THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ALEXANDER WILLIAMS DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

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 attempted criminal possession of a controlled substance in the third degree (Penal Law §§ 110.00, 220.16 [1]), defendant contends that his waiver of the right to appeal is invalid, that County Court erred in refusing his motion to suppress physical evidence, and that his sentence is unduly harsh and severe. We affirm.

Initially, we agree with defendant that his waiver of the right to appeal is invalid (see People v Thomas, 34 NY3d 545, 565-566 [2019], cert denied 589 US 1302 [2020]; People v Smith, 237 AD3d 1558, 1559 [4th Dept 2025]; People v Harold, 233 AD3d 1503, 1503 [4th Dept 2024]) and thus does not preclude our review of his contention that the court erred in refusing to suppress physical evidence (see People v McCracken, 217 AD3d 1543, 1544 [4th Dept 2023]) or his challenge to the severity of his sentence (see Harold, 233 AD3d at 1503).

We reject defendant's contention that the court erred when it refused to suppress physical evidence that was recovered after a pedestrian stop in the Town of Orchard Park and after a traffic stop in the Town of Collins. Street encounters initiated by the police fall into one of four categories: “level one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two, the common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot; level three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor; level four, arrest, requires probable cause to believe that the person to be arrested has committed a crime” (People v Moore, 6 NY3d 496, 498-499 [2006]; see People v Hollman, 79 NY2d 181, 184-185 [1992]; People v De Bour, 40 NY2d 210, 223 [1976]).

“[T]hough a defendant who challenges the legality of a search and seizure has the burden of proving illegality, the People are nevertheless put to the burden of going forward to show the legality of the police conduct in the first instance” (People v Berrios, 28 NY2d 361, 367 [1971] [internal quotation marks and emphasis omitted]; see People v Walker, 221 AD3d 1568, 1568 [4th Dept 2023]). Defendant's burden is to establish police illegality “by a preponderance of the evidence” (People v Potter, 208 AD3d 802, 803 [2d Dept 2022], lv denied 39 NY3d 941 [2022]), and we are limited by the testimony and evidence submitted at the suppression hearing (see People v Gonzalez, 55 NY2d 720, 721-722 [1981], rearg denied 55 NY2d 1038 [1982], cert denied 456 US 1010 [1982]; People v Heverly, 230 AD3d 1534, 1535 [4th Dept 2024], lv denied 42 NY3d 1053 [2024]). “In evaluating police conduct, a court must determine whether the action taken was justified in its inception and at every subsequent stage of the encounter” (People v Allen, 188 AD3d 1595, 1596 [4th Dept 2020], lv denied 36 NY3d 1117 [2021] [internal quotation marks omitted]). “ ‘In determining whether an officer had the requisite basis to support the level of intrusion that occurred, the suppression court must consider the totality of circumstances’ ” (id.; see People v Wallace, 181 AD3d 1214, 1215 [4th Dept 2020]).

Regarding the pedestrian stop in the Town of Orchard Park, at the first level of a police-civilian encounter, i.e., a request for information, a police officer may approach an individual “when there is some objective credible reason for that interference not necessarily indicative of criminality” (De Bour, 40 NY2d at 223), and “[t]he request may ‘involve[ ] basic, nonthreatening questions regarding, for instance, identity, address or destination’ ” (People v Garcia, 20 NY3d 317, 322 [2012]). Here, the police officer was justified in initiating a level one encounter by approaching defendant and asking him “what was going on” and for his pedigree information inasmuch as the hearing testimony established that defendant matched the physical description and was near the location provided by dispatch of a suspect involved in a domestic disturbance who was reported to be walking eastbound on Southwestern Boulevard (see People v Howard, 129 AD3d 1654, 1655 [4th Dept 2015], lv denied 27 NY3d 999 [2016]; cf. People v Savage, 137 AD3d 1637, 1639 [4th Dept 2016]).

