PEOPLE v. GINTY (2022)

MEMORANDUM AND ORDER

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

Memorandum: In appeal No. 1, 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]) and criminal possession of a weapon in the third degree (§ 265.02 [8]). In appeal No. 2, defendant appeals from a judgment revoking the sentence of probation previously imposed upon his conviction of criminal possession of a controlled substance in the third degree (§ 220.16 [1]) and imposing a determinate term of imprisonment, followed by a period of postrelease supervision. We affirm in each appeal.

Defendant first contends, and the dissent agrees, that County Court erred in refusing to suppress evidence obtained by the police as a result of an interaction and pat frisk conducted during a traffic stop. We reject that contention.

The evidence at the suppression hearing established that the police lawfully stopped the vehicle in which defendant was a passenger (see People v. Robinson, 97 N.Y.2d 341, 348-349, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001]). Although defendant, along with the other occupants, was initially cooperative and compliant with the officers’ instructions to keep his hands visible, one of the officers observed that defendant thereafter began to exhibit furtive behavior in the vehicle inasmuch as his hands became “fidgety and shaky,” he started “looking all around” while the other occupants remained calm, and he then “gently leaned forward and b[lad]ed his body away from [the officer]” and “reached underneath toward his waistband” (see People v. Carter, 109 A.D.3d 1188, 1189, 971 N.Y.S.2d 722 [4th Dept. 2013], lv denied 22 N.Y.3d 1087, 981 N.Y.S.2d 673, 4 N.E.3d 975 [2014]; People v. Fagan, 98 A.D.3d 1270, 1271, 951 N.Y.S.2d 612 [4th Dept. 2012], lv denied 20 N.Y.3d 1061, 962 N.Y.S.2d 611, 985 N.E.2d 921 [2013], cert denied 571 U.S. 907, 134 S.Ct. 262, 187 L.Ed.2d 191 [2013]). The officer further explained that defendant appeared to be “reaching for something” in a slow manner designed to avoid “attract[ing the officer's] attention,” which raised safety concerns that defendant may have had a weapon (see People v. Benjamin, 51 N.Y.2d 267, 271, 434 N.Y.S.2d 144, 414 N.E.2d 645 [1980]). Although the dissent suggests otherwise, the fact that the officer's view of defendant was obscured to some extent when defendant was partially concealed inside the vehicle and was observed surreptitiously reaching toward his waistband constitutes a “circumstance that supports a reasonable suspicion that [defendant was] armed or pose[d] a threat to [officer] safety” (People v. Batista, 88 N.Y.2d 650, 654, 649 N.Y.S.2d 356, 672 N.E.2d 581 [1996]; see Fagan, 98 A.D.3d at 1271, 951 N.Y.S.2d 612; see generally People v. Garcia, 20 N.Y.3d 317, 323, 959 N.Y.S.2d 464, 983 N.E.2d 259 [2012]). Indeed, based on his movements inside the vehicle, the officers “reasonably suspected that defendant was armed and posed a threat to their safety because his actions were directed to the area of his waistband, which was concealed from their view” (Fagan, 98 A.D.3d at 1271, 951 N.Y.S.2d 612; see People v. Roberson, 155 A.D.3d 1683, 1683-1684, 64 N.Y.S.3d 835 [4th Dept. 2017], lv denied 31 N.Y.3d 1086, 79 N.Y.S.3d 108, 103 N.E.3d 1255 [2018]; Carter, 109 A.D.3d at 1189, 971 N.Y.S.2d 722). Thus, contrary to the dissent's suggestion, we conclude that “[e]ven though some of the circumstances, when viewed in isolation, might be considered innocuous, the totality of the information available to the police justified the frisk of defendant” (People v. Feldman, 114 A.D.3d 603, 603, 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 Benjamin, 51 N.Y.2d at 271, 434 N.Y.S.2d 144, 414 N.E.2d 645).

In view of our determination to affirm the judgment in appeal No. 1, we reject defendant's contention that the judgment in appeal No. 2 must be reversed on the ground that he admitted his violation of probation in appeal No. 2 based on the promise that the sentence in appeal No. 2 would run concurrently with the sentence in appeal No. 1 (see People v. Collins, 167 A.D.3d 1493, 1498-1499, 90 N.Y.S.3d 759 [4th Dept. 2018], lv denied 32 N.Y.3d 1202, 99 N.Y.S.3d 191, 122 N.E.3d 1104 [2019]; People v. Khammonivang, 68 A.D.3d 1727, 1727-1728, 891 N.Y.S.2d 837 [4th Dept. 2009], lv denied 14 N.Y.3d 889, 903 N.Y.S.2d 777, 929 N.E.2d 1012 [2010]; cf. People v. Fuggazzatto, 62 N.Y.2d 862, 863, 477 N.Y.S.2d 619, 466 N.E.2d 159 [1984]).

