees supervised by DOCCS are also required to meet with parole officers and agree to subject themselves to home visits and searches. Officer Williams said that as part of her duties having supervised over 500 parolees, she had conducted home visits during which she has recovered many types of contraband.

Upon release from prison, it is customary for parolees to sign a document referred to as a "Certificate of Release", containing the conditions the parolee is stipulating to as part of his release. The People introduced into evidence a Certificate of Release purported to have been signed by the Defendant on May 3, 2016. Officer Williams said this was the same document signed by all persons released on parole. Among other provisions, the Certificate of Release provided that:

I Frederick Jennings [here, on the form, there is blank space where Mr. Jennings' name was typed] voluntarily accept Post–Release supervision. I fully understand that my person, residence and property are subject to search and inspection. I understand that Post–Release Supervision if [SIC] defined by these Conditions of Release and all other conditions that may be imposed upon me by the Board of Parole or it [SIC] representatives. I understand that my violation of these conditions mat [SIC] result in the revocation of my release.

Included in the enumerated conditions of release was condition No. 4, which provided: "I will permit my Parole Officer to visit me at my residence ... and I will permit the search and inspection of my person, residence and property." A second page attached to the main Certificate of Release included additional conditions and was entitled: "Application for Conditional Release to Parole Supervision". It contained a signature line signed by Mr. Jennings indicating he had received a "copy of this application".

From May to August of 2016, the Defendant lived with his mother in Brooklyn. When the Defendant's mother moved to 2150 Madison Ave., # 5A in New York County, the Defendant moved with her, with DOCCS' approval, and his parole supervision was transferred to Manhattan. Ms. Williams was assigned to supervise the Defendant in September of 2016. Officer Williams said the Defendant was required to reside at the approved address and, among other conditions, was also required to not possess any weapons, maintain a curfew, continue to report as directed by Officer Williams and stay away from "negative peers". Officer Williams said that when she was first assigned to supervise the Defendant she went over the conditions of release with Mr. Jennings in her office. The Defendant indicated that he understood the conditions.

Officer Williams stated that notations of conversations between her and the individuals she supervises are maintained in a "Chrono sheet". Concerning her initial meeting with the Defendant, she made a chrono notation of having gone over the conditions of the Defendant's release with him. The Defendant's curfew was the only specific condition she memorialized speaking with Mr. Jennings about on the Chrono sheet. Officer Williams was uncertain about whether, if a defendant refuses to sign parole release paperwork provided by DOCCS, parole release will be denied. She was not present when Mr. Jennings signed the release and said he had signed it while in prison about two days before his release. She was not aware of what, if any, conversations occurred between the Defendant and a parole officer before the release was signed.

Prior to the date of the search at issue in this case in May of 2017, Officer Williams had conducted approximately seven visits at the location. The apartment consisted of four bedrooms, a kitchen and a bathroom. The Defendant's bedroom was located furthest from the entrance in the rear of the apartment at the end of the hallway. On these prior occasions, she testified that she had been present in the bedroom with the Defendant.

Prior to the search, Officer Williams requested that a warrant be issued to take the Defendant into custody for failing to comply with the terms of his release. The request for the warrant was premised on several factors which were documented by Officer Williams in a Violation of Release Report. Specifically, Officer Williams alleged that the Defendant had used marijuana without authorization; that he did not enter and participate in drug treatment; that he failed to report to Officer Williams' office; that he was not at his approved residence during curfew hours; and that he had changed residences without prior approval. Officer Williams stated that she had made numerous attempts to contact the Defendant. A warrant for the Defendant dated April 27, 2017 was issued by Supervising Parole Officer M. Carter. According to Officer Williams: "The warrant authorizes me to search for the individual and bring him into custody".²

On May 11, 2017, at approximately 11:10 P.M., Officer Williams along with approximately 10 other parole officers went to 2150 Madison Ave. # 5A to execute the warrant. Officer Williams was the first person to enter the apartment. The Defendant's mother, who had spoken with Officer Williams on prior occasions, answered the door and was informed by Officer Williams that she was there looking for the Defendant. Officer Williams and the other officers were allowed in the apartment. The Defendant's mother indicated that Mr. Jennings was not in the apartment and said she did not know where he was. Officer Williams explained that she and the other officers were required to search the apartment to verify whether the Defendant was there.

The officers divided into groups and proceeded to search the apartment. Officer Williams went to the Defendant's bedroom with her supervisor, Senior Parole Officer Medina, and another officer. When they entered there were four males present, none of whom was the Defendant. The Defendant's mother had informed Officer Williams that the Defendant's friends were in the room. Officer Williams testified that she noticed a strong smell of marijuana. The people in the room were taken to the kitchen so the room could be searched with a view to determining whether the Defendant was present.

Officer Williams and Officer Medina then decided to search the closet from opposite sides, she taking the right side and he the left. The closet was poorly lit and full of clothing. In addition to hanging clothes, there were bags of clothing and shoes at the bottom of the closet. Officer Williams moved some clothing so she could determine whether the Defendant was hiding in the closet. She said she had found individuals on prior occasions seeking to avoid apprehension that way.

To better view the area where she believed the Defendant might be hiding Officer Williams had to separate the clothing hanging in the closet. When she did this she felt a heavy object inside a jacket pocket. Officer Medina also felt the jacket, rubbing the inner and outer portion of it where the heavy object was. Once she determined that the Defendant was not present, Officer Williams asked Officer Medina if he felt the same thing she did. He responded yes. Officer Williams interpreted this to mean that Officer Medina had also concluded that the object in the jacket was a firearm. Officer Williams had recovered firearms on prior searches in a similar manner. She also said the jacket's exterior was soft and that she had observed the Defendant wearing the jacket on a prior visit he made to the parole office. Officer Williams then testified:

He [Officer Medina] then pulled the jacket so we could see from the light and just like held open the pocket. And inside we saw a plastic bag. And then we opened the plastic bag, and at that point, like, I am pushing from the inside of the pocket to push whatever out, and then, at that point, that's when we could see that it was a gun.³

Officer Williams also identified a photograph she took of the gun as "the firearm that we had taken out of the pocket of the jacket and opened the plastic bag that it was in".⁴ She testified that when she took the photograph, "I was like...