| People v Britt |
| 2018 NY Slip Op 02390 [160 AD3d 428] |
| April 5, 2018 |
| Appellate Division, First Department |
[*1](April 5, 2018)
| The People of the State of New York,Respondent, v Clinton Britt, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (David Crow of counsel), andPaul, Weiss, Rifkind, Wharton & Garrison LLP, New York (Jenny C. Wu of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), forrespondent.
Judgment, Supreme Court, New York County (Anthony J. Ferrara, J. at suppression hearing;Patricia M. Nuñez J. at jury trial and sentencing), rendered May 21, 2015, convictingdefendant of criminal possession of a forged instrument in the first degree (17 counts) andcriminal possession of a controlled substance in the seventh degree, and sentencing him, as asecond felony offender, to an aggregate term of three to six years, unanimously affirmed.
On March 9, 2014, Police Officer Ryan Lathrop and Sergeant Robert Dixon were in uniform,patrolling in Times Square. The area had a high number of quality of life crimes, and was"flooded" with police officers. On the north side of 42nd Street and Eighth Avenue was ahaunted house tourist attraction called Times Scare. At about 11:15 p.m., Lathrop saw defendantwith a group of people in front of Times Scare, drinking a beverage concealed in a brown paperbag. As Lathrop approached, defendant went into Times Scare, and Lathrop ran in after him.Inside, Lathrop caught up with defendant, grabbed him by the arm, and saw that the brown bagcontained an alcoholic beverage.
Lathrop brought defendant outside and radioed that he had someone in custody, and SergeantDixon arrived within a minute. Although Lathrop planned to issue a summons, defendant'sidentification cards did not show his date of birth or home address, so, in accordance with policedepartment policy, Lathrop arrested defendant. The officer handcuffed him and searched him forweapons. Defendant asked if he could give his property to his brother Jeff, who worked nearby.Initially, Lathrop agreed, and began collecting defendant's personal property. He retrieved twocell phones, keys, a lanyard with defendant's employee identification cards, an identification cardfor a man named Douglas Kelly, headphones, and a toothbrush. From defendant's pants pocket,Lathrop recovered a small pink Ziploc bag of what appeared to be crack cocaine. While stillhandcuffed, defendant started making a "weird like jumping" or "hopping movement," and began"getting really upset" about being "brought in." Lathrop then noticed two more Ziploc bags atdefendant's feet containing what appeared to be crack cocaine.[FN*] Because he had recovered drugs, the officercollected defendant's property to be vouchered, rather than giving it to defendant's brother.
At the precinct, in response to pedigree questions, defendant told Lathrop that he wasunemployed. Lathrop pulled two separate wads of currency from defendant's inside left jacketpocket, one of which was folded with a rubber band around it. First, Lathrop counted theunbanded wad of, which totaled $148. When he began counting the money in the rubber band, herealized immediately that it was counterfeit. All of the $10 bills [*2]had the same serial number, and there were three different serialnumbers on the 13 $20 bills. There was a total of $300 in counterfeit bills.
As Lathrop brought defendant back to the holding area, defendant said, in a quiet voice underhis breath, "I want to talk to a detective, and I will give up who I got the currency from, thecounterfeit bills from, if you make the drug charges go away." Once in the cell, defendantadmitted that the pink bag of drugs was his, explaining that he had hurt his back and used thedugs for the pain.
Secret Service Agent Michael Helm trained in the detection of counterfeit currency,identified the $300 that had been rubber-banded together as counterfeit bills. Helm explained thatthese were not "the highest grade bills." Although real money is made of cotton, the bills thatdefendant had were made of paper that could be bought in a store. They did not have the opticalvariable ink, watermark, red and blue fibers, and security strip that appear on genuine currency.Additionally, while genuine bills all have a unique serial number, several of defendant's bills hadthe same serial number.
In Helm's experience, people passing counterfeit bills would keep their genuine currency andtheir counterfeit currency in separate pockets. Helm had only made "a couple" of arrests forcounterfeit currency. He said that none were street arrests, "because the federal governmentgenerally does not prosecute low-level street arrests."
The court properly denied defendant's suppression motion. An officer observed defendantdrinking a beverage concealed in a paper bag. Based on his experience, the officer concluded thatdefendant was drinking in that manner for the purpose of concealing a violation of the OpenContainer Law (Administrative Code of City of NY § 10-125). Even if drinkingfrom a can covered by a bag could have innocent explanations, this act, coupled with defendant'sactive flight at the approach of the police (see People v Moore, 6 NY3d 496, 500-501 [2006]) created at leastreasonable suspicion justifying pursuit (see People v Bothwell, 261 AD2d 232, 234-235[1st Dept 1999], lv denied sub nom. People v Rothwell, 93 NY2d 1026 [1999]). When hestopped defendant, the officer saw that the bag contained an alcoholic beverage, whereupon theofficer recovered drugs and counterfeit money during a lawful search incident to arrest.
Defendant's arguments concerning the sufficiency and weight of the evidence supporting hisconvictions of possession of forged instruments are unavailing (see People v Danielson, 9 NY3d342, 348-349 [2007]). The evidence supports inferences that defendant knowingly possessedcounterfeit money, and did so with the requisite fraudulent intent (see Penal Law§ 170.30).
The evidence showed, among other things, that defendant kept these bills in a bundle thatwas separate from his genuine money, and that the material from which the bills were made andtheir appearance were noticeably different from those of genuine currency. Moreover, defendant'sstatement to the police could be fairly interpreted as acknowledging that he knew the bills werecounterfeit, and had not just learned that fact upon his arrest. Accordingly, the jury couldreasonably have inferred from the totality of the evidence that defendant knew the money wascounterfeit (see People v Bogan, 80AD3d 450 [1st Dept 2011], lv denied 16 NY3d 856 [2011]).
The evidence also supported the jury's determination that defendant intended to use thecounterfeit bills to deceive or defraud. While there is no presumption that knowing possession ofcounterfeit money establishes intent (People v Bailey, 13 NY3d 67, 72 [2009]), the evidence here wentbeyond mere possession. Defendant carried 17 bills in $10 and $20 denominations, totaling $300.Furthermore, defendant separated the counterfeit bills from his genuine currency by securingthem with a rubber band, which suggested an intent to use the counterfeit bills selectively, insituations where they would be least likely to be detected. Based on this combination of factors,and the exercise of common sense, the jury could reasonably have concluded that defendant hadno reason to carry these counterfeit bills except to spend them, as soon as the opportunity arose(see People v Rodriguez, 17 NY3d486 [2011]), and we see nothing in Bailey, where defendant was arrested forattempting to steal a handbag after police observed him for over an hour attempting to steal fromunsuspecting women, to preclude this analysis. Although the defendant in Bailey hadthree $10 counterfeit bills in his pocket, there was no [*3]indication that he intended to defraud, deceive or injure anotherwith counterfeit bills, only that he intended to steal real currency from his intended victims (13NY3d at 69, 72 and n 2).
Defendant's challenge to the Secret Service agent's testimony about people commonlykeeping real and counterfeit money in separate pockets is unpreserved, because defendant onlymade an unelaborated objection when the testimony was given (see People v Tevaha, 84NY2d 879 [1994]), and because his somewhat more specific objection at the end of the trial wasgrossly untimely (see People vRomero, 7 NY3d 911, 912 [2006]). We decline to review defendant's claims in theinterest of justice. As an alternative holding, we find that the agent's experience was a sufficientbasis for the testimony, which did not offer an opinion on the ultimate issue of defendant's intent,or otherwise usurp the jury's fact-finding function. Concur—Acosta, P.J., Sweeny,Andrias, Gische, Gesmer, JJ.
Footnote *:The substance in the pink bagfound in defendant's pocket tested positive for cocaine. The clear plastic bag found at defendant'sfeet contained Methylone, known as ecstasy.