IN THE FOURTH DEPARTMENT OF THE NEW YORK SUPREME COURT

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THE PEOPLE OF THE STATE NEW YORK
vs.
ARI LEHMAN
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CRIMINAL ACTION

NO. 01-432

ORDER AND MEMORANDUM

ORDER
AND NOW, this 9th day of May, 2008, upon consideration of Defendants
Motion to Suppress Physical Evidence and Witness Statements, IT IS ORDERED
that, for the reasons set forth in the following Memorandum, those motions are
DENIED.
MEMORANDUM
1.

BACKGROUND
ARI LEHMAN is charged with seven counts of murder in the first degree and

one count of criminal possession of a weapon in the fourth degree, all due to events
that took place on October 23rd, 2007.
Late in the day, at approximately 11:45pm, Officer Cosantino and Officer
Martin observed a blue ford mustang with Michigan plates make an illegal left turn
southbound on Causeway Ave. in the direction of Fowler St. The blue mustang was
going the wrong way on a one-way street. They observed at least two passengers.
Police dispatch then sent out a general call alerting all nearby officers to the event.

6 minutes later, NYS Trooper Edwards saw a blue Ford Mustang with
Michigan plates headed westbound on Fowler St., heading away from Causeway
Avenue. Edwards saw 3 people in the car and activated her emergency lights to
initiate a stop. The car took 15 seconds to pull over.
As Edwards walks towards the vehicle she observed the rear passenger, later
identified as ARI LEHMAN, pass a dark object off to the front seat passenger,
identified as NICK CASTLE, and then act nervously.
Edwards asked the driver, ANTHONY PERKINS, for his license, which he
provided. Officers Cosantino and Martin then arrived on the scene and confirmed
that this is the Blue Mustang they saw earlier. Edwards ran the license and the DMV
confirmed that ANTHONY PERKINS license is suspended.
Trooper Edwards informed Cosantino and Martin about the passing of the dark
object and the three law enforcement agents return to the car. Upon informing
Perkins that he cannot continue to drive because of the license suspension, Edwards
inquired of the front-seat passenger, NICK CASTLE, if he has a valid license. Castle
informed Edwards that he has recently been released from a psychiatric center and
does not have a license. Martin then asked the rear passenger, ARI LEHMAN,
whether he has a license. In response, Lehman tells Martin that he left his license
in a canoe at the camp he works at.

A tow truck is called and the three officers detained ARI LEHMAN, NICK
CASTLE, and ANTHONY PERKINS, placing them in their squad cars.
Pursuant to the written policy of the New York State Police (NYSP), Trp.
Edwards commences an inventory search of the vehicle. Upon opening the glove
compartment, she finds a large butchers knife with what appears to be blood around
the handle.
When confronted with the knife, all three occupants denied any prior
knowledge of its existence. PERKINS adds that LEHMAN had been using the car
earlier that day and had his own set of keys.
The three voluntarily accompanied the officers back to the NSPD Detective
offices. While waiting for the detectives, Edwards got a call that six bodies have been
discovered at Camp Crystal Lake, and that LEHMANs wallet & drivers license was
found with one of the bodies in a canoe. She is also informed that there is one survivor
at New Scotland Medical Center (NSMC), who is in critical condition.
Edwards went to interview the witness, Alice Hardy. A transcript of the audio
recording is provided below.
Edwards:
Hardy:
Edwards:
Hardy:
Edwards:
Hardy:
Edwards:

Alice, my name is Tracy Edwards, and I am with the State Police.

Is he here?
Is who here Alice?
Him . . . the killer! Hes fu . . . . . crazy! He is still
out there, I know it!
You're safe here . . .
Bull . . ., hes crazy! Hell kill you! Hell kill all of us!
Who will kill all of us?

Hardy:
Edwards:
Hardy:

Edwards:
Edwards:

Ari!
Whose Ari?
He was one of the kids at the camp! He went crazy, grabbed a
butchers knife and just started hacking everyone up! I thought
he was dead and then he just jumped out of the water and stabbed
me with that goddamn knife!
Alice. I need you to go slower and describe what happened.
Alice . . . Alice . . . Oh Sh**! Nurse get a doctor now!

