| People v Spradlin |
| 2020 NY Slip Op 06982 [188 AD3d 1454] |
| November 25, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Benjamin S. Spradlin, Appellant. |
Teresa C. Mulliken, Harpersfield, for appellant.
Matthew Van Houten, District Attorney, Ithaca (Emily Perks Quinlan of counsel), forrespondent.
Lynch, J.P. Appeals (1) from a judgment of the County Court of Tompkins County (Miller,J.), rendered April 6, 2018, convicting defendant upon his plea of guilty of the crimes of criminalpossession of a weapon in the second degree, criminal possession of a weapon in the thirddegree, criminal possession of a controlled substance in the third degree (three counts), criminalpossession of a controlled substance in the fourth degree and criminal possession of stolenproperty in the third degree, and (2) by permission, from an order of said court, entered May 7,2019, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment ofconviction, without a hearing.
In connection with the seizure of contraband by police during a search of defendant's personand vehicle, defendant was charged by indictment with criminal possession of a weapon in thesecond degree, criminal possession of a weapon in the third degree, criminal possession of acontrolled substance in the third degree (three counts), criminal possession of a controlledsubstance in the fourth degree and criminal possession of stolen property in the thirddegree.[FN1] Thereafter,defendant filed an omnibus motion seeking to, among other things, suppress the evidence seizedfrom his person and vehicle as the product of an illegal search. Following a combinedHuntley/Dunaway/Mapp hearing, County Court denied defendant's motion, finding thatbrief detention of defendant prior to his arrest was based on specific, articulable facts and that thesearch of his person and vehicle was legal.
Defendant pleaded guilty as charged and expressly reserved the right to appeal CountyCourt's denial of his suppression motion.[FN2] He was sentenced, as a second felony offender,to a prison term of five years, followed by five years of postrelease supervision, upon hisconviction of criminal possession of a weapon in the second degree and to lesser concurrentprison terms on the remaining convictions.[FN3] Thereafter, defendant moved pursuant to CPL440.10 to vacate the judgment of conviction, arguing, among other things, that he was deprivedof the effective assistance of counsel because his attorney had a conflict of interest. In a May2019 order, County Court denied the motion without a hearing. Defendant appeals from thejudgment of conviction and, by permission of this Court, from the May 2019 order.
With respect to his appeal from the judgment of conviction, defendant contends that CountyCourt erred in denying his motion to suppress the physical evidence seized from his person andvehicle. We disagree. " 'In People v De Bour (40 NY2d 210 [1976]), the Court ofAppeals set forth a graduated four-level test for evaluating street encounters initiated by thepolice: level one permits a police officer to request information from an individual and merelyrequires that the request be supported by an objective, credible reason, not necessarily indicativeof criminality; level two, the common-law right of inquiry, permits a somewhat greater intrusionand requires a founded suspicion that criminal activity is afoot; level three authorizes an officerto forcibly stop and detain an individual, and requires a reasonable suspicion that the particularindividual was involved in a felony or misdemeanor; level four, arrest, requires probable cause tobelieve that the person to be arrested has committed a crime' " (People v Sanders, 185 AD3d 1280,1282 [2020], lv denied 35 NY3d 1115 [2020], quoting People vStover, 181 AD3d 1061, 1061-1062 [2020]). "These encounters can be dynamicsituations during which the degree of belief possessed at the point of inception may blossom byvirtue of responses or other matters which authorize . . . additional action as thescenario unfolds" (People v Tillery,60 AD3d 1203, 1205 [2009] [internal quotation marks and citations omitted], lvdenied 12 NY3d 860 [2009]).
During the suppression hearing, the People elicited testimony from Michael Meskill, a policeofficer with the City of Ithaca Police Department, and submitted evidence of his body camerarecording. Meskill testified that, on August 7, 2016 at approximately 6:15 a.m., he responded to adispatch call to check on an individual who was reportedly unresponsive in a parked vehicle in ashopping plaza in the City of Ithaca, Tompkins County. Upon responding to that location,Meskill noticed defendant "slumped over to the left" in the driver's seat with the engine running.The body camera footage depicts that the driver's seat was reclined and defendant was lying onhis side facing the door with his body appearing to be pressed against it. Meskill knocked on thepassenger window to wake defendant, told him to turn the car off and asked if they could speak;defendant agreed. Meskill then walked to the driver's side and asked defendant to exit thevehicle. Defendant did not exit at that time, but freely stated that "he was waiting for hisgirlfriend to go shopping." Meskill then inquired about when defendant had arrived at the parkinglot, to which defendant responded that he had been there since "approximately 2:00 [a.m.]" andthat his girlfriend was going to come meet him. Meskill testified, and the body camera footagecorroborates, that defendant appeared disoriented and was slurring his speech, which indicated toMeskill that defendant may have been impaired. Meskill asked defendant to produce his licenseand, when defendant attempted to do so, he "struggled with his wallet," took approximately 45seconds to produce his license and presented Meskill with an expired vehicle rental agreement.Meskill then asked defendant to give him his key fob, explaining that he did so for safetypurposes because he believed that defendant was impaired. Defendant told Meskill that, althoughhe was not the primary driver of the vehicle, he was authorized as a secondary driver and therental agreement had been extended. During the middle of the encounter, Meskill received acommunication from an officer requesting a phone call. At that time, Meskill told defendant notto move in the car, turned his body camera off, walked to the back of the vehicle and made thecall. Meskill testified that, while on the phone, he observed defendant "moving about as if he wasstuffing something underneath either the floorboard or the seat." He further explained that theofficer with whom he spoke informed him that defendant was known to carry a firearm andadvised him to use caution.
