People v. Argyris

• Decision Date: 10 October 2012
• Citation: 99 A.D.3d 808,2012 N.Y. Slip Op. 06815,952 N.Y.S.2d 254
• Parties: The PEOPLE, etc., respondent, v. Costandino ARGYRIS, appellant.
• Court: New York Supreme Court — Appellate Division

99 A.D.3d 808

952 N.Y.S.2d 254

2012 N.Y. Slip Op. 06815

The PEOPLE, etc., respondent,

v.Costandino ARGYRIS, appellant.

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

Oct. 10, 2012.

Barbara Matarazzo, White Plains, N.Y. (Julie DeGenero of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Donna Aldea of counsel), for respondent.

PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, ARIEL E. BELEN, and SHERI S. ROMAN, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.), rendered November 12, 2010, convicting him of criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the fourth degree, and unlawful possession of pistol ammunition, upon his plea of guilty, and imposing sentence. The appeal brings up for review an order of the same court dated June 18, [99 A.D.3d 809]2010, which, upon reargument, vacated the determination in an order dated February 22, 2010, after a hearing, granting that branch of the defendant's omnibus motion which was to suppress physical evidence, and thereupon denied that branch of the defendant's motion.

ORDERED that the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50(5).

On July 19, 2007, at approximately 2:15 P.M., a caller telephoned the 911 emergency telephone number and told the operator that he had just come out of a building on Newtown Avenue and 31st Street in Astoria, and that he had seen four “big bully white guys” getting into a brand new black Mustang. The caller recited the Mustang's license plate number, and further stated that he had seen one of the men put a “big gun” in the back of the Mustang, that there was a gray van traveling with the Mustang either in front of or behind it, and that the two vehicles had made a right turn on 28th Street toward Astoria Boulevard. Police Officer Kashim Valles, patrolling alone in a marked car, received a radio transmission concerning the 911 call, reporting white males with guns, and providing a description of the Mustang and its license plate number. Shortly thereafter, Officer Valles spotted the Mustang turning onto 31st Street. After confirming that the Mustang's license plate number matched the number in the transmission, Officer Valles, with his lights and sirens on, cut off the Mustang by pulling in front of it. Officer Valles made a radio call announcing that he had stopped the Mustang and requesting backup. Officer Valles then stepped out of his vehicle, drew his gun, and waited for additional officers to arrive.

Once other units arrived, Officer Valles holstered his gun and approached the front passenger side of the Mustang. The other officers had their guns drawn. Officer Valles asked the passenger to step out of the Mustang, and the passenger complied. As the passenger exited the Mustang with his hands raised, Officer Valles immediately observed a revolver in the front of the passenger's waistband. Officer Valles confiscated the firearm and handcuffed the passenger. Officer Valles then removed the driver from the Mustang, and placed him in handcuffs. Next, the passengers in the back seat of the Mustang, including the defendant, Costandino Argyris, exited the Mustang and were patted down. The defendant was wearing a bullet-proof vest and had a blackjack in his pocket. A subsequent search of the Mustang resulted in the recovery of a loaded .38 caliber automatic firearm from under the driver's seat, and a box of 9–millimeter ammunition located on the back seat.

Prior to trial, the defendant moved, inter alia, to suppress the physical evidence recovered by the police. After originally granting that branch of the defendant's motion, the Supreme Court, in an order dated June 18, 2010, granted the People's motion for leave to reargue and, upon reargument, vacated its prior determination and thereupon denied suppression. The Supreme Court subsequently denied the defendant's motion for leave to reargue. The defendant thereafter pleaded guilty to several counts charged in the indictment. The defendant appeals from the judgment of conviction, and we affirm.

We note that “[t]he ‘Aguilar [ v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723] –Spinelli [ v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637]’ test, as framed in People v. Elwell [50 N.Y.2d 231, 428 N.Y.S.2d 655, 406 N.E.2d 471] ... need not be satisfied where [as here] the necessary predicate for justifying the police action under review is the less demanding standard of reasonable suspicion” ( People v. Legette, 244 A.D.2d 505, 507, 664 N.Y.S.2d 606;see People v. Chase, 85 N.Y.2d 493, 501–502, 626 N.Y.S.2d 721, 650...