| People v Williams |
| 2010 NY Slip Op 09663 [79 AD3d 1653] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Marcelle E. Williams, Appellant. (Appeal No.2.) |
—[*1] Michael C. Green, District Attorney, Rochester (Elizabeth Clifford of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered September 26, 2006. The judgment convicted defendant, upon a jury verdict, ofburglary in the second degree.
It is hereby ordered that the judgment so appealed from is reversed on the law, that part ofthe motion seeking to suppress physical evidence is granted and a new trial is granted.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon hisplea of guilty of criminal possession of a weapon in the third degree (Penal Law § 265.02[1]) and, in appeal No. 2, he appeals from a prior judgment convicting him upon a jury verdict ofburglary in the second degree (§ 140.25 [2]). Addressing first the judgment in appeal No.2, we agree with defendant that money seized from his pocket by a police officer should havebeen suppressed as the fruit of an unlawful arrest. The record of the suppression hearingestablishes that the police were justified in stopping defendant's vehicle for a speeding violation,and in thereafter asking defendant to produce his license and registration and to exit the vehicle(see generally People v Banks, 85 NY2d 558, 562 [1995], cert denied 516 US868 [1995]; People v Johnson, 102 AD2d 616, 625 [1984], lv denied 63 NY2d776 [1984]). The officers who conducted the traffic stop, however, "went beyond merelyordering defendant from his car. [They] took the additional 'protective measures' of friskingdefendant, handcuffing him and placing him in a police car . . . [S]uch an intrusionamounts to an arrest[,] which must be supported by probable cause" (Johnson, 102 AD2dat 626; see People v Brnja, 50 NY2d 366, 372 [1980]). At the time of the stop and arrestof defendant, "[n]o probable cause yet existed to arrest him on burglary charges for[,] althoughthe police had reports of possibly suspicious behavior, they had no knowledge [that] a burglaryhad even been committed" (People v Randall, 85 AD2d 754, 754-755 [1981]; cf.People v Hicks, 68 NY2d 234, 241 [1986]). The officers were not at liberty to detaindefendant while other officers attempted to determine whether a burglary had in fact beencommitted, i.e., "until evidence establishing probable cause could be found" (People vBattaglia, 82 AD2d 389, 396 [1981, Hancock, J., dissenting], revd on dissent ofHancock, J. 56 NY2d 558 [1982]; see People v Nicodemus, 247 AD2d 833,836 [1998], lv denied 92 [*2]NY2d 858 [1998]).
Because the arrest of defendant was illegal, the money seized from his pocket must besuppressed as flowing directly from the illegal arrest. Further, "[i]t cannot be said that the moneyfound on defendant . . . [was] the product of a source independent of the defendant'sdetention or that the illegal activity was attenuated by a significant intervening event whichjustified the conclusion that [such] evidence was not the product of the illegal activity"(Battaglia, 82 AD2d at 397 [Hancock, J., dissenting] [internal quotation marks omitted]).Nor can it be said that the error in refusing to suppress the evidence did not contribute to theconviction and thus that it is harmless beyond a reasonable doubt (see People v Evans, 43NY2d 160, 167 [1977]; see generally People v Crimmins, 36 NY2d 230, 237 [1975]).The money, which was the only evidence directly linking defendant to the burglary, was dividedinto four packets in defendant's pocket, and corresponded exactly in amounts and denominationsto money taken from four separate locations in the burglarized home. We thus conclude thatthere is a reasonable possibility that the admission of the tainted evidence influenced the verdict(see Crimmins, 36 NY2d at 237; People v Terrell, 185 AD2d 906, 908 [1992]).
With respect to appeal No. 1, we further agree with defendant that the plea was induced bythe promise that the sentence would run concurrently with the sentence imposed upon the priorconviction in appeal No. 2. Because we are reversing that prior judgment of conviction, thejudgment in appeal No. 1 must be reversed, the plea vacated and the matter remitted to SupremeCourt for further proceedings on the indictment (see People v Fuggazzatto, 62 NY2d 862[1984]).
All concur except Scudder, P.J., and Martoche, J., who dissent and vote to affirm in separatememoranda:
Scudder, P.J. (dissenting). I respectfully dissent in both appeals. In my view, the moneyseized from defendant is not the product of an unlawful arrest and thus I would affirm thejudgment in appeal No. 2. In that event, I would also affirm the judgment in appeal No. 1inasmuch as there is no issue pursuant to People v Fuggazzatto (62 NY2d 862 [1984]).
With respect to appeal No. 2, under the facts established at the suppression hearing, it is clearthat the police had the authority to forcibly detain defendant for a brief period for investigativepurposes because they had reasonable suspicion that defendant had been involved in a burglary(see People v Hicks, 68 NY2d 234, 238 [1986]; People v Mabeus, 68 AD3d 1557, 1562 [2009], lv denied14 NY3d 842 [2010]; People vMedina, 37 AD3d 240, 242 [2007], lv denied 9 NY3d 847 [2007]; cf. People v Ryan, 12 NY3d 28,30-31 [2009]). Furthermore, at the time of the search, the police had probable cause to arrestdefendant.
