| People v Geddes |
| 2019 NY Slip Op 03072 [171 AD3d 1210] |
| April 24, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joshua Geddes, Appellant. |
Thomas R. Villecco, Jericho, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Tammy J. Smiley, Sarah S. Rabinowitz,and Jared A. Chester of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Terence P.Murphy, J.), rendered March 20, 2017, convicting him of unlawful fleeing of a police officer in amotor vehicle in the third degree, upon a jury verdict, and criminal possession of a weapon in thesecond degree (two counts), upon his plea of guilty, and imposing sentence. The appeal brings upfor review the denial, after a hearing pursuant to a stipulation in lieu of motions (Angelo A.Delligatti, J.), of the suppression of physical evidence.
Ordered that the judgment is affirmed.
The defendant was charged with criminal possession of a weapon in the second degree (fourcounts) and unlawful fleeing of a police officer in a motor vehicle in the third degree. At asuppression hearing, Police Officer Sullivan testified that on December 9, 2013, at approximately5:56 p.m., he was at the intersection of Linden Boulevard and Elmont Road in Nassau Countywhen he received a radio transmission that a shooting had occurred approximately six blocksfrom his location. It was reported that a black car with tinted windows, occupied by at least onemale, had fled the scene of the shooting. At approximately 6:00 p.m., Sullivan, who had pulledinto a gas station at the intersection, observed a black car with dark tinted windows and anapparent bullet hole in the passenger side rear window pull into the gas station. The frontwindows were rolled down, and Sullivan observed that the vehicle was occupied by two blackmales. The driver was wearing a black hoodie and a skullcap, and the passenger was slumped inthe seat and appeared to be in pain. Upon observing the bullet hole, Sullivan drew his firearm,pointed it at the occupants of the vehicle, and yelled at them, "[p]olice, stop the car." The driverturned his head slightly, but did not stop the vehicle. Sullivan ran alongside the car and continuedto yell, "[s]top the car," but the driver ignored Sullivan's commands and quickly accelerated awayfrom him westbound on Linden Boulevard. Sullivan transmitted a description of the vehicle andthe direction it fled over the radio, and, moments later, a passing motorist who had been travelingeastbound on Linden Boulevard told Sullivan that the vehicle Sullivan had been chasing had justcrashed about two blocks away.
Sergeant Schmaeling of the emergency services unit arrived at the crash scene, which was inthe vicinity of 238th Street and Linden Boulevard. He observed that the black car wasunoccupied and had one open door, and that there were two handguns and what appeared to be abag of marijuana inside the car. A witness told the police that the occupants of the car were twoshort black males in their early 20s wearing skullcaps who had run south on 238th Street. Thepolice broadcast this information over the radio.
The police established a perimeter in the area of 238th Street and Linden Boulevard. Sullivanand two other officers began to search the backyards of the houses along 238th Street, assisted bymembers of the emergency services and canine units. Schmaeling was supervising the searchfrom the street, and he received a radio transmission reporting that a subject who had sustained agunshot wound had been taken into custody within approximately 200 feet of Schmaeling'slocation. Sullivan later identified the subject, Kevin Hoofong, as the person who had been thepassenger of the black car.
At around 6:45 p.m., as the canine units were progressing through the yards, Schmaelingnoticed the defendant, whom Schmaeling described as a black male, between 20 and 30 yearsold, approximately five feet, three inches or five feet, five inches tall, weighing about 120 to 130pounds, and wearing dark clothing, walking up the driveway in between two of the houses on238th Street. The defendant's presence seemed unusual to Schmaeling because there was no oneelse on the street, and he thought that the canine units searching the yards might have forced thedefendant out of hiding toward him. Schmaeling stopped the defendant in the driveway andasked him what he was doing. The defendant responded that he was meeting a friend on DavisAvenue to play video games. Schaemling thought the defendant's response was unusual andSchmaeling did not believe that there was a Davis Avenue anywhere in the vicinity of 238thStreet. Schmaeling feared for his safety based on the information that he had received from theradio transmission, and he noticed a suspicious bulge in the defendant's back pocket, whichSchmaeling suspected was a weapon. Schmaeling patted the defendant down and recovered ablack skullcap from the defendant's back pocket.
Schmaeling asked another officer to watch the defendant while he went to speak with theowners of the property where he had encountered the defendant. Schmaeling ascertained that theresidents did not know the defendant. Meanwhile, Sullivan arrived on the scene and identifiedthe defendant as the driver of the black car. The defendant was then taken into custody.
At the conclusion of the hearing, the Supreme Court, among other things, denied suppressionof the skullcap. The court determined that the police had probable cause to arrest the defendant,and that the skullcap was properly seized during a search incident to a lawful arrest.
After a jury trial, the defendant was found guilty of unlawful fleeing of a police officer in amotor vehicle in the third degree, but the jury was unable to reach a verdict on the charges ofcriminal possession of a weapon in the second degree and the court declared a mistrial on thosecounts. Subsequently, the defendant pleaded guilty to two counts of criminal possession of aweapon in the second degree. The defendant appeals.
The defendant's contention that the hearing court should have suppressed the skullcapbecause the search was not incident to a lawful arrest is without merit. "[P]robable cause tobelieve that the person arrested has committed a crime will justify the search of his person"(People v Smith, 59 NY2d 454, 458 [1983]). "A finding of probable cause does not. . . require the same quantum of proof necessary to sustain a conviction, or toestablish a prima facie case. Rather, 'it need merely appear more probable than not that a crimehas taken place and that the one arrested is its perpetrator' " (People v Wright, 8 AD3d 304, 307[2004] [citations omitted], quoting People v Hill, 146 AD2d 823, 824 [1989]; seePeople v Bigelow, 66 NY2d 417, 423 [1985]). "[I]n determining whether a police officer hasprobable cause for an arrest, the emphasis should not be narrowly focused on . . .any . . . single factor, but on an evaluation of the totality of circumstances, whichtakes into account the realities of everyday life unfolding before a trained officer who has toconfront, on a daily basis, similar incidents" (People v Wright, 8 AD3d 304, 307 [2004] [internal quotationmarks omitted]).
Here, the defendant matched the radioed description of one of the suspects, and Schmaelingencountered the defendant in close temporal and spatial proximity to the location of the crashscene where the suspects had last been seen. Additionally, Schmaeling was aware that aperimeter had been set up to prevent the suspects from escaping, and he testified that there wasno one else on the street at the time he observed the defendant, whom he believed had likely beenforced out of hiding by the canine unit. Moreover, Schmaeling was also aware that the woundedpassenger from the black car had just been apprehended nearby. Based on the totality of thecircumstances, Schmaeling had probable cause to arrest the defendant at the time that herecovered the skullcap from the defendant's back pocket (see People v Johnson, 63 AD3d 518 [2009]; People vCharles, 222 AD2d 688, 689 [1995]; People v Douglas, 185 AD2d 895, 895-896[1992]). Furthermore, because Schmaeling had probable cause to arrest the defendant at the timethe skullcap was seized, "[i]t is immaterial that the seizure of this evidence occurred immediatelybefore, rather than simultaneously with, the formal arrest" (People v Goggans, 155 AD2d689, 691 [1989]; see People v Charles, 222 AD2d at 689). Moreover, the defendantwould have been arrested even if the search had not produced the skullcap (cf. People v Reid, 24 NY3d 615,617 [2014]; People v Simmons, 151AD3d 628, 628-629 [2017]).
Accordingly, we agree with the Supreme Court's determination to deny the suppression of theskullcap. Rivera, J.P., Roman, Hinds-Radix and LaSalle, JJ., concur.