| People v Pruitt |
| 2018 NY Slip Op 00724 [158 AD3d 1138] |
| February 2, 2018<> |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v NicolePruitt, Also Known as Nickie Pruitt, Appellant. |
Easton Thompson Kasperek Shiffrin LLP, Rochester (Danielle L. Wild of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (James J. Piampiano, J.), renderedNovember 7, 2013. The judgment convicted defendant, upon her plea of guilty, of criminalpossession of a weapon in the second degree and criminal possession of a weapon in the thirddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) andcriminal possession of a weapon in the third degree (§ 265.02 [1]). We rejectdefendant's contention that County Court erred in refusing to suppress a handgun and herstatements to the police.
Contrary to defendant's contention, the court properly determined that the police conduct was"justified in its inception and . . . reasonably related in scope to the circumstances[that] rendered its initiation permissible" (People v De Bour, 40 NY2d 210, 222 [1976]).Based upon the totality of the circumstances, including the short period of time between the 911call reporting a female with a handgun and the arrival of the police officer at the reportedlocation, defendant's presence at that location, and the officer's observations that defendant'sphysical characteristics and clothing matched the description of the suspect, the officer was" 'justified in forcibly detaining defendant in order to quickly confirm or dispel [his]reasonable suspicion of defendant's possible [possession of a weapon]' " (People v Williams, 136 AD3d1280, 1283 [4th Dept 2016], lv denied 27 NY3d 1141 [2016], lv denied 29NY3d 954 [2017]). Even assuming, arguendo, that the 911 call to which the officer wasresponding was made by an anonymous caller, we conclude that "the information provided by thecaller was sufficiently corroborated to provide reasonable suspicion" (People v Moss, 89 AD3d 1526,1527 [4th Dept 2011], lv denied 18 NY3d 885 [2012]; see People v Argyris, 24 NY3d1138, 1140 [2014], rearg denied 24 NY3d 1211 [2015], cert denied 577 US&mdash, 136 S Ct 793 [2016]).
Contrary to defendant's further contention, she was not subjected to an unlawful de factoarrest when, after exiting his patrol vehicle and approaching defendant on foot, the officerhandcuffed her, conducted a pat frisk, and placed her in the back of the patrol vehicle. "It is wellestablished that not every forcible detention constitutes an arrest" (People v Drake, 93 AD3d 1158,1159 [4th Dept 2012], lv denied 19 NY3d 1102 [2012]; see People v Hicks, 68NY2d 234, 239 [1986]), and that an "officer[ ] may handcuff a detainee out of concern for officersafety" (People v Wiggins, 126AD3d 1369, 1370 [4th Dept 2015]; see People v Allen, 73 NY2d 378, 379-380[1989]). Moreover, a "corollary of the statutory right to temporarily detain for questioning is theauthority to frisk if the officer reasonably suspects that he is in danger of physical injury by virtueof the detainee being armed" (De Bour, 40 NY2d at 223; see Wiggins, 126 AD3dat 1370). Here, we conclude that defendant was not under arrest when she was handcuffed, patfrisked, and placed in the patrol vehicle for an investigatory detention (see People v McCoy, 46 AD3d1348, 1349 [4th Dept 2007], lv denied 10 NY3d 813 [2008]). Contrary to defendant'srelated contention, although the pat frisk did not reveal any weapons, her continued detention inthe patrol vehicle was justified while the officer immediately searched for anything that had beensurreptitiously left behind a nearby parked SUV inasmuch as the officer, prior to approachingdefendant, had observed her crossing the street with another individual and had lost sight of heras she walked behind the SUV. Under these circumstances, we conclude that defendant's brief,continued detention was reasonable inasmuch as the officer "diligently pursued a minimallyintrusive means of investigation likely to confirm or dispel suspicion quickly" (Hicks, 68NY2d at 242; see Allen, 73 NY2d at 380), and " 'a less intrusive means offulfilling the police investigation was not readily apparent' " (People v Howard, 129 AD3d1654, 1656 [4th Dept 2015], lv denied 27 NY3d 999 [2016]).
Contrary to defendant's further contention, even if she had been in custody, we concludeunder the circumstances of this case that the court properly refused to suppress herpre-Miranda statements and any fruits thereof. The statements, which were made after theofficer discovered a purse behind the SUV, "were responses to threshold inquiries by the [officer]that were intended to ascertain the nature of the situation during initial investigation of a crime,rather than to elicit evidence of a crime, and those statements thus were not subject tosuppression" (People v Mitchell,132 AD3d 1413, 1414 [4th Dept 2015], lv denied 27 NY3d 1072 [2016] [internalquotation marks omitted]; see People vCoffey, 107 AD3d 1047, 1050 [3d Dept 2013], lv denied 21 NY3d 1041[2013]).
Defendant also contends that the court erred in refusing to suppress the handgun on theground that the officer's discovery of it was the result of an unlawful warrantless search of thecontents of the purse. We reject that contention. " 'It is well settled that the suppressioncourt's credibility determinations and choice between conflicting inferences to be drawn from theproof are granted deference and will not be disturbed unless unsupported by the record' "(People v Sylvester, 129 AD3d1666, 1667 [4th Dept 2015], lv denied 26 NY3d 1092 [2015]). Here, the evidenceestablished that the officer discovered the purse discarded in a public place on the ground behindthe SUV and acted reasonably in picking it up, and that he did not open or look inside it at thattime (see generally People v Wright, 88 AD2d 879, 880 [1st Dept 1982], affd 58NY2d 797 [1983]; People v Branson, 81 AD2d 1031, 1032 [4th Dept 1981]). Afterdefendant indicated that the purse belonged to her, the officer put the purse down. Despite someequivocal testimony from the officer, the record supports the court's determination that the barrelof the handgun came into the plain view of the officer when the open, flexible purse "laid flat"upon being placed on the trunk of the patrol vehicle (cf. People v Johnson, 241 AD2d527, 527-528 [2d Dept 1997], lv denied 90 NY2d 1012 [1997]; see generally People vBrooks, 110 AD2d 571, 572 [1st Dept 1985], affd 65 NY2d 1021 [1985]). Where, ashere, an officer is lawfully in a position from which an object is viewed, has lawful access to theobject, and the object's incriminating nature is immediately apparent, the officer may properlyseize the object in plain view without a warrant (see generally People v Brown, 96 NY2d80, 88-89 [2001]).
Inasmuch as there was no unlawful police conduct with respect to defendant's detention, herinitial statements to the officer, or the seizure of the handgun, her further contention that hersubsequent statements at the police station should have been suppressed as tainted by priorunlawful police conduct is necessarily without merit (see People v Bethany, 144 AD3d 1666, 1668 [4th Dept 2016],lv denied 29 NY3d 996 [2017]).
Finally, we reject defendant's contention that the court abused its discretion in denying hermotion to withdraw her guilty plea on the ground that defense counsel was ineffective withoutconducting an evidentiary hearing. Defendant was "afforded [a] reasonable opportunity to present[her] contentions," and the court made "an informed determination" in denying the motion on themerits (People v Tinsley, 35 NY2d 926, 927 [1974]). Inasmuch as defendant's conductwas " 'utterly at odds with any claim of innocent possession' " of the handgun (People v Griggs, 108 AD3d 1062,1063 [4th Dept 2013], lv denied 21 NY3d 1074 [2013]), defense counsel was notineffective for failing to advise defendant of that potential defense (see generally People v Adams, 90AD3d 1508, 1509-1510 [4th Dept 2011], lv denied 18 NY3d 954 [2012]).Present—Centra, J.P., Peradotto, Carni, DeJoseph and Winslow, JJ.