PEOPLE v. RICHARDSON

Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Kemel G. RICHARDSON, Defendant-Appellant.

Decided: March 17, 2006

PRESENT:  PIGOTT, JR., P.J., SCUDDER, KEHOE, SMITH, AND PINE, JJ. Frank J. Nebush, Jr., Public Defender, Utica (Esther Cohen Lee of Counsel), for Defendant-Appellant. Michael A. Arcuri, District Attorney, Utica (Timothy P. Fitzgerald of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him following a bench trial of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06[5] ) and criminal possession of a controlled substance in the seventh degree (§ 220.03).   The sole contention of defendant on appeal is that County Court erred in denying his motion to suppress crack cocaine seized from his person following the stop of a vehicle in which defendant was a passenger.   The court was entitled to credit the testimony of the police officer at the suppression hearing in determining that the officer validly stopped the vehicle based upon the officer's observation of a violation of the Vehicle and Traffic Law (see People v. Robinson, 97 N.Y.2d 341, 349-356, 741 N.Y.S.2d 147, 767 N.E.2d 638;  see also People v. Sobotker, 43 N.Y.2d 559, 563-564, 402 N.Y.S.2d 993, 373 N.E.2d 1218;  People v. Ingle, 36 N.Y.2d 413, 414-415, 369 N.Y.S.2d 67, 330 N.E.2d 39;  see generally People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380).   Upon lawfully stopping the vehicle, the officer was entitled to order the driver and passengers to leave the vehicle (see People v. Mundo, 99 N.Y.2d 55, 58, 750 N.Y.S.2d 837, 780 N.E.2d 522;  People v. Robinson, 74 N.Y.2d 773, 775, 545 N.Y.S.2d 90, 543 N.E.2d 733, cert. denied 493 U.S. 966, 110 S.Ct. 411, 107 L.Ed.2d 376;  see also Pennsylvania v. Mimms, 434 U.S. 106, 110-111, 98 S.Ct. 330, 54 L.Ed.2d 331).   The officer first confronted defendant after the driver stated that defendant had admitted to the driver that defendant was in possession of drugs, at which time the officer had reasonable suspicion of criminal activity on the part of defendant.   “Reasonable suspicion represents that ‘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 N.Y.2d 444, 448, 591 N.Y.S.2d 823, 606 N.E.2d 951;  see People v. Cantor, 36 N.Y.2d 106, 112-113, 365 N.Y.S.2d 509, 324 N.E.2d 872).   Based on that reasonable suspicion, the officer was authorized to detain defendant at the scene and to engage in “accusatory questioning” of him (People v. Dunbar, 5 N.Y.3d 834, 835, 806 N.Y.S.2d 137, 840 N.E.2d 106;  see People v. Hicks, 68 N.Y.2d 234, 237-238, 508 N.Y.S.2d 163, 500 N.E.2d 861;  People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562;  see also CPL 140.50[1];  see generally People v. Hollman, 79 N.Y.2d 181, 191-192, 581 N.Y.S.2d 619, 590 N.E.2d 204).

In response to such questioning, defendant denied that he possessed anything illegal, and stated to the officer, “You can search me.”   The court properly concluded that defendant thereby voluntarily consented to a search of his person and that the search that ensued did not exceed the scope of his consent (see People v. Calvo, 1 A.D.3d 605, 767 N.Y.S.2d 653, lv. denied 2 N.Y.3d 738, 778 N.Y.S.2d 464, 810 N.E.2d 917;  People v. Mitchell, 211 A.D.2d 553, 621 N.Y.S.2d 581, lv. denied 86 N.Y.2d 738, 631 N.Y.S.2d 619, 655 N.E.2d 716;  People v. Jakubowski, 100 A.D.2d 112, 116-118, 472 N.Y.S.2d 853;  see generally Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297;  People v. Gomez, 5 N.Y.3d 416, 419-420, 805 N.Y.S.2d 24, 838 N.E.2d 1271).

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

MEMORANDUM: