People v. McBride

2023 NY Slip Op 50827(U)

The People of the State of New York v. Terrence McBride, Defendant.

Indictment No. 70185-23

Supreme Court, Nassau County

August 2, 2023

Unpublished Opinion

ADA Andrew Tripodi Nassau County District Attorney's Office Christopher Graziano, Esq. Attorney for Defendant

Robert A. Schwartz Acting Supreme Court Justice

Defendant was indicted for criminal possession of a weapon in the second degree, two counts of criminal possession of a weapon in the third degree, criminal possession of a firearm criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree, three counts of criminal possession of a controlled substance in the seventh degree, criminally using drug paraphernalia in the second degree, and aggravated unlicensed operation of a motor vehicle in the second degree. The charges stem from an incident on October 26, 2022, when police officers approached defendant sitting in a parked car and subsequently recovered a loaded gun in the car and drugs and currency from defendant's person. The People also allege that defendant was operating a motor vehicle while knowing or having reason to know that his license or privilege to operate a motor vehicle was suspended or revoked.

On February 15, 2023, the parties stipulated to a Huntley/Dunaway/Mapp suppression hearing. That hearing was held on May 8, 2023, and June 7, 2023. The People called Police Officers Robert Psomas, Joseph Mueller, and Michael Sierzant, and Detective Ryan Coyle, to testify. The People's evidence included video recordings from the officers' body cameras of their interactions with defendant. Defendant presented no evidence. The parties presented oral arguments on June 16, 2023.

"On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance." People v Hernandez, 40 A.D.3d 777, 778 (2d Dept 2007); see People v Berrios, 28 N.Y.2d 361, 367 (1971). After reviewing the evidence and considering the parties' arguments, the court finds the testimony of the People's witnesses to be generally credible. However, the People failed to establish the legality of the officers' initial encounter with defendant. Accordingly, for the reasons set forth below, defendant's motion to suppress the drugs the gun, the currency, and defendant's statements, is granted.

Findings of Fact

On October 26, 2022, Officers Psomas and Mueller were on patrol within the Fifth Precinct of the Nassau County Police Department. They were specifically assigned to patrol for "quality of life offenses" - criminal activity such as drug transactions and gang activity. They were in plainclothes, in an unmarked police vehicle. At approximately 12:35 a.m., they were patrolling the area of Hendrickson Park in Elmont. Psomas was driving and Mueller was in the front passenger seat. Psomas testified that he was familiar with Hendrickson Park, that drug and gang activity were common there, and that he had participated in numerous criminal investigations relating to narcotics, gang activity, and violence in that area. At that time, it was dark outside, and the park was closed.

As Psomas and Mueller drove south on Roquette Avenue, a one-way street that borders Hendrickson Park, they saw a white Nissan Rogue parked on the street. Both officers testified that the Rogue was parked further from the curb than the other vehicles parked on the street, but neither officer testified to the distance between the curb and the Rogue. As he drove past, Psomas saw that an interior light in the Rogue was on the driver's side window was open, and he saw a person in the driver's seat looking towards his lap and "manipulating an object." Mueller testified that the engine was running. Psomas could not see the driver's hands and did not know what object, if any, he appeared to be manipulating. Psomas and Mueller later identified defendant as the driver of the Rogue. Mueller also testified that there was a clear cover on one of the Rogue's license plates.

Based on those observations and his familiarity with the criminal activity in that area, Psomas decided to investigate further. He drove around the block, stopped behind the Rogue, and activated the red emergency lights of the unmarked police vehicle. Psomas and Mueller testified that they were effecting a "stop" of the Rogue. Psomas exited the vehicle and walked towards the driver side of the Rogue while Mueller walked towards the passenger side. The officers used their flashlights to see inside the Rogue as they walked towards it. As he approached, Psomas saw defendant lift his legs from his seat, arch his back, and put something in the back of his pants. At that time, Psomas did not know what defendant had put in his pants, but testified that based on his training and experience he believed it could have been drugs or a weapon. Mueller believed it to be a plastic bag and ordered defendant to stop moving and to place his hands on the steering wheel.

