PEOPLE v. ROBINSON (2007)

Appeal by the People from an order of the County Court, Suffolk County (Gazzillo, J.), dated November 30, 2005, which, after a hearing, granted those branches of the defendant's omnibus motion which were to suppress physical evidence and his statement to law enforcement officials.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant's omnibus motion which was to suppress physical evidence and substituting therefor a provision denying that branch of the motion;  as so modified, the order is affirmed, and the matter is remitted to the County Court, Suffolk County, for further proceedings in accordance herewith.

 We agree with the People's contention that the branch of the defendant's omnibus motion which was to suppress physical evidence should have been denied.   The decision of Police Officer Corso to stop the vehicle was justified by his observation that the driver of the vehicle was not wearing a seat belt in violation of Vehicle and Traffic Law § 1229-c(3) (see Whren v. United States, 517 U.S. 806, 810-814, 116 S.Ct. 1769, 135 L.Ed.2d 89;  People v. Robinson, 97 N.Y.2d 341, 348-349, 741 N.Y.S.2d 147, 767 N.E.2d 638;  People v. Gonzalez, 25 A.D.3d 620, 810 N.Y.S.2d 87;  People v. McCoy, 239 A.D.2d 437, 657 N.Y.S.2d 437;  People v. Mikel, 152 A.D.2d 603, 604, 543 N.Y.S.2d 712).   The defendant, a mere passenger, lacked standing to challenge the search of a lawfully-stopped vehicle with respect to which he demonstrated no legitimate expectation of privacy (see People v. Ballard, 16 A.D.3d 697, 698, 794 N.Y.S.2d 60). Moreover, the defendant did not have automatic standing since the People were not relying on the statutory presumption of Penal Law § 220.25(1) (see People v. Millan, 69 N.Y.2d 514, 520, 516 N.Y.S.2d 168, 508 N.E.2d 903;  People v. Fredericks, 234 A.D.2d 472, 473, 651 N.Y.S.2d 139;   People v. Carter, 199 A.D.2d 817, 819, 606 N.Y.S.2d 786, affd. 86 N.Y.2d 721, 631 N.Y.S.2d 116, 655 N.E.2d 157).   In any event, once the officer observed the plastic bag of what appeared to be cocaine in plain view, he was entitled to seize the narcotics and arrest the defendant (see People v. Haynes, 16 A.D.3d 434, 790 N.Y.S.2d 542;  People v. King, 266 A.D.2d 239, 697 N.Y.S.2d 325).

 However, the defendant was entitled to suppression of a statement he made to Police Officer Corso.   The spontaneity of a statement must be “genuine and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed ” (People v. Maerling, 46 N.Y.2d 289, 302-303, 413 N.Y.S.2d 316, 385 N.E.2d 1245 [emphasis added];  see People v. Reese, 248 A.D.2d 411, 669 N.Y.S.2d 643;  People v. Brown, 216 A.D.2d 3, 627 N.Y.S.2d 47).   The statement made by the defendant was not genuinely spontaneous as it was prompted by the inquiry of the officer (see People v. Facciolo, 288 A.D.2d 392, 734 N.Y.S.2d 179;  cf. People v. Leftenant, 22 A.D.3d 603, 804 N.Y.S.2d 327;  People v. Roper, 208 A.D.2d 571, 617 N.Y.S.2d 44).   Accordingly, the Supreme Court properly determined that the inculpatory statement was prompted by the functional equivalent of a custodial interrogation, and thus was subject to suppression.