| People v Vieweg |
| 2017 NY Slip Op 08212 [155 AD3d 1305] |
| November 22, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v RishawnM. Vieweg, Appellant. |
Thomas H. Kheel, Ithaca, for appellant.
Matthew Van Houten, District Attorney, Ithaca (Dan W. Johnson of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Tompkins County (Rowley, J.),rendered August 15, 2014, upon a verdict convicting defendant of the crimes of robbery in thefirst degree and criminal possession of a weapon in the third degree.
Defendant was charged with robbery in the first degree and criminal possession of a weaponin the third degree after he was arrested in November 2013 for the knife-point robbery of acafé located on the Cornell University campus. In pretrial motions, defendant sought tosuppress certain evidence as the product of an unlawful stop and detention, and the People soughtorders compelling defendant to provide his DNA and to allow the use of reasonable force toobtain defendant's DNA. County Court denied defendant's motion to suppress and granted thePeople's motion to obtain DNA evidence, but defendant refused to provide a buccal swab sample.The court then granted the People's request to allow testimony of the efforts by the police toobtain a DNA sample and defendant's refusal to cooperate. In addition, the court provided aconsciousness of guilt charge, which permitted the jury to infer defendant's guilt from therefusals. Following a jury trial, defendant was found guilty as charged, and was sentenced toconcurrent prison terms of 10 years plus five years of postrelease supervision for the robberyconviction and 3
Initially, we find that defendant's motion to suppress was properly denied. "Where a policeofficer entertains a reasonable suspicion that a particular person has committed, is committing oris about to commit a felony or misdemeanor, the CPL authorizes a forcible stop [*2]and detention of that person" (People v De Bour, 40 NY2d210, 223 [1976] [citations omitted]; see CPL 140.50 [1]; People v Stroman, 107 AD3d1023, 1023 [2013], lv denied 21 NY3d 1046 [2013]). "Reasonable suspicion is thequantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under thecircumstances to believe criminal activity is at hand" (People v Cantor, 36 NY2d 106,112-113 [1975] [citations omitted]). "[I]n justifying the particular intrusion[,] the police officermust be able to point to specific and articulable facts which, taken together with rationalinferences from those facts, reasonably warrant that intrusion" (People v Rosa, 30 AD3d 905, 907[2006] [internal quotation marks and citations omitted], lv denied 7 NY3d 851 [2006]; see People v Brannon, 16 NY3d596, 602 [2011]; People vNesbitt, 56 AD3d 816, 818 [2008], lv denied 11 NY3d 928 [2009]).
At the suppression hearing, Michael Scott, a uniformed officer at the Cornell UniversityPolice Department testified that he received a call to respond to a robbery at a café locatedon campus. While en route, Scott received via radio transmission information that the suspecthad used a knife during the incident and that he fled to the Plant Sciences Building (hereinafterPSB), which was located approximately 100 yards away from the building where the caféwas located. Scott also received a description of the subject as a "black male, approximately [fivefeet five inches] to [five feet seven inches], wearing a dark hoodie, jeans . . . [and] a[light colored] blue or white hat or scarf."
When Scott arrived at the PSB, he met another Cornell University officer and they decidedthat one would enter the PSB at the front of the building and the other at the back. Scott testifiedthat, before entering the building, he observed through a window "a shorter black male" wearinga grey hat, and, though it was cold, a white short sleeved shirt, jeans and sneakers. Further, heobserved this individual "looking at [his] cell phone and then quickly looking up . . .as if he was hesitating what direction to go." Scott testified that he entered the building and, "assoon as [defendant] observed [him], [defendant] immediately looked away and started movingaway from [him]," down the hallway, up a flight of stairs and out of the building. Scott, recallingthat defendant was "quickly moving" but not running, testified that he followed defendant outsideand yelled "police, stop" from a distance of about 50 feet. Defendant ignored Scott as hecontinued to move quickly across the field outside of the PSB. When Scott caught up todefendant and asked what he was doing on campus, defendant explained that he was going to acafé but could not remember its name, and pointed to a building that he also could notname. After acknowledging that he did not attend the university, defendant claimed that he wasvisiting his girlfriend, who was a student, but he would not give her name. Scott handcuffeddefendant, informing him that he was being investigated for a recent crime, but that he was notunder arrest. Scott estimated that approximately five minutes had elapsed between the time thathe received the first radio transmission to the time that he questioned defendant outside of thePSB.
