| People v Rose |
| 2010 NY Slip Op 03185 [72 AD3d 1341] |
| April 22, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Nakia Rose,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered February 9, 2009, upon a verdict convicting defendant of the crimes of assault in thefirst degree, robbery in the first degree (two counts), robbery in the second degree, criminalpossession of a weapon in the second degree (two counts) and criminal possession of stolenproperty in the fourth degree.
At about 7:30 p.m. on May 25, 2007, officers with the Albany Police Department respondedto a 911 call regarding a shooting on Beverly Avenue in the City of Albany, where they foundthe victim, Michael Brown, lying on the floor, severely injured and covered in blood fromgunshot wounds to his chest and leg. Brown provided a description of his assailants, two blackmales, who were both armed with handguns and were driving a black BMW X5 SUV withchrome or silver wheel rims. He believed that they were headed to New York City. The policeissued an officer safety be-on-the-lookout (hereinafter BOLO) alert for the car and assailants toregional law enforcement. After an astute toll booth collector reported that a vehicle matchingthe BOLO alert had entered the New York State Thruway and provided a license plate number, aState Trooper observed a BMW X5 matching the BOLO description and bearing that platenumber driving southbound on the Thruway north of the City of Kingston, Ulster County. Atabout 8:12 p.m., State Troopers effected a felony stop of the vehicle, directing the occupants toexit the vehicle and placing them in handcuffs in the rear of separate police vehicles. Troopers[*2]spoke by cell phone with an Albany detective who was at anAlbany hospital with the victim, who was being treated but fully conscious and confirmed thatthe clothing and physical description of the occupants of the vehicle matched that of theassailants. The suspects—defendant and Damion Tyrell—were transported to theKingston State Police barracks around 9:30 p.m. to await the arrival of Albany detectives forquestioning.
Detectives arrived at the barracks around 10:20 p.m., provided Miranda warnings,and questioned both suspects—who denied any involvement in the shooting, but admittedhaving been in Albany briefly after giving a girl a ride from New York City. The detectives thentransported the suspects and their car back to Albany. Brown identified defendant, who he knewas his drug supplier, and Tyrell, as the shooter, and provided a detailed account of the shootingand robbery. Brown recounted that his house had reportedly been recently burglarized and alarge amount of cash taken, leaving him unable to pay defendant when he came to collect moneydue for drugs. Defendant was placed under arrest by the detectives in the early morning hours ofthe following day, and a search of the BMW X5 pursuant to search warrants disclosed two guns,cash and cellular telephones in a hidden compartment in the dash board, and shell casings andother evidence in the vehicle. After an unsuccessful suppression hearing and a jurytrial,[FN1]defendant was acquitted of attempted murder but convicted of assault in the first degree, robberyin the first degree (two counts), robbery in the second degree, criminal possession of a weapon inthe second degree (two counts) and criminal possession of stolen property in the fourth degree.Sentenced as a second felony offender to an aggregate prison term of 25 years, plus five years ofpostrelease supervision, defendant now appeals.
Defendant's central contention on appeal is that the roadside stop of his vehicle and thecontinued detention of his person exceeded the scope of an investigatory detention andconstituted a de facto arrest without probable cause, requiring suppression of all evidencesubsequently seized and obtained from the vehicle and from the cell phones, as well as hisstatement to police and Brown's identification of them. We find that County Court correctlydenied defendant's motion to suppress this evidence.
Initially, we find that the vehicle was lawfully stopped by State Police on the Thruway anddefendant was lawfully handcuffed and detained for questioning because they had reasonablesuspicion that he had been involved in this shooting (see People v Hicks, 68 NY2d 234,238 [1986]; People v Medina, 37AD3d 240, 242 [2007], lv denied 9 NY3d 847 [2007]; People v Baptiste,306 AD2d 562, 565 [2003], lv denied 1 NY3d 594 [2004]; see also People vHollman, 79 NY2d 181, 184-185 [1992]; People v Allen, 73 NY2d 378, 379-380[1989]; cf. People v May, 81 NY2d 725, 727 [1992]). The vehicle closely matched theBOLO alert description given by the victim, was headed toward New York City as the victimindicated it would be, and a prefelony stop check of the license plate number provided by the tollcollector disclosed that it belonged to a woman residing in Bronx County.[FN2]In determining whether and when the investigatory stop and subsequent detention ripened intothe equivalent of an arrest, requiring [*3]probable cause, courtslook to what a reasonable person in that position, innocent of any crime, would have thought(see People v Hicks, 68 NY2d at 238-240; People v Mabeus, 68 AD3d 1557, 1560-1561 [2009]).
Upon being stopped, defendant and Tyrell were permissibly ordered to exit their vehiclewith their hands up and directed to walk backward to the State Police vehicle; they complied andwere patted down and placed in handcuffs in separate police vehicles. Their vehicle was quicklysurveyed for other people and weapons (none were found). No guns were drawn, defendant wasnot questioned, and they awaited the arrival of the State Police supervisor. About 15 minuteslater, Albany police were notified that suspects had been stopped and efforts were made toconfirm that they matched the victim's description. At the scene of the stop, the State Policesupervisor spoke several times with an Albany detective, first when he was en route to thehospital from the scene of the shooting and then when he was with the victim who was beingtreated at the emergency room. Police then confirmed that the clothing worn by the vehicleoccupants matched the victim's by-then more detailed description,[FN3]and that the suspects matched the physical descriptions provided by the victim to the firstresponder at the scene of the shooting: two black male assailants, one about six feet tall, with athin build, 190 to 200 pounds, in his thirties and wearing a blue button-down shirt with longsleeves, and the other about five feet, six inches, stocky, 180 pounds, in his twenties, wearing ared polo shirt with blue and white stripes. The suspects were advised that they were beingdetained due to an incident that had occurred in Albany, which would be explained by Albanydetectives who were en route to question them.
