PEOPLE v. SANKARA (2018)

Judgment, Supreme Court, New York County (Anthony J. Ferrara, J.), rendered December 9, 2015, as amended February 16, 2016, convicting defendant, after a jury trial, of three counts of criminal possession of a forged instrument in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 31/212 to 7 years, unanimously affirmed.

The hearing court properly denied defendant's motion to suppress forged debit and gift cards recovered from his wallet subsequent to his arrest.  The record does not support any of defendant's multiple arguments for suppression.

Given that defendant's car was stopped with its lights off in a no parking zone, the police had an objective, credible reason to approach for information (see People v. Ruiz, 100 A.D.3d 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] ).  Defendant argues that the objective, credible reason dissipated at a point in the encounter when the testifying officer no longer believed that the car was illegally parked.  However, the officer's testimony demonstrates that defendant engaged in suspicious conduct before the officer abandoned his belief about the illegal parking.

Upon the officers' approach to his car, defendant's “furtive motion[ ] in attempting to stuff something under the passenger seat ․ caused the officer to reasonably fear for his safety and reasonably believe that defendant might possess a weapon” (People v. Feldman, 114 A.D.3d 603, 603–04, 981 N.Y.S.2d 74 [1st Dept. 2014], lv denied 23 N.Y.3d 962, 988 N.Y.S.2d 569, 11 N.E.3d 719 [2014];  see also People v. Alejandro, 142 A.D.3d 876, 38 N.Y.S.3d 146 [1st Dept. 2016], lv denied 28 NY3d 1070, 47 N.Y.S.3d 229, 69 N.E.3d 1025 [2016] ).  The officers were thus justified in directing defendant to show his hands and get out of the car, and in performing a limited search of the area where defendant appeared to have hidden something (see Feldman, 114 A.D.3d at 603–04, 981 N.Y.S.2d 74;  People v. Anderson, 17 A.D.3d 166, 168, 793 N.Y.S.2d 353 [1st Dept. 2005] ).  The search revealed contraband, providing probable cause for defendant's arrest.

Defendant failed to preserve his next suppression argument, which is that the police unlawfully searched his wallet at the precinct after his arrest (see People v. Miranda, 27 N.Y.3d 931, 30 N.Y.S.3d 600, 50 N.E.3d 224 [2016] ), and we decline to review it in the interest of justice.  Because of defendant's failure to raise this issue at the suppression hearing, “the People were never placed on notice of any need to develop the record as to th[is] issue[ ], or to otherwise establish the validity of the search” (People v. Hawkins, 130 A.D.3d 426, 427, 13 N.Y.S.3d 60 [1st Dept. 2015], lv denied 26 N.Y.3d 1088, 23 N.Y.S.3d 645, 44 N.E.3d 943 [2015];  see People v. Tutt, 38 N.Y.2d 1011, 1012–13, 384 N.Y.S.2d 444, 348 N.E.2d 920 [1976] ).  In particular, defendant never claimed that the People needed to introduce more evidence at the hearing concerning police inventory procedures.  Accordingly, the record was insufficiently developed to permit appellate review of this issue (see People v. Martin, 50 N.Y.2d 1029, 431 N.Y.S.2d 689, 409 N.E.2d 1363 [1980];  People v. Tutt, 38 N.Y.2d 1011, 384 N.Y.S.2d 444, 348 N.E.2d 920 [1976] ).

Defendant's final suppression argument is that when the police used a bank card reader to determine whether the account information contained in the magnetic strips of the cards recovered from defendant's wallet matched the information printed on the front of the cards, this action was similar to a cell phone search, and it thus required a search warrant under Riley v. California, 573 U.S. ––––, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014).  However, a growing number of cases addressing this technology recognize that this type of police action does not violate any privacy interest protected by the Fourth Amendment (see e.g. People v. Dent, 57 Misc.3d 300, 308–10, 61 N.Y.S.3d 446 [Sup. Ct. Queens County 2017];  United States v. Hillaire, 857 F.3d 128, 129–30 [1st Cir.2017];  United States v. Turner, 839 F.3d 429, 434– 437 [5th Cir.2016];  United States v. DE L'Isle, 825 F.3d 426, 431–433 [8th Cir.2016];  United States v. Bah, 794 F.3d 617, 630–633 [6th Cir.2015], cert denied sub nom. Harvey v. United States, ––– U.S. ––––, 136 S.Ct. 561, 193 L.Ed.2d 447 [2015] ).

The verdict was not against the weight of the evidence, as viewed in light of the court's charge (see People v. Noble, 86 N.Y.2d 814, 633 N.Y.S.2d 469, 657 N.E.2d 490 [1995] ).  The charge, read as a whole, permitted the jury to convict defendant of criminal possession of a forged instrument based on the types of forged cards he actually possessed.

The court's Sandoval ruling balanced the appropriate factors and was a provident exercise of discretion (see People v. Hayes, 97 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002];  People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216 [1983] ).  The court permitted inquiry into a conviction that was highly probative of defendant's credibility, notwithstanding its similarity to the present charge.