| People v Martin |
| 2017 NY Slip Op 08555 [156 AD3d 956] |
| December 7, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v CoreyMartin, Appellant. |
Amanda FiggsGanter, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Mulvey, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered December 3, 2015, convicting defendant upon his plea of guilty of the crime ofattempted criminal possession of a controlled substance in the third degree.
Following a traffic stop of a vehicle in which defendant was a passenger at approximately10:30 p.m. on June 18, 2014, defendant provided a false name and was arrested for falsepersonation. A search of defendant's person after his arrest disclosed a quantity of cocaine and hisparole identification card, and a computer search reflected that there was an outstanding benchwarrant for his arrest. He was thereafter charged by indictment with criminal possession of acontrolled substance in the third and fourth degrees. After a suppression hearing, defendant'smotion, as relevant here, to suppress the tangible evidence seized from his person was denied.Pursuant to a negotiated plea agreement, defendant pleaded guilty to attempted criminalpossession of a controlled substance in the third degree and was sentenced to the agreed-uponprison term of 4
We affirm. Initially, while defendant signed a written waiver of appeal, he expressly reservedhis right to appeal from the suppression ruling and, thus, he is entitled to raise that challenge (see People v Gonzalez, 97 AD3d985, 985 [2012]). Addressing the merits, we give great weight to County Court's credibilityand factual determinations and find that the court did not err in denying defendant's motion tosuppress (see People v Wynn, 149AD3d 1252, 1254 [2017], lv denied 29 NY3d 1136 [2017]). The court credited thetestimony of a narcotics [*2]detective who, with others, had beenconducting surveillance of a street he described as a "hotbed of narcotics activity." The detectiveobserved a series of vehicles drive up in front of one house; as each vehicle arrived, one of themen on the porch would walk over to the car, lean in the window and briefly interact with thedriver, and the vehicle would then drive away. The detective opined, based upon his training andexperience, that narcotics activity was occurring. He then observed the subject vehicle pull upand stop in front of the house, at which time a person later identified as defendant approached thevehicle, spoke with the passenger and entered the back seat of the vehicle, which then pulled outin a "hasty manner" without using a signal. The detective followed in his unmarked vehicle as thesubject vehicle circled the block; the detective observed defendant lean into the front seat andinteract with the front-seat passenger, and the detective then conducted a traffic stop. As thedetective observed the driver commit a traffic violation (see Vehicle and Traffic Law§ 1163), he was "authorized to stop the vehicle on that basis, regardless of any otherunderlying motivation" (People v Wynn, 149 AD3d at 1254; see People v Guthrie, 25 NY3d130, 133 [2015]; People v Robinson, 97 NY2d 341, 349 [2001]).
The detective then approached the vehicle, identified himself as a detective and, upon hisrequest, the driver provided the requested documents. When asked, the driver indicated that theyhad "just gone and gotten some food," which was inconsistent with the detective's observationsduring surveillance, and that she was dropping a "friend" off, gesturing to defendant. Defendantwas unable to provide any identification and gave a name and date of birth, but indicated that hedid not know his Social Security number and became "extremely nervous." When asked, thedriver, who had represented that defendant was her friend, said that she did not know defendant'sreal name and supplied only his street name. At this point, the detective asked the vehicleoccupants to exit the vehicle and separated them for further inquiry. This request waspermissible, as "a police officer may, as a precautionary measure and without particularizedsuspicion, direct the occupants of a lawfully stopped vehicle to step out of the car" (People v Garcia, 20 NY3d 317,321 [2012]).
Defendant again provided a name and date of birth, and the detective called a patrol vehicleto verify this information as he did not have access to an operable computer. The detectiveadvised defendant that it was illegal to misrepresent his identity to police and observed thatdefendant was "extremely nervous," "pulled to the back" of the vehicle and began moving aboutin an "erratic" manner. Perceiving that defendant had provided a false name and was a flight risk,the detective placed him in handcuffs. At the initial level of the police encounter, the detectivewas authorized to request basic information from defendant (see People v De Bour, 40NY2d 210, 223 [1976]; see also People v Garcia, 20 NY3d at 322; People vHollman, 79 NY2d 181, 184 [1992]). To that end, the encounter was brief—lastingjust four to five minutes before defendant was handcuffed (a total of only eight minutes beforehis formal arrest)—the questions related to his identity and were not accusatory, and thereis no suggestion of "harassment or intimidation" (People v Hollman, 79 NY2d at 189).As the traffic stop was "reasonably related in scope, including its length, to the circumstanceswhich justified the detention in the first instance," defendant was not unlawfully detained(People v Banks, 85 NY2d 558, 562 [1995], cert denied 516 US 868 [1995]). Asthe inquiry of defendant progressed, the detective suggested that he did not believe that defendanthad provided his true name and asked the others about defendant's identity, which were more"pointed questions" that were permitted given that there was a "founded suspicion that criminalactivity [was] afoot" (People v Hollman, 79 NY2d at 184-185; accord People vGarcia, 20 NY3d at 322; see Peoplev Smith, 151 AD3d 1476, 1477 [2017], lv denied 30 NY3d 983 [Oct. 19, 2017];People v Banks, 148 AD3d1359, 1360-1362 [2017]). Further, the detective's protective pat down for weapons (nonewere found) was justified given defendant's extreme nervousness and erratic movements (seePeople v Batista, 88 NY2d 650, 653-654 [1996]; People v Morris, 138 AD3d 1239, 1240 [2016], lv denied27 NY3d 1153[*3][2016]). The brief use of handcuffs prior to thearrest was also proper under the circumstances (see People v Foster, 85 NY2d 1012, 1014[1995]; People v Allen, 73 NY2d 378, 379-380 [1989]; People v Arce, 150 AD3d 1403,1405 [2017], lv denied 29 NY3d 1090 [2017]).
After defendant was handcuffed, the detective was informed that the other occupantsadmitted to the other detectives at the scene that they did not know defendant and had picked himup around the corner. Contrary to defendant's claim, County Court correctly held that,considering all of the circumstances, the detective had probable cause to arrest defendant forfalse personation (see People v Smith, 151 AD3d at 1478; People v Isidro, 6 AD3d 1234,1235 [2004], lv denied 3 NY3d 659 [2004]; see also Matter of Travis S., 96NY2d 818, 819-820 [2001]; People vLigon, 66 AD3d 516, 517 [2009], lv denied 14 NY3d 889 [2010]).[FN*] The factors supporting thatconclusion include the surveillance observations consistent with illegal drug activity, defendant'sentry from that location into a vehicle that drove around the block while he interacted with thedriver, the driver's false responses to police and defendant's extreme nervousness, evasivenessand inability to produce identification. This information combined to justify a "reasonable belief"that defendant was providing a false name to prevent police from ascertaining his true identityand to evade the outstanding warrant (People v Bigelow, 66 NY2d 417, 423 [1985]).Notably, "[p]robable cause does not require proof sufficient to warrant a conviction beyond areasonable doubt but merely information sufficient to support a reasonable belief that an offensehas been or is being committed" (id. at 423; accord People v Guthrie, 25 NY3d at133; People v Fenger, 68 AD3d1441, 1442 [2009]; see CPL 140.10). As the arrest was lawful, the search incident tothat arrest was lawful (see People v More, 97 NY2d 209, 212-213 [2002]; People v Gresham, 151 AD3d1175, 1177 [2017]; People vCruz, 131 AD3d 724, 725-726 [2015], lv denied 26 NY3d 1087 [2015]). Thus,County Court properly denied the motion to suppress the cocaine.
Garry, J.P., Egan Jr., Rose and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:"A person is guilty of falsepersonation when after being informed of the consequences of such act, he or she knowinglymisrepresents his or her actual name, date of birth or address to a police officer or peace officerwith intent to prevent such police officer or peace officer from ascertaining such information"(Penal Law § 190.23).