From Casetext: Smarter Legal Research

People v. Simmons

Appellate Division of the Supreme Court of New York, First Department
Dec 2, 2010
79 A.D.3d 431 (N.Y. App. Div. 2010)

Opinion

No. 3770.

December 2, 2010.

Judgment, Supreme Court, New York County (Renee A. White, J.), rendered March 17, 2009, convicting defendant, upon his plea of guilty, of criminal possession of stolen property in the fourth degree, and sentencing him, as a second felony offender, to a term of 1½ to 3 years, unanimously affirmed.

Howard M. Simms, New York, for appellant.

John R. Eyerman, New York, for respondent.

Before: Sweeny, J.P., Catterson, Moskowitz, Renwick and Richter, JJ.


The court properly denied defendant's suppression motion. In a subway car, officers recognized defendant as a person with a history of repeatedly picking the pockets of subway passengers. They also knew he was on parole, and that a condition of his parole generally barred him from being in the subway system. As defendant concedes, the officers had an objective, credible reason to approach him and ask for an explanation as to why he was in the subway. When an officer said, "[P]olice," and "Duval, stop, I need to talk to you," this was not a seizure, and no other police actions at that point went beyond a request for information ( see People v Reyes, 83 NY2d 945, cert denied 513 US 991; People v Bora, 83 NY2d 531, 535-536; People v Grunwald, 29 AD3d 33, 38). When defendant admitted he knew he was not allowed to be in the subway, and gave a meritless and suspicious excuse for being there, these factors, taken together with their knowledge of defendant's criminal history, gave the police a founded suspicion that defendant was in the subway to commit a crime, and not merely that he was a parole violator whom they should report to the Division of Parole. Since the police now had a founded suspicion of criminality, an officer made a proper level II inquiry when he asked defendant whether he had "anything that he shouldn't have" ( see e.g. People v Joseph, 38 AD3d 403, 404, lv denied 9 NY3d 866), resulting in the recovery of contraband.


Summaries of

People v. Simmons

Appellate Division of the Supreme Court of New York, First Department
Dec 2, 2010
79 A.D.3d 431 (N.Y. App. Div. 2010)
Case details for

People v. Simmons

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DUVAL SIMMONS…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 2, 2010

Citations

79 A.D.3d 431 (N.Y. App. Div. 2010)
2010 N.Y. Slip Op. 8868
912 N.Y.S.2d 48

Citing Cases

People v. Simmons

March 29, 2011. Appeal from the 1st Dept: 79 AD3d 431 (NY). Lippman, Ch.…

People v. Houston

The officer then handcuffed the defendant and, upon frisking him, found a larger kitchen knife in a different…