PEOPLE v. LAYOU (2018)

MEMORANDUM AND ORDER

Defendant appeals, pro se, from a judgment convicting him following a plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) and criminal possession of a controlled substance in the fourth degree (§ 220.09[1] ). Although defendant contends that the felony complaint was jurisdictionally defective, “[t]he felony complaint was superseded by the indictment to which defendant pleaded guilty, and he therefore may not challenge the felony complaint” on this appeal (People v. Anderson, 90 A.D.3d 1475, 1477, 935 N.Y.S.2d 237 [4th Dept. 2011], lv denied 18 N.Y.3d 991, 945 N.Y.S.2d 646, 968 N.E.2d 1002 [2012];  see People v. Mitchell, 132 A.D.3d 1413, 1416, 17 N.Y.S.3d 563 [4th Dept. 2015], lv denied 27 N.Y.3d 1072, 38 N.Y.S.3d 842, 60 N.E.3d 1208 [2016] ).

Defendant further contends that County Court erred in refusing to suppress physical evidence seized from the vehicle in which defendant was a passenger because the stop of the vehicle, his subsequent detention and the search of the vehicle were all unlawful.  We reject defendant's contention.  “It is well established that police stops of automobiles in this State are legal only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations[,] when there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime ․ or where the police have probable cause to believe that the driver ․ has committed a traffic violation” (People v. Robinson, 122 A.D.3d 1282, 1283, 996 N.Y.S.2d 433 [4th Dept. 2014] [internal quotation marks omitted];  see generally People v. Robinson, 97 N.Y.2d 341, 349, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001];  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] ).

Here, we conclude that the stop of the vehicle was lawful inasmuch as the police had reasonable suspicion to stop the vehicle based on the contents of the 911 call from an identified citizen informant.  The information provided by the 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’ [the driver's] commission of the crime of driving while [ability impaired by drugs]” (People v. Wisniewski, 147 A.D.3d 1388, 1388, 47 N.Y.S.3d 543 [4th Dept. 2017], lv denied 29 N.Y.3d 1038, 62 N.Y.S.3d 307, 84 N.E.3d 979 [2017], quoting People v. Argyris, 24 N.Y.3d 1138, 1140–1141, 3 N.Y.S.3d 711, 27 N.E.3d 425 [2014], rearg. denied 24 N.Y.3d 1211, 4 N.Y.S.3d 593, 28 N.E.3d 27 [2015], cert denied ––– U.S. ––––, 136 S.Ct 793, 193 L.Ed.2d 722 [2016];  see People v. Van Every, 1 A.D.3d 977, 978, 767 N.Y.S.2d 176 [4th Dept. 2003], lv denied 1 N.Y.3d 602, 776 N.Y.S.2d 233, 808 N.E.2d 369 [2004] ).

Even assuming, arguendo, that defendant was illegally pursued and detained after he fled from the stopped vehicle (see People v. Robbins, 83 N.Y.2d 928, 930, 615 N.Y.S.2d 310, 638 N.E.2d 955 [1994];  People v. Hightower, 136 A.D.3d 1396, 1397, 25 N.Y.S.3d 764 [4th Dept. 2016];  People v. Perez, 149 A.D.2d 344, 345, 539 N.Y.S.2d 750 [1st Dept. 1989] ), we conclude that defendant's “entirely unprovoked flight, leaving the vehicle and his companion[ ] ․, constituted an abandonment of the ․ narcotics found in the ․ car and undermined any claim to a reasonable expectation of privacy he might otherwise have had” (People v. Gonzalez, 25 A.D.3d 620, 621, 810 N.Y.S.2d 87 [2d Dept. 2006], lv denied 6 N.Y.3d 833, 814 N.Y.S.2d 82, 847 N.E.2d 379 [2006] ).  In any event, the narcotics found in the vehicle “ ‘were not obtained by exploitation’ of the allegedly illegal detention” (People v. Holmes, 63 A.D.3d 1649, 1650, 879 N.Y.S.2d 882 [4th Dept. 2009], lv denied 12 N.Y.3d 926, 884 N.Y.S.2d 707, 912 N.E.2d 1088 [2009] ).  Rather, the evidence was seized after the owner gave her consent to search the vehicle and was thus “derived from a source independent of the detention and was attenuated from any illegal activity” (People v. Laws, 208 A.D.2d 317, 322, 623 N.Y.S.2d 216 [1st Dept. 1995];  see People v. Jackson, 143 A.D.2d 471, 472, 532 N.Y.S.2d 808 [3d Dept. 1988];  see generally Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 9 L.Ed.2d 441 [1963] ).

Finally, viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: