| People v Hightower |
| 2020 NY Slip Op 04513 [186 AD3d 926] |
| August 13, 2020 |
| Appellate Division, Third Department |
[*1](August 13, 2020)
| The People of the State of New York,Respondent, v Aaron L. Hightower, Appellant. |
Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), forappellant.
Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), forrespondent.
Reynolds Fitzgerald, J. Appeal from a judgment of the County Court of Warren County (HallJr., J.), rendered August 9, 2017, upon a verdict convicting defendant of the crimes of criminalpossession of a controlled substance in the fourth degree, criminal possession of a weapon in thethird degree, attempted tampering with physical evidence and obstructing governmentaladministration in the second degree.
On February 12, 2016, a Warren County deputy sheriff observed a vehicle that appeared tobe outside its lane on State Route 9 in the Town of Queensbury, Warren County. The deputyfollowed the vehicle, but lost it after stopping at a red light. The deputy then contacted the StatePolice to be on the lookout for the vehicle. Shortly thereafter, the deputy and a state trooperobserved the vehicle on Interstate 87 in Warren County and followed it. Defendant was the soleoccupant and operator of the vehicle. The trooper observed defendant throw a lit cigarette out ofthe driver side window—a traffic violation—while driving in Warren County andsubsequently stopped the vehicle in the Town of Moreau, Saratoga County. Because the troopersmelled marihuana as he approached, he directed defendant to exit and proceeded to execute apat-down search of him, which search revealed metal knuckles in defendant's front sweatshirtpocket. At the same time, the trooper's partner searched the vehicle and discovered 1.1 grams ofmarihuana in the center console. A K-9 officer was then employed to conduct a search of thevehicle, resulting in "hits" on the console and the driver's seat. Defendant was handcuffed andtransported to the State Police barracks in Queensbury. During transport, the trooper continued tosmell marihuana emanating from defendant. At the barracks, the trooper and deputy conducted astrip search of defendant, which ultimately revealed 9
Defendant was thereafter charged in a four-count indictment with criminal possession of acontrolled substance in the fourth degree, criminal possession of a weapon in the third degree,attempted tampering with physical evidence and obstructing governmental administration in thesecond degree. Defendant moved to dismiss the indictment on various grounds, including that itwas jurisdictionally defective in that the stop occurred in Saratoga County, but the indictmentwas issued out of Warren County. County Court found, after inspecting the grand jury minutes,that Warren County had jurisdiction under CPL 20.40 (4). Defendant also moved, among otherthings, to suppress the physical evidence obtained from the search of his person and the vehicle,and to specifically dismiss the count of criminal possession of a controlled substance in thefourth degree due to an illegal strip search. After a suppression hearing, County Court denied themotion, finding that there was probable cause to justify the pat search and the search ofdefendant's vehicle and that the strip search of defendant at the police barracks waswarranted.
After a jury trial, defendant was found guilty of all charges. Prior to sentencing, a juror sent aletter and photographs of herself to the deputy, expressing a romantic interest in him. The deputyinformed all parties of the letter, and defendant moved to set aside the verdict, claiming that theletter indicated that the juror was not impartial. After a hearing, County Court denied defendant'smotion, finding that the juror did not have a preexisting view of the deputy prior to him testifyingthat prevented her from being fair and impartial. Defendant was thereafter sentenced, as a secondfelony offender, to prison terms of eight years, followed by three years of postrelease supervision,for his conviction of criminal possession of a controlled substance in the fourth degree,3
Defendant contends that County Court erred in denying his motion to suppress the evidenceresulting from the search of his person and the vehicle. Specifically, he contends that, althoughthe trooper was within his right to ask for identification and to have him exit the vehicle, thetrooper did not have a reasonable belief that a crime had been committed to warrant saidsearches. Vehicle and Traffic Law § 1220 (a) prohibits a person from throwingrefuse, trash, garbage or litter upon the highway. "Police may validly stop a vehicle based onprobable cause that the driver committed a traffic violation" (People v Weishaupt, 118 AD3d 1100, 1102 [2014] [citationsomitted]; see People v Issac, 107AD3d 1055, 1057 [2013]). "[P]robable cause exists for a traffic stop if an officer observes adefendant committing a traffic violation" (People v Portelli, 116 AD3d 1163, 1164 [2014]). Here, the troopertestified at the suppression hearing that he observed a lit cigarette being thrown from the driverside window of the vehicle. Based upon this observation, the trooper's subsequent stop of thevehicle was lawful (see People vHorge, 80 AD3d 1074, 1074 [2011]).