Meskill then ordered defendant to step out of the vehicle. Meskill testified that, as defendantexited, he observed a chrome stem on the floorboard of the vehicle alongside the driver's seat,believing it to be a crack pipe given his training and experience with narcotics. Defendant thenclosed the door and Meskill opened it back up, asking defendant to identify the object. Accordingto Meskill, defendant moved toward the door again, prompting Meskill to "set him up against thecar" and to place him in handcuffs. Meskill then retrieved the chrome stem, as well as a "KungFu star" (see Penal Law § 265.00 [15-b]) that was in plain view on thedriver's seat. He thereafter initiated a search of defendant's person, finding a taser, a pocketknife,a tin containing narcotics, and a bag containing pills, a chalky white substance and a brownsubstance. Meskill also did a preliminary search of the vehicle, finding, among other things,savings bonds located underneath the driver's side door mat that were not issued in defendant'sname. Following the vehicle's impoundment, an investigator sought and obtained a warrantauthorizing a search of the vehicle. During the execution of that warrant, investigators located,among other things, a loaded handgun. They then obtained a second warrant authorizing theseizure of the gun.
Deferring to County Court's credibility determinations (see People v Tillery, 60AD3d at 1205), we find that the search of defendant's person and vehicle was proper. Withrespect to the initial encounter, unlike a stop of a moving vehicle—which must be basedupon reasonable suspicion of criminal activity (see People v Ocasio, 85 NY2d 982, 984[1995]) or probable cause to believe that a traffic violation has occurred (see People v Hinshaw, 35 NY3d427, 434 [2020])—"[a] police approach to an occupied, stationary vehicle is subjectto the first level of the De Bour analysis" and is justified if "supported by an objective,credible reason, not necessarily indicative of criminality" (People v Stover, 181 AD3d at1062 [internal quotation marks and citations omitted]; see People v Stevenson, 149 AD3d 1271, 1272 [2017], lvdenied 29 NY3d 1134 [2017]). There is no dispute here that Meskill was authorized toapproach defendant's vehicle in response to a citizen-requested welfare check upon observinghim slumped over with the engine running. Instead, defendant contends that he was unlawfullyseized without reasonable suspicion when Meskill ordered him out of the vehicle immediatelyupon waking him and thereafter asked for his key fob. Although Meskill was permitted to ask fordefendant's driver's license and to inquire about his reason for being at the shopping plaza duringthe initial level-one approach (see People v Hollman, 79 NY2d 181, 190-191 [1992]; People v Grays, 179 AD3d 1149,1151 [2020]; People v Karagoz, 143AD3d 912, 914 [2016]; People vThomas, 19 AD3d 32, 41 [2005], lv denied 5 NY3d 795 [2005]), he was notauthorized to order defendant out of the vehicle immediately upon waking him (see People v Eugenio, 185 AD3d1050, 1051 [2020]). Nevertheless, no seizure occurred at that time, as defendant did notcomply with Meskill's request to exit and freely continued the conversation (compareid.).
Thereafter, Meskill noticed that defendant had difficulty retrieving his license, appeareddisoriented and was slurring his speech. Defendant also gave a suspicious explanation that he hadbeen waiting for his girlfriend in the parking lot of a grocery store since 2:00 a.m. to go shoppingand produced an expired rental agreement for the vehicle. Contrary to defendant's contention, thisevidence, combined with the fact that the vehicle's ignition was running when Meskill firstapproached, gave Meskill reasonable suspicion to believe that defendant may have committed thecrime of driving while intoxicated by alcohol or the crime of driving while impaired by a drug(see People v Boler, 106 AD3d1119, 1122 [2013]; People vBrand, 74 AD3d 1790, 1791 [2010], lv denied 15 NY3d 849 [2010]; Peoplev Blajeski, 125 AD2d 582, 583 [1986], lv denied 69 NY2d 877 [1987]), therebyjustifying the seizure of defendant's key fob. Upon learning that defendant was known to carry aweapon and observing him stuff objects into the floorboard of the driver's seat, Meskill hadreasonable suspicion to believe that defendant had committed a crime or that his safety was atrisk, authorizing him to order defendant out of the vehicle at that time (see People vThomas, 275 AD2d 276, 278-279 [2000], lv denied 95 NY2d 939 [2000]; seegenerally Pennsylvania v Mimms, 434 US 106, 111 [1977]; People v Carvey, 89NY2d 707, 710 [1997]; People v McLaurin, 70 NY2d 779, 781-782 [1987]; People vAtwood, 105 AD2d 1055, 1055 [1984]).
