| People v Lee |
| 2012 NY Slip Op 04846 [96 AD3d 1522] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Douglas E.Lee, Appellant. (Appeal No. 1.) |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered October5, 2005. The judgment convicted defendant, upon his plea of guilty, of burglary in the seconddegree.
It is hereby ordered that the judgment so appealed from is reversed on the law, the plea isvacated, that part of the motion seeking to suppress statements made by defendant is granted, andthe matter is remitted to Monroe County Court for further proceedings on the indictment.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him, upon hisplea of guilty, of burglary in the second degree (Penal Law § 140.25 [2]). In appeal No. 2,he appeals from a judgment convicting him, also upon his plea of guilty, of attempted burglary inthe second degree in satisfaction of a separate indictment (§§ 110.00, 140.25 [2]).
The conviction in appeal No. 1 arises from defendant's theft of two bicycles in the Town ofIrondequoit in the early morning hours of July 16, 2004. Defendant contends that County Courterred in refusing to suppress the statements that he made to the arresting officer because, interalia, he was illegally detained in violation of his Fourth Amendment rights. We agree withdefendant that his statements should have been suppressed on that ground. We note at the outset,however, that defendant's contention is confined solely to the judgment of conviction in appealNo. 1, and that he raises unrelated issues in appeal No. 2 that are unaffected by our determinationin appeal No. 1.
With respect to appeal No. 1, at approximately 6:00 a.m. on the day in question, theIrondequoit Police Department received a report of a suspect who was "possibly" stealingbicycles. The report was called in by a local Town Justice, who had found a bicycle in hisdriveway. In response to the report, a police officer drove to the residence of the Town Justice,who stated that his newspaper delivery woman had told him that she encountered a man ridingone bicycle while simultaneously pulling the second bicycle that the Town Justice discoveredwas left in his driveway. The delivery woman had described the man to the Town Justice as a[*2]black male wearing a dark hooded sweatshirt and jeans.
Upon receiving that information, the officer left the Town Justice's residence in search of thesuspect. After driving approximately one block, the officer observed defendant, a black malewearing a dark hooded sweatshirt and greenish-colored jeans, emerge from a nearby yard riding abicycle. Defendant proceeded to ride the bicycle down the sidewalk, whereupon the officerpulled alongside him and called out for him to stop. Defendant initially did not comply, but whenthe officer yelled a second time for him to stop, defendant complied. The officer then exited hisvehicle and approached defendant. When asked at the suppression hearing what he initially saidto defendant, the officer responded, "I told him that we had a report of a suspicious male possiblystealing bikes and that the description of the male was a male black wearing a darker. . . hooded sweatshirt and jeans, and as you can see you fit the description, so I justhave to make an inquiry and you'll be on your way if everything's okay." The officer testifiedsimilarly on cross-examination, explaining that, upon stopping defendant and explaining thereason therefor, the officer advised defendant that "after everything checks [out], you'll be onyour way." The stop occurred at 6:21 a.m.
The officer proceeded to ask defendant a series of questions, including his identity, where helived and what he was doing in the area. Defendant answered the officer's questions. When theofficer asked where he had gotten the bike, defendant said that he purchased it a week earlierfrom "some dude" for $45. At some point during the questioning, another police officer arrived atthe scene, and that second officer remained on the sidewalk with defendant while the first officerat the scene commenced an investigation. The first officer went to several residences on the streetand questioned homeowners to determine whether their homes or garages had been burglarized.At 6.45 a.m., approximately 24 minutes after defendant was initially stopped by the police, thenewspaper delivery woman, acting on her own volition, arrived at the scene and identifieddefendant as the person she had observed earlier in the morning with two bicycles. Fifteenminutes later, a third officer arrived with a civilian who identified the bicycle that defendant wasriding as his. Defendant was then placed under arrest, administered Miranda warnings,and interrogated by the police. He was ultimately indicted for two counts of burglary in thesecond degree, one count of burglary in the third degree, and three counts of petit larceny. Whilereleased on those charges, defendant committed another burglary, which is the subject of theindictment in appeal No. 2.
