DECISION AND ORDER OF THE COURT In the indictment, the defendant is charged with two counts of Criminal Possession of a Weapon in the Second Degree in (Penal Law §265.03[1][b], [3]) and related charges. The defendant has moved to suppress physical and statement evidence. The People oppose the defendant’s motion in its entirety. On January 26, 2024 and February 6, 2024, this court held a Mapp, Huntley and Dunaway hearing. Police Officer Christopher Estrella and Sergeant John Lewis testified on behalf of the People. The defense presented no witnesses. As an initial matter, this court finds that both Police Officer Estrella and Sgt. Lewis testified in a credible and straightforward manner. FACTUAL FINDINGS Estrella, a police officer assigned to the 110th Precinct that covers the Corona and Elmhurst sections of Queens County, stated he has been an officer for four years and nine months. In this capacity, Estrella has been assigned as a public safety officer to patrol for quality of life conditions and other crimes that occur within the 110th Precinct. On August 3, 2023, Estrella was assigned to public safety duties along with Sgt. Lewis and Officers Todbulou and Garvey. Each member of the public safety team was dressed in uniform but assigned to an unmarked police vehicle. Shortly after 5 p.m., Estrella and the rest of the team were patrolling in the area of Junction Boulevard and 43 Avenue, a commercial area with heavy vehicular and pedestrian traffic. Lewis was driving and Estrella was seated directly behind him. Estrella and the rest of his team in the unmarked police vehicle were in the southbound lane of Junction Boulevard, stopped for a red light. The defendant was also stopped for a red light in the northbound lane. Estrella, who was directly across from the defendant about two feet away, saw him discard debris from a black bag with white lettering from the front driver’s window onto the street. The defendant was driving a black Honda Accord with Georgia plate PXX2868. Estrella, as Lewis made a U-turn to follow the defendant’s vehicle, ran the defendant’s plate on his police issued cellphone. During this time, Estrella said it was his decision to stop the defendant’s vehicle. After Lewis made the U-turn, Estrella saw that the brake light on the passenger side of defendant’s vehicle was out. Thereafter, Lewis conducted a car stop by turning on the police vehicles siren and lights. The defendant stopped his vehicle just to the right of the middle of his lane of traffic at the intersection of Junction Boulevard and 38th Avenue. Sgt. John Lewis, a sergeant since August 2019 and a member of the Police Department for ten years, on August 3, 2023, was supervising Estrella and two other police officers as they conducted their public safety patrol. Lewis also saw the defendant dump debris from his vehicle onto the roadway. Lewis said the debris appeared to be material from tobacco products. Lewis, although unable to recall if there had been a discussion among him and other team members about stopping the defendant, said the decision to stop the vehicle was his. Lewis’s testimony was contradictory as to the precise order of what happened next. On direct examination he testified that he made the U-turn and then observed the right rear brake light on the passenger side of the defendant’s vehicle was out, although both the left and center console brake lights were working. On cross examination, however, Lewis said that as he continued in stop and go traffic on Junction Boulevard, then looked back and saw the rear brake light on the passenger side of the defendant’s vehicle was out. Lewis then made a U-turn to follow the defendant’s vehicle. Lewis stopped the defendant’s vehicle by engaging his lights and siren in the area of Junction Boulevard and 38th Avenue, after maneuvering his vehicle directly behind the defendant’s, about five blocks from when they saw the defendant throw debris onto the roadway. Estrella said the defendant stopped his vehicle in a way that blocked the flow of traffic, causing some of the vehicles in both the south and northbound lanes to maneuver into the oncoming lane of traffic. Following the car stop, Estrella went to the driver’s side window while the three other officers positioned themselves along the passenger side of the vehicle.1 Estrella asked the defendant for his driver’s license and the registration for the vehicle. The defendant produced only his driver’s license on his cellphone, explaining he did not have the vehicle’ registration but would call his mother, who owned the