Opinion
1469 KA 16–00801
06-07-2019
The PEOPLE of the State of New York, Respondent, v. Edward PETTIFORD, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ), defendant contends that Supreme Court erred in refusing to suppress, as the fruit of an unlawful search and seizure, the gun that was found in the vehicle in which defendant was a passenger and the cocaine that was subsequently found on defendant's person during a search incident to his arrest. The charges against defendant arose after the police, who were investigating a recent stabbing, encountered defendant in a vehicle matching the description and anticipated location of the stabbing suspect's vehicle given in a police dispatch.
We conclude that the police conduct was justified in its inception and at every subsequent stage of the encounter leading to defendant's arrest (see People v. Bradley, 137 A.D.3d 1611, 1611, 26 N.Y.S.3d 653 [4th Dept. 2016], lv denied 27 N.Y.3d 1128, 39 N.Y.S.3d 110, 61 N.E.3d 509 [2016] ; see generally People v. De Bour, 40 N.Y.2d 210, 222–223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ). Contrary to defendant's contention, the police action in pulling up behind the subject vehicle, which had parked in defendant's driveway after passing the officers' patrol car, constituted only a level two intrusion (see People v. Spencer, 84 N.Y.2d 749, 753, 622 N.Y.S.2d 483, 646 N.E.2d 785 [1995], cert denied 516 U.S. 905, 116 S.Ct. 271, 133 L.Ed.2d 192 [1995] ; People v. Harrison, 57 N.Y.2d 470, 475, 457 N.Y.S.2d 199, 443 N.E.2d 447 [1982] ) despite the fact that a police vehicle blocked the subject vehicle's egress from the driveway (see People v. Ruiz, 100 A.D.3d 451, 451, 953 N.Y.S.2d 582 [1st Dept. 2012], lv denied 20 N.Y.3d 1065, 962 N.Y.S.2d 616, 985 N.E.2d 926 [2013] ; People v. Thomas, 19 A.D.3d 32, 35, 792 N.Y.S.2d 472 [1st Dept. 2005], lv denied 5 N.Y.3d 795, 801 N.Y.S.2d 816, 835 N.E.2d 676 [2005] ). The police at that point had the requisite founded suspicion to justify the level two intrusion.
The police escalated the encounter to a level three intrusion when they approached defendant, who had begun to exit the vehicle, and ordered him to remain in the vehicle (see Harrison, 57 N.Y.2d at 475–476, 457 N.Y.S.2d 199, 443 N.E.2d 447 ; see also Thomas, 19 A.D.3d at 36, 792 N.Y.S.2d 472 ). Evaluating the totality of the circumstances (see People v. Simmons, 30 N.Y.3d 957, 958, 64 N.Y.S.3d 634, 86 N.E.3d 526 [2017] ), we conclude that the police conduct was justified by the officers' reasonable suspicion that defendant was the suspect described in the dispatch (see generally De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ). The officers found defendant less than two miles away from the scene of the stabbing, which had occurred approximately 20 minutes earlier. Defendant's gender, race, height, and weight matched the description of the stabbing suspect. Furthermore, witnesses at the scene of the stabbing informed the police that the suspect left the scene in a small silver vehicle driven by a black female and that the vehicle may have been headed toward a residence on Mark Avenue. Defendant was a passenger in a silver vehicle driven by a black female, and the driveway in which the driver parked the vehicle was 50 to 75 yards from Mark Avenue. Under those circumstances, the police reasonably concluded that defendant was the suspect for whom they were looking (see People v. Santiago, 142 A.D.3d 1390, 1391, 38 N.Y.S.3d 363 [4th Dept. 2016], lv denied 28 N.Y.3d 1127, 51 N.Y.S.3d 23, 73 N.E.3d 363 [2016] ; People v. Powell, 101 A.D.3d 1783, 1785, 957 N.Y.S.2d 807 [4th Dept. 2012], lv denied 20 N.Y.3d 1102, 965 N.Y.S.2d 799, 988 N.E.2d 537 [2013] ; People v. Moss, 89 A.D.3d 1526, 1527, 933 N.Y.S.2d 158 [4th Dept. 2011], lv denied 18 N.Y.3d 885, 939 N.Y.S.2d 755, 963 N.E.2d 132 [2012] ). In light of the report that the suspect was armed with a knife, we further conclude that, upon asking defendant to exit the vehicle, the police lawfully frisked him for weapons (see De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; People v. Thompson, 132 A.D.3d 1364, 1364–1365, 17 N.Y.S.3d 820 [4th Dept. 2015], lv denied 27 N.Y.3d 1156, 39 N.Y.S.3d 390, 62 N.E.3d 130 [2016] ).
We reject defendant's claim that the police conduct was unreasonable because the officers failed to use an available, less intrusive procedure to establish his identity and verify whether he was the person described by the witnesses to the stabbing (see generally People v. Pruitt, 158 A.D.3d 1138, 1139–1140, 70 N.Y.S.3d 691 [4th Dept. 2018], lv denied 31 N.Y.3d 1120, 81 N.Y.S.3d 380, 106 N.E.3d 763 [2018] ). Both of defendant's suggested procedures, i.e., that the police could have searched computer databases for his photograph or conducted a showup procedure with witnesses from the stabbing scene, would have entailed removing defendant from the vehicle so that his facial features and build could be seen, either by the police or by witnesses, and thus were no less intrusive than the procedure used by the officers.
We agree with the People that defendant failed to establish standing to challenge the consent to search the vehicle given to the police by the driver thereof (see People v. Reynolds, 216 A.D.2d 883, 883, 629 N.Y.S.2d 355 [4th Dept. 1995], lv denied 86 N.Y.2d 801, 632 N.Y.S.2d 514, 656 N.E.2d 613 [1995], citing People v. Ponder, 54 N.Y.2d 160, 164–166, 445 N.Y.S.2d 57, 429 N.E.2d 735 [1981] ). In any event, the record establishes that the driver voluntarily consented to the search of the vehicle that yielded the gun under the front passenger seat (see People v. Washington, 50 A.D.3d 1539, 1540, 856 N.Y.S.2d 783 [4th Dept. 2008], lv denied 11 N.Y.3d 742, 864 N.Y.S.2d 401, 894 N.E.2d 665 [2008] ). Upon determining that defendant did not possess a valid firearms permit, the police had probable cause to arrest him (see De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ) and then search his person incident to that lawful arrest (see People v. Pace, 143 A.D.3d 1286, 1287, 38 N.Y.S.3d 827 [4th Dept. 2016], lv denied 28 N.Y.3d 1149, 52 N.Y.S.3d 300, 74 N.E.3d 685 [2017] ).
We have examined defendant's remaining claims and conclude that none warrants reversal or modification of the judgment.