The People of the State of New York v. RAHEEM DOWNER KEVIN FORREST BRITNEY BASTIAN ANDDRA COLEBROOK BRIAN DURANDIS RAZEBERRY DYER TEVAUGHN FOSTER ZIDANNE PRESCOTT TREASURE TIRELLI TREASURE TIRELLI (2026)

The defendants are charged with, among other things, Criminal Possession of a Weapon in the Second Degree (Penal Law §§ 265.03[1][b], [3]). They now move separately for an order suppressing the firearms recovered from a passenger van. A Dunaway/Mapp hearing was held before this Court on March 23, 2026 and April 22, 2026. At the hearing, the People called Police Officer Matthew Hurwitz, Sergeant Anwar Hassan, and Police Officer Thomas Sinclair. This Court determines that the People's witnesses gave credible and reliable testimony.

Based on the following findings of fact and conclusions of law, the Court finds that while the initial stop of the vehicle was justified based on a traffic infraction, the subsequent search of the rear compartment where the firearms were recovered was not. Accordingly, the defendants' motion to suppress is granted for the defendants listed above. Defendant Kenneth Morris, who is not listed above, was deported to Jamaica and since then, his attorney, Vivian Cedeno, Esq., has been unable to communicate with him.

It should be noted at the outset, that just prior to beginning the hearing, this Court precluded the People from eliciting testimony about a tip from a confidential informant based on the People's failure to timely disclose any information about that tip. As part of the People's discovery disclosure, they turned over an Intake Bureau Crime Report, which stated that a "CI informed Officer Hurwitz [the arresting officer] that CI observed two suspects getting into van with firearms." Based on that disclosure, defendant Javaughn Brown, in his omnibus motion, requested information about the confidential informant, including when and from where the CI made his observations, when and how the information was communicated to the police, and who the two individuals were that purportedly possessed the weapons. Defendant Brown claimed that the information was exculpatory material essential to his defense. The People, in their omnibus response, claimed that any communication from the informant was attenuated from the charged offenses "because it did not take place at the time of the incident charged in this case," and that the "police had an independent basis to detain and arrest the defendants in this case." In the Court's decision, the People were reminded of their Brady disclosure obligations.

The hearing was scheduled for March 23, 2026, and one week prior, the Court reached out to the parties to confirm that everyone would be ready to proceed. Counsel for defendant Brown noted that he would be ready, but again brought up the issue of the confidential informant, claiming that it was relevant to the hearing and potentially exculpatory. The People responded that "the circumstances are not exculpatory; the defendants are not charged with ownership of the firearms, they are charged with constructive possession." But then the People reversed course, and at 4:21 p.m. on a Friday before the Monday morning hearing, the People emailed the parties the following:

"Hurwitz received information from the informant, who has provided information to the police previously. The information was unsolicited. Two males who entered the party van were seen with firearms. This observation was made outdoors. One of the males was identified as wearing red. The observations were made on the same incident date, as the van was being boarded."

On Monday, March 23rd, prior to starting the hearing, counsel for defendant Brown made a record about his requests for the information regarding the confidential informant, and noted the People's late-in-the-day email providing some details about the informant. Counsel claimed that the People's failure to timely disclose this information was a Rosario violation, a Brady violation, and a discovery violation, and then moved to preclude any reference to a confidential informant at the hearing. The other defendants joined in the application.

The People responded that the information from the informant was not Brady material because it does not tend to exonerate or exculpate any of the defendants and does not conflict or undermine evidence of knowing constructive possession. The People further claimed that they have an independent legal basis to oppose suppression, but that does not preclude them from offering other information that is material and relevant to the issues at the suppression hearing. Moreover, the People claimed that they provided all of the information that they had about the informant, and that any other information "does not exist, or it was lost, or it was never recovered by the police in the first place" (March 23, 2026 at 12). The People further stated that to the extent that the information provided was ambiguous, "the information is what it is. That's the information that the People have. The People received ambiguous information through the police from the informant. The information we are aware of is that people got onto this van with firearms" (March 23, 2026 at 13). The People also admitted that despite receiving some information about an informant in September 2024, the People did not make any further inquiry about the informant.

