Matter of Adam I.

2007 NY Slip Op 50460(U)

• Court: New York Family Court, Queens County
• Decided: March 12, 2007
• Status: Unpublished

Opinion

Matter of Adam I. (2007 NY Slip Op 50460(U)) [*1]

Matter of Adam I.

2007 NY Slip Op 50460(U) [15 Misc 3d 1102(A)]

Decided on March 12, 2007

Family Court, Queens County

Hunt, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 12, 2007

Family Court, Queens County

In the Matter of Adam I., A Person Alleged to be a Juvenile Delinquent, Respondent.

D-00011/07

Appearances of Counsel: Michael A. Cardozo, Corporation Counsel (Faith S. Lovell of

consel), New York City, for Presentment Agency. Tamara Steckler,The Legal Aid Society

(Steven Douglas Levine of counsel), New York City, Law Guardian.

John M. Hunt, J.

Respondent has filed papers seeking to renew the branch of his pre-trial omnibus motion

seeking suppression of tangible property recovered from his person by a police officer on the date

of his arrest. Upon review of the papers submitted, the Court adheres to its prior decision as to

this branch of respondent's motion, which denied the same pursuant to Criminal Procedure Law

§710.60 (3) (b), and the motion for renewal is denied for the reasons stated herein (Civil Practice

Law and Rules §2221).^[FN1]

By petition filed on January 3, 2007 respondent is alleged to have committed acts which,

were he an adult, would constitute the crime of Criminal Possession of a Weapon in the Fourth

Degree (Penal Law §265.01 [1]). The petition also seeks an adjudication of juvenile delinquency

based upon respondent's alleged violation of Penal Law §265.05, which prohibits the possession

of specific weapons by persons under 16 years of age.

A supporting deposition by New York City Police Officer Sebastian Chichotky is

appended to the verified petition (see, Matter of Jahron S., 79 NY2d 632, 638; Matter of Neftali

D., 85 NY2d 631, 635), in which the officer states, in pertinent part, that on December 2, 2006

in Queens County:

I observed a group of individuals including the respondent hanging out on

the corner smoking what I believed to be a marijuana cigarette. When I

approached the individuals, I asked the group if any of them had any weapons

on them. The respondent told me . . . that he had a knife in his pocket. I

recovered a gravity knife from the respondent's person. I knew it was a

gravity knife because it was released from the handle by the force of gravity

and locked into place by means of an internal device when the blade was

fully released.

Respondent initially sought suppression of the gravity knife in a motion filed on January

31, 2007. In support of that motion, respondent alleged, insofar as relevant, that:

The circumstances leading to the respondent's arrest, including the

description used to justify his seizure, are unknown to the respondent * * *

it is important to note that at the time he was approached by the police and

arrested, the respondent did not do anything to justify the seizure. He was

not acting suspiciously. He was simply standing on a public street with

several individuals when Police Officer Sebastian Chichotky approached the

group and asked if anyone had any weapons on them. * * * Respondent was

stopped by the police, he then told the police he had a knife in his pocket.

Respondent was arrested. The police lacked probable cause or lacked any

legal basis for any inquiry of the respondent.

By order dated February 15, 2007 the Court denied the branch of respondent's motion

seeking suppression of the gravity knife recovered by Officer Chichotky on the ground that

the sworn allegations in support of the motion created no issues of fact requiring a hearing

for determination (Criminal Procedure Law §710.60 [3] [b]). After the fact-finding hearing

commenced, respondent filed this supplemental motion seeking renewal of his motion to [*2]

suppress the gravity knife. In support of the renewed motion, respondent alleges that:

On Officer Chichotky's direct examination, he testified that on December 2,

2006 at about 8:10 P.M. at the corner of Center Street and Cypress Avenue

he observed respondent and two other[s]. He placed respondent under arrest

for possession of a gravity knife. The gravity knife was recovered from

respondent's coat pocket.

On cross-examination, Officer Chichotky testified that respondent was

arrested on December 2, 2006 at approximately 8:25 P.M. He testified that

he first observed the respondent (sic). The respondent was arrested for

having a gravity knife in his possession. The officer further testified that

he was working with a Police Officer David Strom and Sergeant Thomas

Crawford. He testified that he and Police Officer Strom were standing next

to each other, approximately ten feet from where Sergeant Crawford stopped

respondent. It is respectfully submitted that the record is totally barren of

any articulable reason for Sergeant Crawford to stop, seize and interrogate

the respondent.

Family Court Act §330.2 (1) provides that "[a] [r]espondent in a juvenile delinquency

proceeding may make a motion to suppress evidence in accordance with sections 710.20 and

710.60 of the criminal procedure law."^[FN2] Criminal Procedure Law §710.60, which "applies to

suppression motions made in juvenile delinquency proceedings" (People v. Mendoza, 82 NY2d

415, 431), sets forth the procedures which apply to a motion to suppress evidence. Subdivision

one of that section provides that "[t]he motion papers must state the ground or grounds of the

motion and must contain sworn allegations of fact . . . supporting such grounds". With two

exceptions, neither of which are relevant to this case,^[FN3] "[t]he court may summarily deny the [*3]

motion if: (a) the motion papers do not allege a ground constituting a legal basis for the motion;

or (b) [t]he sworn allegations of fact do not as a matter of law support the ground alleged . . . "

(Criminal Procedure Law §710.60 [3] [b]).