In its decision denying defendant's suppression motion, the court concluded that, beforeencountering defendant, the information possessed by the first officer at the scene was sufficientto support a founded suspicion that criminal activity was afoot, justifying the "limited intrusionupon defendant's freedom of movement" until the newspaper delivery woman arrived andidentified defendant as the individual she had seen pulling the second bicycle. At that point, thecourt determined that the first officer at the scene had reasonable suspicion to believe thatdefendant had committed a crime, justifying defendant's temporary detention. When the secondcivilian arrived and identified the bicycle that defendant had been riding as his, the officers hadprobable cause to arrest defendant.
We agree with defendant that his 24-minute detention following the stop by the first officerat the scene violated his Fourth Amendment rights. The court's determination that the officer hada "founded suspicion that criminal activity [was] afoot" justified a common-law inquiry(People v Hollman, 79 NY2d 181, 191 [1992]), a level two intrusion under People vDe Bour (40 NY2d 210, 223 [1976]). Pursuant to that level two intrusion, the officer was"entitled to interfere with [defendant] to the extent necessary to gain explanatory information"; hecould not, however, forcibly seize defendant (id.). An officer making a common-lawinquiry may detain a suspect temporarily, but only "to the extent necessary to obtain explanatoryinformation" (People v [*3]Medina, 107 AD2d 302, 304[1985]).
Here, the length of defendant's detention exceeded that allowed pursuant to a common-lawinquiry when, after first being asked for identifying information, defendant was held for 24minutes while the first officer at the scene went to residences in the neighborhood searching forevidence of a crime. Once the officer began that process, defendant's temporary seizure pursuantto a lawful common-law inquiry became an investigatory detention, a level three intrusionnecessitating a reasonable suspicion that defendant had committed a crime (see People vBruce, 306 AD2d 68, 69 [2003], lv denied 100 NY2d 618 [2003]; see generally People v Ryan, 12 NY3d28, 29-31 [2009]). Significantly, the suppression court determined that such reasonablesuspicion did not exist until the newspaper delivery woman arrived and identified defendant,which as noted was 24 minutes after the initial encounter. "The police are not at liberty to arrestand hold a suspect while they search for evidence sufficient to justify their action" (People vWilliams, 191 AD2d 989, 990 [1993], lv denied 82 NY2d 729 [1993]; see People v Williams, 79 AD3d1653, 1654 [2010], affd 17 NY3d 834 [2011] ["The officers were not at liberty todetain defendant (for 15 to 20 minutes) while other officers attempted to determine whether aburglary had in fact been committed, i.e., 'until evidence establishing probable cause could befound' "]; see also Ryan, 12 NY3d at 30-31 [A detention of approximately 13 minuteswas not authorized, even in the event that the police had reasonable suspicion warranting a levelthree investigatory detention]).
We would reach the same conclusion even if, as the dissent suggests, the police did notcanvass the neighborhood until after the newspaper delivery woman arrived. The fact remainsthat defendant was detained for 24 minutes in the absence of reasonable suspicion. The courtspecifically found that 24 minutes separated defendant's stop and the arrival of the newspaperdelivery woman, and the People do not challenge that finding on appeal. In our view, the24-minute detention was unlawful regardless of whether the police were going door-to-door insearch of a crime during that time period.
We further conclude that a reasonable person in defendant's position would not have felt freeto leave after the first officer at the scene told him that, "after everything checks [out]" hewould be "on [his] way" and then handed defendant off to another uniformed officer while hecanvassed the neighborhood in search of a crime ([emphasis added]; see generally People vHicks, 68 NY2d 234, 239-240 [1986]; People v Smith, 234 AD2d 946 [1996], lvdenied 89 NY2d 1041 [1997]; People v McFadden, 179 AD2d 1003, 1004 [1992]).
