People v. Moore

2024 NY Slip Op 24220

The People of the State of New York v. Brandon Moore and KENDALL MCCLAINE, Defendants.

Ind No. 71957-23/001

County Court, Erie County

July 30, 2024

MICHAEL J. KEANE, Acting Erie County District Attorney

John Schoemick, Esq.

Appearing for the People

Nicholas Texido, Esq.

James Maloney, Esq.

Appearing for Defendant Moore

Louis Mussari, Esq.

Appearing for Defendant McClaine

Susan M. Eagan, J.

HON SUSAN M. EAGAN, J.C.C.

On June 30, 2023, defendant Moore was arraigned before this Court on an indictment charging him with one count of Reckless Endangerment in the First Degree (P.L. §120.25) and one count of Criminal Possession of a Weapon in the Second Degree (P.L. §265.03[3]). Attached to the indictment was a notice pursuant to Criminal Procedure Law (CPL) § 710.30, indicating that the defendant made oral statements to Buffalo Police Department Officers captured on body worn camera and at the station during interviews.

On July 5, 2023, defendant McClaine was arraigned before this Court on an indictment charging him with one count of Criminal Possession of a Weapon in the Second Degree (P.L. §265.03[3]). Attached to the indictment was a notice pursuant to Criminal Procedure Law (CPL) § 710.30, indicating that the defendant made oral statements to Buffalo Police Department Officers in a patrol vehicle and at the station during an interview.

In defendant Moore's Omnibus Motion dated September 13, 2023, defendant requested Brady material; disclosure of additional discoverable materials; disclosure of the grand jury instructions; preclusion/suppression of statements; preclusion of identification; suppression of physical evidence; suppression of digital data found on cell phones; severance of counts; severance of co-defendants; Sandoval hearing. After finding the moving papers sufficient, this Court conducted an evidentiary hearing pursuant to CPL § 710.60(4) on December 12, 2023, January 12, 2024, February 27, 2024, and May 30, 2024. On December 12, 2023, the People withdrew their intention to use any statements made to law enforcement by the defendant as well as the identification of the defendant by Detective Whiteford with respect to Count 1 of the indictment. Defendant Moore filed a motion requesting a Jones hearing, alleging that the traffic stop herein was racially motivated and therefore unlawful. The People opposed the motion. After considering the defendant's application as well as the response from the People, this Court granted the hearing. The hearing was conducted contemporaneously with the pre-trial hearings on the dates indicated above.

In his Omnibus Motion dated September 27, 2023, defendant McClaine requested review of the grand jury minutes, disclosure of grand jury instructions, and suppression of his statements and tangible evidence. After finding the moving papers sufficient, this Court conducted an evidentiary hearing pursuant to CPL § 710.60(4) on December 12, 2023, January 12, 2024, February 27, 2024, and May 30, 2024.

The People called a Buffalo Police Department Officer and Detective as witnesses at the hearing and introduced three exhibits, body worn camera footage as People's Exhibit 1; body worn camera footage as People's Exhibit 2; and a DVD of defendant's interview as People's Exhibit 3.

Defendant Moore called a quantitative geographer as a witness at the hearing. Jointly the defendants offered the following exhibits, Defense Exhibit A, a CD containing BPD Manual of Procedures; Defense Exhibit B a vehicle tow report; Defense Exhibit C a U-Haul contract; Defense Exhibit F a document containing GPS coordinates; and Defense Exhibit J, the expert's Curriculum Vitae which were entered into evidence.

FINDINGS OF FACT

Buffalo Police Officers conducted a vehicle and traffic stop on May 5, 2023, at approximately 11:40 pm. The officers were conducting a "directed patrol" at Genesee and Wende in the City of Buffalo, County of Erie. The officer testified that a directed patrol is sitting for about 15 minutes in a marked patrol car with the overhead lights in a "hotspot" area as designated by the Buffalo Police Department. Following the directed patrol their attention was drawn to a U-Haul truck bearing an Arizona plate traveling directly in front of the patrol vehicle on Kiefer. While the driver employed the turn signal when already stopped at the stop sign, the truck failed to use its turn signal within 100 feet when turning onto Walden from Kiefer at a stop sign. The officer initiated a traffic stop on that basis. The officers did not call dispatch to tell them they were engaged in a traffic stop.

