| People v Fletcher |
| 2015 NY Slip Op 06366 [130 AD3d 1063] |
| July 29, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Cliffton Fletcher, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Dina Zloczower of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, MorganJ. Dennehy, and Phyllis Mintz of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Garnett, J.), rendered September 12, 2012, convicting him of criminal possession of aweapon in the second degree, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing (Carroll, J.), of that branch of thedefendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
On a motion by a defendant to suppress physical evidence, the People have theburden of going forward to show the legality of the police conduct in the first instance(see People v Whitehurst, 25 NY2d 389, 391 [1969]; People v Spann, 82 AD3d1013, 1014 [2011]; People v Thomas, 291 AD2d 462, 463 [2002]). "Implicitin this concept is that the testimony offered by the People in first presenting their casemust be credible" (People v Quinones, 61 AD2d 765, 766 [1978], citingPeople v Berrios, 28 NY2d 361, 367-368 [1971]). Once the People establish thelegality of the police conduct by credible evidence, the defendant bears the burden ofestablishing that the arrest was not based on probable cause or that the police conductwas otherwise illegal (see People v Spann, 82 AD3d at 1014; People vThomas, 291 AD2d at 463; cf. Matter of Robert D., 69 AD3d 714 [2010]). A hearingcourt's determination as to witness credibility is accorded great weight on appeal, as itsaw and heard the witnesses, and its determination will not be disturbed unless clearlyunsupported by the evidence (see People v Wheeler, 2 NY3d 370, 374 [2004];People v Prochilo, 41 NY2d 759, 761 [1977]; People v Cole, 85 AD3d 1198, 1199 [2011]; People v Barley, 82 AD3d996, 997 [2011]).
Here, the People met their burden of demonstrating the legality of the police conductat issue. Officer Mourad testified that he had extensive experience with firearms arrests,having been involved in 40 or 50 gun arrests, and having personally made 10 of thosearrests. Mourad also stated that he received training in recognizing the behavior ofpeople carrying firearms, and that the most common area to carry a firearm is thewaistband. With respect to the subject arrest, Mourad consistently testified that, as herode in a police van that drove slowly past the defendant, he made eye contact with thedefendant who then made a movement to adjust his waistband. Mourad further [*2]testified that, as a consequence of this movement, thedefendant's jacket was pushed aside, thereby revealing to Mourad a "rectangular shape"under the defendant's clothing which he believed could be the "outline" of a firearmhandle. Although it was dark at the time, the area was lit by a building light and a streetlamp. Moreover, Mourad testified that he was in an elevated position in the van and that,as he looked back, diagonally, through the middle driver side window, he could clearlysee the defendant on the sidewalk about 10 to 15 feet away. When viewed in its entirety,Mourad's testimony was not incredible, and we perceive no basis for disturbing thehearing court's decision to credit such testimony (see People v Durgey, 186 AD2d899, 901 [1992]; cf. People v Lebron, 184 AD2d 784, 785 [1992]).
"In determining whether an individual's actions rise to the level of reasonablesuspicion, police officers are permitted to interpret the behavior in light of their trainingand experience" (People vSolano, 46 AD3d 1223, 1224 [2007]; see People v Nichols, 277 AD2d715, 716-717 [2000]). Here, in contrast to the opinion of our dissenting colleague, thefactual circumstances described by Mourad, coupled with the officer's experience andtraining, were sufficient to permit him to request information from the defendant (seePeople v De Bour, 40 NY2d 210 [1976]). The decision to make inquiry of thedefendant did not stem from mere "whim or caprice," but was objectively based uponobservation of the defendant's actions as filtered through the officer's experience(People v Hollman, 79 NY2d 181, 190 [1992]; cf. People v McIntosh, 96NY2d 521, 526 [2001]). Officer Mourad specifically testified that he believed the shapeof the concealed object which he observed under the defendant's clothing was the outlineof a gun (see People vHenderson, 85 AD3d 663 [2011]). Mourad explained that the defendant movedin a way that he recognized, from experience, as typical of attempts to adjust a firearmkept in a waistband (see People v Henderson, 85 AD3d at 663), and furthertestified that the defendant began to increase his pace after the officers exited theirvehicle and announced their presence (see generally People v Anderson, 91 AD3d 789, 789[2012]). Accordingly, there was reasonable suspicion to stop and frisk the defendant (see Matter of George G., 73AD3d 624 [2010]; People v Quan, 182 AD2d 506 [1992], lv denied80 NY2d 836 [1992]).