We disagree with the dissent's conclusion that defendant was not detained while the policeofficer conducted his investigation. First, the suppression court specifically found that there wasa "temporary detention" of defendant while the officer conducted a "further investigation." Thus,"the hearing court did not deny suppression on that ground, and since the issue was notdetermined adversely to defendant, we may not reach it on appeal" (People v Gerard, 94 AD3d 592,593 [2012], citing People vConcepcion, 17 NY3d 192, 194-195 [2011]).
In any event, none of the cases cited by the dissent supports the conclusion that defendanthere was not detained. In neither Peoplev Anthony (85 AD3d 1634 [2011], lv denied 17 NY3d 813 [2011]) norPeople v Ocasio (85 NY2d 982 [1995]) were the defendants ordered to remain in theirplaces while the police conducted their investigations. In People v Smith (234 AD2d 946[1996], lv denied 89 NY2d 1041 [1997]) and People v Yukl (25 NY2d 585[1969], cert denied 400 US 851 [1970]), the defendants voluntarily accompanied officersto police headquarters with no indication that they were not free to leave. Here, in contrast, theinvestigating officer twice "yell[ed]" at defendant to stop riding his bike, and defendant compliedwith that order. The officer then told defendant that he could leave only "after everything checks[out]," which is tantamount to telling defendant that he could not leave until things did check out.Again, defendant complied, at which point he was handed off to [*4]another officer while the first officer investigated further. At thatpoint, defendant could not reasonably "disregard the police and go about his business"(California v Hodari D., 499 US 621, 628 [1991]).
The fact that defendant complied with the officer's requests does not mean that he was notdetained. In fact, quite the opposite is true. A police encounter need not be forcible to constitute aseizure for Fourth Amendment purposes. " 'Whenever an individual is physically orconstructively detained by virtue of a significant interruption of his liberty of movement as aresult of police action, that individual has been seized within the meaning of the FourthAmendment . . . This is true whether a person submits to the authority of thebadge or whether he succumbs to force' " (People v Howard, 147 AD2d 177, 180[1989], appeal dismissed 74 NY2d 943 [1989] [emphasis added], quoting People vCantor, 36 NY2d 106, 111 [1975]). "Submission to authority is not consent nor is a failure toargue with the police officer" (People v Dingman, 48 AD2d 739, 740 [1975]).
Here, because defendant was twice told to stop and remain at the scene with a uniformedofficer while another officer conducted an investigation, we conclude that "a reasonable personwould have believed that he was not free to leave" (United States v Mendenhall, 446 US544, 554 [1980]; see generally People v Hicks, 68 NY2d 234, 239-240 [1986]; Peoplev Smith, 234 AD2d 946 [1996], lv denied 89 NY2d 1041 [1997]; People vMcFadden, 179 AD2d 1003, 1004 [1992]). Thus, we reverse the judgment in appeal No. 1,vacate the plea, grant that part of the omnibus motion of defendant seeking to suppress hisstatements, and remit the matter to County Court for further proceedings on the indictment.
With respect to appeal No. 2, "[t]he knowing, intelligent and voluntary waiver by defendantof the right to appeal encompasses his contention that County Court abused its discretion indenying his request for an adjournment to retain new counsel" (People v Morgan, 275AD2d 970 [2000], lv denied 96 NY2d 761 [2001]; see People v La Bar, 16 AD3d 1084, 1084-1085 [2005], lvdenied 5 NY3d 764 [2005]). In addition, "[b]y failing to object to the imposition ofrestitution at sentencing, which was not a part of the plea agreement, defendant failed to preservefor our review his contention that County Court erred in enhancing the sentence by imposingrestitution at sentencing without affording him the opportunity to withdraw the plea" (People v Rhodes, 91 AD3d 1280,1281 [2012]; see People v Lewis, 89AD3d 1485, 1486 [2011]; People vLovett, 8 AD3d 1007, 1007-1008 [2004], lv denied 3 NY3d 677 [2004]). Wedecline to exercise our power to review that contention as a matter of discretion in the interest ofjustice (cf. Rhodes, 91 AD3d at 1281).
