| People v Bookman |
| 2015 NY Slip Op 07037 [131 AD3d 1258] |
| September 30, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v David Bookman, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Jeanette Lifschitz, and Antara D. Kanth of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Griffin, J.), rendered January 31, 2014, convicting him of attempted criminal possessionof a weapon in the second degree, upon his plea of guilty, and imposing sentence. Theappeal brings up for review the denial, after a hearing (Lasak, J.), of that branch of thedefendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
On November 2, 2010, in Queens County, a police officer stopped his patrol car at ared light, behind a Nissan Altima. Upon noticing that the Altima's center brake light wasinoperative and that several items, including an ornamental sandal, were hanging fromthe rearview mirror, the officer signaled to the driver of the Altima to pull over. Whenthe officer approached the Altima after the driver complied, the officer saw a "cloudy"plastic bag on a cupholder in the center console. Believing that the plastic bag containedcocaine residue, the officer arrested the Altima's three occupants, including thedefendant, who was a passenger. Upon searching the vehicle at the precinct stationhouse, the officer found a loaded handgun in the Altima's trunk.
The defendant moved, inter alia, to suppress the gun on the ground that the policeofficer who stopped the Altima did not have probable cause to believe that theinoperative center brake lamp or the items hanging from the rearview mirror wereinfractions under the Vehicle and Traffic Law. The suppression court denied that branchof the defendant's omnibus motion, and the defendant ultimately pleaded guilty to onecount of attempted criminal possession of a weapon in the second degree. On this appeal,he contends that the stop of the Altima was improper.
Initially, we conclude that the defendant's purported waiver of the right to appeal isnot enforceable, since the record does not demonstrate that the defendant "grasped theconcept of the appeal waiver and the nature of the right he was forgoing" (People v Bradshaw, 18 NY3d257, 267 [2011]; see Peoplev Jemmott, 125 AD3d 1005, 1005 [2015]). The court never explained to thedefendant the nature of the right to appeal. Moreover, although the defendant signed awritten waiver of the right to appeal, the record contains no information about thecircumstances under which it was executed, [*2]including whether the defendant read it, was aware of itscontents, or understood it (seePeople v Brown, 122 AD3d 133, 139 [2014]; People v Reyes, 121 AD3d820, 821 [2014]). Because the record does not establish that the defendantknowingly, voluntarily, and intelligently waived his right to appeal, review of his claimregarding the suppression ruling is not foreclosed (see People v Jemmott, 125AD3d at 1005).
A suppression court's credibility findings are entitled to great deference on appealand will not be disturbed unless clearly unsupported by the record (see People v Rowley, 127AD3d 884, 885 [2015]; Matter of Jose T., 127 AD3d 875, 876-877 [2015]; People v Reaves, 112 AD3d746, 747 [2013]). Here, the suppression court's credibility finding is supported bythe record and we therefore decline to disturb it (see Matter of Jose T., 127 AD3dat 877).
Under the Fourth Amendment to the United States Constitution and article I,§ 12, of the New York State Constitution, a police officer may stop avehicle when the officer has probable cause to believe that the driver of the vehicle hascommitted a traffic infraction (see People v Guthrie, 25 NY3d 130, 133 [2015]; Peoplev Robinson, 97 NY2d 341, 349 [2001]). In this case, the credible evidence adducedat the suppression hearing established that the police had probable cause to stop theAltima. The officer who stopped the Altima testified that when he stopped his patrol carbehind the Altima, he saw an ornamental sandal on a string and a necklace hanging fromthe Altima's rearview mirror. The officer further testified that the sandal was four to fiveinches long and "[p]ossibly about [two] inches in width," and that it was hanging aboutfour to five inches beneath the rearview mirror. Contrary to the defendant's contentionand to our colleague's dissent, this testimony demonstrated that the officer had reasonablecause to believe that the sandal was hung "in such a manner as to obstruct or interferewith the view of the operator through the windshield" (Vehicle and Traffic Law§ 375 [30]; cf.People v O'Hare, 73 AD3d 812, 813 [2010]). Accordingly, the officer's stop ofthe Altima was not improper (see People v Guthrie, 25 NY3d at 133; cf.People v O'Hare, 73 AD3d at 813). Probable cause does not require certainty, andthe officer's testimony about the size and location of the ornaments was sufficient toestablish probable cause.
One point need be made with respect to the dissent. Although our dissentingcolleague asserts that credibility is not at issue, much of the dissent implicitly challengesthe arresting officer's credibility. For example, the dissent makes much of the fact that thearresting officer did not issue traffic summonses to the defendant. While true, it seemsreasonable to us that the significance of the traffic violations diminished in the officer'smind when he saw what he believed to be cocaine on the center console. Moreover, bythe time the police permitted the driver's girlfriend to drive the car away from the stationhouse following the search and recovery of the loaded handgun, the case had escalatedfrom one involving, at most, a misdemeanor drug possession to one involving a class Cviolent felony offense, thereby diminishing the importance of the traffic violations evenmore. In any event, the indictment itself contained counts alleging the traffic violationsabout which the officer had testified.
