| People v Ellison |
| 2015 NY Slip Op 00015 [124 AD3d 1230] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJordan J. Ellison, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (James Eckert of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran,J.), rendered January 7, 2013. The judgment convicted defendant, upon a jury verdict, ofburglary in the third degree (two counts) and criminal possession of stolen property in thefourth degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice by reducing the sentences imposed toconcurrent indeterminate terms of incarceration of 15 years to life and as modified thejudgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jurytrial of criminal possession of stolen property in the fourth degree (Penal Law§ 165.45 [1]) and two counts of burglary in the third degree(§ 140.20). One of the burglary counts arose from an incident that occurredat Marketplace Mall when defendant entered Macy's Department Store and filled twogarbage bags with clothes before running out of the store without paying for the items.Although defendant jumped into a waiting vehicle that sped away, the theft was capturedon the store's surveillance video, and store security officers recognized defendant fromprior shoplifting arrests. Due to the prior thefts, defendant had been barred for life fromentering Macy's and the mall itself.
Five days later, defendant entered the Gap store at Greece Ridge Mall and filled alarge black garbage bag with clothes. A store security officer observed defendant onsurveillance video. Upon checking the video of the parking lot area, the security officerdetermined that defendant had arrived at the mall in a gray Ford Taurus with the licenseplate number ELT 1037. As defendant approached the door without having paid for theitems, the security officer contacted a deputy sheriff who was on patrol outside the mall.Minutes later, the deputy sheriff, who had been apprised of the make, model and licenseplate number of the suspect's vehicle, observed defendant in the mall parking lot carryinga large black garbage bag and walking toward a parked gray Ford Taurus with the licenseplate number ELT 1037. The deputy sheriff approached defendant and, when he askedwhat was in the bag, which appeared to be filled, defendant responded, "Nothing." Thedeputy sheriff then asked defendant where he was going, whereupon defendant said"right here." The deputy sheriff ordered defendant to drop the bag, and defendantcomplied with that request. After frisking defendant for weapons, the officer lookedinside the bag and observed 61 shirts on hangers. A Gap employee summoned to thescene informed the deputy sheriff that defendant had not purchased any of the shirts, thetotal value of which exceeded $2,000.
Defendant was later indicted on two counts of burglary in the third degree, forunlawfully entering Macy's and Marketplace Mall with the intent to commit a crimetherein, and criminal possession of stolen property in the fourth degree, for possessingthe 61 stolen shirts from the Gap. In his omnibus motion, defendant sought suppressionof the shirts he had stolen from the Gap, contending that the evidence was unlawfullyseized by the police. Following a hearing, Supreme Court denied the omnibus motioninsofar as it sought suppression of the stolen property. After defendant rejected a pleaoffer that would have resulted in an aggregate sentence of two to four years'imprisonment, the matter proceeded to trial before a jury, which found defendant guiltyof all three counts of the indictment. The court thereafter adjudicated defendant to be apersistent felony offender and sentenced him to concurrent indeterminate terms ofimprisonment of 20 years to life. This appeal ensued.
Defendant contends that he was unlawfully detained by the deputy sheriff in theparking lot at Greece Ridge Mall, and that the court therefore erred in refusing tosuppress the stolen shirts found by the deputy sheriff during the subsequent search of thegarbage bag defendant was carrying. We reject that contention. As noted, the deputysheriff observed defendant carrying the bag while walking away from the scene of arecently reported larceny and in the direction of the suspected getaway vehicle. Althoughthere were other people in the parking lot at the time, defendant was the only personwalking toward that vehicle and the only person carrying a large garbage bag, which isunusual in that setting. Based on those observations, we conclude that the deputy sheriffhad the requisite founded suspicion that criminal activity was afoot sufficient to justifythe common-law right of inquiry (see generally People v De Bour, 40 NY2d 210,223 [1976]; People v Carr,103 AD3d 1194, 1195 [2013]; People v McKinley, 101 AD3d 1747, 1748 [2012], lvdenied 21 NY3d 1017 [2013]).
Moving to the next step of the De Bour analysis, we conclude that the deputysheriff's questions of defendant were reasonably related to the scope of the circumstancesthat justified the interference (see id. at 215; see also People v Torres, 74NY2d 224, 229-230 [1989];People v Davis, 81 AD3d 1321, 1321-1322 [2011], lv denied 16 NY3d858 [2011]). In response to the deputy sheriff's first question, defendant offered theobviously false answer that there was nothing in the bag, which contained 61 shirts onhangers. That false answer, combined with the information already obtained by thedeputy sheriff, gave rise to a reasonable suspicion that defendant had committed or wascommitting a crime (see People v Ralston, 303 AD2d 1014, 1014 [2003], lvdenied 100 NY2d 565 [2003]). It thus follows that the deputy sheriff acted lawfullyin stopping and detaining defendant for investigative purposes.
Defendant further contends that the court erred in conducting a Sandovalconference outside his presence. We reject that contention as well. Although it is wellsettled that "a defendant has a right to be present during the substantive portion of theSandoval hearing" (People v Favor, 82 NY2d 254, 265 [1993], reargdenied 83 NY2d 801 [1994]), "a defendant's absence from the initialSandoval conference does not require reversal where subsequent proceedingsconducted on the record in defendant's presence constitute a de novo inquiry" (Peoplev Vargas, 201 AD2d 963, 964 [1994], lv denied 83 NY2d 859 [1994]). Here,although defendant was not present at a pretrial conference in chambers during whichSandoval matters were discussed, defendant was present during a subsequentcourt appearance during which the People stated their intention to cross-examinedefendant with respect to all of his criminal convictions from the past 10 years. Notably,the court recited each of the 20 convictions and the dates they were entered and, afterhearing arguments from defense counsel, rendered its Sandoval ruling. Under thecircumstances, we conclude that the court conducted a de novo Sandoval hearing,and did not, as defendant contends, merely recite "in the defendant's presence. . . what has already been determined in his absence" (People vMonclavo, 87 NY2d 1029, 1031 [1996]).
We agree with defendant, however, that his sentence should be modified in theinterest of justice. Although defendant has an extensive criminal record and for decadeshas demonstrated a consistent disregard for the property rights of others, he is essentiallya serial shoplifter who does not engage in acts of violence. We also note that the pretrialplea offer extended to defendant included a sentence promise of two to four years inprison. We thus conclude that the sentence of 20 years to life is unduly harsh and severe.Because defendant does not challenge the court's finding that he is a persistent felonyoffender, the minimum sentence permitted by law is 15 years to life (see PenalLaw §§ 70.00 [3] [a] [i]; 70.10 [2]), and we exercise our discretion tomodify the judgment accordingly (see generally CPL 470.15 [6] [b]).Present—Scudder, P.J., Fahey, Carni, Lindley and Valentino, JJ.