All concur except Peradotto, J., who dissents and votes to affirm in the followingmemorandum.
Peradotto, J. (dissenting in part). I respectfully dissent in part because I disagree with themajority that defendant was illegally detained in violation of his Fourth Amendment rights. Iwould therefore affirm the judgment in appeal No. 1 convicting defendant, upon his plea ofguilty, of burglary in the second degree (Penal Law § 140.25 [2]) but, like the majority, Iwould affirm the judgment in appeal No. 2.
In the early morning hours of July 16, 2004, the Irondequoit Police Department received atelephone call from a local Town Justice who reported a suspicious male "[p]ossibly stealingbikes." In response to the report, a police officer drove to the residence of the Town Justice, whoshowed the responding officer a bicycle in his driveway and told the officer that his newspapercarrier had stopped a man who was pulling that bicycle while riding another bicycle. Thenewspaper carrier suspected that the man, whom she described as a black male wearing a darkhooded sweatshirt and jeans, might be stealing bicycles in the area. The officer returned to hispatrol car and began checking the area for the suspect.
Shortly thereafter, at approximately 6:21 a.m., the officer observed defendant, a black [*5]male wearing a dark hooded sweatshirt and greenish-colored jeans,emerging from a backyard on a bicycle. The officer sent a dispatch that he saw a person matchingthe description of the possible bicycle thief, and he drove toward defendant. Defendant, who hadbeen riding in the street, steered his bicycle onto the sidewalk. The officer pulled up alongsidedefendant and asked him to stop. Defendant did not comply, possibly because he did not hear theofficer. When the officer repeated his request, defendant complied. The officer stopped and thenexited his patrol car, and walked over to where defendant was standing on the sidewalk.
Defendant testified at the suppression hearing that the officer told him that he "wanted to ask[defendant] a few questions, a couple questions." The officer testified that he approacheddefendant and "told him that we had a report of a suspicious male possibly stealing bikes and thatthe description of the male was a male black wearing a darker . . . hoodedsweatshirt and jeans, and as you can see you fit the description, so I just have to make an inquiryand you'll be on your way if everything's okay." On cross-examination, the officer similarlytestified that, when he initially stopped defendant, "I told him why I stopped him. . . [J]ust to keep him at ease. I told him after everything checks [out], you'll be onyour way."
The officer then asked defendant a number of questions, including his name, whether heowned another bike, where he had been, what he was doing in the neighborhood, whether helived in the neighborhood, and why he had emerged from a backyard. Defendant denied having asecond bicycle. As the officer was questioning defendant on the sidewalk, the newspaper carrierarrived at the scene and identified defendant as the person she had observed earlier in themorning with the two bicycles. The officer testified that the newspaper carrier arrived "[w]ithin ashort time" after he stopped defendant.
At the suppression hearing, defense counsel extensively questioned the officer about thetiming of the newspaper carrier's arrival, noting that a supporting deposition taken by anotherofficer from the newspaper carrier placed her arrival at 6:45 a.m. Defense counsel asked theofficer whether the supporting deposition would "refresh [his] memory as to what time [thenewspaper carrier] happened on the scene of the stop," and the officer replied, "I already told youit was during the conversation shortly after I stopped him that she arrived." When asked whetherhe had a "specific independent recollection of the time," the officer replied, "I do have a verygood recollection that it was shortly after I stopped him . . . While I was talking tohim while I was making my inquiry as to who he is, where he's coming from, does he live here,why [did] you come from somebody's yard and what's going on." The officer's testimony that thenewspaper carrier arrived shortly after he stopped defendant and while he was making his initialinquiries of defendant is supported by defendant's own testimony at the suppression hearing.Defendant estimated that "approximately three minutes" elapsed from the time he was stoppeduntil the time the newspaper carrier arrived.
