| People v Cooper |
| 2021 NY Slip Op 06005 [199 AD3d 1061] |
| November 4, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Theodore R. Cooper, Appellant. |
Adam H. Van Buskirk, Auburn, for appellant.
Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.),rendered October 12, 2018, upon a verdict convicting defendant of the crime of criminalpossession of a weapon in the second degree.
A police officer with the Village of Endicott Police Department initiated a traffic stop of avehicle in which defendant was in the rear seat. A subsequent search of the vehicle revealed ahandgun and a loaded magazine in a lockbox. In connection with this incident, defendant wascharged by indictment with criminal possession of a weapon in the second degree. Prior to trial,defendant moved to suppress certain statements that he made, as well as the retrieved handgunand magazine. County Court denied the motion. A jury trial ensued, after which defendant wasconvicted as charged. The court thereafter sentenced defendant, as a second violent felonyoffender, to a prison term of seven years, to be followed by five years of postrelease supervision.Defendant appeals. We affirm.
Turning first to the suppression motion, the police officer testified at the suppression hearingthat he observed a vehicle abruptly engage its turn signal when it was less than 10 feet prior tomaking the turn. The officer engaged his vehicle's emergency lights, but the vehicle did notimmediately stop. The officer then engaged his emergency sirens at two different times, afterwhich the vehicle stopped. The officer testified that he first asked the driver to exit the vehicleand individually spoke with her. The officer then did the same with defendant and the front seatpassenger and, according to the officer, his conversations with all of them took less than 10minutes. The officer stated that he received inconsistent answers to his questions about wherethey were going, where they had been and where defendant was picked up. The officer asked forconsent to search the vehicle, which he received.
The officer testified that, upon a search of the vehicle, he observed a lockbox under the seatwhere defendant had been sitting. Defendant initially denied knowing that the lockbox was therebut subsequently admitted to his knowledge of it.[FN1] The officer advised defendant that, becausedefendant did not consent to opening the lockbox, he would do a canine search of the vehicle.The officer did so and the canine alerted to the seat where defendant had been sitting and to thelockbox. After the canine search, defendant told the officer that he was supposed to deliver thelockbox to another person. The officer stated that defendant then agreed to open the lockbox butwas apprehensive to do so in public because he did not want to give the appearance that he wascooperating with law enforcement. The officer gave defendant "the option of being handcuffed,to give the appearance to anyone who may be watching that he wasn't cooperating with thepolice," which defendant accepted.
The officer stated that he handcuffed defendant and took him to the police station[*2]. At the station, defendant, who was no longer handcuffed, wastaken to a garage area, and he confirmed to the officer that a handgun was in the lockbox.Defendant was given a screwdriver, and he opened the lockbox. The officer testified that "afirearm and a loaded magazine" were in the lockbox. Defendant was then brought into a briefingarea of the police station and was read his Miranda rights.
Contrary to defendant's claim, the officer was authorized to direct all passengers to exit thevehicle following the traffic stop (see People v Robinson, 74 NY2d 773, 775 [1989],cert denied 493 US 966 [1989]). Furthermore, in view of the inconsistent answersprovided by the driver, the front seat passenger and defendant to the officer's questions and thefact that the vehicle did not immediately stop after the officer engaged his vehicle's emergencylights, the officer had founded suspicion that criminality was afoot and, therefore, a valid basisexisted to request consent to search the vehicle (see People v Cummings, 157 AD3d 982, 984 [2018], lvdenied 31 NY3d 982 [2018]; Peoplev Nelson, 156 AD3d 1112, 1114 [2017], lv denied 31 NY3d 1151 [2018]). Thenonthreatening and nonaccusatory questions asked by the officer were proper, and defendant wasneither handcuffed nor otherwise restrained while the officer searched the vehicle and questionedhim (see People v Blanche, 183AD3d 1196, 1198 [2020], lv denied 35 NY3d 1064 [2020]; People v Martin, 156 AD3d 956,958 [2017], lv denied 31 NY3d 985 [2018]). As to the lockbox, defendant consented toopening it and, in fact, did so himself without duress or being coerced to do so. Even if he hadnot consented, once the canine alerted to the lockbox, probable cause existed to search it (see People v Banks, 148 AD3d1359, 1362 [2017]). Accordingly, County Court correctly denied that part of the motionseeking suppression of the physical evidence.