vehicle, about the whereabouts of the registration. Estrella then asked the defendant and the three other occupants of the vehicle to exit the vehicle; all complied and were directed to the rear of the Accord. The defendant, while standing at the rear of his vehicle, called his mother. The defendant’s conversation with his mother was recorded on Lewis’s body worn camera and introduced as People’s exhibit 8. During the defendant’s conversation with his mother, the defendant stated that he was stopped for a broken brake light and for throwing leaves away. After Estrella left Lewis with the defendant at the rear of the Accord, he went to the front of the vehicle and entered on his NYPD cellphone the vehicle identification number in order to search for the vehicle’s status through a Police Department database. He learned from that source the vehicle’s registration had been suspended by the state of Georgia. Following the defendant’s arrest, he verified the vehicle’s registration had been suspended with the Georgia authorities.2 Following the defendant’s arrest, Estrella had him transported to the 110th Precinct while another officer drove the defendant’s vehicle to the precinct where an inventory search of the vehicle was conducted by Estrella and his team members. Estrella explained that the defendant’s vehicle could not be released to any of the occupants since the vehicle could not be driven without a valid registration. Moreover, the vehicle could not safely be left where the defendant had pulled it over. At the precinct, Estrella, assisted by Todbulou and Garvey, conducted the inventory search of the defendant’s vehicle. A vehicle inventory search, Estrella explained, involves removing personal property from the vehicle and recording it on a voucher. Estrella explained further that the purpose of an inventory search is to insure the property in the vehicle is safeguarded from loss and nothing dangerous is left in the vehicle. Estrella said the vehicle inventory search is governed and conducted pursuant to a Police Department procedure contained in the New York Police Department Patrol Guide. A copy of the Patrol Guide Procedure No. 218-13 was received in evidence as People’s exhibit 3. Estrella said he followed the Patrol Guide Procedure No. 218-13 when he and his fellow officers conducted the vehicle inventory search of the defendant’s Honda Accord. Estrella began his inventory search of the vehicle by recovering the black bag with white lettering he found on the floor of the driver’s seat. The bag was the same that he saw the defendant throw debris from onto the roadway. The lettering on the black bag spelled the word supreme in capital letters. Inside the black bag, Estrella initially found a loaded handgun. Later, after the Evidence Collection Team arrived and removed the weapon from the black bag and made it safe to handle, Estrella searched for other contents in the bag and found a quantity of marihuana, rolling papers, and a debit card bearing the defendant’s name. Estrella described the handgun as a ghost gun which did not have a serial number and was loaded with ten rounds in the magazine. Estrella, after notifying his fellow officers of the gun, placed the black bag containing the ghost gun and the other property on the car seat while he completed searching the driver’s seat area, the middle console and the cup holder. While Estrella searched the driver’s area, his team members searched the front passenger side of the vehicle, including the glove box, the rear passenger area of the vehicle and the trunk. Two video files from Estrella’s body worn camera, previously received in evidence as People’s exhibit 2, recorded the inventory search of the vehicle. All of the property recovered and inventoried by Estrella and his team members for safekeeping were inventoried on four vouchers. Those vouchers were received in evidence as People’s exhibits 4A, 4B, 4C and 4D.3 Estrella inventoried as arrest evidence the ghost gun, magazine and ten cartridges under voucher 400019289, which was received in evidence as People’s exhibit 5. A photograph of all the property, including the black bag, recovered by Estrella, was received in evidence as People’s exhibit 7. He also inventoried separately as arrest evidence the debit card bearing the defendant’s name and the black bag in which it was found under voucher 400019327, which was received in evidence as People’s exhibit 6A. The marihuana and rolling papers were separately inventoried by Estrella as arrest evidence under voucher 400019344, which was received