Opinion
No. 120 KA 20-01654
06-09-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JAMAR TURNER, DEFENDANT-APPELLANT.
KAMAN, BERLOVE, MARAFIOTI, JACOBSTEIN & GOLDMAN, LLP, ROCHESTER (DANIELLE C. WILD OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MERIDETH H. SMITH OF COUNSEL), FOR RESPONDENT.
KAMAN, BERLOVE, MARAFIOTI, JACOBSTEIN & GOLDMAN, LLP, ROCHESTER (DANIELLE C. WILD OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MERIDETH H. SMITH OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, MONTOUR, AND OGDEN, JJ.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.), rendered December 9, 2020. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree.
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 evidence obtained from him during an encounter with the police because the police lacked the requisite reasonable suspicion that he committed a reported burglary to justify his detention and pat frisk, which resulted in the discovery of a handgun. We reject that contention.
According to the evidence presented at the suppression hearing, in the early morning hours while in her residence, a 10-year-old girl (witness) observed a black male inside her bedroom. Later that day, the police were dispatched to the residential address to investigate the reported burglary. While the police were there, the witness returned from a nearby clothing store and told the police that the person who had committed the reported burglary-i.e., the male who had been inside her bedroom earlier that morning-was currently present inside the store, and provided a detailed description of the suspect. The police immediately responded to the store, where they observed a person-later identified as defendant-who matched the description provided by the witness. Following some discussion with defendant, the police eventually detained him and, during a corresponding pat frisk, discovered a handgun in defendant's waistband.
It is well established that when an officer "confronts an individual whom [the officer] reasonably suspects has committed, is committing or is about to commit such a serious and violent crime as... burglary,... that suspicion not only justifies the detention but also the frisk, thus making it unnecessary to particularize an independent source for the belief of danger" (People v Mack, 26 N.Y.2d 311, 317 [1970], cert denied 400 U.S. 960 [1970]; see People v Moore, 32 N.Y.2d 67, 70 [1973], cert denied 414 U.S. 1011 [1973]; People v Collado, 72 A.D.3d 614, 615 [1st Dept 2010], lv denied 15 N.Y.3d 850 [2010]; People v Williams, 4 A.D.3d 852, 852 [4th Dept 2004], lv denied 2 N.Y.3d 809 [2004]; People v Downes, 259 A.D.2d 424, 424-425 [1st Dept 1999], lv denied 93 N.Y.2d 969 [1999]). The question in this case is thus whether the police had the requisite reasonable suspicion that defendant committed the reported burglary to justify detaining and frisking him in the store. On that question, "[r]egardless of whether we apply a totality of the circumstances test or the Aguilar-Spinelli standard" (People v Argyris, 24 N.Y.3d 1138, 1140 [2014], rearg denied 24 N.Y.3d 1211 [2015], cert denied 577 U.S. 1069 [2016]), we conclude that the detention and frisk of defendant was lawful.
More particularly, with respect to the reliability prong of the Aguilar-Spinelli test, the court properly determined that, despite her age and unsworn hearsay statement recounted by one of the police officers, the 10-year-old witness was "[a]n identified citizen informant" who "is presumed to be personally reliable" (People v Parris, 83 N.Y.2d 342, 350 [1994]; see People v Hetrick, 80 N.Y.2d 344, 349 [1992]; People v Walker, 278 A.D.2d 852, 852 [4th Dept 2000], lv denied 96 N.Y.2d 869 [2001]). In any event, given the evidence presented at the suppression hearing, including defendant's proximity to the location of the reported burglary and the witness's "detailed and specific" description of the burglary suspect, we conclude that there are "ample indicia of the reliability of [the witness's] statements" (Hetrick, 80 N.Y.2d at 348; see People v Spencer, 257 A.D.2d 638, 638 [2d Dept 1999], lv denied 93 N.Y.2d 902 [1999]). With respect to the second prong, we note that, "[w]ithout question, [the witness] had a basis of knowledge for her statements, i.e., her personal observation of the events she described" (Hetrick, 80 N.Y.2d at 348). In sum, we conclude that "[t]he evidence in the record establishes that the information provided by the identified citizen informant 'was reliable under the totality of the circumstances, satisfied the two-pronged Aguilar-Spinelli test for the reliability of hearsay tips in this particular context and contained sufficient information about' defendant's commission of the crime of [burglary]" (People v Wisniewski, 147 A.D.3d 1388, 1388 [4th Dept 2017], lv denied 29 N.Y.3d 1038 [2017], quoting Argyris, 24 N.Y.3d at 1140-1141). The police thus had reasonable suspicion that defendant had committed the "serious and violent crime" of burglary, thereby justifying both the detention and frisk of defendant (Mack, 26 N.Y.2d at 317; see Williams, 4 A.D.3d at 852; Downes, 259 A.D.2d at 424-425).
