People v. Mercado

63 Misc.3d 1

93 N.Y.S.3d 792

The PEOPLE of the State of New York, Respondent,

v.Ceasar MERCADO, Appellant.

2015-2759 RI CR

Supreme Court, Appellate Term, New York.

Decided on February 8, 2019

New York City Legal Aid Society (Ronald Alfano of counsel), for appellant.

Richmond County District Attorney (Morrie I. Kleinbart and Alexander Fumelli of counsel), for respondent.

PRESENT: DAVID ELLIOT, J.P., MICHELLE WESTON, BERNICE D. SIEGAL, JJ.

ORDERED that the judgment of conviction is affirmed.

Charged with criminal possession of a controlled substance in the seventh degree ( Penal Law § 220.03 ), defendant moved to suppress physical evidence and statements, alleging that he had been arrested without probable cause and that his statements had resulted from unwarned custodial interrogation. After a combined Mapp /Huntley hearing, the judicial hearing officer's recommendation to deny the motion to suppress evidence was adopted by Judge Raymond Rodriguez, whereupon defendant pleaded guilty to the charge and was sentenced to, among other things, time served. Defendant's sole issue on appeal concerns the Criminal Court's determination to deny suppression.

The judicial hearing officer found credible the testimony of a trained and experienced detective that he had observed defendant, seated in an automobile parked in a drug-prone neighborhood, receive and examine a number of glassine envelopes from another person and subsequently placed those envelopes on his person. The automobile, with defendant still inside, was driven away. The detective told the other detective in the unmarked police vehicle what he had observed and they followed the automobile in which defendant was a passenger. After a short distance, that car stopped and defendant got out. The detective stopped his own vehicle, whereupon the other detective exited the police vehicle, identified himself to defendant, asked defendant to "stop," informed defendant that he had been observed in possession of glassine envelopes in the vehicle, and asked defendant, "Do you have anything on you you are not supposed to have?" Defendant replied, "I just want to let you know that I have a stem in my pocket." A search of defendant produced numerous glassine envelopes, some of which proved to contain heroin, and a glass pipe containing cocaine residue. While still at the scene, defendant asked the first detective if he could be given a desk appearance ticket. The detective responded, "Sure," and qualified his response with the statement that he must first determine that no outstanding warrants existed. Defendant then admitted that he had purchased "dope" from the driver of the vehicle defendant had been sitting in.

Credibility determinations are largely based on the factfinder's "peculiar advantages of having seen and heard the witnesses" ( People v. Prochilo , 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ). As it cannot be said that the factual findings lack support in the record or that the hearing testimony is so " ‘manifestly untrue, physically impossible, contrary to experience or self-contradictory’ as to render it incredible as a matter of law" ( People v. Scire , 57 Misc.3d 157 [A], 2017 N.Y. Slip Op. 51661 [U], *1, 72 N.Y.S.3d 518 [App. Term, 2d Dept., 2d, 11th & 13th Jud Dists. 2017], quoting People v. Barnes , 129 A.D.3d 981, 982, 11 N.Y.S.3d 669 [2015] ), the trial court properly adopted the judicial hearing officer's factual findings and the conclusion that there was probable cause for defendant's arrest.

While the observation of an "exchange" or the "passing" of glassine envelopes may not merit an inference of probable cause ( People v. McRay , 51 N.Y.2d 594, 601, 435 N.Y.S.2d 679, 416 N.E.2d 1015 [1980] ; see also People v. Jones , 90 N.Y.2d 835, 837, 660 N.Y.S.2d 549, 683 N.E.2d 14 [1997] ; People v. Williams , 69 A.D.3d 663, 664, 893 N.Y.S.2d 130 [2010] ; People v. Ketteles , 62 A.D.3d 902, 904, 879 N.Y.S.2d 208 [2009] ), we need not determine whether there existed sufficient, additional indicia of criminality justifying a probable cause finding (see People v. McRay , 51 N.Y.2d at 603-604, 435 N.Y.S.2d 679, 416 N.E.2d 1015 ; e.g. People v. Joseph , 27 N.Y.3d 1009, 1011, 32 N.Y.S.3d 49, 51 N.E.3d 560 [2016] ; People v. Tieman , 112 A.D.3d 975, 976, 978 N.Y.S.2d 67 [2013] ; People v. Herndon , 75 A.D.3d 1083, 1083, 903 N.Y.S.2d 286 [2010] ), because here, the detective's initial interaction with defendant amounted to only a level two "common-law right to inquire ... [which] is activated by a founded suspicion that criminal activity is afoot" ( People v. De Bour , 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ; see e.g. People v. Brown , 148 A.D.3d 1562, 1563-1564, 48 N.Y.S.3d 865 [2017] ; People v. Chin , 25 A.D.3d 461, 462, 808 N.Y.S.2d 661 [2006] ), and which permits "a somewhat greater intrusion" than a level one inquiry ( People v. Moore , 6 N.Y.3d 496, 498, 814 N.Y.S.2d 567, 847 N.E.2d 1141 [2006] ). The detective limited his approach to defendant to asking him to "stop"—a direction which does not represent a seizure (see People v. Bora , 83 N.Y.2d 531, 532, 611 N.Y.S.2d 796, 634 N.E.2d 168 [1994] ; People v. Nonni , 135 A.D.3d 52, 56, 20 N.Y.S.3d 345 [2015], revd on other grounds sub nom. People v. Parker , 32 N.Y.3d 49, 84 N.Y.S.3d 838, 109 N.E.3d 1138 [2018] )—informing defendant that he had been observed in possession of glassine envelopes, and inquiring if defendant possessed anything he was not supposed to have. The latter question is consistent with a level two intrusion, that is, the type of "pointed question[ ] that would lead the person approached reasonably to believe that he ... is suspected of some wrongdoing and is the focus of the officer's investigation" ( People v. Hollman , 79 N.Y.2d 181, 185, 581 N.Y.S.2d 619, 590 N.E.2d 204 [1992] ; see e.g. People v. White , 159 A.D.3d 741, 746, 71 N.Y.S.3d 568 [2018], but short of a level three forcible detention and short of establishing that defendant was in custody for probable cause and Miranda purposes. When defendant replied that he possessed a glass pipe used to smoke crack cocaine (a "st...