| People v Carey |
| 2018 NY Slip Op 05376 [163 AD3d 1289] |
| July 19, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Francis Carey, Appellant. |
Andrew Kossover, Public Defender, Kingston (Michael K. Gould of counsel), forappellant.
D. Holley Carnright, District Attorney, Kingston (Carly Wolfram of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered January 10, 2017, convicting defendant upon his plea of guilty of the crime of criminalpossession of a weapon in the second degree.
On February 23, 2016, patrol officer Michael DeFrance stopped a vehicle after running thevehicle's license plate and learning that the vehicle's registration was suspended. DeFranceapproached the driver's side of the vehicle, and, upon inquiry, the driver informed DeFrance thathe did not have his driver's license. DeFrance then asked defendant, who was a passenger, for hisidentification. Defendant provided his state identification card, and, upon a computer search,DeFrance learned that defendant was on parole. From his prior experience, DeFrance understoodthat parolees have curfew limits, and it was approximately 3:30 a.m. at the time of the stop.
By this point, another officer had joined DeFrance at the scene. When DeFrance returned tothe stopped vehicle, he asked defendant to step out and then inquired why he was on parole, towhich defendant responded, "sales." While speaking with defendant, DeFrance detected the odorof alcohol and asked defendant twice whether he had consumed alcohol that night. Both timesdefendant replied in the negative. It was then that DeFrance decided to conduct a protective patfrisk for his own safety, believing that defendant was breaching the terms and conditions of hisparole by violating curfew and consuming alcohol. Defendant fully complied with DeFrance'sinstructions during the ensuing frisk. After DeFrance opened the backpack that defendant waswearing and found a small, zipped-up bag containing ammunition, he placed defendant inhandcuffs "for safety." He then searched defendant's person and observed the handle of ahandgun in defendant's front left pocket. DeFrance alerted the other officer of the handgun,retrieved it and handed it to her.
Defendant moved to suppress, among other things, the ammunition recovered from hisbackpack and the handgun. Following a hearing, County Court concluded, among other things,that the search of the backpack and seizure of the ammunition exceeded the permissible scope ofa protective frisk, but that it was reasonable for DeFrance to frisk defendant's person out ofconcern for his safety. As such, the court denied suppression of the gun. Defendant thereafterpleaded guilty to the indictment and was sentenced to a prison term of 10 years, with five yearsof postrelease supervision. Defendant now appeals, challenging the partial denial of hissuppression motion.
On appeal, defendant does not challenge DeFrance's right to stop and approach the vehicle,nor does he contest the propriety of DeFrance's request for identification or direction that he exitthe vehicle. Rather, he contends that the pat frisk was unreasonable because no fact orcircumstance supported a reasonable suspicion that he was armed or posed any threat to theofficer's safety. An officer is authorized to conduct a protective pat frisk when he or she has"knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect isarmed or poses a threat to safety" (People v Batista, 88 NY2d 650, 654 [1996]; see People v Driscoll, 101 AD3d1466, 1467 [2012]; People v Siler, 288 AD2d 625, 626 [2001], lv denied 97NY2d 709 [2002]). County Court determined that the pat frisk was justified under thecircumstances presented, and we agree.
A suspect's status as a parolee is a relevant factor to consider when evaluating thereasonableness of a particular search or seizure (see People v Huntley, 43 NY2d 175, 181[1977]; People v Banks, 148 AD3d1359, 1361 [2017]), particularly where, as here, the officer had reason to believe thatdefendant was then and there violating both the curfew and alcohol conditions of his parole. Thehour was late and the driver was driving an unregistered vehicle without a license. Defendant'sevasive, if not flippant, "sales" response as to why he was on parole, coupled with his repeateddenial of alcohol use, heightened the volatility of the situation. Cumulatively, these factorsvalidate County Court's conclusion that the officer had a reasonable basis to conduct the frisk toassure his own safety (see People v Batista, 88 NY2d at 654-655; compare People vDriscoll, 101 AD3d at 1467-1468).
Egan Jr., J.P., Mulvey and Pritzker, JJ., concur.
Aarons, J. (dissenting). I respectfully dissent. In my view, the evidence from the suppressionhearing does not support the conclusion that defendant was armed or posed a safety concern so asto justify a pat frisk. Accordingly, County Court should have granted that part of defendant'smotion seeking suppression of the seized handgun.