Defendant's primary argument is that his behavior was innocuous and, thus, not sufficient tojustify his detention (see People vMorrow, 97 AD3d 991, 992 [2012]). We disagree. Unlike in Morrow, Scott wasaware that an armed robbery had just taken place in close proximity to the PSB and that theperpetrator had fled into the PSB. Although defendant was not wearing a hooded sweatshirt, heotherwise closely fit the description of the assailant (see People v Johnson, 245 AD2d112, 112-113 [1997], lv denied 91 NY2d 1008 [1998]). Defendant appeared to hesitateon which direction to walk, but quickly left the building when he saw Scott, and he failed to stopin response to Scott's demand. In our view, this testimony supported County Court's finding thatScott had a reasonable suspicion to detain defendant (see People v Ford, 110 AD3d 1368, 1371 [2013], lv denied24 NY3d 1043 [2014]; People vBelle, 74 AD3d 1477, 1479-1480 [2010], lv denied 15 NY3d 918[2010]).
[*3] Defendant also contends that CountyCourt should not have granted the People's motion pursuant to CPL 240.40 (2) (b) (v) to compelthe production of a DNA sample via a buccal swab test. The motion was supported by a StatePolice forensic report that DNA was present on a knife, eyeglasses and certain items ofclothing—including a black hooded sweatshirt—that were found outside of thePSB. After defendant refused to submit to the buccal swab, County Court issued an orderauthorizing the use of reasonable force to obtain a sample, but the People decided that rather thanrisk injury to defendant or the correction officers, they would not use such force and no DNAevidence was obtained. Rather, County Court permitted the People to introduce evidence ofdefendant's refusal to provide DNA evidence and provided a corresponding consciousness ofguilt charge to the jury.
Initially, we agree with County Court's finding that the People established both a clearindication that material evidence would be found and, in light of the indictment, the requisiteprobable cause for the order (see Matter of Abe A., 56 NY2d 288, 291 [1982]; People v Roshia, 133 AD3d 1029,1030 [2015], affd 28 NY3d 989 [2016]). We recognize, however, that the People'smotion was not made within 45 days of the arraignment and was thus untimely under the timeconstraints for discovery motions set forth in CPL 240.90 (1). Defendant was arraigned onDecember 24, 2013. The People received the forensic report identifying various items forpossible DNA testing on February 6, 2014, within the statutory 45-day period, but they did notfile a motion to compel a DNA sample until April 2, 2014. While the People failed to show goodcause for the delay, there has been no showing of any prejudice to defendant from the delay itself(see People v Ruffell, 55 AD3d1271, 1271-1272 [2008], lv denied 11 NY3d 900 [2008]; People v Lewis, 44 AD3d 422,422-423 [2007], lv denied 9 NY3d 1035 [2008]). In our view, the court erred in failing todeny the People's motion as untimely, but that timing error did not so infringe upon anyconstitutional right as to compel preclusion of the evidence concerning defendant's refusal toprovide a DNA sample (see People v Patterson, 78 NY2d 711, 716-717 [1991];People v Finkle, 192 AD2d 783, 787-788 [1993], lv denied 82 NY2d 753[1993]). The short delay in making the motion has no bearing on the People's underlyingentitlement to a DNA sample and no relevance to the determination of defendant's guilt orinnocence.
Further, given the totality of the evidence, there was no significant probability that the jurywould have acquitted defendant had the evidence of his refusals not been admitted (seePeople v Finkle, 192 AD2d at 788). As indicated above, Scott's testimony placed defendantnear the crime scene. The café supervisor, who was the victim of the robbery, testified thatdefendant worked at the café but had recently been dismissed. Another witness whoattempted to stop the perpetrator from leaving the scene positively identified defendant as therobber. A search of defendant's person revealed $121—101 $1 bills and one $20 bill.Finally, defendant also made a phone call from the jail acknowledging that he had made amistake, "real bad and I'm going away for a while." In total, the proof of guilt was overwhelmingand there is no significant probability that the jury would have acquitted defendant had theevidence of his refusals not been admitted.
McCarthy, J.P., Egan Jr., Rose and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.