PEOPLE v. COLEY

Reset A A Font size: Print

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Tremaine COLEY, Defendant-Appellant.

Decided: September 28, 2001

PRESENT:  GREEN, J.P., HURLBUTT, SCUDDER, KEHOE and GORSKI, JJ. Elizabeth C. Clarke, for defendant-appellant. Loretta S. Courtney, for plaintiff-respondent.

On appeal from a judgment convicting him of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15[4] ), the sole contention of defendant is that his statements should have been suppressed as the product of an unlawful vehicle “stop”, in violation of his Fourth Amendment rights.   Supreme Court granted that part of defendant's motion seeking suppression of the tangible evidence seized but refused to suppress defendant's statements, concluding that the statements were sufficiently attenuated from the illegal “stop” of the vehicle.   We agree with the People that the court erred in finding any Fourth Amendment violation leading to defendant's arrest because the tangible evidence was observed by police in plain view after they lawfully approached the nonmoving vehicle in which defendant was an occupant.   Thus, we conclude that the court properly refused to suppress defendant's statements.

 In order to approach the occupants of a nonmoving vehicle to request information, police must demonstrate an “articulable basis” for the approach, meaning an “objective, credible reason not necessarily indicative of criminality” (People v. Ocasio, 85 N.Y.2d 982, 985, 629 N.Y.S.2d 161, 652 N.E.2d 907;  see, People v. Valerio, 274 A.D.2d 950, 710 N.Y.S.2d 497, affd. 95 N.Y.2d 924, 721 N.Y.S.2d 601, 744 N.E.2d 136, cert. denied 532 U.S. 981, 121 S.Ct. 1623, 149 L.Ed.2d 485;  People v. Harrison, 57 N.Y.2d 470, 475, 457 N.Y.S.2d 199, 443 N.E.2d 447;  People v. Stebbins, 278 A.D.2d 942, 718 N.Y.S.2d 531, lv. denied 96 N.Y.2d 807, 726 N.Y.S.2d 385, 750 N.E.2d 87;  People v. Grady, 272 A.D.2d 952, 708 N.Y.S.2d 765, lv. denied 95 N.Y.2d 905, 716 N.Y.S.2d 646, 739 N.E.2d 1151).   Here, the arresting officers had a proper basis for approaching the suspects in order to request information.   The arresting officers had obtained signed inculpatory statements from other individuals to the effect that the house at 269 Sixth Street, where the suspects' vehicle had just been observed, had been used previously to plan robberies of fast food restaurants and divide up robbery proceeds.   Upon lawfully approaching the vehicle and detecting a furtive movement by defendant, a passenger therein, the officers were entitled to look into the vehicle from the outside (see, People v. Edwards, 222 A.D.2d 603, 635 N.Y.S.2d 274, lv. denied 88 N.Y.2d 984, 649 N.Y.S.2d 391, 672 N.E.2d 617;  People v. Williams, 167 A.D.2d 236, 561 N.Y.S.2d 734, lv. denied 77 N.Y.2d 883, 568 N.Y.S.2d 926, 571 N.E.2d 96;  People v. Scott, 166 A.D.2d 919, 560 N.Y.S.2d 576, lv. denied 77 N.Y.2d 911, 569 N.Y.S.2d 943, 572 N.E.2d 626).   Upon observing the barrel of a gun on the floor between defendant's legs, the officers had probable cause to arrest defendant (see, People v. Blasich, 73 N.Y.2d 673, 677, 543 N.Y.S.2d 40, 541 N.E.2d 40;  People v. Langen, 60 N.Y.2d 170, 180, 469 N.Y.S.2d 44, 456 N.E.2d 1167, cert. denied 465 U.S. 1028, 104 S.Ct. 1287, 79 L.Ed.2d 690;  People v. Landy, 59 N.Y.2d 369, 376, 465 N.Y.S.2d 857, 452 N.E.2d 1185), and thus he is not entitled to suppression of his subsequent statements.

Judgment unanimously affirmed.

MEMORANDUM: