| People v Williams |
| 2016 NY Slip Op 00789 [136 AD3d 1280] |
| February 5, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vHikeme Williams, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Romana A. Lavalas of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered August 1, 2011. The judgment convicted defendant, upon his plea of guilty, ofmenacing a police officer or peace officer, criminal possession of a weapon in the seconddegree, criminal possession of a weapon in the third degree and resisting arrest.
It is hereby ordered that said appeal from the judgment insofar as it imposed sentenceon the conviction of criminal possession of a weapon in the third degree is unanimouslydismissed and the judgment is affirmed.
Memorandum: Defendant appeals from a judgment that convicted him, upon his pleaof guilty, of menacing a police officer or peace officer (Penal Law§ 120.18), criminal possession of a weapon in the second degree(§ 265.03 [3]), criminal possession of a weapon in the third degree(§ 265.02 [3]), and resisting arrest (§ 205.30). We agree withdefendant that "the waiver of the right to appeal is invalid because the minimal inquirymade by County Court was insufficient to establish that the court engage[d] thedefendant in an adequate colloquy to ensure that the waiver of the right to appeal was aknowing and voluntary choice" (People v Jones, 107 AD3d 1589, 1589 [2013], lvdenied 21 NY3d 1075 [2013] [internal quotation marks omitted]). Although theinvalid waiver of the right to appeal thus does not encompass defendant's furthercontention that the court erred in refusing to suppress the weapon and defendant'sstatements to the police as fruit of the poisonous tree, we nevertheless reject thatcontention.
The evidence at the suppression hearing established that, on the date of the incident,police officers were dispatched to 322 Hatch Street at 6:12 a.m. based on a 911 callreporting "a suspicious person with a weapon." The suspect was described as a blackmale, wearing a black, hooded sweatshirt and a white "do rag," who was in possession ofa silver handgun. As the responding officer turned his patrol vehicle onto Hatch Street,he received another dispatch stating that "the suspect was still in possession of thehandgun and standing on the front porch of 322 Hatch Street." When the officer arrivedat 322 Hatch Street, he observed a black male, later identified as defendant, wearing ablack, hooded sweatshirt and a white "do rag." Defendant was the only person in thevicinity, and he was standing only 15 feet away from the porch of 322 Hatch Street. Theresponding officer exited the patrol vehicle and shielded himself with the door. At thatpoint, defendant was standing at a 45-degree, "bladed" angle toward the officer and,although his left hand was visible, his right hand "was concealed in the waistband of hispants or the front of his sweatshirt." The officer "ordered [defendant] to remove his righthand and show [the officer] his right hand and lay on the ground." When defendantrefused, the officer unholstered his firearm, keeping it down at his side, and againordered defendant to show his hands. Defendant refused to do so and fled, prompting theofficer to pursue him. After defendant lost his balance and fell, a struggle ensued, duringwhich defendant removed a handgun from his waistband and pointed it at the officer'smidsection. The officer was able to disarm defendant, at which time defendant wasarrested. Following his arrest and the issuance of Miranda warnings, defendantmade inculpatory statements, and the police identified the woman who had called911.
The court refused to suppress the weapon or the statements, finding that the callerwas "[a]n identified citizen informant" and thus provided the responding officer withprobable cause to arrest defendant. The court also found that, even if the facts andcircumstances did not amount to probable cause, the responding officer was justified inforcibly detaining defendant based on his reasonable suspicion that defendant had a gunand, also, based on the officer's need to "take reasonable self-protective measures toensure his safety and neutralize the threat of physical harm."
