| People v Wolfe |
| 2013 NY Slip Op 01297 [103 AD3d 1031] |
| February 28, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v CedricL. Wolfe, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Sophie A. Jensen of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Broome County (Cawley,J.), rendered February 7, 2011, convicting defendant upon his plea of guilty of the crimeof criminal possession of a controlled substance in the third degree.
Defendant was indicted on two counts of criminal possession of a controlledsubstance in the third degree based upon his possession of heroin with intent to sell it to aconfidential informant (hereinafter CI) while under observation by the Broome CountySheriff's Department. A combined Mapp/Huntley hearing was held ondefendant's motion to suppress, among other things, his statements to police admittingthat the heroin was his and the physical evidence, including additional heroin recoveredat his sister's house and a cell phone. County Court (Smith, J.) denied defendant'ssuppression motion. Defendant thereafter entered a negotiated guilty plea to one count ofcriminal possession of a controlled substance in the third degree and was sentenced, asagreed, to six years in prison with three years of postrelease supervision. Defendant nowappeals, challenging the denial of his suppression motion and the court'sSandoval ruling.
Initially, defendant argues that County Court (Smith, J.) erred in denying his motionto suppress the seized evidence because the police lacked a sufficient basis to approachthe vehicle that he was in and did not have probable cause to arrest him. He asserts thatthe People failed—[*2]at the suppression hearingat which the CI did not testify but was identified—to satisfy the reliability (orcredibility) prong of the Aguilar-Spinelli test, so as to allow police to rely on thehearsay information provided by the CI (see People v Rodriguez, 52 NY2d 483,489 [1981]).
The testimony at the suppression hearing established that Detective Matthew Cower,an investigator for the Sheriff's Department, received information from the CI that shehad purchased heroin numerous times from a black male known as "S." On a subsequentevening in November 2009, the CI called S from her cell phone while Cower and anotherinvestigator listened via speakerphone; she arranged to purchase six bundles of heroinfor $700. Although no location was specified during the call, the CI informed Cower thather past purchases from S were typically in the Village of Endicott, Broome County, neara specific intersection in the neighborhood where the CI resided. After the set-up call, theCI waited on one street of that intersection while Cower and the other investigator set upsurveillance from their vehicle parked on the other street; other officers were also presentin the area. Cower observed the CI speak on her phone several times and, eventually, shecalled Cower to report that she had been in contact with S, who would be arrivingshortly.
Soon thereafter, Cower observed a four-door vehicle turn at the intersection and stop,facing west, almost directly across the street from his east-facing vehicle. The CIapproached the rear passenger door, and Cower observed the rear window descend andthe CI talk to the sole rear seat passenger, a black male later identified as defendant. TheCI gave Cower a prearranged signal by dropping her bag or purse, a signal that was to begiven only if the CI saw the person she knew to be S in the vehicle and if S possessed, orat least indicated that he possessed, the agreed amount of heroin with him. Cower thenradioed other officers to approach the vehicle, which they did, ordering all occupants toexit. As Cower approached, the rear passenger door opened and he observed a blackmale sitting in the rear seat with a package—wrapped in a page from amagazine—at his feet on the vehicle floor. Based upon his drug investigationexperience, Cower recognized this to be a wrapped package of heroin packets. Thepackage was seized along with a cell phone found on the back seat of the vehicle neardefendant, who was taken into custody. A field test confirmed that the package contained60 bags of a substance that tested positive for heroin, and the cell number wasdetermined to match the number that the CI had called earlier to arrange the purchase.
At the police station, defendant waived his Miranda rights and gave a signedstatement to James Collins, a sergeant with the City of Binghamton Police Department,admitting that the heroin in the vehicle was his. Defendant also indicated that he hadmore heroin at his sister's house in Binghamton, which he agreed to retrieve; two officersaccompanied him to his sister's house, where the sister, having received a phone call andinstructions from defendant en route, left a backpack on her front porch. The officersretrieved the backpack, which contained 96 packets of heroin, wrapped and stamped inthe same manner as those found earlier in the vehicle.
