People v. Rivera , 836 N.Y.S.2d 148 ( 2007 )

OPINION OF THE COURT

Andrias, J.

Because this case is factually indistinguishable from People v Muhammed (290 AD2d 248 [2002]), the court erred in denying defendant’s motion to suppress evidence without affording him a hearing. Defendant’s appeal should be held in abeyance and the matter remanded for a hearing on his motion.

It is now firmly established that it is unreasonable to construe the Criminal Procedure Law as requiring precise factual averments from the defendant where the defendant does not have access to or awareness of the facts necessary to support suppression (see People v Mendoza, 82 NY2d 415, 429 [1993]). Moreover, while technically not part of the test for determining the sufficiency of a defendant’s factual allegations, given that CPL 710.60 (3) merely permits, but does not mandate summary denial, the interest of judicial economy militates in favor of the court’s conducting a hearing on the suppression motion in the exercise of its discretion despite a perceived pleading deficiency (Mendoza at 429).

In Muhammed, the defendant was arrested after being observed selling drugs to a separately charged individual. “In his moving papers, defendant denied selling drugs immediately before his arrest or at any time that day, and stated that he had not committed any observable crime, that there were no drugs or other contraband in plain view, and that he was not engaged in any suspicious behavior” (290 AD2d at 248). This Court held the defendant’s appeal in abeyance and remanded for a hearing on his motion to suppress evidence, finding that he had raised a factual issue.

Here, defendant was arrested and charged with possession with intent to sell and simple possession of controlled substances by a member of a four-man undercover police team that was on patrol in a taxicab in the Chelsea section of Manhattan. The officers first observed defendant driving a car that they recognized from a prior narcotics surveillance. After following defendant until he parked, two of the officers got out of the cab to keep defendant under surveillance. Shortly thereafter, an unidentified woman came out of a nearby building and got into defendant’s car. One of the officers observed defendant accept money from the woman in exchange for “a small object.” After the woman got out of the car and reentered the building, the officer radioed his fellow officers, one of whom arrested defendant. A cellular phone and a notebook were found on the front passenger seat, and $429 in cash was seized from defendant’s person. A subsequent search of the car uncovered certain illicit drugs in a small compartment next to the steering wheel.

Defendant made an omnibus pretrial motion, which included a request under CPL 710.20 to suppress “any physical evidence seized from the person of Defendant or an area under his dominion and control. . . or in the alternative, for a hearing at which the issues of such seizures may be litigated.”

In denying the motion without a hearing, the court held that inasmuch as defendant referred only to what happened when he was stopped but did not “refer to the alleged exchange of an object for money, which initiated the events,” he neglected to deny the predicate circumstances surrounding his arrest. However, defendant’s moving papers did properly characterize the alleged basis for the search of his person and the car he was sitting in at the time of his arrest. As stated by defendant, “the police are alleging that they observed Mr. Rivera make a sale of drugs in his car to an unapprehended buyer.” In response to such allegations, defendant “denie[d] participating in a drug transaction at any time on April 27, 2004,” and that at the time he was stopped, he “was not acting suspiciously and was not observed engaging in any criminal conduct. Instead [he] was waiting for a friend with whom he had plans to go to a club; [he] had just picked up the car he was in from his friend.”

On appeal, the People argue that such denial is nothing more than a legal conclusion and raises no factual issues concerning whether the police had probable cause to arrest him. Rather, they maintain, the probable cause for defendant’s arrest

“arose from police observance of him in his car, minutes before his arrest, accepting money from an unidentified woman in exchange for a small object. In other words, even if defendant’s conclusory denials were accepted as true, the officers still had probable cause to arrest him. Simply put, defendant’s denial that he participated in a drug sale on the day that he was arrested did not controvert the People’s specific factual allegations—read aloud at arraignment—which provided the predicate for his arrest.”

As recently reiterated by the Court of Appeals (People v Burton, 6 NY3d 584, 589-590 [2006]), in a buy-and-bust scenario similar to the facts in this case, except that the alleged buyer here was unapprehended and the observing officer was not a participant in the alleged transaction,

“probable cause is generally based upon an accused’s participation in a narcotics transaction. To raise an issue of fact that necessitates a hearing, a defendant has to ‘deny participating in the transaction or suggest some other grounds for suppression’ [quoting Mendoza, 82 NY2d at 429]. In the absence of such a denial, the motion court is left with the People’s uncontested averment that the accused participated in the sale or purchase—which is sufficient on its face to provide probable cause justifying an arrest and ensuing search. In such cases, there may be no fact question pertaining to Fourth Amendment compliance that needs to be resolved by a hearing.”

However, defendant’s denial that he was participating in a drug transaction, which alleged event was the only basis for the probable cause to arrest and search him and the car he was sitting in at the time, was clearly sufficient to warrant a hearing on his motion. The additional requirement urged by the People that defendant specifically deny, in detail, exchanging a small object for money is a standard not required by either statute or case law. Defendant is not required to personally admit possession of the contraband in order to comply with the factual pleading requirement of CPL 710.60 (1) and “seemingly barebones allegations may, in context, be sufficient to require a hearing” (Mendoza, 82 NY2d at 427).

Where, as here, probable cause is generated by a drug transaction, an allegation that defendant was merely sitting in the car at the time of his arrest does not frame a factual issue for the court’s determination; “to do so defendant must additionally deny participating in the transaction or suggest some other grounds for suppression” (id. at 428-429). That is exactly what defendant did in this case. His denial that he participated in the drug transaction alleged by the People as the only basis for probable cause to arrest and search him and the car he was sitting in, was sufficiently factual, in the context of the facts known to defendant at the time of his motion, to warrant a hearing, and was not the type of conclusory assertion found insufficient in Mendoza (see id. at 426-427).

There is also no merit to the People’s present position that defendant’s motion was limited to suppression of the cellular phone, notebook and cash seized, and that his motion regarding those items is moot because they were only indicia of possession with intent to sell, of which defendant was acquitted, not simple possession, the only crimes for which defendant was convicted. Although his moving papers only enumerated these items, defendant moved to suppress “any physical evidence seized from [his] person or an area under his dominion and control.” Moreover, the People, in their opposition papers, argued that in addition to making no mention of the alleged exchange with the unapprehended woman, defendant also “fails to factually account for the notebook, money, and drugs which were seized from his person or in his immediate proximity, but requests that they all be suppressed.” Thus, it is evident that the People understood defendant’s motion was addressed to the lack of probable cause for his arrest, the search incidental to that arrest, and all the evidence seized from either his person or the car. Clearly, the issue of the court’s denial of defendant’s suppression motion without a hearing has not been rendered moot.

Accordingly, defendant’s appeal from the judgment of Supreme Court, New York County (Carol Berkman, J.), rendered November 17, 2004, convicting him, after a jury trial, of criminal possession of a controlled substance in the fourth degree and three counts of criminal possession of a controlled substance in the seventh degree, should be held in abeyance and the matter remanded for a hearing on his motion to suppress physical evidence.