THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. CASH BYNUM DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). Defendant contends in his main and pro se supplemental briefs that Supreme Court erred in refusing to suppress tangible evidence recovered during an inventory search of his vehicle and in refusing to suppress statements he subsequently made during a custodial interview. We affirm.

Preliminarily, we note that defendant's contentions in his pro se supplemental brief that the Buffalo Police Department (BPD) policy on inventory searches is unconstitutional because it does not sufficiently limit the discretion of searching officers and that the searching officers violated the BPD policy on inventory searches in the manner in which they conducted the search are not preserved for our review inasmuch as defendant did not challenge the search in the suppression court on those grounds (see People v Pringle, 229 AD3d 1234, 1236 [4th Dept 2024], lv denied 42 NY3d 1054 [2024]; People v Socciarelli, 203 AD3d 1556, 1558 [4th Dept 2022], lv denied 38 NY3d 1035 [2022]).

With respect to defendant's contention that the court erred in refusing to suppress the tangible evidence seized during the search of his vehicle, it is well established that, “ ‘[i]n evaluating police conduct, the court must determine whether the action taken was justified in its inception and at every subsequent stage of the encounter’ ” (People v Finch, 137 AD3d 1653, 1654 [4th Dept 2016]). “[I]nterference with a moving vehicle is a seizure” and, thus, must be “based on probable cause that a driver has committed a traffic violation ․ [or] ․ a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime” (People v Heath, 218 AD3d 1330, 1332 [4th Dept 2023], lv denied 40 NY3d 1012 [2023] [internal quotation marks omitted]; see People v Hinshaw, 35 NY3d 427, 430 [2020]). The arrest of a defendant, in turn, must be based on “knowledge of facts and circumstances sufficient to support a reasonable belief that an offense has been or is being committed” (People v Green, 68 AD3d 1780, 1781 [4th Dept 2009], lv denied 14 NY3d 841 [2010] [internal quotation marks omitted]; see generally People v De Bour, 40 NY2d 210, 215 [1976]). “ ‘Under the fellow officer rule, a police officer can make a lawful arrest even without personal knowledge sufficient to establish probable cause, so long as the officer is acting upon the direction of or as a result of communication with a fellow officer or another police agency in possession of information sufficient to constitute probable cause for the arrest ․ Information received from another police officer is presumptively reliable’ ” (People v Moss, 232 AD3d 1327, 1328 [4th Dept 2024], quoting People v Ketcham, 93 NY2d 416, 419-420 [1999]; see generally People v Palacios, — NY3d —, —, 2026 NY Slip Op 02360, *1 [2026]).

Here, contrary to defendant's contention in his main brief, the People established that the police lawfully initiated a stop of defendant's vehicle based on a “be-on-the-lookout” (BOLO) bulletin for defendant and two of his vehicles, which had been issued by a police detective investigating a burglary and, critically, alerted officers that “[a]rrest paperwork” for defendant was on file. The BOLO provided the police with a “reasonable suspicion” that an individual in defendant's vehicle may have committed a crime (People v Rose, 72 AD3d 1341, 1343 [3d Dept 2010], lv dismissed 16 NY3d 745 [2011]; see People v Zubidi, — NY3d —, —, 2026 NY Slip Op 00964, *1-2 [2026]; People v Hunter, 219 AD3d 975, 978-979 [3d Dept 2023]). The BOLO further provided the police with probable cause that defendant had committed the burglary inasmuch as the detective that issued the BOLO had personally met with the victim who identified defendant by name as the perpetrator (see Moss, 232 AD3d at 1328; see also People v McCutcheon, 214 AD3d 1446, 1447 [4th Dept 2023], lv denied 40 NY3d 935 [2023]). The fact that the detective testified during the suppression hearing that he did not believe he had probable cause to arrest defendant until after he had an opportunity to interview him “is of no moment [inasmuch as] ‘[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis’ ” (People v Williams, 225 AD3d 1130, 1131-1132 [4th Dept 2024], lv denied 42 NY3d 973 [2024], quoting Whren v United States, 517 US 806, 813 [1996]). Thus, once the police confirmed defendant's identity as the subject of the BOLO following the stop of his vehicle, they had “probable cause to arrest [him]” (Rose, 72 AD3d at 1345; see generally Palacios, — NY3d at —, 2026 NY Slip Op 02360, *1-2; McCutcheon, 214 AD3d at 1447).

