| People v Cook |
| 2015 NY Slip Op 09136 [134 AD3d 1241] |
| December 10, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRandy Cook, Appellant. |
David E. Woodin, Catskill, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Clark, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered August 1, 2013, convicting defendant upon his plea of guilty of the crimesof criminal possession of a weapon in the second degree and criminal possession of aweapon in the third degree.
In December 2012, Eric VanAllen—a police detective with the KingstonPolice Department—received information from a confidential informant(hereinafter CI) that an individual was carrying a loaded handgun on Clinton Avenue inthe City of Kingston, Ulster County. The CI further informed VanAllen that theindividual—whom the CI knew from previous drug transactions—was awhite male with the first name of Randy, who was wearing a black sweatshirt and drivinga dark colored vehicle with out-of-state license plates. VanAllen, who was off duty at thetime, relayed the information to Michael Pedersen—another officer with theKingston Police Department—who had seen defendant's photograph earlier thatafternoon in connection with an outstanding bench warrant for his arrest on drug-relatedcharges. Later that same night, Pedersen observed an individual, who matched thedescription given by the CI, leave a residence on Clinton Avenue in Kingston, walktoward a blue vehicle with out-of-state license plates and place a backpack in the trunkbefore entering the vehicle. Pedersen then stopped the vehicle and, after confirming thatthe individual operating it was defendant, placed him under arrest. Thereafter, BrianLowe—yet another officer with the Kingston PoliceDepartment—conducted a search of defendant's vehicle and found a loaded .357revolver and ammunition inside a backpack in the trunk.
[*2] In February 2013, defendant was charged in atwo-count indictment with criminal possession of a weapon in the second degree andcriminal possession of a weapon in the third degree. At arraignment, defendant, throughcounsel from the Public Defender's office, acknowledged receiving a copy of theindictment, waived a formal reading of the charges and entered a plea of not guilty.Following a suppression hearing, County Court found, among other things, that Pedersenand Lowe had reasonable suspicion to stop defendant's vehicle and probable cause toplace him under arrest and search the vehicle. At the close of the People's proof at trial,defendant entered a guilty plea to both counts of the indictment and was subsequentlysentenced to an aggregate prison term of 10 years to be followed by five years ofpostrelease supervision. Defendant now appeals and we affirm.
We find no merit in defendant's initial arguments that County Court failed to obtainjurisdiction over him on account of an invalid arraignment. Defendant was not deprivedof his well-defined right to counsel (see US Const 6th, 14th Amends; NY Const,art I, § 6), as the record before us makes clear that defendant wasrepresented by Ulster County Assistant Public Defender Mariann Connolly atarraignment. Connolly continued her representation of defendant at all stages of thepretrial proceedings until May 2013, when new counsel was appointed due to a conflictof interest with the Ulster County Public Defender's office (see Hurrell-Harring v State of NewYork, 15 NY3d 8, 20 [2010]; People v Garcia, 92 NY2d 726, 730[1999], cert denied 528 US 845 [1999]), and at no time during these proceedingsdid defendant object to or express dissatisfaction with her representation (compare People v Augustine,89 AD3d 1238, 1240 [2011], affd 21 NY3d 949 [2013]).[FN*] Thus, County Court didnot deprive defendant of his right to counsel.
Turning to the issue of whether defendant's arraignment comported with the statutoryrequirements of CPL 210.15, although defendant's argument on this ground survives hisplea of guilty to the charges in the indictment (see People v Hansen, 95 NY2d227, 231-232 [2000]), the argument is not preserved for our review, as defendant failedto contest the validity of the arraignment before County Court (see People v Hallenbeck, 81AD3d 1077, 1078-1079 [2011]; People v Littleton, 53 AD3d 801, 801-802 [2008]). In anyevent, were we to address the merits, we would nonetheless find that defendant wasarraigned in accordance with the statutory requirements (see CPL 210.15) and, assuch, jurisdiction was properly obtained over him (see People v Anderson, 118 AD3d 1138, 1140 [2014],lv denied 24 NY3d 1117 [2015]; People v Buckner, 274 AD2d 832, 833[2000], lv denied 95 NY2d 904 [2000]).