in evidence as People’s exhibit 6B. CONCLUSIONS OF LAW On a motion to suppress physical evidence, a court’s determination of whether the conduct of the police in stopping the defendant’s vehicle follows a well-established burden-shifting scheme: first, the People have the burden of going forward to supply evidence that the police conduct was lawful and reasonable; then, if the People have met this burden, the ultimate burden is on the defense to establish the illegality of the search and seizure by a preponderance of the evidence, (See People v. Berrios, 28 NY2d 361 [1971]; People v. Hill, 219 AD3d 953, 954 [2023].) The defendant, relying on People v. Robinson, 97 NY2d 341 (2001) and Whren v. United States, 517 US 806 (1996), stated Sgt. Lewis and his team used littering, a violation of New York City’s Administrative Code, as a pretext to stop and search the defendant’s vehicle in order to find evidence of a gun crime. He also argued that because the “status [of littering] as an administrative code violation instead of a traffic infraction renders a stop based on a littering violative of Robinson and its progeny…”.4 (see Defendant’s Memorandum of Law at 14) Within his motion, in order to establish the motive for a pretextual stop, he asserted that a year earlier he was stopped for traffic infractions by police officers assigned to the same precinct as Sgt, Lewis and his team. Following the stop, defendant was arrested and his vehicle was impounded. During the ensuing inventory search, a firearm was found in his vehicle. Later, the firearm charge was dismissed. (see Defendant’s Memorandum of Law at 15) Probable cause to believe a VTL violation has occurred provides an objectively reasonable basis for the police to stop a vehicle. (People v. Robinson, 97 NY2d 341, 349, 351) This rule applies even if the individual has committed a minor offense. People v. Pealer, 20 NY3d 447 [2013][driver stopped for having an illegal window sticker]; Atwater v. City of Lago Vista, 532 US 318, 354 [2001]["if an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." ) The People met their burden of establishing the validity of the stop of the defendant's vehicle conducted by Police Officer Estrella and Sgt. Lewis on August 3, 2023. Sgt. Lewis's stop of the defendant's vehicle was reasonable based upon probable cause that the defendant had littered in violation of either VTL §1220 or NYC Administrative Code §16- 118(1) or §16-118(4)5 and operated his vehicle with a broken rear passenger brake light in violation of VTL §375 (2)(a)(3).6 VTL §1220 states in pertinent part, "[n]o person shall throw, dump, deposit or place…upon any highway”.7 (see People v. Smith, 187 AD2d 267 [1st Dept 1992]; People v. Rampersad, 158 AD3d 727 [2nd Dept 2018].) In addition to the commission by the defendant of two VTL offenses in the presence of each police officer, the defendant admitted that he disposed of “dirt” by emptying his bag onto the street in violation of either New York City Administrative Code §§16-118(1) or (4). The court also finds Sgt. Lewis’s testimony about the events at issue to be credible. His demeanor was measured and professional. Sgt. Lewis and his team were patrolling for quality of life violations at the time of the incident, such that the offense of littering would be squarely within their purview. Any contradictions in Sgt. Lewis’s testimony about the precise order of events are insignificant and trivial. Sgt. Lewis’s testimony was corroborated by Police Officer Estrella who also testified that he saw the defendant litter and also observed the broken rear passenger brake light. Moreover, following the stop of the defendant’s vehicle, Police Officer Estrella found that the defendant was operating his vehicle with a suspended registration in violation of VTL §401(1). In both Robinson and Whren the traffic stop was based on probable cause, as the facts in this case also bear out. Under New York law, littering whether cognizable under New York City’s Administrative Code pursuant to §116-18(1) or (4) or VTL §1220(a), is an arrestable offense if committed in the presence of a police officer. (see CPL §140.10(1)(a).)8 Nevertheless, the defendant mistakenly asserts that littering is not a traffic infraction and the ensuing traffic stop was illegal in order to argue that the officers used the traffic infraction of the broken rear brake light as a pretext to stop the defendant because of a prior incident a year before. Probable cause to believe that some offense has been committed is sufficient to justify a traffic stop. In this