Generally, the Aguilar-Spinelli test is used to evaluate whether hearsayinformation provided to police by an informant was sufficient to provide the police withprobable cause for either the issuance of a search warrant or a warrantless arrest (see People v Porter, 101 AD3d44, 46 [2012]; see also People v Parris, 83 NY2d 342, 345-346 [1994]). ThePeople bore the burden of establishing, at the suppression hearing, probable cause for awarrantless arrest that produced the evidence defendant sought to suppress; probablecause may be based upon hearsay information that satisfies Aguilar-Spinelli(see People v Ketcham, 93 NY2d 416, 420 [1999]).[*3]
Here, officers relied on the CI's signal and theinformation provided by her, as well as their own observations, as the basis forapproaching the vehicle and arresting defendant. Police, thus, in part, acted upon hearsayinformation from the CI indicating, among other things, that defendant was in the vehiclewith the heroin. Defendant contests only the proof of the CI's reliability. "The veracity[or reliability] component of the [Aguilar-Spinelli] test 'relates to the validity ofthe information and requires a showing either that the informant is credible andthat the information supplied may, for that reason, be accepted as true or. . . that the specific information given is reliable' " (People vSmalls, 271 AD2d 754, 755 [2000], lv denied 95 NY2d 804 [2000], quotingPeople v DiFalco, 80 NY2d 693, 696-697 [1993]; see People v Ketcham,93 NY2d at 420). Adequate indicia of reliability may include, among other things, thatthe CI has provided details of events that are confirmed by police observation and/orinformation already known to police, or by a positive identification of the defendant(see People v Rodriguez, 52 NY2d at 490; People v Rolle, 72 AD3d 1393, 1395-1396 [2010], lvdenied 16 NY3d 745 [2011]; People v Mantia, 299 AD2d 664, 665-666[2002], lv denied 99 NY2d 617 [2003]; People v Smalls, 271 AD2d at755).
Initially, defendant did not raise this issue of the CI's reliability at the suppressionhearing and, therefore, failed to preserve the argument now raised on appeal (see People v Glover, 23 AD3d688, 688-689 [2005], lv denied 6 NY3d 776 [2006]), having only arguedthat the evidence did not establish probable cause to approach the vehicle and order theoccupants to exit on the premise that the CI's signal was difficult to see or verify in thedark. In any event, on the record before us, we find that there was ample indicia of theCI's reliability. Specifically, the CI informed Cower that she had purchased heroin fromdefendant numerous times in the past at this location, officers listened as the CI calleddefendant to arrange the purchase and defendant agreed to sell the heroin; officersobserved a vehicle show up in the area specified by the CI and the rear passenger speakwith the CI, followed by the CI's signal indicating that defendant and the heroin were inthe vehicle. The officers' independent verification of the details of the CI's tip, theirobservations and the unfolding of events exactly as predicted by the CI amplydemonstrated her reliability.
The officers certainly had reasonable suspicion of criminal activity to approach thealready stopped vehicle and, upon doing so, were authorized to order all occupants out ofthe vehicle (see People v Robinson, 74 NY2d 773, 775 [1989], certdenied 493 US 966 [1989]; People v Muniz, 12 AD3d 937, 938 [2004]). Moreover, theCI's set-up call and subsequent signal, along with the surrounding circumstances andpolice observations on a public street, supported the officers' reasonable belief that acrime was being committed in their presence, providing probable cause for defendant'sarrest (see People v Maldonado, 86 NY2d 631, 635 [1995]; People v Sudler, 75 AD3d901, 902 [2010], lv denied 15 NY3d 956 [2010]; People v Tillie,239 AD2d 670, 671 [1997], lv denied 91 NY2d 881 [1997]). Thus, the evidencediscovered incident to defendant's lawful arrest was admissible (see People vRendon, 273 AD2d 616, 618 [2000], lv denied 95 NY2d 968 [2000]).