On appeal, defendant contends that the court erred in determining that the caller wasan identified citizen informant and that the responding officer was justified in forciblydetaining him when the officer ordered defendant to show his hands and lie down on theground. The People contend that defendant's challenge to the nature of the caller is notpreserved for our review, but we reject that contention inasmuch as the court" 'expressly decided the question raised on appeal,' thus preserving the issue forreview" (People v Smith, 22NY3d 462, 465 [2013], quoting CPL 470.05 [2]; see People v Riddick, 70 AD3d 1421, 1423 [2010], lvdenied 14 NY3d 844 [2010]). Although we agree with defendant that the 911 callerwas an anonymous caller at the time the responding officer forcibly detained defendant(see Prado Navarette v California, 572 US &mdash, &mdash, 134 S Ct 1683,1687-1689 [2014]; cf. People vVan Every, 1 AD3d 977, 978 [2003], lv denied 1 NY3d 602 [2004]),and that "defendant was seized within the meaning of the Fourth Amendment" when theresponding officer ordered him to show his hands and lie down on the ground(People v Gonzales, 86 AD2d 634, 635 [1982]), we nevertheless conclude thatthe officer was justified in forcibly detaining defendant "based on the contents of a 911call from an anonymous individual and the confirmatory observations of the police" (People v Argyris, 24 NY3d1138, 1140 [2014], rearg denied 24 NY3d 1211 [2015], cert denied577 US &mdash, 136 S Ct 793 [2016]; see People v Williams, 126 AD3d 1304, 1305 [2015],lv denied 25 NY3d 1209 [2015]; cf. People v Moore, 6 NY3d 496, 499-500 [2006]).
Although "a radioed tip may have almost no legal significance when it stands alone,. . . when considered in conjunction with other supportive facts, it may thuscollectively, although not independently, support a reasonable suspicion justifyingintrusive police action" (People v Benjamin, 51 NY2d 267, 270 [1980]). Here, asin Benjamin, that "additional support can, as well, be provided by factors rapidlydeveloping or observed at the scene" (id.). The evidence at the hearingestablished that " 'the report of the 911 caller was based on the contemporaneousobservation of conduct that was not concealed' " (Williams, 126 AD3d at1305; see Argyris, 99 AD3d at 810). Upon the officer's arrival, defendant waspositioned at a bladed angle toward the officer with his hand in his waistband orsweatshirt pocket, " 'common sanctuar[ies] for weapons' " (People v Smith, 134 AD3d1453, 1454 [2015], quoting People v Burnett, 126 AD3d 1491, 1494 [2015]). In ourview, this case is indistinguishable from Benjamin.
"A police officer directed to a location by a general radio call cannot reasonably beinstructed to close his eyes to reality—neither the officer nor justice should be thatblind. The officer was rightfully and dutifully on the scene and could not ignore possibleindications of criminality, nor is there any logical reason for him to reject the naturalmental connection between newly encountered facts and the substance of the radiomessage. More importantly, there certainly is no justification for holding that an officerin such a situation cannot take note of a significant occurrence indicating a possiblethreat to his life, merely because the call which directed him to the scene was in and ofitself an insufficient predicate for intrusive action against a particular person"(Benjamin, 51 NY2d at 271). In accordance with Court of Appeals' precedent, weconclude that "it would be unrealistic to require [the responding officer], who had beentold that [a] gunm[a]n might be present, to assume the risk that the defendant's conductwas in fact innocuous or innocent. Such an assumption would be at odds with hisreasonably acquired belief that he was in danger and his constitutionally authorizedaction . . . It would, indeed, be absurd to suggest that a police officer has toawait the glint of steel before he can act to preserve his safety" (id.; seePeople v Allen, 73 NY2d 378, 380 [1989]; cf. Burnett, 126 AD3d at1494).
"Given the extremely short period of time between the report of [the man with a gun]and the arrival of the [responding officer] on the scene, defendant's presence [inproximity to the porch] and the absence of any other individual in the vicinity, the[officer was] justified in forcibly detaining defendant in order to quickly confirm ordispel [his] reasonable suspicion of defendant's possible [possession of a weapon]" (People v Stroman, 107 AD3d1023, 1024 [2013], lv denied 21 NY3d 1046 [2013]; see Benjamin,51 NY2d at 270). We thus conclude that the court properly refused to suppress theweapon and defendant's ensuing statements.
In light of defendant's resentencing on the conviction of criminal possession of aweapon in the third degree, we do not consider his challenge to the severity of theoriginal sentence imposed on that count, and we dismiss the appeal from the judgment tothat extent (see People vRichardson, 128 AD3d 1377, 1379 [2015], lv denied 25 NY3d 1206[2015]; People v Haywood, 203 AD2d 966, 966 [1994], lv denied 83NY2d 967 [1994]). Contrary to the final contention of defendant, the bargained-forsentence on the remaining counts is not unduly harsh and severe. Present—Smith,J.P., Peradotto, Lindley, DeJoseph and Scudder, JJ.