People v. Biggs

• Docket Number: 2020–05377,Ind. No. 1764/16
• Decision Date: 28 September 2022
• Citation: 208 A.D.3d 1340,175 N.Y.S.3d 117
• Parties: The PEOPLE, etc., respondent, v. Andre E. BIGGS, appellant.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 1340

175 N.Y.S.3d 117

The PEOPLE, etc., respondent,

v.Andre E. BIGGS, appellant.

2020–05377

Ind. No. 1764/16

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

Argued—December 9, 2021

September 28, 2022

Law Office of Joseph Z. Amsel, PLLC, New York, NY, for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Roni C. Piplani, and Adarna De Frietas of counsel), for respondent.

MARK C. DILLON, J.P., VALERIE BRATHWAITE NELSON, REINALDO E. RIVERA, PAUL WOOTEN, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Charles S. Lopresto, J.), rendered December 11, 2019, convicting him of criminal possession of a weapon in the second degree (two counts), criminal possession of marijuana in the fourth degree, and unlawful possession of marijuana, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Steven W. Paynter, J.), of those branches of the defendant's omnibus motion which were to suppress physical evidence and to controvert a search warrant. The appeal also brings up for review the denial (Steven W. Paynter, J.), after a hearing (Arthur J. Cooperman, JHO), of that branch of the defendant's separate motion which was to suppress physical evidence.

ORDERED that the appeal from so much of the judgment as convicted the defendant of criminal possession of marijuana in the fourth degree and unlawful possession of marijuana is dismissed as academic; and it is further,

ORDERED that the judgment is affirmed insofar as reviewed.

The defendant's conviction arose out of a traffic stop on 201st Street in Queens, near its intersection with 112th Avenue, at approximately 9:00 p.m. on July 7, 2016. Officer Kenneth Sepulveda testified at a suppression hearing that he and Sergeant Javier Rodriguez were on patrol in an unmarked vehicle when they observed a black Nissan Altima with excessively-tinted windows. Officer Sepulveda and Sergeant Rodriguez followed the Nissan for a short distance with the windows of their unmarked vehicle down, and Officer Sepulveda detected a strong odor of marijuana emanating from the Nissan. Officer Sepulveda and Sergeant Rodriguez stopped the Nissan and exited their vehicle, and Officer Sepulveda approached the driver's side of the Nissan and Sergeant Rodriguez approached the passenger's side. The defendant was the sole occupant of the Nissan when it was stopped, seated in the driver's seat. The defendant was unable to produce a driver license at the stop. Officer Sepulveda detected a "very strong" smell of marijuana while standing alongside the Nissan, and using a flashlight aimed into the interior of the vehicle, observed marijuana crumbs on the floor mat behind the driver's seat. The defendant exited the vehicle to be frisked while Sergeant Rodriguez searched the Nissan's interior and trunk. The defendant was ultimately arrested at the scene and taken to the 113th police precinct station house.

The Nissan was impounded. The defendant could not drive it without a driver license, and no third person was present to drive the vehicle from the scene. Officer Sepulveda testified that he conducted an inventory search of the Nissan at the precinct station house. He testified that he removed and vouchered the marijuana crumbs during the search, but still detected a strong odor of marijuana coming from the vehicle's center console. Investigating further from the back seat, he noticed a small crack in the rear of the center console, directed his flashlight beam into the crack, pushed down on some plastic, observed a variety of items, including marijuana, United States currency, a metal rod, and a metal box, and concluded that the center console contained a hidden compartment. Upon speaking with a supervisor, Officer Sepulveda suspended his inventory search in order to obtain a search warrant. Later, with a warrant, police officers recovered from the hidden compartment in the center console more than two ounces of marijuana, a loaded firearm, and $290 of currency. They also recovered from underneath the spare tire in the trunk a black plastic grocery bag containing marijuana and $8,000 of currency.

The defendant moved prior to trial contesting the lawfulness of the initial traffic stop and to controvert the search warrant, and to suppress the physical evidence recovered from the Nissan. The Supreme Court denied the motions after conducting a pretrial suppression hearing.

The defendant argues that the Supreme Court erred by denying his motion to suppress physical evidence, on the ground that Officer Sepulveda's hearing testimony was patently incredible, tailored to nullify constitutional objections, and legally insufficient to establish the lawfulness of the traffic stop. The defendant's challenges to the lawfulness of the traffic stop and the credibility of Officer Sepulveda are preserved for appellate review. However, more specific appellate arguments now advanced on appeal pertaining to Officer Sepulveda's tint test training or experience, the time of the initial stop, the timing of the tint test at the precinct, and the presence of side mirrors on the Nissan are unpreserved for appellate review (see CPL 470.05[2] ), and we decline to reach them in the exercise of our interest of justice jurisdiction. Moreover, the failure of the defendant's counsel to preserve those discrete issues for appellate review does not, on this record, constitute ineffectiveness of counsel.