"It has long been recognized that permitting police to take reasonable precautions for theirsafety is an essential corollary to the exercise of their powers and responsibilities, and that undercertain circumstances a limited frisk for weapons is reasonable and constitutionally permissible"(People v Crawford, 256 AD2d 719, 720 [1998] [citations omitted], lv denied 92NY2d 1048 [1999]; see People v Siler, 288 AD2d 625, 626 [2001], lv denied 97NY2d 709 [2002]). That said, "[a] suspect may not be frisked by a police officer who has noknowledge of facts that would provide a basis for suspecting that the individual is armed ordangerous" (People v Carney, 58 NY2d 51, 52 [1982]; see People v Sanchez, 38NY2d 72, 74-75 [1975]; People vDriscoll, 101 AD3d 1466, 1467 [2012]). Determining whether a police officer had areasonable belief that his or her safety or the safety of others was at risk involves theconsideration of the particular facts and circumstances of each case (see People v Batista,88 NY2d 650, 653-654 [1996]; People v Crawford, 256 AD2d at 720).
Patrol officer Michael DeFrance, the only witness who testified at the suppression hearing,stated that he pulled over a vehicle in the early morning after discovering that the vehicle'sregistration had been suspended. The driver did not have a license but provided DeFrance withhis name and a registration. DeFrance then obtained the identification of defendant, who wassitting in the front passenger seat, and ran his name through a computer in his vehicle. AsDeFrance was doing so, another officer arrived on the scene to provide assistance. DeFrancethereafter learned that defendant was on parole. DeFrance stated that he asked defendant to exitthe vehicle and defendant complied. When DeFrance inquired of defendant as to why he was onparole, defendant responded, "sales, nothing more, nothing less." Defendant told DeFrance thathe was coming from a friend's house and going to the diner. DeFrance testified that he detectedan odor of alcohol coming from defendant and, when he asked defendant whether he hadconsumed any alcohol that night, defendant denied doing so. DeFrance asked defendant the samequestion again, and defendant responded in the negative. At that point, DeFrance adviseddefendant that, for his safety, he was going to "pat him down." DeFrance first searched thebackpack that defendant had been wearing and found a small bag containing ammunition. Whilesearching defendant's person, DeFrance observed the handle of a handgun in defendant's leftfront pocket. DeFrance removed the handgun and gave it to the other officer.
The foregoing does not evince circumstances indicating that defendant presented a safety riskto DeFrance or other members of the public. There was no evidence that defendant wascombative with DeFrance or disregarded any of his instructions (see People v St. Clair,80 AD2d 691, 692 [1981], affd 54 NY2d 900, 901 [1981]). Nor was there evidence that,prior to the frisk, DeFrance observed any bulges on defendant suggesting that defendant wascarrying a weapon (see People v Powell, 246 AD2d 366, 369 [1998], appealdismissed 92 NY2d 886 [1998]; compare People v Issac, 107 AD3d 1055, 1058 [2013]). In addition,defendant did not make any furtive or suspicious movements or engage in any behaviorsuggesting that he posed a threat to DeFrance or anyone else (see People v Butler, 127 AD3d 623, 623-624 [2015]; comparePeople v Benjamin, 51 NY2d 267, 271 [1980]; People v Robinson, 278 AD2d 808,808 [2000], lv denied 96 NY2d 787 [2001]).
Although defendant gave a limited response when DeFrance asked why he was on parole,there is nothing in the record indicating that DeFrance was unamused or felt threatened by the"sales" remark or that DeFrance was confused by what defendant meant inasmuch as DeFrancedid not ask for further clarification. Furthermore, even accepting that defendant potentially brokehis parole terms by being out late and denied drinking alcohol, notwithstanding the smell ofalcohol coming from his person, these facts, whether viewed individually or collectively, did notcreate a volatile situation warranting a pat frisk of defendant. Given that defendant complied withDeFrance's instructions, another officer was present to assist DeFrance and the absence ofevidence suggesting that defendant was a safety threat, DeFrance had no basis to conduct a patfrisk of defendant (see People v Russ, 61 NY2d 693, 695 [1984]; People vDriscoll, 101 AD3d at 1467; People v Gonzalez, 295 AD2d 183, 184 [2002];People v Powell, 246 AD2d at 369-370; People v Chinchillo, 120 AD2d 266, 269[1986]; cf. People v Hackett, 47AD3d 1122, 1124 [2008]; comparePeople v Muniz, 12 AD3d 937, 938-939 [2004]). As such, in my view, County Courtshould have suppressed the seized handgun.
Ordered that the judgment is affirmed.