-The knife found in the car was swabbed for genetic material. DNA analysis
showed that the blood came from Alice Hardy, who later died after talking with
Edwards, due to trauma inflicted from a stab wound.
The six other fatalities were all found to have been killed by a knife with
similar characteristics to the one found in the car.

2.

DISCUSSION

A. THE CONSTITUTIONALITY OF THE STOP

Defendant asserts that the stop was a violation of his 4th amendment right.
This cannot be held.
First, we must determine when the police can make a traffic stop in the first
place. Looking to People v Ingle (36 NY 2d 413 - NY: Court of Appeals 1975) yields
the first answer. The Court stated that a single automobile traveling on a public
highway may be stopped for a "routine traffic check" when a police officer reasonably
suspects a violation of the Vehicle and Traffic Law. They went on to say It should be
emphasized that the factual basis required to support a stop for a "routine
traffic check" is minimal. An actual violation of the Vehicle and Traffic Law need not
be detectable. For example, an automobile in a general state of dilapidation might
properly arouse suspicion of equipment violations. All that is required is that the stop
be not the product of mere whim, caprice, or idle curiosity. The Court cited Terry v
Ohio (392 US 1 - Supreme Court 1968) to bolster their opinion, stating It is enough
if the stop is based upon "specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant [the] intrusion"
Taking a look at the facts here clearly shows that there was a reasonable
suspicion, and that the stop was not the product of a mere whim, caprice, or idle
curiosity.

On October 23rd, 2007, at approximately 11:45 pm, Officer Cosantino and

Officer Martin, members of the New Scotland Police Department (NSPD),
while on foot patrol, observed a blue Ford Mustang with Michigan plates make
an illegal left turn, heading the wrong way down a one-way street. The officers
notified dispatch, which then notified all officers in the area. 6 minutes later
trooper Edwards saw a blue mustang with Michigan plates.

6 minutes spanned the time from the first sighting to the second sighting. A
blue mustang with Michigan plates is not a common occurrence, especially at
11:45pm. Officer Edward then pulled the blue mustang over, not based on a whim,
but rather on the information she received 6 minutes earlier. In order for a traffic
stop to be constitutional there must be probable cause. As stated in Whren v US, (517
US 806 - Supreme Court 1996) probable cause to believe that a driver is violating
any one of the multitude of applicable traffic and equipment regulations." Probable
cause was established when the blue mustang matched the description of the vehicle
that just broke traffic laws minutes earlier.
This stop was constitutional.
Even if, as the defense argues, the stop was made with the sole purpose to
conduct another investigation, it would still be allowed, as People v Robinson (767
NE 2d 638 - NY: Court of Appeals 2001) held.

B. THE CONSTITUTIONALITY OF THE SEARCH

Defendant contends that the search of the car was unconstitutional, and thus
the knife should be suppressed. This cannot be held.
People v. Gonzales (62 NY 2d 386 - NY: Court of Appeals 1984) is a very close
case when compared to the one we are dealing with today. In that case police officers
searched a closed container found in the defendants car, without a warrant, as part
of an inventory search.

