People v. Cavanagh

• Decision Date: 19 July 2012
• Citation: 948 N.Y.S.2d 738,97 A.D.3d 980,2012 N.Y. Slip Op. 05672
• Parties: The PEOPLE of the State of New York, Respondent, v. Edward CAVANAGH, Appellant.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 980

948 N.Y.S.2d 738

2012 N.Y. Slip Op. 05672

The PEOPLE of the State of New York, Respondent,

v.Edward CAVANAGH, Appellant.

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

July 19, 2012.

Louis N. Altman, Hurley, for appellant.

D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: MERCURE, J.P., ROSE, LAHTINEN, STEIN and McCARTHY, JJ.

MERCURE, J.P.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered December 20, 2010, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

Several firearms and two electric guitars were stolen from a home in the Town of Woodstock, Ulster County, and that information was relayed to area law enforcement agencies. Subsequently, a bouncer at a bar in the City of Kingston, Ulster County reported to police that he had been approached by an “older white male, tall, skinny with white hair and white beard” and two women, who were traveling in a gray minivan with wood grain siding and had attempted to sell him a shotgun. Kingston police were advised of these two incidents prior to the start of their next shift, with the sergeant advising officers to use caution if they spotted the vehicle described by the bouncer. Shortly thereafter, patrol officers observed defendant, who matched the description provided by the bouncer, and stopped his minivan approximately one mile from the bar. Defendant appeared unusually nervous during the initial stop and, after being asked whether there was anything “illegal” in his vehicle, he admitted that rifles and other stolen items were inside and permitted the officers to open the vehicle's hatch. Defendant admitted that the items were stolen from a residence in Woodstock, and he was transported to the police station, where Miranda warnings were administered. He then made further inculpatory statements, and consented to a search of the vehicle that resulted in the recovery of stolen goods.

Defendant was subsequently charged in an indictment with burglary in the second degree. Following a hearing, County Court denied his motion to suppress his statements to police and the stolen items. He then pleaded guilty as charged, was sentenced to a prison term of 10 years to be followed by five years of postrelease supervision, and was additionally ordered to pay restitution. Defendant appeals, and we affirm.

Initially, we reject defendant's argument that police lacked reasonable suspicion to stop his vehicle. The patrol officers who executed the stop were acting on the basis of reports from fellow law enforcement officials and were entitled to assume the reliability of those communications ( see People v. Dodt, 61 N.Y.2d 408, 416, 474 N.Y.S.2d 441, 462 N.E.2d 1159 [1984];People v. Lypka, 36 N.Y.2d 210, 213, 366 N.Y.S.2d 622, 326 N.E.2d 294 [1975];People v. Ynoa, 223 A.D.2d 975, 977, 636 N.Y.S.2d 888 [1996],lvs. denied87 N.Y.2d 1024, 1027, 644 N.Y.S.2d 158, 161, 666 N.E.2d 1072, 1075 [1996] ). Moreover, defendant and the minivan substantially matched the descriptions provided by the bouncer regarding an attempted firearm sale that occurred nearby, and that information provided the reasonable suspicion required to stop the vehicle ( see People v. Hicks, 68 N.Y.2d 234, 238, 508 N.Y.S.2d 163, 500 N.E.2d 861 [1986];People v. McFadden, 244 A.D.2d 887, 888, 665 N.Y.S.2d 985 [1997],lv. denied97 N.Y.2d 757, 742 N.Y.S.2d 618, 769 N.E.2d 364 [2002];see also People v. Maye, 206 A.D.2d 755, 757, 615 N.Y.S.2d 94 [1994],lv. denied

84 N.Y.2d 1035, 623 N.Y.S.2d 191, 647 N.E.2d 463 [1995] ).

Thereafter, the officers were authorized to direct defendant to exit the vehicle and to pat him down for weapons ( see People v. Mundo, 99 N.Y.2d 55, 58, 750 N.Y.S.2d 837, 780 N.E.2d 522 [2002];People v. Schwing, 14 A.D.3d 867, 868, 787 N.Y.S.2d 715 [2005] ). Further, given the existence of reasonable suspicion, the officers necessarily possessed the lesser founded suspicion of criminality, giving them the common-law right to inquire whether defendant had anything illegal in the vehicle ( see People v. Rodriguez, 81 A.D.3d 404, 405, 915 N.Y.S.2d 551 [2011],lv. denied16 N.Y.3d 862, 923 N.Y.S.2d 424, 947 N.E.2d 1203 [2011];People v. Walker, 55 A.D.3d 343, 343, 864 N.Y.S.2d 422 [2008],lv. denied11 N.Y.3d 931, 874 N.Y.S.2d 16, 902 N.E.2d 450 [2009];cf. People v. Garcia, 85 A.D.3d 28, 32, 923 N.Y.S.2d 433 [2011],lv. granted18 N.Y.3d 883, 939 N.Y.S.2d 753, 963 N.E.2d 130 [2012] ).¹ Defendant admitted that there were rifles in the vehicle and, as he conceded before County Court, that response gave the officers probable cause to detain him and search his vehicle ( see People v. Orlando, 56 N.Y.2d 441, 445–446, 452 N.Y.S.2d 559, 438 N.E.2d 92 [1982] ).

Even assuming that defendant had been subjected to improper custodial interrogation during the stop, suppression of his subsequent Mirandized statements was not warranted inasmuch as the initial stop and later interrogation at the police station did not form a single and continuous chain of events ( see People v. Paulman, 5 N.Y.3d 122, 130, 800 N.Y.S.2d 96, 833 N.E.2d 239 [2005] ). Whether there has been a definite, pronounced break in interrogation “depends upon a number of factors, including: (1) the time elapsed between the Miranda violation and later statement, (2) whether the same police officers were involved in obtaining each statement, (3) whether a change in the location or nature of the questioning occurred, (4) the circumstances surrounding the violation itself and (5) whether defendant had indicated a...