| People v Floyd |
| 2018 NY Slip Op 00727 [158 AD3d 1146] |
| February 2, 2018<> |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Michael Floyd, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (Stephen Earnhart of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.),rendered December 15, 2015. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminalpossession of a weapon in the second degree (Penal Law § 265.03 [3]), defendantcontends that Supreme Court erred in refusing to suppress physical evidence and statementsobtained by the police following the stop of a vehicle in which defendant was a passenger. Wereject that contention.
At the suppression hearing, a police officer who was present on the morning of defendant'sarrest testified that, at approximately 1:00 a.m., he and other officers were at the intersection ofAshley and Person Streets in the City of Buffalo investigating an unrelated crime. The officer hadbeen at that location for approximately 30 minutes and had not observed any foot or vehicletraffic. He also was familiar with "that area," and knew that a person must travel north toBroadway in order to leave the area. Suddenly, the officer heard "several" gunshots coming fromno farther than one city block south of his location. He and another officer "immediately" enteredtheir patrol vehicle and headed south on Person Street. The officer then observed a vehicledriving north on Person Street at 40 or 45 miles per hour, headed toward Broadway and awayfrom the direction of the gunshots. The officer maneuvered his patrol vehicle to block the path ofthe oncoming vehicle, which came to a stop. The officer exited his patrol vehicle and askeddefendant, who was seated in the passenger seat of the stopped vehicle, to show his hands.Defendant complied, but also spoke "garbled" words that the officer could not understand. Theofficer asked defendant to step out of the vehicle, laid him face down on the ground, andhandcuffed him. When the officer stood up, he noticed the black handle of a gun underneath thepassenger seat of the vehicle. Before advising defendant of his Miranda rights, the officerasked him whether anyone had been shot, and defendant responded that "nobody was shot."
The court properly refused to suppress the physical evidence and defendant's statements. It iswell established that the police may stop a vehicle "when there exists at least a reasonablesuspicion that the driver or occupants of the vehicle have committed, are committing, or areabout to commit a crime" (People v Spencer, 84 NY2d 749, 753 [1995], certdenied 516 US 905 [1995]; seePeople v Lopez, 149 AD3d 1545, 1547 [4th Dept 2017]). "A police officer's suspicionmay be characterized as reasonable when it is based upon specific and articulable facts which,taken together with rational inferences from those facts, reasonably warrant [the] intrusion" (People v Taylor, 31 AD3d 1141,1142, [4th Dept 2006] [internal quotation marks omitted]; see Terry v Ohio, 392 US 1, 21[1968]). Here, in light of the officer's testimony that, only seconds after he heard nearbygunshots, he observed a vehicle speeding away from the area and no other persons or vehicleshad been observed in the area for approximately half an hour, we conclude that the officer hadreasonable suspicion that an occupant of that vehicle had committed a crime (see People v Wingfield, 88 AD3d537, 537 [1st Dept 2011], lv denied 18 NY3d 863 [2011]; People v Williams, 73 AD3d 1097,1099 [2d Dept 2010], lv dismissed 15 NY3d 779 [2010]; see also People v Alston, 23 AD3d487, 488 [2d Dept 2005], lv denied 6 NY3d 808 [2006]). The subsequent use ofhandcuffs to restrain defendant was justified inasmuch as it was "undertaken to effect hisnonarrest detention, and to ensure the officers' safety late at night [in the vicinity of] premiseswhere multiple gunshots had just been fired" (Williams, 73 AD3d at 1099; see Peoplev Allen, 73 NY2d 378, 379-380 [1989]).
Insofar as defendant contends that the court erred in refusing to suppress thepre-Miranda statement that he made in response to a question from the officer, thatcontention was raised for the first time in defendant's reply brief and thus is not properly beforeus (see People v Ford, 69 NY2d 775, 777 [1987], rearg denied 69 NY2d 985[1987]; People v Kreutter, 121AD3d 1534, 1535 [4th Dept 2014], lv denied 25 NY3d 990 [2015]). In any event, weconclude that his contention lacks merit inasmuch as the public safety exception to theMiranda rule applies to the officer's question (see People v Rose, 129 AD3d 1631, 1632 [4th Dept 2015], lvdenied 27 NY3d 1005 [2016]). Present—Whalen, P.J., Peradotto, DeJoseph, NeMoyerand Troutman, JJ.