The police found a brown bag, opened it, and found

contraband within the bag. In our current case the police were conducting an
inventory search as per the written policy of the New York State Police. The court
found that the search was legal, mainly applying doctrine from South Dakota v.
Opperman (428 US 364 - Supreme Court 1976)
South Dakota v. Opperman (428 US 364 - Supreme Court 1976) provides a
holding that was given by the U.S. Supreme Court regarding inventory searches.
According to the Fourth Amendment only unreasonable searches are prohibited. In
South Dakota (428 US 364 - Supreme Court 1976) the court ruled that inventory
searches are reasonable. There is a line drawn between a persons house and a
persons car. The Court stated
When vehicles are impounded, local police departments generally
follow a routine practice of securing and inventorying the automobiles'
contents. These procedures 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. These caretaking
procedures have almost uniformly been upheld by the state courts, which by
virtue of the localized nature of traffic regulation have had considerable
occasion to deal with the issue.[4] Applying the Fourth Amendment standard of
"reasonableness,"[5] the state courts have overwhelmingly concluded that, even
if an inventory is characterized as a "search," the intrusion is constitutionally
permissible. These cases have recognized that standard inventories often
include an examination of the glove compartment, since it is a customary place
for documents of ownership and registration, as well as a place for the
temporary storage of valuables.
Cardwell v. Lewis (417 US 583 - Supreme Court 1974) furthered the search
power, stating One has a lesser expectation of privacy in a motor vehicle because its
function is transportation and it seldom serves as one's residence or as the repository
of personal effects. It travels public thoroughfares where both its occupants and its
contents are in plain view."
People v. Belton (55 NY 2d 49 - NY: Court of Appeals 1982) provides a glimpse
into a vehicular search after an arrest. The court held that where police have validly
arrested an occupant of an automobile, and they have reason to believe that the car
may contain evidence related to the crime for which the occupant was arrested or that
a weapon may be discovered or a means of escape thwarted, they may

contemporaneously search the passenger compartment, including any containers

found therein. This is important, as Edwards noted that she saw an object being
passed from the back seat to the front seat and that ALI acted nervously. She also
noted that all three passengers did not have a license. These three elements give a
reasonable basis for the search.

Edwards had full authority to search the glove compartment and the car in
general. As per the written policy of the New York State Police she was conducting
an inventory search of an impounded vehicle. She was not looking specifically for
anything. The Supreme Court has upheld these searches to be reasonable in these
circumstances.

The search in this case was constitutional.

C. THE CONSTITUTIONALITY OF THE WITNESS STATEMENTS

Defendant wishes to suppress the statements made by the dying witness, Alice
Hardy. This goes against all case law on the subject.
The defendant wishes to suppress under the right of Confrontation, which
requires a look at the constitutionality of dying declarations

People v. Falletto (NY 494 1911) is helpful. The Court stated how the dying
declaration works. The hearsay exception is based on a "public necessity", and that
the absolute requirements are clear proof of the certainty of speedy death and that
the declarant has no hope of recovery. Ms. Hardy lost consciousness and soon died
after talking with Edward. This is the definition of a dying declaration.
People v. Nieves (67 NY 2d 125 - NY: Court of Appeals 1986) took those two
provisions one step further by saying that the dying declaration can only be admitted
in homicide cases. This is a homicide case.
People v. Marks (6 NY 2d 67 - NY: Court of Appeals 1959) provides further
help when dealing with dying statements by bolstering the argument that they are
in fact trustworthy. They stated
A spontaneous declaration, upon the other hand, is a true exception to the
hearsay rule. It is a narrative of a past transaction, although usually of a
transaction occurring immediately before. The basis of this exception to the
hearsay rule is that the spontaneity of declarations of this kind gives more
assurance of veracity than is true of the usual hearsay declaration. Wigmore
says "This general principle is based on the experience that, under certain
circumstances of physical shock, a stress of nervous excitement may be
produced which stills the reflective faculties and removes their control * * *.
Since this utterance is made under the immediate and uncontrolled
domination of the senses, and during the brief period when considerations of
self-interest could not have been brought fully to bear by reasoned reflection,

the utterance may be taken as particularly trustworthy (or, at least, as lacking

the usual grounds of untrustworthiness), and thus as expressing the real tenor
of the speaker's belief as to the facts just observed by him; and may therefore
be received as testimony to those facts. The ordinary situation presenting these
conditions is an affray or a railroad accident. But the principle itself is a broad
one."
People v. Liccione (63 AD 2d 305 - NY: Appellate Div., 4th Dept. 1978) provides
further reason as to why dying statements should be admitted into the trial. Dying
declarations are admissible in homicide cases as an exception to the conventional
hearsay rule because they are believed reliable and because they are necessary. The
rationale for the exception is that the fear of impending death is at least as conducive
to producing the truth by a declarant as is an oath to tell the truth. Therefore, as a
matter of necessity, the evidence is received after the victim dies to prevent the escape
of guilty defendants or the conviction of innocent ones.
People v. Little (83 Misc. 2d 321 - NY: County Court 1975) provides a dying
statement that is similar to the one we have here today. In Little a trooper was fatally
shot. An investigator found him while he was still alive. The following conversation
took place.
Q. What is your name?
A. Ray Dodge.
Q. Where do you live?
A. R.D. # 1, Almond.