Defendant next argues that County Court should have suppressed his statement topolice regarding the heroin at his sister's house, and the additional heroin evidenceretrieved as a result of such statement, as involuntarily elicited due to police deception.Defendant did not preserve this argument for appeal in that, while he raised the issue ofthe voluntariness of his statements in his omnibus motion, he made no argument at thesuppression hearing regarding their [*4]voluntariness orpolice deception.[FN1]In any event, the claim lacks merit.
Defendant's disclosure of more heroin at his sister's house came after Collins falselytold him that police had been following the vehicle all day and knew that it had stoppedsomewhere else, a deception based upon information learned from the other occupants ofthe vehicle. Collins later agreed to speak to the District Attorney on defendant's behalf,offering no promises.[FN2]In general, "deception or trickery by the police 'need not result in involuntariness withoutsome showing that the deception was so fundamentally unfair as to deny due process. . . or that a promise or threat was made that could induce a falseconfession' " (People v Jackson, 143 AD2d 471, 473 [1988], quoting Peoplev Tarsia, 50 NY2d 1, 11 [1980]; see People v Thomas, 93 AD3d 1019, 1021-1022 [2012],lv granted 19 NY3d 1105 [2012]; People v Dishaw, 30 AD3d 689, 690-691 [2006], lvdenied 7 NY3d 787 [2006]). Specifically, "misleading a defendant into believingthat he or she had been under surveillance" (People v Dickson, 260 AD2d 931,932 [1999], lv denied 93 NY2d 1017 [1999]; see People v Dishaw, 30AD3d at 690-691; People v Jackson, 143 AD2d at 473) or "indicat[ing] to [a]defendant that he [or she] might help himself [or herself] by cooperating," does not riseto the level of fundamentally unfair deceptive practices that deny a defendant due processor render statements to police involuntary (People v Spencer, 16 AD3d at 919).Here, police deception did not render involuntary defendant's otherwise voluntarystatement, which was preceded by defendant's knowing, voluntary and intelligent waiverof his Miranda rights, and the record fully supports County Court's finding in thatregard (see People vCulver, 69 AD3d 976, 977 [2010]; People v Dishaw, 30 AD3d at690-691; People v Dickson, 260 AD2d at 931-932; People v Jackson,143 AD2d at 473).
Finally, defendant argues that County Court (Smith, J.) made an unfairSandoval ruling, which he claims induced him to plead guilty. The People soughtpermission to inquire into 2005 convictions for criminal possession of a controlledsubstance in the third degree and attempted criminal possession of a weapon in thesecond degree. County Court, finding that the convictions reflect that "defendant placeshis own self-interest above that of society" (see People v Williams, 56 NY2d236, 240 [1982]), allowed a compromise in which the People would be permitted toquestion defendant only as to whether he was convicted of two unspecified felonies in2005, but would not be permitted to elicit the underlying facts. The court's ruling, whichgreatly limited the potential prejudicial effect of defendant's prior convictions, provided afair balance and was not an abuse of discretion (see People v Grady, 40 AD3d 1368, 1370 [2007], lv[*5]denied 9 NY3d 923 [2007]).
Rose, J.P., Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: County Court expresslyruled that defendant had knowingly, voluntarily and intelligently waived hisMiranda rights and, to that extent, defendant's voluntariness claim is preservedfor our review (see CPL 470.05 [2]; People v Prado, 4 NY3d 725, 726 [2004]; People v Baptiste, 51 AD3d184, 186 n 2 [2008], lv denied 10 NY3d 932 [2008]).
Footnote 2: Collins' offer to tell theDistrict Attorney that defendant had been cooperative and truthful occurred afterdefendant disclosed the additional heroin, undermining any claim that it deceptivelyinduced defendant's admission. Moreover, the discussion regarding cooperationdid not render any of defendant's statements involuntary (see People v Spencer, 16AD3d 918, 919 [2005], lv denied 5 NY3d 770 [2005]).