PEOPLE v. HENRY (2008)

In a case which presents a fact pattern, this Court will consider issues of standing and issues of third-party standing in a case of first impression.  In accordance with Section 710.60 of the Criminal Procedure Law of the State of New York, the following shall constitute the findings of fact, conclusions of law and reasons for the determination.

The defendant, Roseanne Henry, is charged with Criminal Possession of a Controlled Substance in the 7th degree under Penal Law 220.03, a Class A Misdemeanor.  The incident arises from events which occurred on the evening of August 30, 2007.  As per a decision of this Court dated December 20, 2007, a Huntley, Mapp and Dunaway hearing was held on February 1, 2008.  The People presented one witness, Richard DePalma, a Long Beach City police officer.  The Court finds credence in his testimony.  No witnesses were called by the defendant.

FINDINGS OF FACT

On the evening of August 30, 2007, Long Beach Police Officer Richard DePalma was on patrol in the vicinity of East Beech Street, City of Long Beach, County of Nassau, State of New York. Officer DePalma was part of the Street Crimes Unit at the time.  While on his tour of duty, Officer DePalma observed Richard Scuderi while he was driving a van.  Police Officer DePalma recognized Mr. Scuderi from prior occasions.  At that time, Officer DePalma remembered from an earlier review that day that Mr. Scuderi was wanted on five Long Beach arrest warrants.  At that point, Mr. Scuderi was stopped and after the warrants were confirmed, was placed under arrest.  For reasons never adequately explained at the hearing, Mr. Scuderi was wearing only his underwear, including his boxer shorts.

The officers had stopped and arrested the defendant in front of his home, at which point, Roseanne Henry, the defendant, exited the house to see what was occurring.  Ms. Henry asked the officer and Officer DePalma explained to her that Mr. Scuderi was being placed under arrest for outstanding warrants.  She offered to get him some clothing and re-entered the premises.  At this point, two other police officers were also on the scene to assist in the arrest.  Mr. Scuderi was placed in the back seat in one of the officer's marked police cars with the door open.  At this point, Ms. Henry exited the house, walked over to the police car, squeezed through some of the officers who were standing there and threw the sweat pants onto Mr. Scuderi's lap.  Officer DePalma grabbed the pants immediately off Mr. Scuderi's lap and began a search.  The officer found 10 individual envelopes of heroin.  They were small wax paper envelope with pink writing that indicated “Everready” and he believed had a picture of a muscleman on it.  They were rectangular in shape about the size of half of a matchbox but not as thick.  Based upon the officer's experience in narcotics, he determined they were envelopes of heroin. Immediately thereafter, Roseanne Henry was placed under arrest.

At the police station house at Long Beach Headquarters, the defendant, Ms. Henry, was placed into processing room number two.  She inquired of Officer DePalma if Mr. Scuderi was going to get charged with the heroin.  Officer DePalma believed he responded, “maybe” and at that point, the defendant made a statement, to wit:  “He had nothing to do with it.  He didn't know it was in the pants.”  The officer testified that at that point, the defendant had not been questioned by him nor had the defendant been read her Miranda warnings and rights.

CONCLUSIONS OF LAW

At the conclusion of the hearing, both parties submitted Memorandums of Law. Defense Counsel has argued that there was no probable cause for the arrest of the defendant and the statements made by the defendant at the station house were improperly solicited by the law enforcement officials.  The District Attorney argues that the defendant lacks standing the challenge of the search and seizure and in any event, has abandoned her interest in the property.  People also argue that the search was conducted to a valid arrest and that the statements were made as a result of no improper police procedures.

 To establish standing, the defendant is required to demonstrate a legitimate expectation of privacy on an area subject to search before he or she may move to suppress any evidence seized.  The Court of Appeals has held there are two separate and distinct components of an expectation of privacy;  subjective and objective.  People v. Ramirez–Portoreal, 88 N.Y.2d 99, 643 N.Y.S.2d 502, 666 N.E.2d 207 (1996).  A defendant is obligated to establish both components in order to demonstrate standing.  Under the subjective component, a Court must determine if a defendant exhibited an expectation of privacy by taking steps to preserve property and private materials.  Under the objective component, a Court must determine whether, regardless of a defendant's expectation, society would recognize the expectation to be reasonable.  Both grounds must be proven satisfactorily in order for the Court to grant the defendant standing.  People v. Hammon, 47 A.D.3d 644, 850 N.Y.S.2d 474 (2nd Dept.2008).