Q. Do you believe that you are about to die?

A. Yes, I'm shot bad.
Q. Have you any hope of recovery from the effects of the injury you have
received?
A. No, I can't live, I'm shot too bad.
Q. Are you willing to make a true statement of the manner by which you
received the injuries from which you are not suffering?
A. Yes.
Q. What happened?
A. I went to Little's cottage, knocked on the door and called out, "Mr. Little".
He said, "Who's there?" I said, "Trooper Dodge". He said, "Come on in". I opened
the screen door, the other door was open, and I went in. He was laying for me.
He meant to kill me. The lights were out. He stuck his gun through the door
and shoved it open with the barrel. He just jumped out at me. I tried to grab
his gun, but he shot me in the gut. I was going to coldcock him, but when he
shot me it slammed me up against the wall. He shot me twice. The second shot
nicked my arm. I shot him. He meant to kill me. He knew who I was. I had
talked with him earlier. He came from behind the partition.

Little is a very similar situation to the one we have today. Both were mortally
wounded, both were dying, and both accurately depicted the situation. The
statements were not suppressed. While the statement in Little was perhaps more
coherent it does not undermine the weight with which Hardys statement holds.
The cases above provide a basis for what the dying declaration exception is. There is
a host of cases in which dying statements were admitted. Including, People v. Clay
(88 AD 3d 14 - NY: Appellate Div., 2nd Dept. 2011), People v. Coniglio (79 Misc. 2d
808 - NY: Supreme Court, Queens 1974), and People v. Durio (7 Misc. 3d 729 - NY:
Supreme Court 2005).

In order for there to be a Confrontation Clause issue the statement must be

hearsay. Dying declarations occupy a special field and are immune from hearsay by
their very nature. A suppression based on the Confrontation Clause must not be
determined.

CONCLUSION

The stop and search were legal and constitutional. The knife found in the glove
compartment was found as part of a legal inventory search. The witnesses
statement occupies a special protection from hearsay- dying declarations. The
defendant has no right to confront a dying declaration since it is not hearsay. For
these reasons, defendants Motion to Suppress are denied. Proceed with these pieces
of evidence.

CASES CITED

People v. Ingle, 36 NY 2d 413 - NY: Court of Appeals 1975

Terry v. Ohio, 392 US 1 - Supreme Court 1968
Whren v. United States, 517 US 806 - Supreme Court 1996
People v. Robinson, 767 NE 2d 638 - NY: Court of Appeals 2001
People v. Gonzalez, 62 NY 2d 386 - NY: Court of Appeals 1984
South Dakota v. Opperman, 428 US 364 - Supreme Court 1976
Cardwell v. Lewis, 417 US 583 - Supreme Court 1974
People v. Belton, 55 NY 2d 49 - NY: Court of Appeals 1982
People v. Falletto - People v. Falletto, 202 NY 494 1911

People v. Nieves, 67 NY 2d 125 - NY: Court of Appeals 1986

People v. Marks, 6 NY 2d 67 - NY: Court of Appeals 1959
People v. Liccione, 63 AD 2d 305 - NY: Appellate Div., 4th Dept. 1978
People v. Little, 83 Misc. 2d 321 - NY: County Court 1975
People v. Clay, 88 AD 3d 14 - NY: Appellate Div., 2nd Dept. 2011
People v. Coniglio, 79 Misc. 2d 808 - NY: Supreme Court, Queens 1974
People v. Durio, 7 Misc. 3d 729 - NY: Supreme Court 2005

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I chose to be on the prosecuting side for perhaps a weird reason. I am dead set on that
fact that I could never be a DA, and would be much more comfortable with being a
defense attorney. The idea of throwing someone in jail who is innocent would haunt
me forever. Due to that fact I decided to try it here and see how it went. In the end, I
am happy with the way this memo turned out, especially for it being my first one.