Finally, because the officer had probable cause to stop the Altima in light of theviolation of Vehicle and Traffic Law § 375 (30), the parties' contentionsregarding the inoperative center brake light are academic. Balkin, J.P., Sgroi and LaSalle,JJ., concur.
Austin, J., dissents, and votes to reverse the judgment, on the law, grant that branchof the defendant's omnibus motion which was to suppress physical evidence, and dismissthe indictment, with the following memorandum: Although, as correctly noted by mycolleagues in the majority, we accord the credibility findings of the suppression hearingcourt great deference unless clearly unsupported by the record (see People v Rowley, 127AD3d 884, 885 [2015]; Matter of Jose T., 127 AD3d 875, 876-877 [2015]; People v Reaves, 112 AD3d746, 747 [2013]), the issue before us is not one of credibility of the People's witness,Police Officer Colin Sparks, who stopped the vehicle in which the defendant was apassenger. Rather, our focus needs to be on whether the People made a prima facieshowing that the[*3]"pretext" stop of the subject vehiclehad a legally sufficient basis. For the reasons which follow, I conclude that the Peopledid not make their prima facie showing that there was a legally sufficient basis for thestop. Accordingly, that branch of the defendant's omnibus motion which was to suppressphysical evidence should have been granted and the indictment dismissed.[FN1]
At the suppression hearing, Police Officer Sparks testified that he stopped the subjectNissan Altima because it had a defective brake light and an "obstruction hanging fromthe [rearview] mirror." He identified the defective brake light as the center one, andtestified that the right and left brake lights were working.
Police Officer Sparks described the "obstruction" as a novelty sandal measuringbetween four and five inches in length and approximately two inches in width, whichwas hanging by a string, and a heart-shaped necklace which was two to three inches inlength and one to two inches in height. He could not remember the distance from thebottom of the rearview mirror to the top of the dashboard or how long the string was.Police Officer Sparks neither vouchered the sandal or necklace nor photographedthem.
No summons for a violation of the Vehicle and Traffic Law was issued. Some timeafter Police Officer Sparks searched the vehicle, the driver's girlfriend came to theprecinct station house to retrieve it. The sandal and necklace were still hanging from therearview mirror when she was permitted to leave with the vehicle.
At the suppression hearing, the People bore the initial burden of establishing thatPolice Officer Sparks had probable cause to believe that a traffic infraction had beencommitted when he stopped the subject vehicle (see People v Guthrie, 25 NY3d 130, 133 [2015]; Peoplev Robinson, 97 NY2d 341, 349 [2001]). Pursuant to Vehicle and Traffic Law§ 375 (30), it is "unlawful for any person to operate a motor vehicle withany object placed or hung in or upon the vehicle . . . in such a manner as toobstruct or interfere with the view of the operator through the windshield, or toprevent him from having a clear and full view of the road and condition of trafficbehind such vehicle" (Vehicle and Traffic Law § 375 [30] [emphasisadded]). Further, Vehicle and Traffic Law § 375 (40) (b) provides, inpertinent part, that "[e]very motor vehicle . . . operated or driven upon thepublic highways of the state . . . shall be equipped with at least two stoplamps, one on each side, each of which shall display a red to amber light . . .when the brake of such vehicle is applied" (Vehicle and Traffic Law § 375[40] [b]). Here, the suppression court determined that "[t]he police possessed probablecause to stop the vehicle when Police Officer Sparks observed a defective tail light andan obstruction hanging from the rear view mirror," presumably concluding that suchobservations constituted the basis for violations of these sections of Vehicle and TrafficLaw § 375.
With respect to the purported violation of Vehicle and Traffic Law§ 375 (30), it was necessary for Police Officer Sparks to testify that thesandal and/or necklace either obstructed or interfered with the driver's view or that thesandal and/or necklace prevented the driver from having a clear and full view of the road.However, Police Officer Sparks did neither. At most, he testified in a conclusory mannerthat he observed an "obstruction." That simply cannot be enough, especially in light ofthe fact that no summons was issued for either alleged traffic violation. The failure of theofficer to issue a traffic summons for the alleged Vehicle and Traffic Law violationdiminishes the claim that there was any violation (see People v Robinson, 97NY2d at 356 n 6).
In addition, Police Officer Sparks's claim of probable cause is further negated by thefact that he did not see fit to voucher or photograph the "obstruction." He also allowedthe vehicle to be driven from the precinct by the driver's girlfriend with the sandal andnecklace hanging from the mirror in the same manner as when it is claimed that there wasprobable cause to stop the Altima in the first place on the basis of a violation of Vehicleand Traffic Law § 375 (30).
