| People v Argyris |
| 2012 NY Slip Op 06815 [99 AD3d 808] |
| October 10, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Costandino Argyris, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Donna Aldea ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.),rendered November 12, 2010, convicting him of criminal possession of a weapon in the seconddegree (two counts), criminal possession of a weapon in the fourth degree, and unlawfulpossession of pistol ammunition, upon his plea of guilty, and imposing sentence. The appealbrings up for review an order of the same court dated June 18, 2010, which, upon reargument,vacated the determination in an order dated February 22, 2010, after a hearing, granting thatbranch of the defendant's omnibus motion which was to suppress physical evidence, andthereupon denied that branch of the defendant's motion.
Ordered that the judgment is affirmed, and the matter is remitted to the Supreme Court,Queens County, for further proceedings pursuant to CPL 460.50 (5).
On July 19, 2007, at approximately 2:15 p.m., a caller telephoned the 911 emergencytelephone number and told the operator that he had just come out of a building on NewtownAvenue and 31st Street in Astoria, and that he had seen four "big bully white guys" getting into abrand new black Mustang. The caller recited the Mustang's license plate number, and furtherstated that he had seen one of the men put a "big gun" in the back of the Mustang, that there wasa gray van traveling with the Mustang either in front of or behind it, and that the two vehicles hadmade a right turn on 28th Street toward Astoria Boulevard. Police Officer Kashim Valles,patrolling alone in a marked car, received a radio transmission concerning the 911 call, reportingwhite males with guns, and providing a description of the Mustang and its license plate number.Shortly thereafter, Officer Valles spotted the Mustang turning onto 31st Street. After confirmingthat the Mustang's license plate number matched the number in the transmission, Officer Valles,with his lights and sirens on, cut off the Mustang by pulling in front of it. Officer Valles made aradio call announcing that he had stopped the Mustang and requesting backup. Officer Vallesthen stepped out of his vehicle, drew his gun, and waited for additional officers to arrive.
Once other units arrived, Officer Valles holstered his gun and approached the front passengerside of the Mustang. The other officers had their guns drawn. Officer Valles asked the passengerto step out of the Mustang, and the passenger complied. As the passenger exited the [*2]Mustang with his hands raised, Officer Valles immediatelyobserved a revolver in the front of the passenger's waistband. Officer Valles confiscated thefirearm and handcuffed the passenger. Officer Valles then removed the driver from the Mustang,and placed him in handcuffs. Next, the passengers in the back seat of the Mustang, including thedefendant, Costandino Argyris, exited the Mustang and were patted down. The defendant waswearing a bullet-proof vest and had a blackjack in his pocket. A subsequent search of theMustang resulted in the recovery of a loaded .38 caliber automatic firearm from under the driver'sseat, and a box of 9-millimeter ammunition located on the back seat.
Prior to trial, the defendant moved, inter alia, to suppress the physical evidence recovered bythe police. After originally granting that branch of the defendant's motion, the Supreme Court, inan order dated June 18, 2010, granted the People's motion for leave to reargue and, uponreargument, vacated its prior determination and thereupon denied suppression. The SupremeCourt subsequently denied the defendant's motion for leave to reargue. The defendant thereafterpleaded guilty to several counts charged in the indictment. The defendant appeals from thejudgment of conviction, and we affirm.
We note that "[t]he 'Aguilar-Spinelli' test, as framed in People v Elwell. . . need not be satisfied where [as here] the necessary predicate for justifyingthe police action under review is the less demanding standard of reasonable suspicion"(People v Legette, 244 AD2d 505, 507 [1997]; see People v Chase, 85 NY2d493, 501-502 [1995]; People v Colucci, 268 AD2d 531 [2000]; People v Jones,230 AD2d 752, 753 [1996]; People v Batash, 163 AD2d 399 [1990]; see also Adamsv Williams, 407 US 143, 146-147 [1972]; but see People v Herold, 282 AD2d 1, 4-5[2001]; People v Phillips, 225 AD2d 1043, 1044 [1996]; People v Letts, 180AD2d 931, 933 [1992]). Officer Valles had reasonable suspicion that the defendant may havecommitted the crimes of criminal possession of a weapon in the second degree and criminalpossession of a weapon in the fourth degree and, thus, reasonable suspicion to stop the Mustangin which the defendant was a passenger, based on the description of the vehicle and its licenseplate number that was transmitted over the police radio, and the observation of the Mustang inclose geographical and temporal proximity to the scene where the defendant was first observed(see People v Allen, 78 AD3d1521 [2010]; People v Jogie, 51AD3d 1038, 1039 [2008]; People vColeman, 5 AD3d 956, 959 [2004]; People v Devorce, 293 AD2d 550 [2002];People v Maye, 206 AD2d 755, 757 [1994]; People v Mills, 198 AD2d 236, 237[1993]). Contrary to the defendant's contention, the report of the 911 caller, which was " 'basedon the contemporaneous observation of conduct that was not concealed,' " was sufficientlycorroborated to provide reasonable suspicion for the stop (People v Moss, 89 AD3d 1526, 1527 [2011], quoting People v Jeffery, 2 AD3d 1271,1272 [2003]). Moreover, the actions of the police in drawing their guns and ordering thedefendant and his companions out of the Mustang were justified under the circumstances asappropriate measures to ensure their safety (see People v Brnja, 50 NY2d 366 [1980];People v Bedoya, 190 AD2d 812 [1993]; People v Finlayson, 76 AD2d 670[1980], cert denied 450 US 931 [1981]).
Accordingly, the Supreme Court, upon reargument, properly vacated its prior determinationgranting that branch of the defendant's omnibus motion which was to suppress physical evidence,and thereupon denied that branch of the defendant's motion. Skelos, J.P., Leventhal, Belen andRoman, JJ., concur.