| People v Wideman |
| 2021 NY Slip Op 01805 [192 AD3d 1384] |
| March 25, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Kamil Wideman, Also Known as Rashawn Wideman and Jazz,Appellant. |
Mitch Kessler, Cohoes, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Egan, J.P. Appeal from a judgment of the County Court of Clinton County (Richards, J.),rendered January 23, 2017, upon a verdict convicting defendant of the crimes of criminalpossession of a controlled substance in the third degree (two counts) and conspiracy in the fourthdegree.
On August 19, 2015, the State Police stopped a 2002 GMC Envoy on Route 9 in the Town ofChamplain, Clinton County to check on the welfare of defendant, a reported missing person. Astroopers began to interview defendant and pat frisk him, defendant fled, during the course ofwhich a plastic baggie came out of his pants. Defendant was eventually located and arrested andthe contents of the plastic baggie were field tested, with a positive test result for heroin andcocaine.
Defendant was subsequently charged by indictment with two counts of criminal possessionof a controlled substance in the third degree, one count of conspiracy in the fourth degree and onecount of using drug paraphernalia in the second degree. A stipulation in lieu of motions wasthereafter entered into and, following a suppression hearing, County Court (McGill, J.) denieddefendant's motion to suppress the evidence seized during the traffic stop. Following a jury trial,defendant was convicted of two counts of criminal possession of a controlled substance in thethird degree and one count of conspiracy in the fourth degree but was acquitted of criminallyusing drug paraphernalia. Defendant's motion to set aside the verdict on the ground that thePeople failed to timely disclose certain Brady material was denied. County Court(Richards, J.) thereafter sentenced defendant, as a second felony offender, to concurrent prisonterms of 10 years to be followed by three years of postrelease supervision on the two convictionsof criminal possession of a controlled substance in the third degree and to a lesser concurrentprison term on the remaining conviction. Defendant appeals.
Defendant contends that County Court (McGill, J.) erred in denying his motion to suppressthe heroin and cocaine that were found following the traffic stop inasmuch as the police lackedlawful authority to detain, frisk or pursue him when he fled. We disagree. Where the police haveexecuted a lawful stop of a vehicle,[FN1] "a police officer may, as a precautionarymeasure and without particularized suspicion, direct the occupants . . . to step out ofthe [vehicle]" (People v Garcia, 20NY3d 317, 321 [2012]; see People v Robinson, 74 NY2d 773, 775 [1989], certdenied 493 US 966 [1989]; People vMartin, 156 AD3d 956, 957 [2017], lv denied 31 NY3d 985 [2018]). In turn,"[a]n officer is authorized to conduct a protective pat frisk when he or she has 'knowledge ofsome fact or circumstance that supports a reasonable suspicion that the suspect is armed or posesa threat to safety' " (People vCarey, 163 AD3d 1289, 1290 [2018], lv denied 32 NY3d 1124 [2018], quotingPeople v Batista, 88 NY2d 650, 654 [1996]; see People v Issac, 107 AD3d 1055[*2], 1057 [2013]). A suppression court's factual determinations andcredibility assessments are entitled to great weight and will not be overturned on appeal unlessclearly erroneous or contrary to the evidence (see People v Rudolph, 170 AD3d 1258, 1259 [2019], lvdenied 34 NY3d 937 [2019]; Peoplev McClain, 145 AD3d 1192, 1193 [2016], lv denied 28 NY3d 1186[2017]).
The evidence at the suppression hearing established that, on August 18, 2015, the City ofPlattsburgh Police Department received a telephone call from an attorney in New Jersey whoreported that she had received text messages from her client, defendant, leading her to believethat he had been kidnapped or abducted, was in the Plattsburgh area and was potentially indanger. Police commenced a "File 6" or missing and endangered persons investigation and, aspart thereof, obtained defendant's cell phone records, which indicated that his cell phone wasactive and had recently made calls to a telephone number belonging to one Brenna Lonsbury, aresident of the Town of Chazy, Clinton County. Police located Lonsbury the following morningand, upon being shown defendant's picture, she identified him as one of two individuals who hadspent the last four days at her apartment and indicated that these individuals had in theirpossession a large quantity of heroin and cocaine. Lonsbury indicated that she had givendefendant a ride to the City of Plattsburgh, Clinton County earlier that morning and last saw himgetting into a "dark blue" sport utility vehicle and that the other individual, Shaquan Spencer,was at her apartment.
