| People v Cavanagh |
| 2012 NY Slip Op 05672 [97 AD3d 980] |
| July 19, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v EdwardCavanagh, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered December 20, 2010, convicting defendant upon his plea of guilty of the crime ofburglary in the second degree.
Several firearms and two electric guitars were stolen from a home in the Town ofWoodstock, Ulster County, and that information was relayed to area law enforcement agencies.Subsequently, a bouncer at a bar in the City of Kingston, Ulster County reported to police that hehad been approached by an "older white male, tall, skinny with white hair and white beard" andtwo women, who were traveling in a gray minivan with wood grain siding and had attempted tosell him a shotgun. Kingston police were advised of these two incidents prior to the start of theirnext shift, with the sergeant advising officers to use caution if they spotted the vehicle describedby the bouncer. Shortly thereafter, patrol officers observed defendant, who matched thedescription provided by the bouncer, and stopped his minivan approximately one mile from thebar. Defendant appeared unusually nervous during the initial stop and, after being asked whetherthere was anything "illegal" in his vehicle, he admitted that rifles and other stolen items wereinside and permitted the officers to open the vehicle's hatch. Defendant admitted that the itemswere stolen from a residence in Woodstock, and he was transported to the police station, whereMiranda warnings were administered. He then made further inculpatory statements, andconsented to a search of the vehicle that resulted in the recovery of stolen goods.[*2]
Defendant was subsequently charged in an indictmentwith burglary in the second degree. Following a hearing, County Court denied his motion tosuppress his statements to police and the stolen items. He then pleaded guilty as charged, wassentenced to a prison term of 10 years to be followed by five years of postrelease supervision,and was additionally ordered to pay restitution. Defendant appeals, and we affirm.
Initially, we reject defendant's argument that police lacked reasonable suspicion to stop hisvehicle. The patrol officers who executed the stop were acting on the basis of reports from fellowlaw enforcement officials and were entitled to assume the reliability of those communications(see People v Dodt, 61 NY2d 408, 416 [1984]; People v Lypka, 36 NY2d 210,213 [1975]; People v Ynoa, 223 AD2d 975, 977 [1996], lv denied 87 NY2d1024, 1027 [1996]). Moreover, defendant and the minivan substantially matched the descriptionsprovided by the bouncer regarding an attempted firearm sale that occurred nearby, and thatinformation provided the reasonable suspicion required to stop the vehicle (see People vHicks, 68 NY2d 234, 238 [1986]; People v McFadden, 244 AD2d 887, 888 [1997],lv denied 97 NY2d 757 [2002]; see also People v Maye, 206 AD2d 755, 757[1994], lv denied 84 NY2d 1035 [1995]).
Thereafter, the officers were authorized to direct defendant to exit the vehicle and to pat himdown for weapons (see People v Mundo, 99 NY2d 55, 58 [2002]; People v Schwing, 14 AD3d 867,868 [2005]). Further, given the existence of reasonable suspicion, the officers necessarilypossessed the lesser founded suspicion of criminality, giving them the common-law right toinquire whether defendant had anything illegal in the vehicle (see People v Rodriguez, 81 AD3d 404, 405 [2011], lvdenied 16 NY3d 862 [2011]; Peoplev Walker, 55 AD3d 343, 343 [2008], lv denied 11 NY3d 931 [2009]; cf. People v Garcia, 85 AD3d 28,32 [2011], lv granted 18 NY3d 883 [2012]).[FN*]Defendant admitted that there were rifles in the vehicle and, as he conceded before County Court,that response gave the officers probable cause to detain him and search his vehicle (seePeople v Orlando, 56 NY2d 441, 445-446 [1982]).
Even assuming that defendant had been subjected to improper custodial interrogation duringthe stop, suppression of his subsequent Mirandized statements was not warranted inasmuch asthe initial stop and later interrogation at the police station did not form a single and continuouschain of events (see People vPaulman, 5 NY3d 122, 130 [2005]). Whether there has been a definite, pronouncedbreak in interrogation "depends upon a number of factors, including: (1) the time elapsedbetween the Miranda violation and later statement, (2) whether the same police officerswere involved in obtaining each statement, (3) whether a change in the location or nature of thequestioning occurred, (4) the circumstances surrounding the violation itself and (5) whetherdefendant had indicated a willingness to speak to police prior to the Miranda violation"(People v Howard, 72 AD3d1199, 1201 [2010], lv denied 15 NY3d 806 [2010]; see People v Paulman, 5NY3d at 130-131). Defendant remained willing to speak throughout his encounter with police,his Mirandized statements were taken by different personnel and in a different location from theinitial stop, and he made those statements over an hour after the stop occurred. [*3]Given these facts, County Court properly determined that the taintfrom any purported violation would have dissipated (see People v Henderson, 74 AD3d 1567, 1570 [2010], mod77 AD3d 1168 [2010]; People vNeal, 60 AD3d 1158, 1159-1160 [2009], lv denied 12 NY3d 857 [2009]).
Rose, Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Despite that inquiry, the recordfully supports County Court's determination that defendant was not in custody at that point so asto require the administration of Miranda warnings (see Berkemer v McCarty, 468US 420, 439-440 [1984]; People v Bennett, 70 NY2d 891, 893-894 [1987]; see also People v Moore, 6 NY3d496, 500 [2006]).