When Psomas reached the open driver's side window of the Rogue, he noticed defendant was nervous, shaking, and breathing heavily. He asked defendant to turn off the vehicle and keep his hands on the steering wheel. Mueller reached into the vehicle and removed the keys to prevent defendant from leaving. Psomas told defendant that he saw him put something in his pants and asked him what it was. Defendant responded that it was drugs. Psomas opened the driver's side door, told defendant to lean forward, and handcuffed him. Psomas removed defendant from the vehicle. Mueller searched defendant's pants and pulled a clear plastic bag containing what he believed to be narcotics from inside the back of defendant's underwear. Mueller also recovered $900 in United States currency from defendant's front left pocket.

Police Officers Michael Sierzant and Anthony Roselli also assisted Psomas and Mueller with defendant's arrest. Sierzant testified that he and Roselli also were patrolling that area for "quality of life" offenses and that he also knew drug and gang activity to be common in the area of Hendrickson Park. Sierzant had been watching the Rogue before Psomas and Mueller pulled up behind it. From a nearby gas station, he noticed that the Rogue was parked on the street next to the park with its headlights on but could not see inside it. For approximately 10 minutes he watched the Rogue and did not observe any apparent criminal activity. When Sierzant saw Psomas and Mueller activate their red emergency lights he and Roselli went to assist them. Defendant was already out of the Rogue and in handcuffs when Sierzant and Roselli arrived. Sierzant noticed that the Rogue was further from the curb than other vehicles parked on that street. He estimated that the vehicle was parked more than twelve inches from the curb but did not measure the distance.

After defendant was removed from his vehicle, Psomas asked him further questions. Sierzant was present for their conversation. Psomas asked defendant if the vehicle was his and defendant responded that it belonged to a friend. He asked defendant his name and date of birth, which defendant provided. Psomas ran a computer check using defendant's pedigree information and learned that defendant's license was suspended and that he had outstanding arrest warrants. Psomas asked defendant to confirm his pedigree information and he did. After Psomas told defendant about his outstanding warrants, defendant asked what they were for, and Psomas responded that they pertained to a parole violation and a charge of promoting prison contraband. Defendant explained that he had been charged because another prisoner had dropped contraband on the floor near defendant and did not take responsibility for it. Defendant related that he had recently moved from Hempstead to Queens, and asked if he could smoke a cigarette. Psomas retrieved cigarettes and a lighter from the Rogue, lit a cigarette, and gave it to defendant. Psomas told defendant that it was dangerous for defendant to shove something into his pants when police officers were approaching his vehicle because they could think he had a weapon. Defendant responded that he knew it was dangerous and that was why he froze when the officers approached him. The officers did not make any threats or promises to defendant or otherwise use any force or coercion to prompt his responses.

Mueller searched the Rogue and found on the back seat a backpack containing a loaded black handgun and clear plastic bags commonly used for packaging and selling narcotics. At approximately 1:00 a.m., the officers transported defendant to the Fifth Squad for arrest processing. En route, defendant asked if he was going to get the Rogue back because it belonged to his girlfriend and she needed the keys in the vehicle for her job. Defendant asked that question spontaneously and not in response to any statements or questions by the officers.

Later that morning, Detective Coyle had a further conversation with defendant in an interview room in the Fifth Squad. Detective Chris DiGregorio was also present for that conversation. Coyle advised defendant of his Miranda rights using a pre-printed card and defendant indicated he understood them. He then asked defendant if he would answer questions and defendant said that he would. Coyle then had a conversation with defendant about, among other things, the drugs and the handgun recovered during his arrest. Coyle then memorialized their conversation into a written statement which defendant reviewed and signed. The detectives did not make any threats or promises to defendant or otherwise use any force or coercion to prompt his answers. Defendant did not invoke his right to...