Opinion
1150 KA 15–01853
12-21-2018
The PEOPLE of the State of New York, Respondent, v. Vincent E. SMITH, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO, HODGSON RUSS LLP (PETER H. WILTENBURG OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO, HODGSON RUSS LLP (PETER H. WILTENBURG OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals 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] ).
On July 21, 2014, as two Buffalo police officers were patrolling a high-crime area in a marked police vehicle, they saw several people standing outside on the stoop of an apartment complex. As the patrol vehicle neared the building, one of the officers saw defendant holding the front door of the apartment complex and staring at the patrol vehicle; the officer then saw defendant enter the building and run up an interior set of stairs. The officers entered the building and saw defendant exit an apartment. One of the officers asked defendant "what he was doing in the apartment," and defendant responded, "I wasn't in the apartment." The officer walked toward defendant and again asked him what he was doing in the apartment. Defendant responded that he "was going to get a cup for his drink." Defendant did not have a cup in his hands. Defendant's statements made the officer suspect that defendant was trying to hide something, and the officer asked another officer, who had since arrived at the apartment complex, to take defendant down the stairs so the officer could speak to the apartment's tenant. The tenant consented to a search of the apartment, during which the officers discovered a handgun stashed in a closet that was located within a few feet of the apartment door. The tenant denied having seen the handgun before. Defendant was arrested and charged with criminal possession of a weapon in the second degree. Defendant subsequently filed an omnibus motion seeking, inter alia, suppression of the handgun and certain statements he made to the police. Following a hearing, Supreme Court refused to suppress the evidence, and defendant thereafter pleaded guilty to the charge. We affirm.
Initially, we note that, although defendant's motion sought suppression of his statements and the handgun, on appeal he seeks suppression only of his statements.
"It is well established that, in evaluating the legality of police conduct, we ‘must determine whether the action taken was justified in its inception and at every subsequent stage of the encounter’ " ( People v. Burnett, 126 A.D.3d 1491, 1492, 6 N.Y.S.3d 375 [4th Dept. 2015] ). Here, contrary to defendant's contention, we conclude that the officers' presence in a high-crime area, coupled with their observations of defendant, i.e., his evasive behavior of running away, provided them with an "objective, credible reason" for initially approaching defendant ( People v. Barksdale, 26 N.Y.3d 139, 143, 20 N.Y.S.3d 296, 41 N.E.3d 1111 [2015] ; see Matter of Demitrus B., 89 A.D.3d 1421, 1421–1422, 932 N.Y.S.2d 620 [4th Dept. 2011] ).
Although the officers had an objective, credible basis for approaching defendant, we agree with defendant that the ensuing questioning constituted a level two encounter under People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976) ; see generally People v. Hollman, 79 N.Y.2d 181, 191, 581 N.Y.S.2d 619, 590 N.E.2d 204 (1992). We reject defendant's contention, however, that the officers did not have a "founded suspicion that criminal activity [was] afoot" ( De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ). In making that determination, we must consider the totality of the circumstances (see People v. Jones, 155 A.D.3d 1547, 1550, 64 N.Y.S.3d 803 [4th Dept. 2017], amended on rearg on other grounds 156 A.D.3d 1493, 65 N.Y.S.3d 820 [4th Dept. 2017] ). Here, the subject apartment complex was known to the officers to be in a high-crime area. Defendant's conduct in staring at the patrol vehicle and then running up an interior set of stairs constituted furtive or evasive movements supporting a suspicion of criminal activity. Additionally, one of the officers who followed defendant into the apartment complex smelled marihuana on the stoop of the apartment complex. We conclude, under the totality of the circumstances, that the officers had a founded suspicion that criminality was afoot (see People v. Parker, 32 N.Y.3d 49, 56, 84 N.Y.S.3d 838, 109 N.E.3d 1138 [2018] ; Jones, 155 A.D.3d at 1551, 64 N.Y.S.3d 803 ; see also People v. Hough, 151 A.D.3d 1591, 1592, 57 N.Y.S.3d 780 [4th Dept. 2017], lv denied 30 N.Y.3d 950, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017] ).
Contrary to defendant's further contention, although the officer who questioned defendant requested that the other officers take defendant downstairs, "none of the police conduct elevated the encounter to a seizure requiring reasonable suspicion" ( People v. Francois, 61 A.D.3d 524, 525, 877 N.Y.S.2d 54 [1st Dept. 2009], affd 14 N.Y.3d 732, 896 N.Y.S.2d 300, 923 N.E.2d 583 [2010] ). Finally, we reject defendant's contention that the officers did not have probable cause for the arrest. It is well established that probable cause for an arrest exists where it "appear[s] to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator" ( People v. Carrasquillo, 54 N.Y.2d 248, 254, 445 N.Y.S.2d 97, 429 N.E.2d 775 [1981] ; see People v. Colon, 151 A.D.3d 1915, 1916–1917, 57 N.Y.S.3d 844 [4th Dept. 2017] ). Here, the officers' discovery, in a closet near the apartment door, of a handgun that the tenant denied having seen before gave the officers probable cause to believe that defendant had stashed the gun there during his brief entry (see People v. Wiggins, 126 A.D.3d 1369, 1370, 4 N.Y.S.3d 798 [4th Dept. 2015] ; People v. Binion, 100 A.D.3d 1514, 1516, 954 N.Y.S.2d 369 [4th Dept. 2012], lv denied 21 N.Y.3d 911, 966 N.Y.S.2d 362, 988 N.E.2d 891 [2013] ; People v. Dibble, 43 A.D.3d 1363, 1365, 845 N.Y.S.2d 203 [4th Dept. 2007], lv denied 9 N.Y.3d 1032, 852 N.Y.S.2d 18, 881 N.E.2d 1205 [2008] ).