Defendant also takes issue with County Court's finding that his conversations with the officerthat took place subsequent to the canine search and prior to the opening of the lockbox werenoncustodial in nature. The record, however, reflects that, during this period, defendant neverindicated that he wanted to leave nor did the officer tell defendant he was not free to do so.Although defendant was eventually handcuffed and transported in a police car, defendant agreedto this arrangement so as not to be seen in public as cooperating with law enforcement. Based onthese unique circumstances and noting, as the court did, that the handcuffs were removed oncedefendant was at the station, defendant's oral statements were freely made and not while he wasunder custodial interrogation (see People v Hicks, 68 NY2d 234, 240 [1986]; People v Fragassi, 178 AD3d1153, 1156 [2019], lv denied 34 NY3d 1128 [2020]; People v Weishaupt, 118 AD3d1100, 1102-1103 [2014]; People vBrown, 107 AD3d 1305, 1306 [2013], lv dismissed 23 NY3d 1018 [2014]). Assuch, defendant's [*3]oral statements were admissible.
Defendant challenges the verdict as being against the weight of the evidence. As relevanthere, for criminal possession of a weapon in the second degree, the People were obligated toprove that defendant possessed any loaded firearm outside of his home or place of business(see Penal Law § 265.03 [3]). The officer's testimony at trial largelymirrored his suppression hearing testimony. In addition to the foregoing, another police officertestified that he successfully test-fired the handgun that was retrieved from the lockbox. The juryalso saw a video depicting defendant's interview at the police station wherein defendant admittedthat he picked up the lockbox to deliver it to another person, that he was aware that a handgunwas inside of it and that he was shown the handgun. In view of this evidence, a contrary resultwould have been unreasonable and, therefore, the verdict will not be disturbed (see People v Cloonan, 166 AD3d1063, 1064-1065 [2018], lv denied 35 NY3d 941 [2020]; People v Hadfield, 119 AD3d1224, 1226 [2014], lv denied 24 NY3d 1002 [2014]).
Defendant contends that County Court failed to grant his request to instruct the jury as to thelesser included offense of criminal possession of a weapon in the fourth degree.[FN2] Based on the evidence that thehandgun was loaded, "the jury could not have reasonably concluded from the trial evidence thatdefendant committed the lesser offense but not the greater" (People v Hill, 130 AD3d 1305, 1306 [2015] [internal quotationmarks, brackets and citations omitted], lv denied 27 NY3d 999 [2016]; see People v Laing, 66 AD3d1353, 1354-1355 [2009], lv denied 13 NY3d 908 [2009]). The court thus did not errin denying defendant's request.
Defendant failed to object to County Court's Sandoval compromise at the close of theSandoval hearing and, consequently, his challenge to it is unpreserved (see People v Shackelton, 177 AD3d1163, 1166 [2019], lv denied 34 NY3d 1162 [2020]). Defendant's contention that thecourt improperly curtailed the scope of his summation is without merit (see People v Smith, 16 NY3d 786,787-788 [2011]; People v Paixao,23 AD3d 677, 678 [2005], lv denied 6 NY3d 816 [2006]). Defendant's argument thatthe sentence was harsh and excessive is likewise without merit given that the term imposed bythe court was the minimum permissible (see Penal Law § 70.04 [3] [b]; see also People v Duggins, 161 AD3d1445, 1447 [2018], lv denied 32 NY3d 937 [2018]). Defendant's remainingassertions have been considered and do not provide a basis for reversal.
Garry, P.J., Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur. Ordered that thejudgment is affirmed.
Footnote 1:According to the officer, both thedriver and front seat passenger reported that defendant brought the lockbox into the vehicle withhim.
Footnote 2:Contrary to the People'sassertion, this argument is properly before us because defendant specifically requested thatcriminal possession of a weapon in the fourth degree be charged as a lesser included offense ofcriminal possession of a weapon in the second degree (see People v Hoke, 62 NY2d1022, 1023 [1984]; People v Rivera,70 AD3d 1177, 1183 n 4 [2010], lvs denied 14 NY3d 891, 15 NY3d 855 [2010];compare People v David, 255 AD2d 620, 621 [1998]).