Under these circumstances, this non-arrest detention was within the scope of the lawfulinvestigative stop, during which a shooting was investigated, because State Police knew that acrime had been committed in Albany, the period of detention and investigation was relativelybrief given the condition and treatment of the victim and the distance involved, and "the [State][P]olice diligently pursued a minimally intrusive means of investigation [with Albany police]likely to confirm or dispel suspicion quickly, during which time it was necessary to detain. . . defendant" (People v Hicks, 68 NY2d at 242; see People vMabeus, 68 AD3d at 1560-1561). Neither the fact that defendant was handcuffed nor anyother factor is determinative of whether he was under arrest (see People v Mabeus, 68AD3d at 1560-1561; People v Williams, 305 AD2d 804, 806-807 [2003]; see alsoPeople v Hicks, 68 NY2d at 239-240) because "[w]here, as here, police officers findthemselves in a rapidly developing and dangerous situation presenting an imminent threat totheir well-being, they must be permitted to take reasonable measures to assure their safety"(People v Allen, 73 NY2d at 380). Once State Police established, via communicationwith Albany detectives at the hospital with the victim, that the suspects matched the descriptionof the assailants, Albany detectives were immediately dispatched to the State Police barracks inKingston to question the suspects, who had been taken there at the direction of Albanydetectives. We agree that the State Police's non-arrest detention of defendant that occurred aspart of their felony stop of this vehicle was permissible in scope and duration, the coordinated[*4]investigation that occurred at some distance with Albanypolice to ascertain if they had stopped the correct suspects was diligent, rapid and minimallyintrusive, and there was no proof that a significantly less intrusive or more rapid investigatorymeans was available to accomplish this purpose (see People v Hicks, 68 NY2d at242-243; cf. People v Banks, 85 NY2d 558, 562 [1995], cert denied 516 US 868[1995]).
We also find that, once State Police confirmed that the victim's developing description of thephysical appearances and clothing of the assailants matched the detained suspects, police in facthad "information sufficient to support a reasonable belief that an offense has been. . . committed [by defendant]" (People v Shulman, 6 NY3d 1, 25 [2005], cert denied 547US 1043 [2006] [internal quotation marks and citation omitted]) and, thus, had probable cause toarrest defendant without a warrant (see CPL 140.10; People v August, 33 AD3d 1046, 1048 [2006], lv denied 8NY3d 878 [2007]; People v Terry,2 AD3d 977, 979 [2003], lv denied 2 NY3d 746 [2004]; People v Baptiste,306 AD2d at 566; see also People v Bigelow, 66 NY2d 417, 423 [1985]; cf. People vRobinson, 282 AD2d 75, 79-81 [2001]; People v Vaughn, 275 AD2d 484, 487[2000], lv denied 96 NY2d 788 [2001]). Consequently, defendant's continued detentionand transport were lawful. Although defendant was not formally arrested until early the nextmorning after the victim had positively identified him, his continued detention—theequivalent of an arrest—was supported by probable cause, as required. At no point wasdefendant questioned by State Police, he was transported to the State Police barracks arriving at9:45 p.m., and remained handcuffed to a wire wall-ring until Albany detectives arrived at 10:20p.m. He received Miranda warnings at that time from an Albany detective, and he thenagreed to waive those rights and to answer questions. Accordingly, as the investigatory stop andnon-arrest detention were supported by reasonable suspicion and within permissible bounds, andhis continued detention which ripened into his de facto arrest was supported by probable cause,and no constitutional violation of his rights occurred, defendant was not entitled to suppressionof any evidence obtained.
Finally, we are not persuaded by defendant's claim that County Court failed to consider allrelevant factors in imposing sentence, or that the sentence should be reduced as unduly harsh andexcessive. The trial evidence demonstrated that defendant initiated the armed confrontation,accompanied by an apparent enforcer, as part of his drug distribution business over moneyallegedly due from the victim; moreover, after the victim was forced to lie face down, defendanturged Tyrell to "shoot him in the head." Although defendant was acquitted of attempted murder,the sentencing court's characterization of this shooting as "a cold, deliberate, premeditatedbusiness related hit" is unassailable. Thus, we cannot conclude that the aggregate 25-yearpredicate felon sentence constituted a clear abuse of discretion or that extraordinarycircumstances are present to warrant modification (see People v Sieber, 26 AD3d 535, 536 [2006], lv denied 6NY3d 853 [2006]).
Mercure, J.P., Rose, Lahtinen and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Defendant and Tyrell werejointly indicted but separately tried, and Tyrell, according to the records of this Court, wasconvicted of attempted murder and other crimes.
Footnote 2: It was later established thatdefendant lived with that woman.
Footnote 3: The victim's description to thefirst responder included a height, weight and age estimate and that the taller assailant wore a blueshirt and the shorter one wore a red shirt, possibly striped, and a baseball hat. The more detaileddescription was provided by the victim at the hospital to Albany police, who compared it to thedescription of the detained suspects provided by State Police.