People v. Kojac

176 Misc. 2d 187, 671 N.Y.S.2d 949, 1998 N.Y. Misc. LEXIS 89
CourtNew York Supreme Court
DecidedMarch 18, 1998
StatusPublished
Cited by6 cases

This text of 176 Misc. 2d 187 (People v. Kojac) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Kojac, 176 Misc. 2d 187, 671 N.Y.S.2d 949, 1998 N.Y. Misc. LEXIS 89 (N.Y. Super. Ct. 1998).

Opinion

OPINION OF THE COURT

Micki A. Scherer, J.

On January 12 and 13, 1998, a Mapp /Dunaway /Huntley hearing was held before me. At that hearing, the People called Police Officer Brendan Sullivan and Detective Rubin Flowers. The defendant testified on his own behalf and recalled Officer Sullivan as a defense witness. Based upon the credible testimony adduced at the hearing, the court makes the following findings of fact.

FINDINGS OF FACT

On August 19, 1997, Police Officer Brendan Sullivan of the Northern Manhattan Initiative was assigned to investigate narcotics sales at 5 Seaman Avenue in Manhattan. Police Officer Sullivan had been assigned to the Northern Manhattan Initiative for approximately one year prior to this date and had participated in approximately 45 narcotics-related arrests during that time.

The location under observation was a “trespass affidavit building”. The building management, by a signed affidavit, authorized the police to arrest anyone who entered the building without a legitimate reason. Signs were posted inside the building identifying it as a trespass affidavit building. Additionally, the police had received a complaint that drugs were being sold inside the building in apartment 3F.

On the day in question at about 1:00 p.m., Officer Sullivan and Police Officer Tetonic were seated in a parked unmarked van on the corner of Seaman Avenue and Gumming Street. Detective Rubin Flowers, who was also part of the field team, was inside another unmarked vehicle in the vicinity of Dyckman and Broadway. Additional team members were seated in a third vehicle, at an undisclosed location.

At approximately 2:45 p.m., Police Officer Sullivan observed the defendant park his vehicle in front of the building complex. The defendant exited his car, opened the gate to the location using a key, and then entered 5 Seaman Avenue. Police Officer Sullivan observed the defendant return to his car about five minutes later, but the officer admitted that he made no nota[189]*189tion as to what time the defendant entered the building and that he did not actually see the defendant exit the building. The defendant was “looking around” as he walked to his car and was not carrying anything in his hands.

According to Officer Sullivan, the defendant made a U-turn and drove down Seaman Avenue to Riverside Drive, where he made a right turn. Police Officer Sullivan followed the defendant’s car in his police vehicle. He did not activate his siren or lights. The defendant was halted in traffic at the corner of Henshaw and Riverside Drive. Police Officer Sullivan’s van was immediately behind the defendant’s car and when the defendant stopped, the officer exited his van and approached the defendant on the driver’s side of his car. Police Officer Tetóme approached the passenger side of the vehicle. Both officers had their badges displayed. At about the same time, Detective Flowers pulled his vehicle up next to the defendant’s car.

Officer Sullivan identified himself as a police officer and asked the defendant if he lived at 5 Seaman Avenue. The defendant replied “no”, and stated that he was there to see a friend. The officer asked for the friend’s name and the defendant responded that he did not know. Officer Sullivan then said, “if you were there to buy drugs, let me know now.” The defendant admitted that he was there to purchase drugs, but denied having any drugs on him. The defendant said he had used all the drugs in the apartment. Officer Sullivan asked the defendant to step out of his vehicle and the defendant complied.

At this point, Detective Flowers approached the driver’s side of the defendant’s car and saw on the middle console between the two front seats a clear plastic bag containing what appeared to be cocaine. Detective Flowers reached into the car through the open door and removed the plastic bag from the top of the console. The defendant was then placed under arrest. Detective Flowers then conducted a further search of the defendant’s vehicle, but did not recover any additional contraband. During a search of the defendant’s person, the key to the gate surrounding the apartment complex was recovered.

The defendant’s testimony contained numerous inconsistencies and did not have the “ring of truth”. He admitted that he purchased drugs inside of 5 Seaman Avenue. He stated that he consumed some of the drugs inside the location and remained in the building for approximately 20 minutes. The defendant denied making a U-turn on Seaman Avenue and disputed the route testified to by Police Officer Sullivan. Near the entrance to Riverside Drive, the defendant testified that a white four-[190]*190door sedan which was traveling very slowly in front of him cut him off and came to a stop. Immediately thereafter, a van pulled up behind the defendant and boxed him in. During cross-examination, the defendant acknowledged that he was stopped in traffic and admitted that he had no reason to believe that the white car in front of him was a police vehicle. He also conceded that the police van did not have its turret lights or siren activated.

The defendant corroborated Police Officer Sullivan’s testimony about questioning the defendant regarding his presence in the building. The defendant asked the officer to clarify which building he was talking about. Officer Sullivan said he had seen the defendant coming out of a building on Seaman Avenue. The defendant said that he was visiting a friend. The officer inquired about his friend’s name, and the defendant told him that he didn’t know. The officer then asked the defendant if he was in the building to buy drugs and the defendant replied, “no”. The defendant stated that at this point he believed that he was free to leave and could have refused to talk to the officer further and driven off. The officer asked the defendant where the drugs were and the defendant responded that he did not have any because he had smoked them all in the apartment. The officer asked the defendant to get out of the car and he complied. The defendant no longer believed that he was free to leave.

According to the defendant, at this point Detective Flowers opened the front passenger door of the defendant’s car and entered the vehicle. Once inside, Detective Flowers searched the glove compartment and the console between the two front seats. He recovered a plastic bag of cocaine from inside the console. This testimony directly contradicted Detective Flowers’ testimony.

After a short recess taken during the defendant’s testimony, the defendant “modified” his earlier testimony in key respects. First, the defendant altered his prior testimony that he believed that he was free to leave during the initial questioning by Police Officer Sullivan. During the defendant’s “post-recess” testimony, he stated, “I thought I was free to leave but I wasn’t. I was being held.” The defendant also changed his earlier testimony that the initial questioning by Police Officer Sullivan occurred when the defendant was still inside his vehicle, and stated that the conversation took place after the defendant was “pulled out” of the vehicle. The defendant also claimed that he did not realize that Police Officer Sullivan was [191]*191a police officer until after he was outside the vehicle, and that he thought it was a civilian who approached his vehicle and removed him from the car. These sharp reversals in the defendant’s testimony after the recess called into question the defendant’s veracity.

The defendant’s credibility was also impeached on cross-examination.

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Cite This Page — Counsel Stack

Bluebook (online)
176 Misc. 2d 187, 671 N.Y.S.2d 949, 1998 N.Y. Misc. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kojac-nysupct-1998.