Excessive window tint is a violation of Vehicle and Traffic Law § 375(12–a)(b), and was among the initial charges against the defendant. "No person shall operate any motor vehicle upon any public highway, road or street: ... the front windshield of which is composed of, covered by or treated with any material which has a light transmittance of less than seventy percent," subject to certain exceptions not applicable here ( id. § 375[12–a][b][1] ). Here, Officer Sepulveda testified at the suppression hearing that he could tell the window tints were too dark because he could not see into the Nissan and that, while following the Nissan, he detected a strong odor of marijuana which he believed to have emanated from the Nissan. Officer Sepulveda also testified that he had been given marijuana training at the police academy and that he had been involved in 50 to 100 marijuana arrests. The Supreme Court found Officer Sepulveda's testimony to be credible, which included his testimony regarding the circumstances of the stop and the discoveries that followed at the scene and at the police precinct station house.

A hearing court's credibility determinations are accorded great weight on appeal, as that is the court which has the ability to see, hear, and observe the witnesses before it (see People v. Harris, 192 A.D.3d 151, 162, 138 N.Y.S.3d 593 ; People v. Fletcher, 130 A.D.3d 1063, 1064, 15 N.Y.S.3d 797, affd 27 N.Y.3d 1177, 37 N.Y.S.3d 474, 58 N.E.3d 1111 ). An appellate court will disturb a credibility determination if the witness's testimony is impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory, as to be disregarded for being without evidentiary value, even if it is not contradicted by other testimony or evidence (see People v. Harris, 192 A.D.3d at 163, 138 N.Y.S.3d 593 ; People v. Maiwandi, 170 A.D.3d 750, 751, 95 N.Y.S.3d 361 ). A credibility determination may also be set aside on appeal if the witness's testimony is patently tailored to nullify constitutional objections (see People v. Harris, 192 A.D.3d at 162–163, 138 N.Y.S.3d 593 ; People v. Maiwandi, 170 A.D.3d at 751–752, 95 N.Y.S.3d 361 ; People v. Lebron, 184 A.D.2d 784, 585 N.Y.S.2d 498 ). Here, upon consideration of all relevant facts and circumstances, the testimony of Officer Sepulveda at the suppression hearing was not incredible or patently tailored to meet constitutional objections, and, in exercising our factual review power, we find that the Supreme Court properly credited his testimony (see People v. Faulk, 185 A.D.3d 953, 955, 128 N.Y.S.3d 43 ; People v. Moore, 166 A.D.3d 654, 86 N.Y.S.3d 224 ).

Moreover, window tint violations are a recognized basis for stopping a motor vehicle. The legal test, according to the Court of Appeals, is whether the police officer reasonably believes the windows to be over-tinted in violation of Vehicle and Traffic Law § 375(12–a)(b) (see People v. Estrella, 10 N.Y.3d 945, 862 N.Y.S.2d 857, 893 N.E.2d 134 ; see also People v. Swift, 185 A.D.3d 1442, 1443, 128 N.Y.S.3d 132 ; People v. Vanderpool, 157 A.D.3d 831, 69 N.Y.S.3d 103 ; People v. Brock, 107 A.D.3d 1025, 1026, 968 N.Y.S.2d 624 ; People v. Collins, 105 A.D.3d 1378, 1379, 963 N.Y.S.2d 890 ; People v. Hawkins, 45 A.D.3d 989, 991, 845 N.Y.S.2d 171 ; People v. McKane, 267 A.D.2d 253, 700 N.Y.S.2d 40 ). Officer Sepulveda's testimony that he could not see into the defendant's vehicle meets that test. Our dissenting colleagues misread this Court's decision in ( People v. Bacquie , 154 A.D.3d 648, 62 N.Y.S.3d 425 ), wherein it also was held that excessive window tinting justifies the stop of a motor vehicle. There, this Court noted that the police officer, who was apparently the same officer as was involved in the instant matter, observed the vehicle therein from "[a] couple of feet," that nothing had obstructed his view, that the area was illuminated by nighttime street lights, and that he had "written hundreds of summonses for illegally tinted windows" ( id. at 649, 62 N.Y.S.3d 425 ). That testimony, as discussed in Bacquie , did not define specific facts or legal factors that must be present for a court to find an officer's excessive tint testimony credible and to support the lawfulness of a traffic stop, but instead appears to have been incidentally mentioned to address contrary arguments made by a justice in dissent.

Alternatively, the vehicular stop was lawful based upon...