After the vehicle pulled over, the officer activated his body worn camera (BWC) and approached the vehicle on the driver's side of the truck. The officer testified that he observed in the U-Haul side mirror that the driver, defendant McClaine was wearing a ski mask covering his entire face. That cannot be seen in the BWC footage. McClaine can be seen in the BWC wearing a knit winter hat on his head when the officer approaches the driver's door. The officer asked McClaine for his license and the rental agreement for the U-Haul without informing him of the reason for the stop. McClaine produced an identification card but did not have a paper copy of the rental agreement. The officer allowed McClaine to reach around in the cab of the truck in search of a second cell phone on which he claimed to have a copy of the rental agreement. The officer returned to his squad car to run the McClaine's name while McClaine continued to look for the rental agreement. Once the officer verified that McClaine had a valid license he returned to the vehicle and asked McClaine if he had found the rental agreement. McClaine indicated that he had not but was on the phone with someone who could provide the agreement. The occupants were asked to step out of the vehicle "because [the officer couldn't] prove that he didn't steal the vehicle, so [he was] trying to do a further investigation to see what's going on." The defendants were placed in the back of a patrol vehicle, uncuffed. According to the BWC, this was approximately 6 minutes after the vehicle was pulled over.

The officer testified on direct examination that he declined McClaine's request to speak with the individual on McClaine's phone, however on cross examination he testified that he did in fact speak to the female on McClaine's phone and told her to text the rental agreement to McClaine's phone. As reflected by the BWC, immediately after asking her to text the rental agreement the officer opened the front passenger door of his patrol car, tossed the phone on to the seat, closed the door and never looked at the phone again.

When the defendants were placed into the patrol car it was the officer's intention was to tow and impound the vehicle because neither occupant could not prove it was theirs, there was no rental agreement, and it was obstructing traffic on Walden Avenue.

While these events were unfolding dispatch put out a call regarding a domestic disturbance. The officers notified dispatch that they would accept that call without telling dispatch that they were actively engaged in a vehicle and traffic stop and then proceeded to conduct an inventory search. About eight and half minutes later, a second officer can be heard on BWC telling dispatch that they were delayed in getting to the domestic call by an unavoidable traffic stop.

During the search, the officer first located the second phone upon which McClaine alleged the rental agreement could be found. Upon finding the second phone wedged behind and slightly under the driver's seat, the officer can be heard on BWC laughing about finding the phone. McClaine was not given the opportunity to check the phone for the rental agreement, nor did the officer go back to check the phone that he had tossed on the seat in his patrol car. The officers instead continued to search the vehicle. While continuing the search of the U-Haul, a gun was found inside the unlocked glove compartment and ammunition inside a bag. The officer who found the gun handed the revolver to the testifying officer to make it safe and clear by unloading it. No rental agreement was ever found or ever attempted to be retrieved from either of the phones.

The officer testified that an inventory search form can be filled out on scene or at a later time. In this case the form was filled out at the station house which is inconsistent with Buffalo Police policy regarding inventory searches, and the form failed to include items of value found in the vehicle. Curiously, the officer testified that if the ammunition and revolver were not found in the vehicle, the driver would have been issued traffic tickets and free to leave. Instead, the vehicle was towed, and defendants were placed under arrest. About 20 minutes into the traffic stop and only in response to a direct question from McClaine did the officer inform McClaine that he was stopped due to a failure to signal at the appropriate time.

The defendants were brought to the police station to speak with detectives and placed into an interview room. During the officer's interaction with the defendants at no time did they say they did not want to speak with law enforcement, did not request an attorney, and no threats or promises were made to induce the defendants to speak with law enforcement. The officers did not ask the defendants any questions related to the traffic stop or the gun. When the defendants were finished with the detectives, they were transported to the cell block where they were booked and processed.

A Buffalo Police Detective testified that on May 5, 2023, into May 6, 2023, she was asked to interview two individuals regarding a gun arrest. The...