[*4] Finally, it must be remembered that no two drivers are alike. Here, the testimonyat the suppression hearing established that the driver of the Altima was approximately sixfeet three inches tall. It is difficult to imagine, without clarifying testimony, how thesandal and necklace, as described, could have obstructed this driver's view of the road. Inhis testimony, Police Officer Sparks failed to explain how this was possible. It wasincumbent upon the People to show not just the potential for the object to obstruct theview of the driver, but that it actually did obstruct or interfere with the driver's view (see People v Diodato, 4 Misc3d 127[A], 2004 NY Slip Op 50614[U] [App Term, 2d Dept, 9th & 10th JudDists 2004]).
There is no dispute that the allegedly defective brake light did not violate Vehicleand Traffic Law § 375 (40) (b), as Police Officer Sparks testified that thesubject vehicle had two operable stop lamps or brake lights. Since the language of thisstatute clearly requires only two operable stop lamps, it was not reasonable for PoliceOfficer Sparks to believe that the inoperative center brake light constituted a violation ofVehicle and Traffic Law § 375. Further, the People failed to advance anyargument that, although the driver could not be prosecuted for a violation of Vehicle andTraffic Law § 375 (40) (b), the stop was constitutionally justified basedupon Police Officer Sparks's objectively reasonable mistaken belief that the driver wasviolating Vehicle and Traffic Law § 375 on the basis of the inoperativecenter brake light (see Heien v North Carolina, 574 US &mdash, &mdash, 135 SCt 530, 536 [2014]; People v Guthrie, 25 NY3d at 138).
Contrary to the conclusion of the suppression court that there was probable cause toconduct a traffic stop based upon Police Officer Sparks's observations, the People failedto demonstrate that either the defective center brake light or the "obstructions" hangingfrom the rearview mirror constituted a traffic violation which would then have allowedPolice Officer Sparks to validly stop the subject vehicle. This view is consistent withWhren v United States (517 US 806 [1996]) and People v Robinson (97NY2d at 346), which hold that vehicle stops are lawful where the police have probablecause to make the stop on the basis of a traffic infraction.
In Robinson, the Court of Appeals found that the central inquiry as towhether a reasonable basis to effectuate a stop has been established depends on if "[a]police officer . . . can articulate credible facts establishing reasonable causeto believe that someone has violated [the] law" (97 NY2d at 353-354). Although, here,the People note that Officer Sparks described the heart-shaped necklace as "big,"subsequent testimony established that it was rather small.[FN2] In fact, Officer Sparks never testifiedthat the sandal or necklace were truly obstructions within the ambit of Vehicle andTraffic Law § 375 (30), and the People do not contend that he did. Rather,the People ask us to infer that the sandal and/or necklace constituted obstructions for thepurpose of Vehicle and Traffic Law § 375 (30). Thus, although PoliceOfficer Sparks appears to have testified credibly, his testimony was incomplete andlegally insufficient.
While the People's efforts to inferentially suggest that the description of the itemspresented at the suppression hearing sufficed to establish the reasonable basis for the stophas found acceptance with the majority, I cannot agree. The record does not support theinferences the People seek to make to avoid the gaps in the testimony. Indeed, in relyingon People v Harrington (30AD3d 1084, 1084 [2006]), the People acknowledge that they need to show, and thesuppression court must find, that any objects hanging from the rearview mirror, such as"numerous air fresheners" (id.), actually obstructed the driver's view of the road.Likewise, in People vCarver (124 AD3d 1276 [2015]), the court was given sufficient evidence to findthat the hanging item and sticker on the front windshield actually violated Vehicle andTraffic Law § 375 (30). Such is not the case here.
The proof adduced at the suppression hearing falls far short of the "probable cause todetain a person temporarily for a traffic violation" identified in People vRobinson (97 NY2d at 348). While the Fourth Amendment to the United StatesConstitution is not violated "where the [*5]police haveprobable cause to believe that a traffic violation has occurred" (Whren v UnitedStates, 517 US at 810), the boundaries of the Fourth Amendment cannot and shouldnot be stretched to the breaking point by a police officer's inability to identify andarticulate a factual, nonconclusory basis for the stop. Here, Officer Sparks's testimonyfailed to demonstrate a violation of either Vehicle and Traffic Law § 375(30) or (40) (b). His testimony was legally insufficient, albeit credible. It is not requiringtoo much for the police officer who makes the traffic stop to be able to state a prima faciebasis for the stop. The end result, here, that a gun was ultimately discovered in the trunkof the vehicle, cannot justify the means used in this case by which the gun wasdiscovered.
Accordingly, I conclude that the suppression court erred in denying that branch ofthe defendant's omnibus motion which was to suppress physical evidence (see People v Allen, 89 AD3d742, 743-744 [2011]). As such, I vote to reverse the judgment, grant that branch ofthe defendant's omnibus motion, and dismiss the indictment.
Footnote 1:In reaching thisdetermination, I agree with my colleagues that the defendant did not effectively waive hisright to appeal (see People vBradshaw, 18 NY3d 257, 265 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]).
Footnote 2:Based upon the totalityof Officer Sparks's testimony, it is difficult to imagine that the "obstructions" were evenas big or obstructive as, for example, rosary beads, graduation tassels, GPS devices, orE-Z Pass units.