After the newspaper carrier identified defendant, the officer asked defendant why he had liedabout having a second bicycle. The officer then left defendant on the sidewalk with a secondofficer while he "check[ed] the houses that [defendant] emerged from, the yards," for evidence ofa break-in. The first officer testified that he checked the exterior of three houses and woke up theoccupants to ask if they were okay, a process that he testified took a "short time." Withinapproximately 15 minutes, a third officer arrived with a civilian who identified the bicycle thatdefendant was riding as his own. At that point, the police placed defendant under arrest andissued Miranda warnings. During subsequent interrogation, defendant admitted that hestole the two bicycles in his possession that morning.
Contrary to the conclusion of the majority, I conclude that the court properly refused tosuppress the statements defendant made to the arresting officer. It is well established that[*6]"[g]reat deference is afforded the findings of the suppression court"(People v Davis, 48 AD3d1120, 1122 [2008], lv denied 10 NY3d 957 [2008]; see People v Prochilo,41 NY2d 759, 761 [1977]), and that "[t]he suppression court's credibility determinations andchoice between conflicting inferences to be drawn from the proof . . . will not bedisturbed unless unsupported by the record" (People v Esquerdo, 71 AD3d 1424, 1424 [2010], lv denied14 NY3d 887 [2010] [internal quotation marks omitted]; see People v Sanders, 74 AD3d 1896 [2010]; People vYoungblood, 294 AD2d 954, 955 [2002], lv denied 98 NY2d 704 [2002]).
In evaluating police conduct, we "must determine whether the action taken was justified inits inception and at every subsequent stage of the encounter" (People v Nicodemus, 247AD2d 833, 835 [1998], lv denied 92 NY2d 858 [1998]). Here, the suppression courtdetermined that, when the officer first encountered defendant on the bicycle, the report from theTown Justice coupled with the officer's observations provided a founded suspicion that criminalactivity was afoot and thus justified the second level of intrusion under People v De Bour(40 NY2d 210 [1976]), i.e., the common-law right of inquiry (see People v Moore, 6 NY3d 496, 498-499 [2006]; DeBour, 40 NY2d at 223). I agree. The officer observed defendant, who fit the description ofthe reported possible bicycle thief, emerging from a residential backyard on a bicycle during theearly morning hours, shortly after the report and approximately one block away from the locationof the second bicycle. The officer was thus permitted to effect "a detention short of a forcibleseizure to obtain explanatory information" (People v White, 35 AD3d 1263, 1264 [2006], lv denied 8NY3d 947, 951 [2007]; see Moore, 6 NY3d at 500; De Bour, 40 NY2d at 223).The officer therefore was justified in approaching defendant, asking him to stop, requesting hisname, and asking him various questions about his conduct and the bicycle he was riding.
I likewise agree with the suppression court's further determination that, when the newspapercarrier arrived and identified defendant as the individual she had seen pulling the second bicycle,the officer had reasonable suspicion to believe that defendant had committed a crime so as to"support the temporary detention of the defendant for further investigation." The majority doesnot take issue with that determination of the suppression court, but concludes that defendant wasillegally "detained" for 24 minutes following the stop by the first officer on the scene. I disagree.
In my view, the facts do not support the majority's determination that, "after first being askedfor identifying information, defendant was held for 24 minutes while the first officer at the scenewent to residences in the neighborhood searching for evidence of a crime." Although thetestimony at the suppression hearing is not entirely clear on this point, it appears that the firstofficer checked the surrounding houses for signs of a break-in after the newspaper carrieridentified defendant, i.e., in the 15 minutes between the newspaper carrier's arrival on the sceneand the civilian's identification of the bicycle defendant had been riding. When defense counselasked the first officer "[w]hat was the purpose of staying for another 15 minutes or more after[the newspaper carrier] had said that's the guy that I took the bike from," the first officer repliedthat he was "not done with [his] check of the yards" or his inquiry as to why defendant had liedabout possessing a second bicycle.