case, probable cause existed to believe the defendant littered and it is irrelevant to the existence of probable cause whether he littered in violation of either section of the NYC Administrative Code or the Vehicle and Traffic Law. As to the defendant’s claim that the officers engaged in a pretextual stop based on a traffic stop from July 2022, as the People correctly point out, the defendant improperly references in his memorandum of law these facts as well as Sgt. Lewis’s grand jury testimony that he believes is inconsistent with his present testimony. Neither of these issues were brought up at the suppression hearing and the court will not consider them. Nevertheless, the Court of Appeals rejected exactly this sort of argument in Robinson. (Id. 351-352 ["This Court has always evaluated the validity of a traffic stop based on probable cause that a driver has committed a traffic violation, without regard to the primary motivation of the police officer or an assessment that a reasonable traffic officer would have made the same stop. Where the police have stopped a vehicle for a valid reason, we have upheld police conduct without regard to the reason for the stop."].) In this case, there is nothing in the hearing record to suggest that Sgt. Lewis and Police Officer Estrella knew the defendant prior to August 3, 2023, or of his prior interaction with the police in July 2022. The defendant’s motion to suppress the firearm on the asserted grounds is denied. At the Huntley hearing, the People must prove beyond a reasonable doubt that the statements they intend to introduce at trial was not obtained in violation of his Miranda rights. (see Miranda v. Arizona, 384 US 436 [1966].) The People must also prove beyond a reasonable doubt that the [defendant] was not in custody before Miranda warnings were given.” (see People v. McCoy, 89 AD3d 1218, 1219 [3rd Dept 2011].) The People provided 710.30(1)(a) notice of the statements the defendant made at the scene of the traffic stop on Junction Boulevard and 38th Avenue. “The standard for assessing a suspect’s custodial status is whether a reasonable person innocent of any wrongdoing would have believed that he or she was free to leave.” (People v. Paulman, 5 NY3d 122, 129 [2005].) Whether a person is in police custody is generally a question of fact. (see People v. Trice, 213 AD3d 954 [2nd Dept 2023].) The determination of whether a suspect is in custody turns on a number of factors that “include the amount of time which the suspect spent with the police, the manner, if any, in which his freedom was restricted, the location and atmosphere of his questioning, the degree of cooperation which he exhibited, whether he was apprised of his constitutional rights, and whether the questioning was investigatory or accusatory in nature.” (Id. at 956) Here, the record establishes that the defendant was not in custody at the time he made statements to Police Officer Estrella and Sgt. Lewis. He was not in handcuffs; other than being directed out of the car, none of the police officers restricted his physical movements. And most significantly, the cellphone call the defendant made to his mother, which was recorded on Police Officer Estrella and Sgt. Lewis’s body worn cameras, was not made in response to any questions asked by any police officer and not the result of any direction, inducement, provocation, encouragement by any of the police officers. Indeed, it was the defendant who called his mother and placed her on speaker. As a result, none of the statements noticed by the People are subject to suppression as a violation of Miranda. The defendant also contends the police improperly impounded his vehicle, relying on the notion that Estrella, because he was unable to determine the true owner of the vehicle, had the vehicle driven to the precinct instead of having it towed. In this case, the defendant was arrested for three VTL violations while operating a motor vehicle, including operating an unregistered vehicle. Moreover, upon his arrest, his vehicle was obstructing vehicular traffic on Junction Boulevard creating an unsafe condition on a crowded street to both motor vehicles and pedestrians. Importantly, Police Officer Estrella explained because the defendant’s vehicle was not registered it would be illegal to permit one of the defendant’s passengers to drive the vehicle to an area that would not impair vehicular and pedestrian traffic. Patrol Guide 218-13 provides that the purpose of an inventory search of a motor vehicle is “[t]o protect property, ensure against unwarranted