After observing the chrome stem and Kung Fu star in plain view, Meskill had probable causeto arrest defendant and to search his person incident thereto (see People v Smith, 59NY2d 454, 458 [1983]; People vCruz, 131 AD3d 724, 726 [2015], lv denied 26 NY3d 1087 [2015]; People v Ruppert, 42 AD3d 817,818 [2007], lv denied 9 NY3d 964 [2007]). Moreover, because Meskill had probablecause to believe that evidence would be found in defendant's vehicle and a nexus existed betweenthe probable cause and defendant's arrest, he was justified in conducting the initial on-scenesearch of defendant's vehicle under the automobile exception to the warrant requirement (seePeople v Galak, 81 NY2d 463, 467 [1993]; People v Hines, 172 AD3d 1649, 1651 [2019], lv denied 34NY3d 951 [2019]; People vJohnson, 159 AD3d 1382, 1383 [2018], lv denied 31 NY3d 1083 [2018]).Finally, upon obtaining a warrant based upon probable cause, police lawfully searched thevehicle after it had been impounded and, upon obtaining a second warrant, lawfully seized thegun. Thus, defendant's motion to suppress the evidence was properly denied.
We reject defendant's contention that County Court erred in denying his CPL 440.10 motionto vacate the judgment of conviction. "[T]he purpose of a CPL article 440 motion is to inform acourt of facts not reflected in the record and unknown at the time of the judgment. By its verynature, the procedure cannot be used as a vehicle for an additional appeal" (People vSaunders, 301 AD2d 869, 870 [2003] [internal quotation marks, ellipsis and citationsomitted], lv denied 100 NY2d 542 [2003]; see People v Taylor, 156 AD3d 86, 89 [2017], lv denied 30NY3d 1120 [2018]). Such a motion must be denied when "[t]he judgment is, at the time of themotion, appealable or pending on appeal, and sufficient facts appear on the record with respect tothe ground[s] or issue[s] raised upon the motion to permit adequate review thereof upon such anappeal" (CPL 440.10 [2] [b]; see Peoplev Grays, 162 AD3d 1224, 1228 [2018], lv denied 32 NY3d 1111 [2018]). "Uponconsideration of the merits of the motion, the motion court 'may deny it without conducting ahearing if . . . [t]he moving papers do not allege any ground constituting legal basisfor the motion' " (People vJones, 24 NY3d 623, 634-635 [2014], quoting CPL 440.30 [4] [a]). "[W]hether adefendant is entitled to a hearing on a CPL 440.10 motion is a discretionary determination. . . that is subject to [appellate] review for an abuse of discretion" (People vJones, 24 NY3d at 635).
Here, the majority of the claims that defendant raises in the context of the appeal from thedenial of his CPL 440.10 motion—including the alleged deficiencies of the grand juryproceedings, the sufficiency and competency of the evidence thereat, Meskill's purportedviolation of his department's body camera use policy and the alleged violation of defendant'sstatutory speedy trial rights—are based on facts that were either apparent from the face ofthe record to permit adequate review upon direct appeal (see CPL 440.10 [2] [b]) or"could[,] with due diligence by . . . defendant[,] have readily been made to appearon the record in a manner providing [an] adequate basis for review . . . [but which]defendant unjustifiably failed to adduce . . . prior to sentence" (CPL 440.10 [3] [a];see People v Berezansky, 229 AD2d 768, 771 [1996], lv denied 89 NY2d 919[1996]). Accordingly, County Court did not err in denying defendant's CPL article 440 motionwith respect to such claims. Defendant's argument that his trial counsel rendered ineffectiveassistance because he had a conflict of interest—although premised upon factualallegations not reflected on the face of the record—is based solely on defendant's ownconclusory affidavit and is otherwise unsubstantiated (see CPL 440.30 [4] [d]; see also People v Wright, 27 NY3d516, 521 [2016]; People vBrandon, 133 AD3d 901, 904 [2015], lv denied 27 NY3d 992 [2016]; People v Woodard, 23 AD3d 771,772 [2005], lv denied 6 NY3d 782 [2006]). Under these circumstances, County Court didnot abuse its discretion in denying defendant's CPL 440.10 motion without a hearing.
Defendant's remaining contentions, to the extent not specifically addressed herein, have beenconsidered and found lacking in merit.
Mulvey, Devine, Pritzker and Colangelo, JJ., concur. Ordered that the judgment and orderare affirmed.
Footnote 1:The charges were originally setforth in an October 2016 indictment. County Court granted defendant's motion to dismiss counts1 and 2 of the October 2016 indictment on the ground that the evidence before the grand jury onthose counts was legally insufficient. However, the court granted the People leave to re-presentthe dismissed counts pursuant to CPL 210.20 (4), resulting in an August 2017 indictmentcharging him with the same crimes. The 2016 and 2017 indictments were consolidated.
Footnote 2:Defendant later moved towithdraw the plea and County Court denied his request, finding that it was entered intoknowingly, voluntarily and intelligently.
Footnote 3:Defendant was also sentenced toa concurrent prison term of eight years with five years of postrelease supervision upon a plea ofguilty to robbery in the first degree, which had been charged in a separate indictment.