The 1993 Court of Appeals decision in People v. Mendoza broke no new legal ground.

While it refined the way in which trial courts reviewed motions to suppress evidence, it left

unchanged the long-standing rule that hearings seeking suppression of evidence were generally

not available merely for the asking. Thus Mendoza reemphasized the rule that a suppression

motion could be summarily denied pursuant to the statute where the motion papers fail to provide

a sufficient legal basis for suppression or where the motion papers do not contain sworn

allegations of fact supporting the asserted ground for suppression (People v. Gruden, 42 NY2d

214, 215-217; People v. Reynolds, 71 NY2d 552, 558; Mendoza, at 422; People v. Burton, 6

NY3d 584, 587). This rule applies with equal force to juvenile delinquency proceedings (e.g.,

Matter of Randy S., 222 AD2d 509, 510; Matter of Raoul A., 240 AD2d 565, 566; In re Fatia I.,

21 AD3d 961, 961-962, lv. denied 6 NY3d 701).

Respondent's argument in support of his renewed motion, that "the record is totally

barren of any articulable reason for Sergeant Crawford to stop, seize and interrogate the

respondent", misses the mark in several respects. This is a motion to suppress tangible property

rather than a motion seeking a trial order of dismissal (see, Criminal Procedure Law §§290.10

[1], 350.10 [4]; People v. Sabella, 35 NY2d 158, 167). While respondent may certainly rely

upon the evidence adduced by the Presentment Agency at a suppression hearing to establish

standing to seek suppression (People v. Burton, at 588-589), an issue not relevant to respondent's [*4]

motion, the cases make clear that at the pleading stage of a suppression motion, the trial court

should consider the record which consists of the face of the accusatory instrument or petition

including any supporting depositions, the context of the motion and the prosecutor's response

thereto, as well as defendant's access to information (People v. Mendoza, at 426; People v.

Jones, 95 NY2d 721, 728-729; People v. Lopez, 5 NY3d 753, 754; People v. Burton, at 588-

589).

While respondent would have the Court focus solely on the trial testimony of Police

Officer Chichotky, the record which the Court considers upon the motion to suppress also

includes Chichotky's supporting deposition, the voluntary disclosure form served by the

Presentment Agency, as well as the discovery provided by the Presentment Agency,^[FN4] The issue,

then, is not what "Sergeant Crawford" knew prior to taking police action, but what Officer

Chichotky knew. Based upon the record, Chichotky was on foot patrol in the vicinity of the

corner of Centre Street and Cypress Avenue at 8:10 P.M. on December 2, 2006 when he came

upon a group of individuals who were hanging out on that corner smoking what appeared to

Chichotky to be a marijuana cigarette. Chichotky approached the group and, without placing

anyone under arrest and without interfering with the freedom of movement of any person, asked

whether any member of the group possessed any weapons. At that point, the respondent stated [*5]

that he possessed a knife which the officer determined was a proscribed gravity knife. Notably,

respondent has never denied that Chichotky observed or possibly smelled marijuana burning

when he approached the group of individuals, nor has he denied that he possessed a gravity knife,

that he told the officer that he possessed that knife, or that Chichotky recovered a gravity knife

from his person. Therefore, it is clear that respondent had ample access to relevant information

with which to frame a proper suppression motion (People v. Long, 36 AD3d 132, 134-135), but

he chose to ignore the factual allegations and other pertinent information in both the initial

motion as well as the motion to renew (People v. Thomason, __ AD3d __, 2007 NY Slip Op

01402, at *1).

Accordingly, respondent's motion to renew the motion to suppress the gravity knife

recovered from his person is denied. The fact-finding hearing shall continue as previously

scheduled.

This constitutes the decision and order of the Court.

E N T E R:

_________________________________

JOHN M. HUNT

Judge of the Family Court

Dated: Jamaica, New York

March 12, 2007 [*6]

Footnotes

Footnote 1:Had respondent proceeded in accordance with Family Court Act §332.2 (3), the motion

would have been similarly denied. That section permits a respondent to file a pre-trial motion,

including a motion to suppress evidence, beyond the 30-day period specified in §332.2 (1) where,

inter alia, such a motion "is based upon grounds of which the respondent could not, with due diligence, have been previously aware."

Footnote 2:Criminal Procedure Law §710.20 provides that a criminal defendant may seek suppression of various items of potential evidence including tangible property obtained by means of an illegal search and seizure, a statement of the defendant which was involuntarily made, and potential testimony concerning an identification of the defendant which was obtained under circumstances which would preclude its admission at trial.

Footnote 3:The exceptions relate to a respondent's statements to law enforcement personnel and to

potential identification evidence (Criminal Procedure Law §710.60 [3] [b]; see, People v. Rodriguez, 79 NY2d 445, 452-453).

Footnote 4:By letter dated January 23, 2007, Assistant Corporation Counsel Faith Lovell advised the

Law Guardian that she was providing him with the following items of discovery: (i) NYPD Juvenile Arrest Investigation Probation Referral Report; (ii) Department of Probation Intake Face

Sheet; (iii) Property Clerk's invoice for Voucher Number N399226; (iv) memo book entry for

arresting officer Chichotky; (v) NYPD Omniform System arrest report; (vi) NYPD online complaint report form; (vii) Juvenile Arrest Investigation Probation Intake Report; (viii) prisoner

pedigree card; (ix) pre-arraignment notification report; (x) Family Court Appearance Ticket; and

(xi) picture of respondent.