Contrary to the defendant's contention, trial counsel was not ineffective because shefailed to challenge the prosecutor's explanations for using peremptory challenges againsttwo potential jurors. "A defendant is not denied effective assistance of trial counselmerely because counsel does not make a motion or argument that has little or no chanceof success" (People v Stultz,2 NY3d 277, 287 [2004]; see People v Caban, 5 NY3d 143, 152 [2005]). In addition,when viewed as a whole, the record demonstrates that the defendant received theeffective assistance of counsel (see Strickland v Washington, 466 US 668, 688[1984]; People v Caban, 5 NY3d at 152).
The defendant's contention that certain comments made by the prosecutor during hissummation deprived him of a fair trial is unpreserved for appellate review, as defensecounsel either did not object to the challenged remarks or made only general objections(see CPL 470.05 [2]; People v Tonge, 93 NY2d 838, 839-840 [1999]; People v Terry, 122 AD3d882 [2014]). In any event, the contention is without merit. The prosecutor'scomments were responsive to the defense summation, constituted fair comment on theevidence, or were within the broad bounds of rhetorical comment permissible in closingarguments (see People vThompson, 118 AD3d 822, 823 [2014], lv granted 24 NY3d 1089[2014]; People v Mobley,116 AD3d 1067, 1068 [2014]). Furthermore, since the challenged summationremarks were not improper, defense counsel's failure to object to the remarks did notconstitute ineffective assistance of counsel (see People v Callender, 123 AD3d 840 [2014]; People vMobley, 116 AD3d at 1068).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Skelos, J.P., Sgroi and Duffy, JJ., concur.
Hinds-Radix, J., dissents, and votes to reverse the judgment of conviction, on thelaw, grant that branch of the defendant's omnibus motion which was to suppress physicalevidence, dismiss the indictment, and remit the matter to the Supreme Court, KingsCounty, for further proceedings consistent with CPL 160.50, with the followingmemorandum, in which Hall, J., concurs:[*3] Thedefendant's conviction of criminal possession of a weapon in the second degree wasbased on an encounter on a public street during which the defendant was stopped andfrisked by the police and a gun was seized from his person.
On February 19, 2011, at about 7 p.m., Officer Mourad and two other officers werepatrolling a high crime area known as an Impact Zone. The area was a residentialneighborhood consisting of apartment buildings and private homes. The officers were inuniform, in a marked police van. As the van proceeded north on New York Avenue atfive miles per hour, Mourad observed two men walking northbound. Mourad testified atthe suppression hearing that he "saw it was two males." The man closest to the van, lateridentified as the defendant, looked back at the van and made eye contact with Mourad.Mourad told the driver of the police van to stop so he could "zoom in on him." The vancame to a stop approximately 10 to 15 feet away from the men.
Mourad noted that the defendant was wearing a T-shirt, a hoodie which was zippedup, and a black leather jacket which was unzipped and came below his waist. Mouradtestified at the suppression hearing that "[i]mmediately following the eye contact" thedefendant "went to . . . his right-hand side of his waistband closest to me ashe's possibly tucking something or trying to hide an object." Mourad concluded that "he'spossibly concealing a weapon or something of such matter." Mourad claimed that, as thedefendant adjusted his waistband, "he pulled his jacket back and caused his hoodie totighten on him which made me able to see" a "rectangular shape" through the defendant'sclothing. Mourad described the rectangular shape as "possibly" the "outline" of thehandle of a firearm.
