| People v Ramos |
| 2014 NY Slip Op 07931 [122 AD3d 462] |
| November 18, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Rigoberto Ramos, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (AnastasiaHeeger of counsel), and Cleary Gottlieb Steen & Hamilton LLP, New York (VictorL. Hou of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J., at suppressionhearing; Ronald A. Zweibel, J., at plea and sentencing), rendered January 24, 2012,convicting defendant of criminal possession of a controlled substance in the third degree,and sentencing him, as a second felony drug offender previously convicted of a violentfelony, to a term of six years, unanimously reversed, on the law and the facts, thesuppression motion granted and the indictment dismissed.
Police Officer Aaron Rivera testified at the suppression hearing that at approximately5:30 p.m. on November 17, 2009, while driving an unmarked patrol car at approximately20 miles per hour in a westbound lane of East 125th Street, he saw a car stopped intraffic on the eastbound side of the street. Rivera stated that defendant, the driver of thecar, was smoking a cigarette by holding it between his index finger and thumb, which ledhim to believe that defendant was smoking marijuana. Rivera made a U-turn andfollowed the car until it approached the foot of the Triborough Bridge, where he pulled itover. Rivera approached the front driver's side of the car. Rivera told defendant that hesaw him smoking marijuana and asked for his driver's license, registration and insurancecard. Defendant denied that he was smoking marijuana, but Rivera testified that hedetected the odor of marijuana in the front of the car, although he could not state whetherit was the smell of burning or unburnt marijuana. He did acknowledge that defendant didnot appear to be under the influence of any intoxicants.
Meanwhile, Rivera testified that his partner, Officer Ali, who had approached thepassenger's side of the car, gave him a "thumbs up" signal, which indicated that Ali hadseen something justifying the removal of the car's occupants. This turned out to be anempty green glassine envelope on the front passenger-side floor. Rivera testified thatwhen he inspected the glassine envelope later that day at the precinct, he came to believethat it had contained marijuana, based on its packaging and the fact that it contained whatappeared to him to be remnants of the drug. Rivera requested a laboratory analysis of theglassine, but never received a response. Although the officers conducted a full search ofthe car, they did not find any marijuana, and placed the three occupants, who had beenremoved from the car upon Officer [*2]Ali's thumbs-upsignal, back inside.
Another team of police officers eventually arrived at the scene. Rivera and one of theofficers from that team searched the trunk of the car and found two jackets. Uponinspecting the pocket of one of the jackets they found five bags of Ecstasy containing, intotal, 485 pills. The three individuals were then arrested.
At the conclusion of the hearing, the court credited Rivera's testimony and denied themotion to suppress. The court found that the officer had a reasonable suspicion to stopthe car after seeing the defendant smoking what he believed to be marijuana and thatonce he smelled marijuana in the car and Officer Ali recovered the green glassine, theofficers had probable cause to search the entire vehicle, including the trunk where theEcstasy was found.
In connection with his guilty plea, defendant purported to waive his right to appeal.However, the full extent of the court's allocution on the waiver of the right to appealconsisted of the following exchange:
"The Court: You are also going to be required to waive your right to appeal. Do youagree to that?
"Defendant: Yes, your Honor."
Defendant also signed a written waiver, but it was not noted on the record.
A waiver of the right to appeal is not effective unless it is apparent from the recordthat it was made knowingly, intelligently and voluntarily (People v Lopez, 6 NY3d248, 256 [2006]). For a waiver to be effective, the record must demonstrate that thedefendant has a full appreciation of the consequences of the waiver (People v Bradshaw, 18 NY3d257 [2011]), including an understanding "that the right to appeal is separate anddistinct from those rights automatically forfeited upon a plea of guilty" (People vLopez, 6 NY3d at 256).
Here, the court never adequately explained the nature of the waiver, the rights thedefendant would be waiving or that the right to appeal was separate and distinct from therights automatically forfeited upon a plea of guilty. Accordingly, the waiver was invalidand unenforceable (People v Lopez, 6 NY3d at 256; People v Santiago, 119 AD3d484 [1st Dept 2014]). The written waiver signed by defendant was no substitute foran on-the-record explanation of the nature of the right to appeal (see People v Oquendo, 105AD3d 447 [1st Dept 2013], lv denied 21 NY3d 1007 [2013]). In addition,the court's statement that defendant was "going to be required" to waive his right toappeal could have misled him into believing that he had no choice but to do so (seePeople v Lopez, 6 NY3d at 257).