We further conclude that the officer was justified in escalating the encounter to level two. “The next degree, the common-law right to inquire, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a [police officer] is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure” (De Bour, 40 NY2d at 223). “In circumstances justifying a level two encounter, the officer may request an individual's consent to conduct a search, so long as the request is ‘reasonably related in scope to the circumstances that justified the interference in the first place’ ” (People v Darby, 234 AD3d 708, 709-710 [2d Dept 2025], lv denied 43 NY3d 1007 [2025]; see People v Dibble, 43 AD3d 1363, 1364 [4th Dept 2007], lv denied 9 NY3d 1032 [2008]). Here, the circumstances presented to the officer were sufficient to give him a founded suspicion that criminality was afoot. The officer was informed by dispatch that defendant was the subject of a no-offensive-contact order of protection in favor of the victim and that defendant pulled off the victim's wig and took her phone. The encounter with defendant also occurred in close proximity, within 50 yards, to the address to which the officer was dispatched and there were no other pedestrians matching that general description in the vicinity. Thus, the officer had the requisite founded suspicion that criminal activity was afoot to justify his acts of approaching and asking defendant whether he would consent to a search (see People v Atkinson, 185 AD3d 1438, 1439 [4th Dept 2020], lv denied 35 NY3d 1092 [2020]; People v Thacker, 156 AD3d 1482, 1483 [4th Dept 2017], lv denied 31 NY3d 1018 [2018]; People v McKinley, 101 AD3d 1747, 1748 [4th Dept 2012], lv denied 21 NY3d 1017 [2013]).

For the same reasons that justified the level two encounter, the officer was justified in the level three encounter and the attempt to detain defendant. “[L]evel three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor” (Moore, 6 NY3d at 498-499). Reasonable suspicion is defined as the “quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand” (People v Martinez, 80 NY2d 444, 448 [1992] [internal quotation marks omitted]). Here, the officer had reasonable suspicion that defendant committed a crime, i.e., a violation of the no-offensive-contact order of protection. The level four encounter was justified based upon the information the officer obtained during the investigation and based upon defendant's resistance to being detained, which provided the officers with probable cause to arrest defendant (see generally Moore, 6 NY3d at 498-499). Thus, the police encounter was lawful at its inception (see De Bour, 40 NY2d at 220) and at every subsequent stage and the court properly refused to suppress the physical evidence obtained after that.

Regarding the traffic stop in the Town of Collins, “where a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation, a stop does not violate [the state or federal constitutions, and] ․ neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant” (People v Robinson, 97 NY2d 341, 349 [2001]). “[T]he credibility determinations of the suppression court are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record” (People v Howard, 129 AD3d 1469, 1470 [4th Dept 2015], lv denied 26 NY3d 968 [2015], reconsideration denied 26 NY3d 1089 [2015] [internal quotation marks omitted]). Here, the initial stop was justified because the police officer testified that, prior to the stop, he observed, inter alia, defendant's vehicle cross the double yellow center line in violation of Vehicle and Traffic Law §§ 1120 (a) and 1128 (a) (see People v Addison, 199 AD3d 1321, 1322 [4th Dept 2021]). Inasmuch as defendant's vehicle was lawfully stopped, the officer was justified in ordering defendant out of the vehicle (see People v Ibrahim, 194 AD3d 1378, 1379 [4th Dept 2021], lv denied 37 NY3d 992 [2021]). Once defendant was out of the vehicle, the officer noticed a large bulge in defendant's pants and defendant consented to a pat-down frisk by the officer. After the officer learned of the orders of protection against defendant, the officer asked defendant about the identity of a female passenger in defendant's vehicle. Defendant told the officer that she was not the person from the orders of protection, gave a false name of the passenger, and told the officer that she was his girlfriend. The officer then spoke to the passenger, who, inter alia, told the officer that she was attempting to obtain drugs from defendant and drugs were recovered from the passenger. Both the passenger and defendant were placed under arrest, and during a search of the vehicle the officers recovered two scales with drug residue on them. We conclude that, based upon the circumstances, there was nothing improper about the officer's initial stop of the vehicle or the officer's request for defendant to exit the vehicle. Once the drugs were recovered from the passenger, the officer had probable cause to arrest both the passenger and defendant and to search the vehicle (see People v Bethea, 191 AD3d 1487, 1488 [4th Dept 2021], lv denied 36 NY3d 118 [2021]; see generally People v Booth, 158 AD3d 1253, 1255 [4th Dept 2018], lv denied 31 NY3d 1078 [2018]). Thus, we conclude that the police encounter was lawful at its inception and at every subsequent stage of the encounter (see generally De Bour, 40 NY2d at 220; Booth, 158 AD3d at 1255).

Finally, we conclude that defendant's sentence is not unduly harsh or severe.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court