Mourad exited the van and said "police" two to three times, but the defendant keptwalking, and sped up his walk. Meanwhile, the defendant's companion was screaming,"why you stop my friend." Mourad grabbed the defendant, placed one hand on thedefendant's chest, and one hand on his waist, and felt what appeared to be the handle of afirearm. The defendant responded "You got me. I'm not going to fight you." Thedefendant was placed under arrest, and a 9-millimeter firearm was recovered from underthe defendant's hoodie.
At the conclusion of the suppression hearing, the Supreme Court denied that branchof the defendant's omnibus motion which was to suppress physical evidence based upona finding that Mourad's testimony justifying the stop and frisk was credible. The courtrejected the defendant's argument that it was physically impossible for Mourad to seewhat he claimed to have seen, at night, from 10 to 15 feet away. However, those findingsshould not end our inquiry.
In People v De Bour (40 NY2d 210 [1976]), the Court of Appealsestablished a graduated four-level test for evaluating the propriety of police encounterswhen a police officer is acting in a law enforcement capacity (see People v Moore, 6 NY3d496, 498-499 [2006]). The first level permits a police officer to request informationfrom an individual, and merely requires that the request be supported by an objectivecredible reason, not necessarily indicative of criminality (see People v De Bour,40 NY2d at 223; People v Moore, 6 NY3d at 498). The second level, known asthe "common-law right of inquiry," requires a founded suspicion that criminal activity isafoot, and permits a somewhat greater intrusion short of a forcible seizure (see Peoplev Moore, 6 NY3d at 498-499). The third level permits a seizure, meaning that apolice officer may forcibly stop and detain an individual, based upon a "reasonablesuspicion" that the individual is committing, has committed, or is about to commit acrime (People v De Bour, 40 NY2d at 223; see People v Moore, 6 NY3dat 499). Finally, the fourth level authorizes an arrest based on probable cause to believethat a person has committed a crime (see People v Moore, 6 NY3d at 499;People v De Bour, 40 NY2d at 223).
Here, according to Officer Mourad, he initially decided to "zoom in on" thedefendant because he was male and they made eye contact. Since the defendant waswalking on a public residential street in the early evening, the police did not even satisfythe first level of police encounters, which requires an objective credible reason forrequesting information (see People v McIntosh, 96 NY2d 521, 526 [2001]).
The actions of the defendant in response to the police encounter did not justify the[*4]defendant's forcible stop, which required a"reasonable suspicion" that an individual is committing, has committed, or is about tocommit a crime (see Matter ofShakir J., 119 AD3d 792 [2014]). The so-called outline of the handle of afirearm was not described in detail (see People v Henderson, 85 AD3d 663 [2011]). Rather, itwas described as a "rectangular shape," which would fit the description of many commonobjects, including wallets and cell phones. Officer Mourad's description of a rectangularshape in the area of the defendant's waistband is no more informative than the descriptionof a "bulge" in the waistband area, which this Court has repeatedly ruled is not sufficientto justify a pat-down search (seePeople v Harris, 122 AD3d 942, 945 [2014]; People v Kennebrew, 106AD3d 1107, 1109 [2013]).
The defendant had the right to be left alone. Therefore, the fact that the defendantwalked away when the police called upon him to stop did not raise the level of theencounter (see People v Moore, 6 NY3d at 501; Matter of Shakir J., 119AD3d at 795).
Accordingly, the stop and frisk of the defendant was unlawful, and that branch of thedefendant's omnibus motion which was to suppress physical evidence should have beengranted.
In view of the foregoing, I vote to reverse the judgment of conviction, on the law,grant that branch of the defendant's omnibus motion which was to suppress physicalevidence, dismiss the indictment, and remit the matter to the Supreme Court, KingsCounty, for further proceedings consistent with CPL 160.50.