Defendant had been suspected of a number of residential burglaries occurring during thenight, and the police had therefore obtained a warrant to install a GPS system on defendant'svehicle in order to track defendant's movements. At approximately 3:00 a.m. on the date of theburglary at issue, defendant's vehicle was detected leaving defendant's residence in the City ofRochester and traveling eastbound on I-490, where it exited at Bushnell's Basin. Defendant drovethe vehicle more than once around the area of a particular neighborhood, which had only oneroad for ingress and egress, and he then parked the vehicle for approximately 30 minutes. At 4:10a.m. the vehicle left the neighborhood and entered the westbound lane of I-490. Police officerswere notified by radio that defendant was driving westbound on I-490, and defendant wasstopped by the police for speeding at 4:17 a.m. The officer who stopped defendant's vehicle wasjoined by another officer, who was aware of the foregoing information and of the fact that, withinone minute after defendant had left the neighborhood, other officers had discovered the contentsof a purse strewn in the street in proximity to the location where [*3]defendant's vehicle had been parked. That officer approacheddefendant's vehicle, whereupon defendant was handcuffed and placed in the patrol car. Anotherofficer arrived at the scene of the stop, and he permitted defendant to exit the patrol vehicle inorder to speak to him. When the officer asked defendant where he had been and where he wasgoing, defendant responded that he was en route to Binghamton, but that he needed to return tohis home in Rochester to obtain money. At that time, although the burglary had been confirmed,the officer was not yet aware of the denominations of the money taken in the course of theburglary. Defendant gave the officer permission to conduct a pat-down frisk to check forweapons, and the officer felt a bulge in the front pocket of defendant's pants that felt like paper.The money was removed from defendant's pocket, and the officer obtained information regardingthe denominations of the stolen money "within a minute or two" of the pat-down frisk. Theofficer testified that defendant was detained for approximately 15 to 20 minutes.
It is axiomatic that "not every seizure is an arrest" (Hicks, 68 NY2d at 239), and thatthe use of handcuffs is not "dispositive of whether the detention of a suspect on a reasonablesuspicion has been elevated into a full-blown arrest" (People v Allen, 73 NY2d 378, 380[1989]). I submit that the facts here fit squarely within the conclusion of the Court of Appeals inHicks that, " '[i]f the purpose underlying a Terry [v Ohio, 392 US 1(1968)] stop—investigating possible criminal activity—is to be served, the policemust under certain circumstances be able to detain the individual for longer than the brief timeperiod involved in Terry' " (68 NY2d at 241). As the Court in Hicks so aptlyexplained, when evaluating "whether an investigative detention is unreasonable, common senseand ordinary human experience must govern over rigid criteria. [Further], in this examination itis appropriate to consider that the police diligently pursued a means of investigation that waslikely to confirm or dispel their suspicions quickly, during which time it was necessary to detainthe defendant. Finally, [a] court making this assessment should take care to consider whether thepolice are acting in a swiftly developing situation, and in such cases the court should not indulgein unrealistic second-guessing" (id. at 241-242 [internal quotation marks omitted]). In myview, these factors have been met here (see Medina, 37 AD3d at 242), and we should notengage in "unrealistic second-guessing" (Hicks, 68 NY2d at 242 [internal quotationmarks omitted]).
When the police officers who were detaining defendant learned that the burglary wasconfirmed, they then had the requisite probable cause to arrest defendant (see CPL140.10 [1] [b]), and the ensuing search was therefore conducted pursuant to the lawful arrest. Inote that, in any event, the police knew that defendant was lying when he stated that he was enroute to Binghamton but needed to return home to obtain money, and thus his "response raisedthe level of the encounter [from reasonable suspicion] to probable cause to believe that thedefendant [had committed a burglary], justifying the search and arrest" of defendant (People v Febus, 11 AD3d 554, 556[2004], lv dismissed 4 NY3d 743 [2004]; see People v Abad, 279 AD2d 358[2001], lv denied 96 NY2d 796 [2001]; People v Babarcich, 166 AD2d 655[1990], lv denied 76 NY2d 1019 [1990]).
I would therefore affirm the judgment in appeal No. 2, and thus I would also affirm thejudgment in appeal No. 1.
Martoche, J. (dissenting). I respectfully dissent in both appeals. I agree with the majority'sconclusion in appeal No. 2 that the evidence seized from defendant should have been suppressedas the fruit of an unlawful arrest, for the same reasons stated by the majority. I disagree with themajority's conclusion, however, that the error is not harmless beyond a reasonable doubt. Asidefrom the money seized from defendant, the jury was presented with significant circumstantialevidence of defendant's guilt regarding the burglary, including a precise tracking by the police ofdefendant's movements in the early morning hours on the date of the burglary. According to[*4]that evidence, defendant drove to the neighborhood where theburglary was committed and circled around and parked for approximately 25 to 30 minutes nearthe home that was burglarized; items from a purse were found strewn in the vicinity wheredefendant parked, within minutes after defendant left the area; the purse and items found weremissing from a home in the neighborhood where the burglary occurred; partial tread marks on thekitchen floor at the burglarized home matched the sneakers that defendant was wearing when hewas apprehended, and did not match shoes owned by the owners of the burglarized home; caninetracking behind and up to the back of the homes in the neighborhood eventually stopped at theburglarized home; and defendant made inconsistent statements to the police when discussing hisactivities that evening and his behavior was of a suspicious nature. In light of that evidence ofdefendant's guilt, in my view there is no reasonable possibility that the error might havecontributed to the conviction and thus the error "is harmless beyond a reasonable doubt"(People v Crimmins, 36 NY2d 230, 237 [1975]). Therefore, I conclude that the judgmentof conviction in appeal No. 2 should be affirmed and that the judgment in appeal No. 1 alsoshould be affirmed. Present—Scudder, P.J., Martoche, Green, Pine and Gorski, JJ.