Opinion
No. 84 SSM 62.
Decided February 11, 2010.
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered April 16, 2009. The Appellate Division affirmed a judgment of the Supreme Court, New York County (John Cataldo, J.), which had convicted defendant, upon his plea of guilty, of criminal possession of stolen property in the fourth degree.
Appellant was observed by a police officer repeatedly attempting to use a credit card in a MetroCard vending machine. Each time the machine prompted defendant to enter a ZIP code, defendant seemed to be unable to enter a ZIP code matching the credit card. The officer, experienced in detecting suspicious use of such machines, approached defendant, who stated that he was having problems with the credit card. The officer then asked defendant to accompany him and his partner to a nearby wall of the subway station, and, without any use of force, physically guided defendant by briefly grasping his elbow.
The Appellate Division concluded that the police had a founded suspicion of criminality warranting a level-two common-law inquiry. The Court further concluded that even though the officer made slight physical contact with defendant, none of the police conduct elevated the encounter to a seizure requiring reasonable suspicion, that the officer lawfully asked to see the credit card and a form of identification, and that the discrepancy between the identification card and defendant's actual appearance provided probable cause for his arrest.
People v Francois, 61 AD3d 524, affirmed.
Legal Aid Society, Criminal Appeals Bureau, New York City ( Laura Liberman Cohen, Blaine [Fin] V. Fogg, Steven Banks and Seymour W. James, Jr., of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York City ( Lindsey M. Kneipper and Eleanor Ostrow of counsel), for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed.
The Appellate Division's determination that the officer's conduct did not elevate his encounter with defendant from a common-law inquiry to a seizure necessitating reasonable suspicion constitutes a resolution of a mixed question of law and fact that is supported by the record evidence ( see generally People v Wheeler, 2 NY3d 370, 373), and is therefore beyond this Court's further power of review ( see People v Battaglia, 86 NY2d 755, 756).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed in a memorandum.