"[I]t is well established that the odor of marihuana emanating from a vehicle, when detectedby an officer qualified by training and experience to recognize it, is sufficient to constituteprobable cause to search a vehicle and its occupants" (People v Rasul, 121 AD3d 1413, 1415 [2014] [internal quotationmarks, brackets and citations omitted]; see People v Hines, 172 AD3d 1649, 1651 [2019], lvdenied 34 NY3d 951 [2019]; Peoplev Williams, 145 AD3d 1188, 1190 [2016], lv denied 29 NY3d 1002 [2017]).The trooper testified at the suppression hearing that he had received training in identifying theodor of marihuana in both its unburnt and burnt form and has 16 years of experience as an officerin detecting its smell.[FN*] Hefurther recounted that, as he approached the vehicle, he detected a strong odor of marihuana,despite the fact that the windows were rolled up; once the windows were lowered, the smell ofmarihuana "increased significantly." We find that, under these circumstances, the trooper hadreasonable suspicion to search defendant and his vehicle (see People v Hines, 172 AD3dat 1651; People v Williams, 145 AD3d at 1190).
Defendant further argues that the strip search at the police barracks was not justified. "[I]t isclear that a strip search must be founded on a reasonable suspicion that the arrestee is concealingevidence underneath clothing and the search must be conducted in a reasonable manner" (People v Hall, 10 NY3d 303,310-311 [2008], cert denied 555 US 938 [2008]; see People v Cogdell, 126 AD3d 1136, 1138 [2015], lvdenied 25 NY3d 1200 [2015]). The trooper testified at the suppression hearing that thesearch of the vehicle led to the discovery of 1.1 grams of marihuana in the center console. A K-9search of the vehicle revealed "hits" at both the center console and the driver's seat. According tothe trooper, during the transport of defendant to the State Police barracks, the smell of marihuanawas "overwhelming." At the barracks, defendant was handcuffed to a bench and the troopercontinued to smell marihuana. Each time the trooper asked defendant if he had marihuana onhim, he denied it. After defendant was advised that he was to be strip-searched, he was taken to aprivate interview room and the search was conducted by two male officers. Defendant was askedto remove one article of clothing at a time; when he was down to his underwear, defendanthanded over the marihuana, and the cocaine was revealed shortly thereafter. Given this evidence,a reasonable suspicion existed that defendant was concealing evidence and we find that thesearch was conducted in a reasonable manner (see People v Turner, 178 AD3d 70, 75 [2019]; People vCogdell, 126 AD3d at 1138).
Defendant next contends that the grand jury was misled with respect to geographicaljurisdiction thus rendering the grand jury proceedings defective. Specifically, defendant claimsthat, although the trooper testified before the grand jury that he had stopped defendant within 500yards of Warren County, he later testified at the suppression hearing that this was not the case.Defendant further argues that, once the People became aware of this "error," they were obligatedto seek a new accusatory instrument.
A grand jury proceeding is defective where "[t]he proceeding otherwise fails to conform tothe requirements of [CPL article 190] to such degree that the integrity thereof is impaired andprejudice to the defendant may result" (CPL 210.35 [5]). The defendant bears the burden ofdemonstrating the existence of defects impairing the integrity of the grand jury proceeding andgiving rise to the possibility of prejudice (see CPL 210.45 [1]; People v Lashua,264 AD2d 951, 952 [1999]). "Dismissal of an indictment pursuant to CPL 210.35 (5) is a drastic,exceptional remedy and should thus be limited to those instances where prosecutorialwrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached bythe [g]rand [j]ury" (People v Miller,110 AD3d 1150, 1150 [2013] [internal quotation marks and citations omitted]; see People v Norman, 154 AD3d1185, 1186 [2017], lv denied 31 NY3d 986 [2018]). Jurisdiction is established when"[c]onduct occurred within such county sufficient to establish . . . [a]n element ofsuch offense" (CPL 20.40 [1] [a]). "An offense committed within [500] yards of the boundary ofa particular county, and in an adjoining county of this state, may be prosecuted in either suchcounty" (CPL 20.40 [4] [c]). Additionally, "[a]n offense committed in a private vehicle during atrip thereof extending through more than one county may be prosecuted in any county throughwhich such vehicle passed in the course of such trip" (CPL 20.40 [4] [g]).