Defendant further contends that his plea was not knowing, voluntary or intelligent.Such claim is similarly unpreserved due to the absence of the appropriate postallocutionmotion to withdraw his plea (seePeople v Watson, 110 AD3d 1110, 1110-1111 [2013], lv denied 22NY3d 1160 [2014]). Furthermore, the narrow exception to the preservation rule is nottriggered here (see People v Lopez, 71 NY2d 662, 664-665 [1988]).
We are also unpersuaded by defendant's claims that County Court should havegranted his motion to suppress evidence. Initially, we find that there was reasonablesuspicion to stop [*3]defendant's vehicle. "Police maylegally stop a vehicle if they have 'reasonable suspicion that [a] defendant has committed,is committing or is about to commit a crime' " (People v Portelli, 116 AD3d1163, 1163-1164 [2014], quoting People v Coffey, 107 AD3d 1047, 1049 [2013], lvdenied 21 NY3d 1041 [2013]; see People v De Bour, 40 NY2d 210, 223[1976]). A tip from a confidential informant may provide the requisite level of suspicionif the People demonstrate the informant's "reliability and the basis of his or herknowledge" (People vChisholm, 21 NY3d 990, 994 [2013]; see Spinelli v United States, 393US 410, 416 [1969]; Aguilar v Texas, 378 US 108, 114 [1964]). At thesuppression hearing, VanAllen testified that the CI who informed him of defendant'swhereabouts on the night in question had supplied him with reliable informationregarding drug deals and gang activity on multiple occasions (see e.g. People vJohnson, 66 NY2d 398, 403 [1985]). The CI's reliability was further established byPedersen's confirmation that defendant was on Clinton Avenue in Kingston driving adark colored vehicle with out-of-state license plates, just as the CI had described. Thus,in our view, the People demonstrated that the police had a reasonable suspicion ofcriminal activity and, as such, were justified in making the initial stop of defendant'svehicle (see People v Coffey, 107 AD3d at 1049).
Continuing, "there was probable cause for the search of [defendant's] vehiclepursuant to the automobile exception to the warrant requirement, which permits a searchof a vehicle where there is probable cause to believe that contraband or evidence of acrime will be found inside" (People v Portelli, 116 AD3d at 1164). Specifically,following confirmation that the individual operating the vehicle was defendant, he waslawfully arrested on the outstanding bench warrant, and the information furnished by theCI provided the police with probable cause to believe that there was a weapon in thetrunk of the vehicle (see People v Galak, 81 NY2d 463, 466-467 [1993]; People v Thompson, 106AD3d 1134, 1135 [2013]). Thus, inasmuch as the police were authorized to conducta warrantless search of defendant's vehicle, County Court properly denied defendant'smotion to suppress the physical evidence recovered from the trunk of the vehicle.
Finally, County Court properly denied defendant's motion to suppress his statementsto the police at the time of his arrest because, based upon the record before us, defendantfailed to demonstrate that he was actually represented by counsel on the earlier charge atthe time of questioning (seePeople v Lopez, 16 NY3d 375, 378 [2011]; People v Rosa, 65 NY2d380, 387 [1985]; People v Augustine, 89 AD3d at 1239). Thus, where, as here,the evidence demonstrates that the defendant was "not actually represented by counsel onpending charges and d[id] not request counsel," the police were permitted to questionhim about unrelated matters (People v Augustine, 89 AD3d at 1239; see People v Hooks, 71 AD3d1184, 1185 [2010]).
McCarthy, J.P., Rose and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:To the extent thatdefendant attempts to raise arguments regarding the adequacy of Connolly's pretrialperformance that are premised upon evidence outside of the record, the proper avenue forsuch arguments is a CPL article 440 motion (see People v Goldston, 126 AD3d 1175, 1178 [2015],lv denied 25 NY3d 1201 [2015]).