Police thereafter obtained Lonsbury's written consent to search her apartment and, upon theirarrival, located Spencer and a quantity of heroin and cocaine. While police were still present atthe apartment, they observed a blue 2002 GMC Envoy drive by with defendant in the frontpassenger seat. Two state troopers followed after the Envoy and then stopped it. At a trooper'srequest, defendant stepped out of the vehicle and walked to the rear thereof, where one of thetroopers proceeded to conduct a pat frisk. Defendant then fled, dropping a plastic baggie as heran across a field. Troopers pursued defendant across the field, over a creek, through the woodsand into a cornfield before taking him into custody. Troopers subsequently secured the plasticbaggie that came out of defendant's pants and a subsequent field test of its contents was positivefor the presence of heroin and cocaine.
The traffic stop and subsequent request for defendant to exit the vehicle were permissiblegiven that defendant was a reported missing and possibly endangered person and was located in avehicle with two other unknown individuals (see People v Garcia, 20 NY3d at 321;People v Robinson, 74 NY2d at 775). Defendant was not unlawfully detained as thetroopers' questions pertained solely to ascertaining defendant's identity, were not accusatory innature and lasted only a matter of minutes [*3]before he fled(see People v Banks, 85 NY2d 558, 562 [1995], cert denied 516 US 868 [1995];People v Martin, 156 AD3d at 957-958). The pat frisk of defendant was justified as hewas the subject of a missing and endangered person report and a parallel narcotics investigationsuch that the trooper had a reasonable basis to perform a protective pat frisk (see People vBatista, 88 NY2d at 653-654; People v Martin, 156 AD3d at 958; People vIssac, 107 AD3d at 1058; comparePeople v Driscoll, 101 AD3d 1466, 1467 [2012]). Accordingly, defendant's subsequentflight from police and loss of a plastic baggie containing narcotics was not the product of anyunlawful police conduct, and County Court appropriately denied his motion to suppress theheroin and cocaine found following the stop.
Defendant next contends that the modified Allen charge that County Court (Richards,J.) provided to the jury was coercive. However, defendant failed to preserve this argument forappellate review. Although defendant disagreed with County Court's decision to provide amodified Allen charge, as opposed to conducting an in camera inquiry of the juror, hefailed to render a timely and appropriate objection to the Allen charge that wassubsequently recited, nor did he raise any objection to the purportedly coercive nature of thecharge as he presently argues on appeal (see People v Morrison, 127 AD3d 1341, 1345 [2015], lvdenied 26 NY3d 932 [2015]; People v Murphy, 166 AD2d 805, 805 [1990]).
Finally, we reject defendant's contention that County Court erred in failing to set aside theverdict based upon the People's purported Brady violation. It is axiomatic that "[t]hePeople have an obligation under Brady to disclose evidence and information in theirpossession that is both material and favorable to the defense" (People v Giuca, 33 NY3d 462, 473[2019]; People v Garrett, 23 NY3d878, 884 [2014]). To establish a Brady violation, a defendant must demonstrate that"(1) the evidence is favorable to the defendant because it is either exculpatory or impeaching innature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because thesuppressed evidence was material" (People v Rong He, 34 NY3d 956, 958 [2019] [internal quotationmarks and citation omitted]; see Peoplev Houze, 177 AD3d 1184, 1187 [2019], lv denied 34 NY3d 1159 [2020]).
Here, even assuming, without deciding, that defendant established the first two elements of aBrady violation based upon the People's failure to timely disclose that a State Policeinvestigator had been accused of providing incorrect testimony to a grand jury in an unrelatedcriminal proceeding,[FN2]defendant failed to establish the third prong—i.e., materiality or that there was reasonablepossibility that, had it been timely disclosed, this evidence would have changed the outcome ofthe proceeding (see People v Giuca, 33 NY3d at 477-478; People v Yedinak, 157 AD3d1052, 1056-1057 [2018]).[FN3] Notably, there was ample other [*4]evidence presented at trial establishing defendant's possession ofthe subject narcotics. Lonsbury testified that she had observed Spencer provide defendant withheroin and cocaine on multiple occasions during the relevant time period, and two other troopersthat were present when defendant fled witnessed the plastic baggie exit from defendant's pants.Accordingly, given the strength of the evidence against defendant, we do not find that disclosureof the subject impeachment evidence would have resulted in a different outcome (see Peoplev Garrett, 23 NY3d at 892; People vFuentes, 12 NY3d 259, 265 [2009]; People v Werkheiser, 171 AD3d 1297, 1305 [2019], lvdenied 33 NY3d 1109 [2019]).
Clark, Aarons, Pritzker and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Defendant concedes that theinitial traffic stop of the vehicle was lawful.
Footnote 2:Although the crux of defendant'strial defense was that the investigator planted the subject narcotics, the relevant impeachmentevidence consisted of an allegation that the investigator had testified incorrectly in an unrelatedcriminal case, indicating in such testimony that he had overheard an informant conduct a drugtransaction in real time through a wire when, in fact, the informant had not been equipped withany such listening device.
Footnote 3:The People disclosed thisinformation shortly after the jury commenced deliberations.