Turning to the merits, defendant argues that this case is controlled by People v Grunwald (29 AD3d33 [1st Dept 2006]). There, this Court held that a police officer was entitled toapproach the defendant and request information (a level I encounter pursuant toPeople v De Bour [40 NY2d 210 (1976)]) based on his observation of thedefendant smoking an unfiltered, hand-rolled cigarette, which he believed to containmarijuana, "down close to his fingers" (29 AD3d at 34). Defendant, however,mischaracterizes Grunwald as holding that a person's smoking what a policeofficer believes is marijuana can only justify a level I encounter.Grunwald says no such thing. Significantly in that case, the defendant was onfoot, so a level I encounter was sufficient for the police to clarify whether the defendantwas engaged in criminal activity. Indeed, it is evident from the Grunwalddecision that the People in that case did not argue that the defendant's activity satisfiedany of the other De Bour levels.
[*3] Here, in sharp contrast to Grunwald, the police did not have the option ofengaging in a level I encounter. That is because informational stops of movingautomobiles are never permissible unless reasonable suspicion of criminalactivity exists or the stop is made as part of a routine and nonpretextual traffic check(see People v Spencer, 84 NY2d 749, 753 [1995], cert denied 516 US905 [1995]). Further, nothing in Grunwald suggests that a police officer'sobservation of a person smoking what appears to be marijuana can never justify a trafficstop. To hold otherwise would put the public at risk, as it would prevent police officersfrom pulling over drivers who they reasonably believed to be driving under the influenceof marijuana. Moreover, nothing in Spencer suggests that exigent circumstancessuch as a possibly impaired driver cannot serve as an exception to the rule that reasonablesuspicion must exist before an officer can pull over a moving vehicle.
In any event, Officer Rivera, an experienced policeman who had participated inapproximately 30 arrests involving marijuana, testified to the court's satisfaction that, inhis opinion and experience, the manner in which defendant was handling the cigaretteindicated that it was a marijuana cigarette. "[M]uch weight must be accorded thedetermination of the suppression court with its peculiar advantages of having seen andheard the witnesses" (People v Prochilo, 41 NY2d 759, 761 [1977]). That Riverawas not "certain" that defendant was smoking marijuana is of no moment, since "[t]hestandard for [a forcible stop is] merely reasonable suspicion, not absolute certainty oreven probable cause" (People vHerrera, 76 AD3d 891, 895 [1st Dept 2010], affd 16 NY3d 881 [2011]).Under these circumstances, we find that the facts as perceived and articulated by Riveragave rise to reasonable suspicion of criminal activity justifying a level III stop underDe Bour (40 NY2d at 223).
We now turn to the question of whether the police were justified in searching thetrunk of defendant's car. The People contend that the search was justified under the"automobile exception" to the requirement that a warrant be obtained before a search isconducted. Pursuant to that doctrine, police may search inside a vehicle where there isprobable cause to believe that contraband or evidence of a crime will be found (seePeople v Galak, 81 NY2d 463, 467 [1993]). Defendant effectively concedes that thepolice were entitled to search in the area of the car where Officer Rivera claims to havesmelled marijuana, but not anywhere else, and certainly not in the trunk. This, he argues,is because any grounds the police may have had to believe that the trunk contained drugswere belied by the lack of evidence that they existed anywhere else in the car.
Indeed, there was scant evidence of drugs in the car. After approaching the car,Rivera never saw the marijuana cigarette that he claimed he saw when he drove pastdefendant's car, and he was equivocal about whether he smelled burning or unburntmarijuana. Further, the glassine envelope that Officer Ali uncovered was empty, and itwas not until later that day, after defendant and his companions were arrested, that Riveraconcluded that it contained marijuana. Rivera also conceded that defendant did notappear to be under the influence. This contrasts with the two cases from this Court onwhich the People primarily rely, People v Mena (87 AD3d 946 [1st Dept 2011], lvdenied 18 NY3d 860 [2011]) and People v Valette (88 AD3d 461 [1st Dept 2011], lvdenied 18 NY3d 887 [2012]). In those cases, which arose out of a single traffic stop,the defendants admitted to the police officers that they had been smoking marijuana inthe car. This furnished probable cause for a search of the car, including the trunk. Here,no such confirming facts exist. Accordingly, we find that the police lacked probablecause to search the trunk, and that the Ecstasy found there should have been suppressed.Concur—Gonzalez, P.J., Mazzarelli, Andrias, DeGrasse and Clark, JJ.