 In the case at bar, the defendant inquired of the officers if there was a need for additional clothing for Mr. Scuderi.  The officer said yes and the defendant voluntarily re-entered the house and then came back outside, walked past the officers and tossed the pants on Mr. Scuderi's lap.  The defendant did this in a voluntary manner and not in a response for any other reason than to provide Mr. Scuderi with a pair of pants.  The pants were a voluntary surrender to the police and as such, it is neither objective nor subjective grounds in which to provide the defendant with any level of standing to challenge the subsequent search of the sweat pants.  People v. Amuso, 44 A.D.3d 781, 843 N.Y.S.2d 395 (2nd Dept.2007).

As a matter of law, if a defendant cannot establish standing, a Court is prohibited from considering the issue of abandonment.  In re Devon H., 225 A.D.2d 135, 650 N.Y.S.2d 120 (1st Dept.1996).  However, the issue of abandon should be discussed here as it does relate directly to the issue at standing.  The Court notes that the placement of the sweat pants in Mr. Scuderi's lap constitutes abandonment that is voluntary. People v. Gunther, 111 A.D.2d 932, 491 N.Y.S.2d 42 (2nd Dept.1985).  It is clear that the defendant purposely divested herself of any possession of the item in the very presence of law enforcement by handing Mr. Scuderi's pants to him and tossing them on his lap.  People v. Oliver, 39 A.D.3d 880, 835 N.Y.S.2d 308 (2nd Dept.2007).

The Court notes that the defendant does not have standing to challenge an alleged unconstitutional search and seizure which was suffered by a third party, in this case, Mr. Scuderi.  Roebling Liquors Inc. v. Commissioner of Taxation and Finance, 284 A.D.2d 669, 728 N.Y.S.2d 509 (3d Dept.2001).  In any event, it is clear under the circumstances that Mr. Scuderi was placed in custody and would continue to be placed in police custody.  Therefore, anything in his possession would most certainly be searched and, as such, abandonment under the circumstance was clearly the appropriate determination.  People v. Dennis, 223 A.D.2d 814, 636 N.Y.S.2d 453 (3d Dept.1996).

While this Court has determined that the defendant did not possess a standing and has abandoned the property in question, we will still address the issue and the propriety of the search, assuming arguendo, we would have reached this determination.  The People have indicated through the testimony of the officer that the search was incident to a proper and lawful arrest.  A search incident to a lawful arrest is justified by two exigent circumstances;  the safety of the arresting officer and the preservation of evidence within the reach of the suspect.  Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).  People v. Smith, 59 N.Y.2d 454, 465 N.Y.S.2d 896, 452 N.E.2d 1224 (1983).  For both of these standards, it is clear that the police were justified in the search of Mr. Scuderi's sweat pants.  People v. Williams, 273 A.D.2d 79, 709 N.Y.S.2d 72 (1st Dept. 2000) In addition, such pants placed on Mr. Scuderi's lap could be construed as a grabbable area where the suspect may gain possession of the contents and possibly destroy evidence of the crime.  People v. Gokey, 60 N.Y.2d 309, 469 N.Y.S.2d 618, 457 N.E.2d 723 (1983).  People v. Hernandez, 40 A.D.3d 777, 836 N.Y.S.2d 219 (2nd Dept.2007).

The statement of the defendant at the station house was made voluntarily and spontaneous and was not the result from police interrogation or its equivalent.  People v. Green, 258 A.D.2d 531, 687 N.Y.S.2d 377 (2nd Dept.1999).  The Court notes that probable cause existed for the arrest of the defendant.  People v. McNatt, 65 N.Y.2d 1046, 494 N.Y.S.2d 297, 484 N.E.2d 660 (1985).

Accordingly, the motion of the defendant by counsel to suppress the evidence is denied in its entirely.

This determination shall constitute the decision and Order of the Court.

So Ordered.

ROBERT G. BOGLE, J.