PEOPLE v. PALM (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Craig S. Brown, J.), rendered May 16, 2023, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.  The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

The defendant was arrested after a stop and frisk resulting in the recovery of a firearm.  After a hearing, the County Court denied those branches of the defendant's omnibus motion which were to suppress the physical evidence recovered, including the firearm, and the defendant's statements made to law enforcement officials.  After a jury trial, the defendant was convicted of criminal possession of a weapon in the second degree.  The defendant appeals.

Pursuant to (People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562), there is “a graduated four-level test for evaluating the propriety of police encounters when a police officer is acting in a law enforcement capacity” (People v. Benbow, 193 A.D.3d 869, 871, 145 N.Y.S.3d 584 [internal quotation marks omitted];  see People v. Alleyne, ––– A.D.3d ––––, 230 N.Y.S.3d 391).  “The first level 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” (People v. Benbow, 193 A.D.3d at 871, 145 N.Y.S.3d 584 [internal quotation marks omitted]).  “The second level, known as the common-law right of inquiry, requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion” (id. [internal quotation marks omitted]).  “Based upon a founded suspicion that criminal activity is afoot, the subject may be asked to produce identification, may be asked whether he [or she] has weapons, and may be asked to remove his [or her] hands from his [or her] pockets” (Matter of Shakir J., 119 A.D.3d 792, 794–795, 990 N.Y.S.2d 85 [citation omitted];  see People v. Alleyne, ––– A.D.3d ––––, 230 N.Y.S.3d 391;  People v. Muhammed, 196 A.D.3d 1151, 1152–1153, 150 N.Y.S.3d 858).  “The third level permits a police officer to forcibly stop and detain an individual” (People v. Benbow, 193 A.D.3d at 871, 145 N.Y.S.3d 584 [internal quotation marks omitted]).  “Such a detention, however, is not permitted unless there is a reasonable suspicion that an individual is committing, has committed, or is about to commit a crime” (id. [internal quotation marks omitted]).  “A corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that he [or she] is in danger of physical injury by virtue of the detainee being armed” (People v. De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562).  “The fourth level authorizes an arrest based on probable cause to believe that a person has committed a crime” (People v. Benbow, 193 A.D.3d at 871, 145 N.Y.S.3d 584 [internal quotation marks omitted]).

Here, in light of the evidence demonstrating that the defendant matched the general description of the perpetrator, who had brandished a firearm, that was broadcast over the police radio, along with the defendant's temporal and spatial proximity to the scene of that incident, and the officers’ observations that the defendant put his hands in his waistband, the police had reasonable suspicion to stop and frisk the defendant (see People v. De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562;  People v. Alleyne, ––– A.D.3d ––––, 230 N.Y.S.3d 391;  People v. Richardson, 219 A.D.3d 637, 638, 194 N.Y.S.3d 157;  People v. Maschoun, 186 A.D.3d 1402, 1403, 128 N.Y.S.3d 858;  People v. Currie, 131 A.D.3d 1265, 16 N.Y.S.3d 866;  People v. Abdul–Mateen, 126 A.D.3d 986, 988, 4 N.Y.S.3d 310).  To the extent that the defendant contends that introducing his statements made to law enforcement officials violated his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), the evidence at the hearing established that the statements were made spontaneously and were not the product of police interrogation or its functional equivalent (see People v. Martinez, 186 A.D.3d 1530, 1531, 130 N.Y.S.3d 828;  People v. Barnes, 171 A.D.3d 1082, 1082, 96 N.Y.S.3d 861).  Accordingly, the County Court properly denied those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.

The defendant's contention that Penal Law § 265.03 is unconstitutional in light of the decision in (New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387) is unpreserved for appellate review, as the defendant failed to raise a constitutional challenge before the County Court (see People v. Robb, 233 A.D.3d 805, 221 N.Y.S.3d 674;  People v. Bynum, 225 A.D.3d 781, 781, 207 N.Y.S.3d 166;  People v. Chase, 223 A.D.3d 913, 913, 204 N.Y.S.3d 221).  In any event, the Bruen decision “had no impact on the constitutionality of New York State's criminal possession of a weapon statutes” (People v. Manners, 217 A.D.3d 683, 686, 191 N.Y.S.3d 90;  see People v. Sargeant, 230 A.D.3d 1341, 1355, 220 N.Y.S.3d 85;  People v. Chase, 223 A.D.3d at 913, 204 N.Y.S.3d 221).

The defendant's contention that he was deprived of the effective assistance of counsel is without merit.  Under both the state and federal standards for ineffective assistance of counsel, “[t]here can be no denial of effective assistance ․ arising from counsel's failure to make a motion or argument that has little or no chance of success” (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [internal quotation marks omitted];  see People v. Parvez, 209 A.D.3d 885, 887, 176 N.Y.S.3d 308;  People v. Clark, 171 A.D.3d 942, 944, 97 N.Y.S.3d 711;  see also People v. Kamara, 234 A.D.3d 496, 497, 225 N.Y.S.3d 101 ).

The defendant's remaining contention is unpreserved for appellate review and, in any event, without merit.

CONNOLLY, J.P., MILLER, VENTURA and MCCORMACK, JJ., concur.