Notably, defendant stated in support of his suppression motion that, "[a]fter[the newspaper carrier] identified the defendant as the person she had seenearlier, the Irondequoit Police Department conducted a house-to-house canvass of theneighborhood to determine if anyone had been the victim of a theft" (emphasis added).Moreover, the suppression court specifically found that the newspaper carrier arrived during theofficer's initial questioning of defendant. In its decision, the court stated that, "[w]hile the [first]officer was obtaining information from the defendant, . . . the newspaper carrier. . . arrived and identified the defendant as the person she observed earlier pullingthe bike left in [the Town Justice]'s [*7]driveway." Thus,according due deference to the suppression court's findings (see Prochilo, 41 NY2d at761; Davis, 48 AD3d at 1122), I submit that the record does not support the majority'sconclusion that the police "held" defendant while the first officer canvassed the neighborhood forevidence of a crime.
In any event, even assuming, arguendo, that the first officer searched nearby houses prior tothe arrival of the newspaper carrier, I conclude that defendant was not thereby subjected to alevel three forcible detention (see Moore, 6 NY3d at 498-499). The Court of Appeals hasdefined "a seizure of the person for constitutional purposes to be a significant interruption withan individual's liberty of movement" (De Bour, 40 NY2d at 216). In People vOcasio (85 NY2d 982, 984 [1995]), the Court explained that the determination whether aseizure occurred "requires the fact finder to apply a settled standard: whether a reasonable personwould have believed, under the circumstances, that the officer's conduct was a significantlimitation on his or her freedom." Such a determination "involves consideration of all thefacts—for example, was there a chase; were lights, sirens or a loudspeaker used; was theofficer's gun drawn, was the individual prevented from moving; how many verbal commandswere given; what was the content and tone of the commands; how many officers were involved;[and] where did the encounter take place" (id.).
The record reflects that the entire encounter, which did not exceed 24 minutes, took place ona public sidewalk, and that defendant was not handcuffed or restrained in any manner (see People v Anthony, 85 AD3d1634, 1635 [2011], lv denied 17 NY3d 813 [2011]; cf. People v Evans, 294AD2d 918, 918-919 [2002], lv dismissed 98 NY2d 768 [2002]). No officer displayed aweapon, the police did not act in an abusive or threatening manner, and there was no evidencethat the police physically blocked defendant or otherwise interfered with his freedom ofmovement (see Ocasio, 85 NY2d at 984; cf. People v Layou, 71 AD3d 1382, 1383 [2010]). While defendantwas standing on the sidewalk, he consumed a soda and snacks that he had with him (seePeople v Smith, 234 AD2d 946 [1996], lv denied 89 NY2d 1041 [1997]). The firstofficer testified that defendant never asked to leave or complained that he was treated withdisrespect. Concerning the issue whether defendant was free to leave, the first officer testifiedthat, "[i]f [defendant] said I'm leaving unless you're going to handcuff me . . . [, h]ewould have been walking. I already knew his name." "Although it may be possible that[defendant] felt obliged to cooperate with the police in order to maintain his facade of innocence,this subjective view by the defendant does not require that we find him to have been in custody"(People v Yukl, 25 NY2d 585, 591-592 [1969], cert denied 400 US 851 [1970]).
Finally, I disagree with the majority that a reasonable person in defendant's position wouldnot have felt free to leave after the first officer told defendant that he "just ha[d] to make aninquiry and you'll be on your way if everything's okay" or "after everything checks [out], you'll beon your way." The officer testified that he made a statement to that effect upon first approachingdefendant "just to keep him at ease" and to explain why he had stopped defendant. Defendant didnot testify concerning any such statement by the first officer, recalling only that the first officerapproached and told him that he "wanted to ask [defendant] a few questions, a couple questions."In my view, the first officer's statement, unaccompanied by any showing of force or other factssuggesting that defendant was not free to leave, did not elevate the level two encounter to a levelthree forcible detention (see People vLopez, 71 AD3d 1518, 1518-1519 [2010], lv denied 15 NY3d 753 [2010];People v Bent, 206 AD2d 926, 926 [1994], lv denied 84 NY2d 906 [1994]).
I would therefore affirm the judgments in appeal Nos. 1 and 2. Present—Scudder, P.J.,Centra, Peradotto, Lindley and Martoche, JJ.