| People v Daniels |
| 2014 NY Slip Op 03406 [117 AD3d 1573] |
| May 9, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Appellant, vDominic A. Daniels, Respondent. |
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forappellant.
Jeremy D. Schwartz, Buffalo, for defendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Russell P. Buscaglia,A.J.), dated August 14, 2013. The order, among other things, granted the motion ofdefendant to suppress his statement and certain physical evidence.
It is hereby ordered that the order so appealed from is unanimously affirmed and theindictment is dismissed.
Memorandum: The People appeal from an order granting defendant's motion tosuppress the statement made by defendant to the police and the cocaine seized by themfollowing an automobile stop. Many of the relevant facts are not in dispute. The arrestingofficer and his partner heard a broadcast over police radio stating that a vehicle with aparticular description was involved in an armed robbery of a gas station in Buffalo.Approximately six minutes later, the officers observed a vehicle matching the descriptionof the vehicle in the broadcast at an intersection less than a mile from the gas station inquestion. Observing that the windows of the vehicle were excessively tinted, in violationof the Vehicle and Traffic Law, the officers stopped the vehicle and ordered defendant toexit. Defendant was alone in the vehicle. After defendant stepped out of the vehicle, thearresting officer conducted a pat frisk but found no weapons. When defendant did notrespond to the officer's inquiry whether he had "anything on" him, the officer used hisforearm to pin defendant against the vehicle. When the officer again asked defendantwhether he had anything on him, defendant either said "nothing" or did not answer, andthe officer asked for a third time whether defendant had anything on him. Defendantfinally stated that he had drugs in the pocket of his pants. The officer's partner recoveredthe drugs, which were later determined to be cocaine, and placed defendant under arrest.The police subsequently learned that neither defendant nor his vehicle was involved inthe gas station robbery.
After being indicted on one count of criminal possession of a controlled substance inthe fourth degree (Penal Law § 220.09 [1]), defendant moved to suppressthe statement and the cocaine, contending, inter alia, that his statement to the police thathe had drugs was involuntary and that the cocaine thus constituted the fruit of thepoisonous tree. Following a suppression hearing, Supreme Court granted defendant'smotion, and we now affirm. As a preliminary matter, we agree with the People that thestop of defendant's vehicle was lawful based on the arresting officer's observation of itsexcessively tinted windows, notwithstanding the officer's admission that he intended tostop the vehicle in any event because it matched the description of a vehicle allegedlyinvolved in the robbery (seegenerally People v Pealer, 89 AD3d 1504, 1506 [2011], affd 20 NY3d447 [2013], cert denied 571 US &mdash, 134 S Ct 105 [2013]; People vRobinson, 97 NY2d 341, 346 [2001]). The officer also acted lawfully in orderingdefendant to exit the vehicle based on the traffic violation, even in the absence ofevidence that he possessed a weapon or had committed a crime (see People vRobinson, 74 NY2d 773, 775 [1989], cert denied 493 US 966 [1989]; People v Binion, 100 AD3d1514, 1515 [2012], lv denied 21 NY3d 911 [2013]).
Nevertheless, even assuming, arguendo, that the officers had "reasonable suspicionthat criminal activity [was] afoot" so as to justify the pat frisk of defendant (People v Goodson, 85 AD3d1569, 1570 [2011], lv denied 17 NY3d 953 [2011] [internal quotation marksomitted]; see People vDaniels, 103 AD3d 1204, 1205 [2013], lv denied 22 NY3d 1137[2014]), we conclude that defendant's statement in which he admitted to possessing drugswas involuntary because it was "obtained from him . . . by the use orthreatened use of physical force" by the arresting officer (CPL 60.45 [2] [a]). "It is thePeople's burden to prove beyond a reasonable doubt that statements of a defendant theyintend to rely upon at trial are voluntary . . . To do that, they must show thatthe statements were not products of coercion, either physical or psychological. . . , or, in other words, that they were given as a result of a 'free andunconstrained choice by [their] maker' . . . The choice to speak wherespeech may incriminate is constitutionally that of the individual, not the government, andthe government may not effectively eliminate it by any coercive device" (People v Thomas, 22 NY3d629, 641-642 [2014]).
Here, the People failed to prove beyond a reasonable doubt that defendant'sadmission that he possessed drugs was the "result of a 'free and unconstrainedchoice' " by defendant (id. at 641). Before repeatedly asking defendantwhether he had "anything" on him, the arresting officer conducted a pat frisk and foundno weapons. There was thus no need for the officer to be concerned about his safety.Moreover, although defendant did not respond when he was initially asked whether hehad anything on him, that did not justify the use of physical force by the officer. It isclear that, as the court determined, defendant's eventual incriminating response wasprompted by the officer's continuing use of force while repeating the same question thatdefendant refused to answer or answered in a manner that did not satisfy the officer.Although the People assert that the officer was unable to complete his pat frisk becausedefendant was attempting to flee, the court stated in its findings that defendant "did notflee or resist," and the court's determination in that regard is supported by the record andwill not be disturbed (see generally People v Prochilo, 41 NY2d 759, 761[1977]).
We thus conclude that the court properly granted defendant's suppression motion.Present—Centra, J.P., Peradotto, Carni, Lindley and Whalen, JJ.