This Court then granted the defendants' application to preclude testimony regarding the confidential informant, finding that the exact nature of the information from the confidential informant was Brady material. This Court reasoned that the fact that two of the twelve defendants may have had actual possession of the firearms prior to everyone getting in the van leads to the reasonable inference that those two people dropped or abandoned those firearms once the van was pulled over by the police. That inference would necessarily undermine the People's burden to demonstrate that each defendant had dominion and control over the firearms they are charged with constructively possessing. Accordingly, the following decision will not be based on any facts regarding the confidential informant.

FINDINGS OF FACT  1

Officer Matthew Hurwitz testified that on September 4, 2024, at approximately 9:40 p.m., he was working with the Neighborhood Safety Team of the 113th Precinct in South Jamaica, Queens. At around that time, he observed a silver cargo passenger van traveling southbound on Guy R. Brewer Boulevard pull to the curb without signaling. Officer Hurwitz testified that he then activated his emergency lights and conducted a car stop. He approached the passenger side of the vehicle and looked into the rear passenger section of the vehicle while using a flashlight. Hurwitz testified that the window was tinted and had a blind or shade on the interior side which was drawn down such that he could only see through the bottom 25% of the window. Nevertheless, Hurwitz testified that he could see multiple passengers seated in the rear compartment on a "J" shaped bench extending to the back of the vehicle. While looking through the window, he observed Razeberry Dyer seated directly across from the door "making motions towards [a] bag" and "manipulating that bag." He could not say what that individual was doing with the bag.

When Hurwitz initially approached the door, it was locked. He instructed the occupants to open it, and the door was opened from the inside. Hurwitz then pulled the sliding door open, and as he did so, he heard a sound that he described as a heavy metal object striking the hard floor inside the can. He stated that it was a loud enough sound that it could be heard over the ambient noise at the scene, but that the sound was not captured on his body-worn camera video. Hurwitz did not see anyone drop or throw anything, and could not affirmatively say what was dropped, but based on his experience dropping firearms, he testified that the sound was consistent with a possible firearm being dropped.

Hurwitz then ordered the occupants out of the vehicle. He testified that thirteen people exited the rear compartment of the van, seven males and six females. It was later discovered that three of the six females walked away from the scene and were not arrested. As the occupants exited the vehicle, one of the front passengers asked Hurwitz what was happening, to which Hurwitz stated that somebody had ditched something and that he heard something hit the floor. Hurwitz and the other officers directed the occupants to line up along the van.

After the occupants exited, Hurwitz entered the rear passenger compartment. He testified that he did so to ensure no one remained inside because he could not see the entire rear passenger compartment from outside of the vehicle. Upon entering the vehicle, he observed an ice box to his left, shined his flashlight on to it and observed a firearm inside. Upon seeing the firearm, he called out "92 everybody," which was a code to his team that a firearm had been found and that the occupants had to be placed under arrest. Hurwitz then exited the van to assist his fellow officers in placing everyone in handcuffs.

After the occupants were placed under arrest, Hurwitz re-entered the van and opened the ice box to confirm the presence of the firearm inside. He then searched the entire rear compartment using his flashlight. As he walked to the back of the compartment, he inadvertently kicked a second firearm that was lying on the floor.

Hurwitz further testified that defendant Denzelle Usher was the driver of the vehicle and defendant Javaughn Brown was seated in the front passenger seat. There was a solid divider between the front and rear compartments with no pass-through such that no one in the front could hand anything to the rear passengers, and vice versa. The remaining defendants were seated in the rear compartment.

Sergeant Anwar Hassan testified that he had arrived at the scene after the vehicle was already stopped. He did not initiate or participate in pulling the vehicle over and was not involved in the eventual search of the rear compartment. When he arrived, the occupants were already in the process of exiting the vehicle, and after receiving the "92" order from Hurwitz, he moved to place handcuffs on Razeberry Dyer, who Hassan was standing with at the time. Hassan testified that when he grabbed one of Dyer's hands to place him under arrest, Dyer pulled away and attempted to run, but nearby officers helped him control and ultimately handcuff Dyer.

Officer Thomas Sinclair testified that he observed the occupants exit the vehicle and personally handcuffed defendant Zidanne Prescott after Hurwitz indicated that all of the occupants were to be placed under arrest. Prior to placing him under arrest, Sinclair observed Prescott with a black bag hanging under his right shoulder, but by the time he was placing Prescott in handcuffs, the bag was on the floor. After he was in handcuffs, Prescott spontaneously said that the bag was not his. Sinclair then picked up the bag from the ground and noticed that it was heavy, with a weight consistent with containing a firearm. He also felt a hard object inside but could not say what it was. He testified that he looked at the top of the bag and saw a silver firearm. A JetBlue boarding pass was later discovered inside the bag with Zidanne Prescott's name on it.