Contrary to defendant's contention in the main and pro se supplemental briefs, we conclude that the initial determination of the police to thereafter impound the vehicle was proper inasmuch as defendant—who was the sole occupant—was placed under arrest and was therefore unable to drive, and BPD policy directs that vehicles “will be towed to the Auto Pound when[, inter alia,] ․ [t]he vehicle is unable to be secured and there is a threat that the vehicle may be stolen or further damaged” (see People v Hayden-Larson, 179 AD3d 1549, 1550 [4th Dept 2020], lv denied 35 NY3d 970 [2020]; People v Morman, 145 AD3d 1435, 1436 [4th Dept 2016], lv denied 29 NY3d 999 [2017]; People v Schwing, 13 AD3d 725, 725-726 [3d Dept 2004]). “ ‘[T]he police were not required to explore alternatives to impoundment’ ” (Morman, 145 AD3d at 1436), nor were they required to “inquire whether somebody, somewhere may be available to drive the arrestee's car and to further require that the police then cast about trying to find such person” (Schwing, 13 AD3d at 726).

Contrary to defendant's further contention in the main and pro se supplemental briefs, we conclude that the inventory search was not merely a ruse to search defendant's vehicle. “The objectives of an inventory search are to protect the property of the defendant, to protect the police against any claim of lost property, and to protect police personnel and others from any dangerous instruments” (People v Cunningham, 239 AD3d 1418, 1418 [4th Dept 2025]; see People v Johnson, 1 NY3d 252, 256 [2003]). “While incriminating evidence may be a consequence of an inventory search, it should not be its purpose” (Johnson, 1 NY3d at 256; see People v Williams, 214 AD3d 1395, 1396 [4th Dept 2023], lv denied 40 NY3d 931 [2023]), and thus the police are prohibited from using an inventory search merely as a ruse or pretext to rummage through a defendant's vehicle in order to discover incriminating evidence (see Florida v Wells, 495 US 1, 4 [1990]; Johnson, 1 NY3d at 256; Cunningham, 239 AD3d at 1418).

According “great deference” to the credibility determinations of the suppression court here (People v Bush, 107 AD3d 1581, 1582 [4th Dept 2013], lv denied 22 NY3d 954 [2013] [internal quotation marks omitted]), we conclude that the evidence at the suppression hearing demonstrated that the inventory search “was in accordance with procedure and resulted in a meaningful inventory list and that the primary objectives of the search were to preserve the property located inside the vehicle” (People v Lee, 29 NY3d 1119, 1120 [2017] [internal quotation marks omitted]; cf. Cunningham, 239 AD3d at 1419). “The fact that the [police] knew that contraband might be recovered does not invalidate the entire search” (Lee, 29 NY3d at 1120 [internal quotation marks omitted]), nor was it unreasonable for the police to inspect the center console by running their fingers along the console during the inventory search (see People v Padilla, 21 NY3d 268, 273 [2013]). “[I]t is not for ‘courts to micromanage the procedures used to search properly impounded cars’ ” (People v Brundige, 243 AD3d 1329, 1331 [4th Dept 2025], lv denied 44 NY3d 1064 [2026], quoting People v Walker, 20 NY3d 122, 127 [2012]).

With respect to defendant's contention in the main brief that the court erred in refusing to suppress the statements he made during a custodial interview, it is well settled that where a defendant in custody unequivocally requests the assistance of counsel any subsequent purported waiver of that right obtained in the absence of counsel is ineffective (see People v Glover, 87 NY2d 838, 839 [1995]; People v Esposito, 68 NY2d 961, 962 [1986]). “[I]n order to terminate questioning, the assertion by a defendant of his right to remain silent must be unequivocal and unqualified” (People v Morton, 231 AD2d 927, 928 [4th Dept 1996], lv denied 89 NY2d 944 [1997]; see People v Zacher, 97 AD3d 1101, 1101 [4th Dept 2012], lv denied 20 NY3d 1015 [2013]), and whether the request was “unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request[,] including the defendant's demeanor, manner of expression and the particular words found to have been used by the defendant” (Glover, 87 NY2d at 839). The court's determination that defendant did not unequivocally invoke his right to remain silent is “granted deference and will not be disturbed unless unsupported by the record” (People v Kuklinski, 24 AD3d 1036, 1036 [3d Dept 2005], lv denied 7 NY3d 758, 814 [2006]; see Zacher, 97 AD3d at 1101). Here, defendant failed to clearly communicate a desire to cease all questioning indefinitely and instead “continued to participate in the conversation with the police” (People v Trifunovski, 199 AD3d 1344, 1345 [4th Dept 2021], lv denied 38 NY3d 931 [2022]; see People v Johnston, 192 AD3d 1516, 1519 [4th Dept 2021], lv denied 37 NY3d 972 [2021]). We further conclude that the record of the suppression hearing here, including the video of defendant's police interview, “supports the court's determination that defendant knowingly, voluntarily and intelligently waived his Miranda rights before making [his] statement[s]” to the police (Trifunovski, 199 AD3d at 1345 [internal quotation marks omitted]; see People v Case, 150 AD3d 1634, 1638 [4th Dept 2017]).

We have reviewed defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court