I respectfully dissent. Defendant does not dispute that the vehicle in which he was a passenger was lawfully stopped (see People v. Robinson, 97 N.Y.2d 341, 348-349, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001]). Nor does he dispute that, “upon making a valid stop of a motor vehicle for a traffic violation, the police may order the driver and all passengers out of the vehicle until the stop is concluded” (People v. Forbes, 283 A.D.2d 92, 94, 728 N.Y.S.2d 64 [2d Dept. 2001], lv denied 97 N.Y.2d 681, 738 N.Y.S.2d 296, 297, 764 N.E.2d 400, 401 [2001]). He contends that, based on the suppression hearing testimony, the People failed to meet their burden of showing that the officer had a reasonable suspicion “that defendant was armed and posed a threat to [his] safety” to justify a pat frisk of defendant's person (People v. Carter, 109 A.D.3d 1188, 1189, 971 N.Y.S.2d 722 [4th Dept. 2013], lv denied 22 N.Y.3d 1087, 981 N.Y.S.2d 673, 4 N.E.3d 975 [2014] [internal quotation marks omitted]).

The evidence at the hearing showed that defendant was initially “fully cooperative” with the officers who stopped the vehicle, answering their questions and complying with their instructions “to keep [his] hands where [the officers could] see them.” However, at some point during the stop, defendant became restless, “looking all around” with “fidgety and shaky” hands. Although one of the officers testified that he observed defendant make one reaching movement “underneath toward his waistband,” the officer's view of the movement was severely impeded inasmuch as, according to his testimony, he was outside the car, on the opposite side from defendant, observing defendant through a window. The officer did not observe a telltale bulge in defendant's clothing (cf. People v. Jackson, 52 A.D.3d 400, 400, 861 N.Y.S.2d 14 [1st Dept. 2008], lv denied 11 N.Y.3d 833, 868 N.Y.S.2d 607, 897 N.E.2d 1091 [2008]; People v. Price, 49 A.D.3d 330, 330, 853 N.Y.S.2d 326 [1st Dept. 2008], lv denied 10 N.Y.3d 938, 862 N.Y.S.2d 345, 892 N.E.2d 411 [2008]), nor did he actually see defendant's hand reach into his clothing (cf. Carter, 109 A.D.3d at 1189, 971 N.Y.S.2d 722; People v. Daniels, 103 A.D.3d 1204, 1205, 962 N.Y.S.2d 522 [4th Dept. 2013], lv denied 22 N.Y.3d 1137, 983 N.Y.S.2d 496, 6 N.E.3d 615 [2014]). Instead, he testified only that defendant's left hand remained in view while his right hand was out of view reaching “in the general waistline side of his body area.”

“Reasonable suspicion ‘may not rest on equivocal or “innocuous behavior” that is susceptible of an innocent as well as a culpable interpretation’ ” (People v. Hinshaw, 35 N.Y.3d 427, 438, 132 N.Y.S.3d 90, 156 N.E.3d 812 [2020], quoting People v. Brannon, 16 N.Y.3d 596, 602, 925 N.Y.S.2d 393, 949 N.E.2d 484 [2011]). Inasmuch as defendant's nervousness and movements were susceptible of an innocent interpretation, particularly in light of his status as the vehicle's only black occupant, and inasmuch as defendant was, according to the officer's testimony, “fully compliant” with the officers’ instruction to exit the vehicle, I agree with defendant that his conduct while in the vehicle was insufficient to establish reasonable suspicion necessary for law enforcement to conduct a pat frisk of his person (cf. People v. Fagan, 98 A.D.3d 1270, 1271, 951 N.Y.S.2d 612 [4th Dept. 2012], lv denied 20 N.Y.3d 1061, 962 N.Y.S.2d 611, 985 N.E.2d 921 [2013], cert denied 571 U.S. 907, 134 S.Ct. 262, 187 L.Ed.2d 191 [2013]; see generally People v. Garcia, 20 N.Y.3d 317, 322-323, 959 N.Y.S.2d 464, 983 N.E.2d 259 [2012]; People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976]).

I therefore agree with defendant that County Court erred in refusing to suppress the weapon seized from his person (see generally Brannon, 16 N.Y.3d at 602-603, 925 N.Y.S.2d 393, 949 N.E.2d 484). Thus, in appeal No. 1, I would reverse the judgment, vacate the plea, and grant that part of the omnibus motion seeking suppression of the weapon. Further, because my determination would result in the suppression of all evidence in support of the crimes charged, I would also dismiss the indictment in appeal No. 1 (see People v. Williams, 177 A.D.3d 1312, 1313, 112 N.Y.S.3d 836 [4th Dept. 2019]). Additionally, inasmuch as defendant admitted to a probation violation based on the promise that the sentence in appeal No. 2 would run concurrently with the sentence in appeal No. 1 (see generally People v. Fuggazzatto, 62 N.Y.2d 862, 863, 477 N.Y.S.2d 619, 466 N.E.2d 159 [1984]), I would reverse the judgment in appeal No. 2, vacate the admission, and remit for further proceedings on the violation.