CONCLUSIONS OF LAW

Standing

As an initial matter, the People claim that, other than defendants Durandis and Brown, who were in the front compartment of the van, the remaining defendants have failed to demonstrate that they have standing to contest the search of the rear compartment of the passenger van. Specifically, the People claim that automatic standing is not available to those ten defendants because the People are not relying solely on the statutory presumption attributing possession to a defendant. In support of their claim, they note that they charged the jury with the instruction on constructive possession, and further claim that, at trial, they will rely on the defendants' proximity and ability to observe and access the firearms. As to defendant Dyer, the People claim that they will also rely on the DNA evidence including him as a contributor to a DNA sample found on one of the firearms.

The People's challenge to the collective defendants' standing is untimely as it was made after the proof at the hearing was closed (People v Sylvester, 129 AD3d 1666, 1667 [4th Dept 2015]). "[A] defendant seeking to suppress evidence, on the basis that it was obtained by means of an illegal search, must allege standing to challenge the search and, if the allegation is disputed, must establish standing" (id. quoting People v Carter, 86 NY2d 721, 722-23 [1995]). Here, the defendants moved separately to suppress the firearms and in response, the People consented to a Mapp hearing for each defendant without reserving their right to dispute standing. And the People never disputed standing until submitting their arguments in opposition to the defendants' motions to suppress.

In any event, the People fail to sufficiently demonstrate that they are not solely relying on the statutory presumption in charging the defendants with possession of the firearms. Generally, a defendant must demonstrate a legitimate expectation of privacy in the area searched before he or she has standing to move to suppress any evidence seized (People v Rodriguez, 69 NY2d 159 [1987]). But where a defendant is charged with possession of a firearm based solely on the statutory presumption found in Penal Law § 265.15(3), the defendant need not demonstrate standing (People v Millan, 69 NY2d 514 [1987]). This exception is based on fundamental fairness: "[t]he People may not predicate defendant's guilt solely on the constructive possession of the weapon attributed to him as a passenger [in a vehicle] on the presumption and simultaneously deprive him of the right to challenge the search" (id. at 519).

Here, except for defendant Dyer, the People do not present any evidence to suggest that the defendants in the rear compartment had "dominion and control" over the firearms sufficient to constitute constructive possession. The People simply claim that the defendants' proximity and ability to observe and access the firearms was sufficient to demonstrate dominion and control. But a defendant's mere presence in an area where a firearm was recovered is not sufficient evidence to establish dominion and control (People v Scott, 206 AD2d 392, 393-94 [2d Dept 1994]). Indeed, the inability to secure convictions when multiple defendants in an automobile have equal access to a firearm is what prompted the statutory presumption in the first place (see People v Wesley, 73 NY2d 351, 361 [1989] ["statute was prompted by the frequency of cases in which the People were unable to secure any conviction when a gun was hidden in an automobile with more than one occupant, for under traditional legal principles, the very fact that more than one person had access to the gun generally defeated a charge of constructive possession"]). Moreover, the People fail to offer any inculpatory statements made by any one of the defendants to imply that they had some dominion and control over the firearms (see People v Cheatham, 54 AD3d 297, 300 [1st Dept 2008] [no automatic standing based on the presumption where People offered evidence of inculpatory statements made by the defendant]). And the People's claim that they instructed the grand jury on constructive possession does not change the analysis because they also charged the grand jury on the automobile presumption, and they did not instruct the jury to only consider the automobile presumption as to Durandis and Brown as the occupants in the front compartment.

Finally, as to defendant Dyer, while the People have DNA evidence to support constructive possession of one of the firearms recovered from the rear passenger compartment of the vehicle, it is unclear which firearm the defendant was included as a potential DNA contributor. Without that information, it is unclear which firearm the defendant has standing to contest and which he does not.

For these reasons, the defendants have standing to challenge the search of the rear compartment of the vehicle.

The Initial Stop of the Vehicle

"[A] police officer may stop a vehicle when the officer has probable cause to believe that the driver of the vehicle has committed a traffic infraction" (People v Bookman, 131 AD3d 1258, 1260 [2d Dept 2015]; see People v Guthrie, 25 NY3d 130 [2015]). As long as the car stop is justified, a police officer may, as a precautionary measure and without particularized suspicion, to direct any occupants out of the vehicle (see People v. Robinson, 74 NY2d 773 [1989]; People v. Garcia, 20 NY3d 317 [2012]).

Here, the initial stop of the passenger van was justified based on Officer Hurwitz's observation of the van failing to signal when pulling to the side of the road (see People v Bookman, 131 AD3d at 1260 ["a police officer may stop a vehicle when the officer has probable cause to believe that the driver of the vehicle has committed a traffic infraction"]. Given the car stop was justified, the police officers were justified, as a precautionary measure and without particularized suspicion, to direct the occupants out of the vehicle. "Once the suspects have been removed from a vehicle and patted down, and any immediate threat to the officer's safety has been eliminated, it is, as a general rule, unlawful for the officer to then enter and search the passenger compartment of the vehicle absent probable cause" (People v March, 257 AD2d 631, 632 [2d Dept 1999]).

The Search of the Vehicle

Here, the People claim that Officer Hurwitz could enter the van to ensure all occupants had exited the vehicle, and that from a position that he was entitled to be in, he looked down and observed the firearm in the ice box. Even assuming that Officer Hurwitz could enter the vehicle to ensure everyone had exited, he exceeded that privilege by shining his flashlight around the vehicle and conducting a search (see People v Hernandez, 238 AD2d 131, 131-32 [1st Dept 1997] [police conducted a search without probable cause where he shined a flashlight in an area not visible from outside the vehicle]; People v Chapman, 211 AD2d 544 [2d Dept 1995] [officer conducted an unlawful search when he "leaned into" the defendant's vehicle and angled his head in order to look down on the floor area at the base of the driver's seat]). Moreover, that Hurwitz entered that rear compartment to conduct a search, as opposed to simply confirm that there were no more occupants inside, is supported by the body-worn camera video, in which Hurwitz states that someone inside ditched something. Moreover, the People's claim that Officer Hurwitz was justified in entering the vehicle to inspect the adequacy of the seating and seatbelts is not supported by the record because Hurwitz never testified that he entered the vehicle to do so.

Furthermore, the People's claim that Hurwitz had reasonable suspicion that a dangerous weapon was inside the passenger compartment based on the furtive movements of defendant Dyer and the noise of an object hitting the floor is also without merit. First, Officer Hurwitz's description of the "furtive movements" by defendant Dyer lacked any detail sufficient to give rise to a reasonable belief that he was armed (cf. People v Parker, 180 AD3d 1072, 1073 [2d Dept 2020] [defendant initially refused to exit the vehicle, looked over his shoulders back and forth when asked to exit, and upon exiting, shielded his front and left side]; People v Diaz, 146 AD3d 803, 805 [2d Dept 2017] [furtive behavior included bending down and making movements towards the ground near his feet and large bulge in defendant's right leg pant]). Here, the description of Dyer's behavior was limited to "manipulating [the] bag" (March 23, 2026 at 33) and that "his hand [was] motioning towards that bag" (id.), and Officer Hurtwitz otherwise testified that he did not know what Dyer was doing with the bag (id. at 35). Second, the sound of a metallic thud is insufficient to establish reasonable suspicion that a firearm was present in the car (see Matter of Gregory M, 82 NY2d 588 [1993]; People v Gonzalez, 212 AD2d 410 [1st Dept 1995] ["metallic thud inside the car did not establish reasonable suspicion to believe a gun was present inside the car"]). Moreover, even when considered together, these facts are "susceptible of innocent as well as culpable interpretation" (People v Debour, 40 NY2d at 216), and as such are insufficient to constitute probable cause.

Given the search of the rear compartment of the van was not justified, the police officers lacked probable cause to arrest the defendants. Accordingly, the People's claim that the search of defendant Prescott's bag was lawful as a search incident to a lawful arrest is without merit (see People v White, 117 AD2d 127, 130-31 [2d Dept 1986]).

For the reasons set forth above, the defendants' motions to suppress are granted in their entirety.

The foregoing constitutes the opinion, decision, and order of the court.

Dated: June 30, 2026

Kew Gardens, NY

E N T E R

NESTOR H. DIAZ, J.S.C

Nestor H. Diaz, J.