claims of theft, and protect uniformed members of the service against dangerous instrumentalities. (see South Dakota v. Opperman, 428 US 364, 369 [1976] ["These [inventory] procedures [were] developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody; the protection of the police against claims or disputes over lost or stolen property; and the protection of the police from potential danger.” citing Cooper v. California, 386 US at 61-62 [1967] [internal citations omitted].) In People v. Walker, 20 NY3d 122 (2012) the Court of Appeals stated that “[w]hen the driver of a vehicle is arrested, the police may impound the car, and conduct an inventory search, where they act pursuant to “reasonable police regulations relating to inventory procedures administered in good faith”.) (People v. Walker, 20 NY3d 122 [2012] [quoting Colorado v. Bertine, 479 US 367, 374 [1987].) As part of the caretaking function related to the inventory procedure reflected in Patrol Guide 218-13, Estrella lawfully impounded the defendant’s vehicle for public safety concerns. Here, the defendant’s vehicle was parked in a way that interfered with vehicular traffic on a main boulevard and jeopardized public safety and the efficient movement of vehicular traffic. In Opperman, the court upheld the impoundment of an abandoned vehicle where the owner “was not present to make arrangements for the safekeeping of his belongings.” (428 US at 375) Moreover, there is no evidence that Estrella or any other police officer suspected that they would discover any evidence of any other crime in the defendant’s vehicle. (see People v. Tardi, 28 NY3d 1077 [2016].) Under these, circumstances, Estrella’s impoundment of the defendant’s vehicle and decision to have the vehicle driven to the precinct was in accordance with police department policy and was reasonable and lawful. People also met their burden of establishing the validity of the inventory search conducted by Police Officer Estrella, who was assisted by Officers Todbulou and Garvey. pursuant to the guidelines in the New York City Police Department’s Patrol Guide at 218-13. The Court of Appeals stated in People v. Johnson, 1 NY3d 252, 256 (2003) that: “An inventory search is exactly what its name suggests, a search designed to properly catalogue the contents of the item searched. The specific objectives of an inventory search, particularly in the context of a vehicle, are to protect the property of the defendant, to protect the police against any claim of lost property, and to protect police personnel and others from any dangerous instruments, (Florida v. Wells 495 U.S. 1,4 110 S.Ct. 1632, 109 L.Ed. 2d 1 [1900]). As the Supreme Court has stated, ‘an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence’(id.) To guard against this danger, an inventory search should be conducted pursuant to ‘an established procedure clearly limiting the conduct of individual officers that assures that the searches are carried out consistently and reasonably’ (People v. Galak, 80 NY2d 715, 719, 594 N.Y.S.2d 689, 610 N.E.2d 362 [1993]). The procedure must be standardized so as to limit the discretion of the officer in the field’(id). While incriminating evidence may be a consequence of an inventory search, it should not be its purpose.” Police Officer Estrella stated the search was to remove all personal property and to maintain this property for safekeeping purposes pursuant to Patrol Guide 218-13 in order to guard against any future claim of lost or stolen property from the vehicle. Estrella and his fellow officers then searched and vouchered personal property they found in the defendant’s vehicle, including the ghost firearm loaded with ten cartridges in the magazine, a debit card embossed with the defendant’s name, and the black bag with white lettering that spelled out the word “supreme” in capital letters. (see People v. Gomez, 13 NY3d 6, 11 [2009]; People v. Noble, 211 AD3d 970, 971 [2022].) Based upon this testimony, this court finds the People satisfied their burden of demonstrating Police Officer Estrella and his two fellow officers acted properly when they conducted the inventory search by following the NYPD guidelines. (see People v. Lee, 29 NY3d 1119 [2017].) For all these reasons, the defendant’s motion to suppress the physical evidence recovered from the defendant’s vehicle and the statements as the result of an unlawful arrest and search is denied in all respects. This constitutes the decision and order of the court. The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney. Dated: May 6, 2024
