| People v Francois |
| 2009 NY Slip Op 02900 [61 AD3d 524] |
| April 16, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JerryFrancois, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Steven Goldstein of counsel), forrespondent.
Judgment, Supreme Court, New York County (John Cataldo, J.), rendered January 29, 2008,convicting defendant, upon his plea of guilty, of criminal possession of stolen property in thefourth degree, and sentencing him, as a second felony offender, to a term of 1½ to 3 years,affirmed.
The court properly denied defendant's suppression motion. An officer trained andexperienced in detecting suspicious use of MetroCard vending machines observed defendantrepeatedly attempting to use a credit card in such a machine. The credit card appeared to befunctioning, but each time the machine asked defendant to enter a ZIP code, defendant seemed tobe unable to enter a ZIP code matching the credit card. Since most people know their own ZIPcodes, this behavior was suggestive of a person trying to use someone else's credit card, asopposed to a person innocently having technical difficulties using his own card. Accordingly, thepolice had, at least, a founded suspicion of criminality warranting a level-two common-lawinquiry (see People v Wilson, 52AD3d 239 [2008], lv denied 11 NY3d 743 [2008]).
When the officer approached defendant and asked if he needed assistance, defendant said hewas having problems with his credit card. The officer asked defendant to accompany him and hispartner to a nearby wall of the subway station, in order to continue the inquiry away from thebusy area in front of the MetroCard machines, and, without any use of force, he physicallyguided defendant by briefly grasping his elbow. Even though the officer made slight physicalcontact with defendant, none of the police conduct elevated the encounter to a seizure requiringreasonable suspicion (see e.g. People vStevenson, 55 AD3d 486 [2008]; People v Cherry, 30 AD3d 185, 185-186 [2006], lv denied7 NY3d 811 [2006]; People v Wigfall, 295 AD2d 222 [2002], lv denied 99NY2d 540 [2002]). The officer lawfully asked to see the credit card and a form of identification,and the discrepancy between the identification card and defendant's actual appearance providedprobable cause for his arrest. Concur—Friedman, J.P., Nardelli and DeGrasse, JJ.[*2]
Catterson, J., dissents in a memorandum as follows:Because I believe that the police forcibly stopped and detained the defendant without areasonable suspicion that the defendant had committed or was about to commit an offense, Idissent. Initially, I agree with the motion court and the majority that police had a foundedsuspicion of criminality based on the defendant's furtive behavior at the MetroCard machine. Inmy view, this founded suspicion merely allowed the police to pursue a common-law right toinquire what the defendant was doing at the MetroCard machine. (People v De Bour, 40NY2d 210, 223-224 [1976].)
Where I depart from the majority's reasoning is in the characterization of the police conductas "slight physical contact with defendant." It is uncontested that Police Officer Rodriguezapproached the defendant, identified himself by showing his police identification and shield, andasked if the defendant was having a problem with his credit card. Officer Rodriguez was on thedefendant's right side and Rodriguez's partner was on the defendant's left. The defendant repliedthat he was having problems with his credit card. Officer Rodriguez "grabbed" or "grasp[ed]" thedefendant's elbow and propelled him to the side of the MetroCard machine. He simultaneouslysaid to the defendant "please walk with me." The defendant found himself against a wall next toa MetroCard machine, with Officer Rodriguez directly in front of him and another police officer"directly" to the side of Rodriguez. Officer Rodriguez further testified that he had "grabbed [thedefendant] away from the people just in case anything happen[ed] and I put him on the wall."
This stop by police is significantly more intrusive than the minor interruptions that we havepermitted under a De Bour level-two stop. (See People v Stevenson, 55 AD3d 486 [1st Dept 2008]; People v Cherry, 30 AD3d 185,186 [1st Dept 2006], lv denied 7 NY3d 811 [2006] [officer justified in raising hand tophysically restrain defendant in a level-two encounter]; People v Grunwald, 29 AD3d 33, 34 [1st Dept 2006], lvdenied 6 NY3d 848 [2006] [police officer did not exceed limits of common-law right toinquire where he told defendant to "(c)ome over here," got in front of the defendant, andconfronted him face-to-face when he tried to walk away].)
The ultimate test of whether an encounter has risen to the level of a seizure is, "whether areasonable person would have believed, under the circumstances, that the officer's conduct was asignificant limitation on his or her freedom." (People v Bora, 83 NY2d 531, 535 [1994].)I submit that any reasonable person who is grasped by the elbow, "put . . . on thewall," and surrounded by police officers in the middle of a subway station would believe thatthere was a significant limitation on his freedom. Accordingly, I would reverse the motion court.