| People v Ross |
| 2013 NY Slip Op 03356 [106 AD3d 1194] |
| May 9, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JeroneG. Ross, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (David M. Petrush of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered January 11, 2011, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a weapon in the second degree.
On November 25, 2009, defendant was a passenger in a taxicab van that was stoppedby police officers for traffic infractions in the City of Binghamton, Broome County.After the occupants denied ownership of the bags in the rear third-row seat area of thetaxicab, a search of the bags revealed, among other things, a handgun and bullets.Defendant was arrested and later indicted for criminal possession of a weapon in thesecond and third degrees. Defendant moved, among other relief, for suppression of thehandgun as the product of an illegal traffic stop. After a hearing, County Court issued awritten decision denying suppression, and defendant thereafter entered a negotiatedguilty plea to the top count of the indictment and was sentenced to five years in prison tobe followed by five years of postrelease supervision. Defendant now appeals, challengingthe suppression ruling, which challenge survives his guilty plea (see CPL 710.70[2]).
We affirm. The suppression testimony established that defendant's house inBinghamton was under surveillance for reported drug activity by city police officers, whoobserved defendant engage in suspected drug selling with another individual. Defendantwas [*2]seen loading bags into the back of a taxicab,which drove off without passengers when officers arrived nearby to deal with anunrelated call. When the taxicab returned approximately eight minutes later, defendantand another person got in and it drove off. This information was communicated toback-up officers who followed the taxicab, observed it roll through a stop sign withoutcoming to a complete stop and, a few blocks later, drive through a red traffic light. Twoofficers in an unmarked car stopped the taxicab based upon these traffic infractions.
Given the unrefuted evidence that police officers observed two traffic infractions bythe taxicab driver, they possessed probable cause to initiate a traffic stop, regardless ofwhether the infractions were the primary motive for the stop (see People vRobinson, 97 NY2d 341, 349 [2001]; People v McLean, 99 AD3d 1111, 1111-1112 [2012],lv denied 20 NY3d 1013 [2013]; People v Viele, 90 AD3d 1238, 1239 [2011], lvdenied 19 NY3d 868 [2012]; see also Vehicle and Traffic Law§§ 1111 [d] [1]; 1172 [a]). To the extent that defendant challenges CountyCourt's factual finding that traffic infractions occurred and were observed by the officers,we defer to and decline to disturb the court's finding, given its first-hand observation ofthe officers' testimony; this finding is supported by uncontradicted testimony and a DVDsurveillance recording (seePeople v Merritt, 96 AD3d 1169, 1170 [2012], lv denied 19 NY3d 1027[2012]). That the officers did not ultimately issue a traffic ticket did not render theotherwise lawful traffic stop illegal. Thus, the court correctly determined that the stop ofthe taxicab was authorized.
Upon approaching the taxicab, one officer spoke with the driver, who indicated thatnone of the bags belonged to him. The other officer spoke with defendant, the frontpassenger, who, when asked to roll down his window, opened the door. The officerasked defendant to step out of the taxicab, to provide his name, address and birth date,and to indicate where he was coming from and who was in the car. Defendant indicatedthat he knew the middle seat passenger only by an initial and, when asked about the bagsin the rear seat, defendant twice stated that they were not his. Defendant was described asvery nervous, stuttering and sweating, and repeatedly looking toward the rear of thetaxicab. The passenger identified one bag next to him as his property and otherwisestated that the bags in the back were not his, and he, like the driver, consented to a searchof the bags, which disclosed receipts and a handgun in a backpack.
Given these facts, we are not persuaded by defendant's challenge to the search of thebags and the admissibility of the weapon seized. Having lawfully stopped the taxicab, thepolice officers were authorized, as a precautionary measure, to order any of its occupantsto get out (see People v Robinson, 74 NY2d 773, 774 [1989], cert denied493 US 966 [1989]; People vWolfe, 103 AD3d 1031, 1034 [2013]; People v Muniz, 12 AD3d 937, 938 [2004]). Additionally,under these circumstances, the officers were justified in asking defendant basicinformation, such as his name, date of birth and destination, which—according touncontroverted testimony—was done in a nonthreatening manner and as part of areasonable request for information, based upon "objective credible reason[s]" that were"not necessarily indicative of criminality" (People v De Bour, 40 NY2d 210, 223[1976]; see People vGarcia, 20 NY3d 317, 322 [2012]; People v Hollman, 79 NY2d 181,184 [1992]; People vSavage, 59 AD3d 817, 819 [2009], lv denied 12 NY3d 920 [2009];People v Tejada, 270 AD2d 655, 656 [2000], lv denied 95 NY2d 805[2000]). Similarly, the officers' brief inquiries of all occupants, including defendant,about the bags in the rear of the taxicab were "neither accusatory nor intimidating" and"did not take the [initial] encounter beyond a request for information" (People vWellington, 265 AD2d 213, 214 [1999], lv denied 94 NY2d 886 [2000];see People v Hollman, 79 NY3d at 184-185; People v Savage, 59 AD3dat 819; People v Ramirez-Portoreal, 230 AD2d 943, 944 [1996], lvdenied 88 NY2d 1071 [1996]).[*3]
Once defendant represented that none of the bagsin the rear of the taxicab was his, rejecting any ownership of them, defendant"voluntarily waived any privacy expectation that he had in the backpack" and "lackedstanding to contest the admissibility of the [weapon] seized from the abandonedbackpack" (People v Savage, 59 AD3d at 820; see People vRamirez-Portoreal, 88 NY2d 99, 110 [1996]; People v Hodges, 13 AD3d 979, 980 [2004]), as theabandonment was not "coerced or precipitated by unlawful police activity" (People vRamirez-Portoreal, 88 NY2d at 110; see People v Jennings, 39 AD3d 970, 972 [2007], lvdenied 9 NY3d 845 [2007]). Further, County Court, in correctly denying defendant'smotion to suppress the physical evidence, did not improperly rely on evidence outside therecord before it, as its reference to the contents of the backpack (which formed the basisfor defendant's subsequent arrest) was not relevant or necessary to its suppression ruling.
Peters, P.J., Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.