Defendant's additional contention challenging the propriety of the frisk is not preserved for our review inasmuch as he failed to raise that specific contention in his motion papers, at the suppression hearing, or in his written submission as a ground for suppression (see People v Boswell, 197 A.D.3d 950, 951 [4th Dept 2021], lv denied 37 N.Y.3d 1095 [2021]; People v Burden, 191 A.D.3d 1260, 1261 [4th Dept 2021], lv denied 37 N.Y.3d 954 [2021]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).
Next, defendant contends that he is entitled to reversal of the judgment of conviction and dismissal of the indictment because the single statutory offense under which he was charged and convicted (Penal Law § 265.03 [3]) is facially unconstitutional under the Second Amendment of the United States Constitution as interpreted by the United States Supreme Court in New York State Rifle & Pistol Assn., Inc. v Bruen (- U.S. -, 142 S.Ct. 2111 [2022]). Although defendant "d[id] not forfeit the right on appeal from the conviction to challenge the constitutionality of the statute under which he was convicted" by pleading guilty (People v Lee, 58 N.Y.2d 491, 493 [1983]) and he has notified the Attorney General of the State of New York pursuant to Executive Law § 71 that he is challenging the constitutionality of the statute on appeal (see People v Tucker, 181 A.D.3d 103, 105 [4th Dept 2020], cert denied - U.S. -, 141 S.Ct. 566 [2020]), defendant correctly concedes that his challenge to the constitutionality of the statute is not preserved for our review inasmuch as he failed to raise any such challenge before the trial court (see People v Jacque-Crews, 213 A.D.3d 1335, 1335-1336 [4th Dept 2023], lv denied 39 N.Y.3d 1111 [2023]; People v Gerow, 85 A.D.3d 1319, 1320 [3d Dept 2011]; cf. People v Hughes, 22 N.Y.3d 44, 48-49 [2013]; see generally People v Reinard, 134 A.D.3d 1407, 1409 [4th Dept 2015], lv denied 27 N.Y.3d 1074 [2016], cert denied - U.S. -, 137 S.Ct. 392 [2016]).
Defendant nonetheless contends that his constitutional challenge to Penal Law § 265.03 (3) is exempt from the preservation requirement by relying on language from People v McLucas (15 N.Y.2d 167 [1965]), in which the Court of Appeals broadly stated that "no exception is necessary to preserve for appellate review a deprivation of a fundamental constitutional right" (id. at 172). Defendant, however, omits from his brief the fact that the Court of Appeals has since clarified that "this sweeping statement [in McLucas ] is no longer good law" (People v McLean, 15 N.Y.3d 117, 120 [2010]). Instead, under current law, "[t]he unconstitutionality of a statute is not exempt from the requirement of preservation" (People v Scott, 126 A.D.3d 645, 646 [1st Dept 2015], lv denied 25 N.Y.3d 1171 [2015]; see People v Iannelli, 69 N.Y.2d 684, 685 [1986], cert denied 482 U.S. 914 [1987]; People v Dozier, 52 N.Y.2d 781, 783 [1980]; People v Thomas, 50 N.Y.2d 467, 473 [1980]). For the reasons stated in People v McWilliams (214 A.D.3d 1328, 1329-1330 [4th Dept 2023]), we reject defendant's remaining claims that his constitutional challenge to his conviction is exempt from preservation. We decline to exercise our power to review defendant's challenge as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c])