The relevant testimony of the trooper before the grand jury was in accord with his testimonyat the suppression hearing, except for the actual location of the stop. He testified both times thatdefendant discarded the cigarette in Warren County, that while he was following him, defendantnever stopped the vehicle, and no one entered or exited the vehicle while it was in transit. Duringthe grand jury proceedings, the grand jury sought clarification as to jurisdiction. The People'sinstructions did not limit the source of jurisdiction to 500 yards from the boundary of thecounties, but instead provided the grand jury with multiple theories as to its source. Although thetrooper clearly made a mistake in his grand jury testimony, defendant did not show that this wasprosecutorial wrongdoing or fraudulent conduct. Based upon a review of the grand jury minutesand appropriate instructions, we find that County Court correctly determined that dismissal of theindictment was not warranted on the basis alleged by defendant.
Defendant next maintains that County Court erred in denying his motion to set aside theverdict based on juror misconduct as a result of the letter that the juror sent to the deputy. CPL330.30 (2) provides, as relevant here, that "the court may, upon motion of the defendant, set asideor modify the verdict or any part thereof upon the . . . ground[ ] . . .[t]hat during the trial there occurred, out of the presence of the court, improper conduct by ajuror, . . . which may have affected a substantial right of the defendant and whichwas not known to the defendant prior to the rendition of the verdict" (see People v Hartle, 159 AD3d1149, 1154 [2018], lv denied 31 NY3d 1082 [2018]). Notably, "not every misstep bya juror rises to the inherently prejudicial level at which reversal is required" (id. at 1154[internal quotation marks and citation omitted]). "Each case must be examined on its unique factsto determine the nature of the misconduct and the likelihood that prejudice was engendered"(People v Irizarry, 83 NY2d 557, 561 [1994] [internal quotation marks and citationomitted]; see People v Douglas, 57AD3d 1105, 1106 [2008], lv denied 12 NY3d 783 [2009]). County Court "is 'vestedwith discretion' in deciding [such] motion, and its factual findings—including credibilitydeterminations—typically are upheld 'if they are supported by evidence in therecord' " (People v Tubbs,115 AD3d 1009, 1012 [2014], quoting People v Rodriguez, 100 NY2d 30, 35[2003]).
After the deputy informed County Court and counsel of the juror's letter, a hearing was held,wherein the juror testified that she did not know the deputy prior to the trial, she judged thedeputy's testimony based on credibility and not by his physical appearance, and she did not speakto any jurors about the deputy; after the trial, she learned of the deputy's exemplary work withK-9s by searching the Internet. County Court determined that the juror was credible, had nointeraction with the deputy prior to his testimony and was not prevented from rendering a fair andimpartial verdict. We agree with County Court that the juror's feelings for the deputy did notprevent her from being unbiased, fair and impartial (see People v Rodriguez, 100 NY2dat 35; People v Tubbs, 115 AD3d at 1012-1013). As such, defendant's motion wasproperly denied.
Finally, defendant asserts that his sentence was harsh and excessive. "It is well settled that asentence that falls within the permissible statutory ranges will not be disturbed unless it can beshown that the sentencing court abused its discretion or that extraordinary circumstances existwarranting a modification in the interest of justice" (People v Simmons, 122 AD3d 1169, 1169 [2014] [internalquotation marks, brackets and citations omitted], lv denied 25 NY3d 1171 [2015]; see People v Williams, 145 AD3d1188, 1191 [2016], lv denied 29 NY3d 1002 [2017]). Defendant is a second felonyoffender, who had two prior felonies and six misdemeanor convictions, had his parole revokedon four or five occasions and had several out-of-state convictions. As we discern noextraordinary circumstances or abuse of discretion that would warrant a modification of thesentence, which was within the statutory range, we decline to disturb it.
Garry, P.J., Lynch, Clark and Devine, JJ., concur. Ordered that the judgment is affirmed.
Footnote*:In fact, he testified that he has, throughout the course of his career, smelled unburnt marihuana "well over 2,000 times."