People v. Durgey

• Decision Date: 29 October 1992
• Citation: 186 A.D.2d 899,589 N.Y.S.2d 631
• Parties: The PEOPLE of the State of New York, Respondent, v. Paul DURGEY and David Corbitt, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 631

589 N.Y.S.2d 631

186 A.D.2d 899

The PEOPLE of the State of New York, Respondent, v. Paul DURGEY and David Corbitt, Appellants.

Supreme Court, Appellate Division,

Third Department.

Oct. 29, 1992.

Snider & Snider (Thomas J. Snider, of counsel), Massena, for Paul Durgey, appellant.

Pease & Willer (Daniel S. Pease, of counsel), Massena, for David Corbitt, appellant.

Richard V. Manning, Dist. Atty. (Donald S. Thomson, of counsel), Canton, for respondent.

Before MIKOLL, J.P., and LEVINE, MAHONEY, CASEY and HARVEY, JJ.

CASEY, Justice.

Appeal from a judgment of the County Court of St. Lawrence County (Nicandri, J.), rendered January 22, 1991, upon verdicts convicting defendants of the crimes of criminal possession of stolen property in the third degree and burglary in the third degree.

Defendants' convictions arise out of the theft of cash, checks and food stamps from a grocery store in the Village of Potsdam, St. Lawrence County, on November 21 or 22, 1989. Defendants' vehicle was stopped by State Police during the early morning hours of November 22, 1989 in the Town of Parish, Oswego County. The driver of the vehicle, defendant David Corbitt, was issued a ticket for speed not reasonable and prudent under conditions (see, Vehicle and Traffic Law § 1180[a]. According to State Trooper Michael Pastuf, Corbitt consented to a search of his vehicle and during the course of this search he and State Trooper William Slater discovered a bag full of money, prompting defendants to speed away in the vehicle. It was later determined that the bag contained the fruits of the crimes committed at the grocery store in Potsdam.

Defendants contend that the initial stop of their vehicle, their subsequent detention after the ticket was issued and search of their vehicle were all illegal. Based upon our review of the suppression hearing record, we reject these claims.

Defendants argue that the Troopers lacked probable cause to stop defendants' vehicle for speed not reasonable and prudent in Parish. According to defendants, the only evidence concerning the vehicle's speed in Parish is that it slid past an exit on Interstate Route 81 by about 60 feet, backed up and proceeded onto the exit ramp. Defendants maintain that in light of the snow, which made the road slippery and visibility poor, the mere fact that the vehicle slid 60 feet past the exit is insufficient to establish unreasonable speed. Pastuf, however, testified that he and Slater had observed the vehicle traveling at a high rate of speed for some 17 miles prior to the stop. At one point, they obtained a radar reading of 64 miles per hour on the vehicle. According to Pastuf, 30 miles per hour was fast for the weather conditions.

The police can stop a vehicle when they reasonably suspect a violation of the Vehicle and Traffic Law, and there is no requirement that the violation be substantial (People v. Hoffman, 135 A.D.2d 299, 301, 525 N.Y.S.2d 376). "All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity. It is enough if the stop is based upon 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion' " (People v. Ingle, 36 N.Y.2d 413, 420, 369 N.Y.S.2d 67, 330 N.E.2d 39, quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889). The standard was clearly met in this case (compare People v. Osborne, 158 A.D.2d 740, 742, 551 N.Y.S.2d 336, lv. denied 75 N.Y.2d 968, 556 N.Y.S.2d 253, 555 N.E.2d 625, with People v. Letts, 180 A.D.2d 931, 580 N.Y.S.2d 525 [1992], lv. granted 79 N.Y.2d 1051, 584 N.Y.S.2d 1018, 596 N.E.2d 416).

Defendants' next claim is that the Troopers exceeded the bounds of a normal traffic stop by detaining the vehicle's occupants beyond the time necessary to issue the ticket. The propriety of the police conduct in these circumstances is to be measured by the reasonableness standard, which requires a weighing of the degree of intrusion against the precipitating and attending circumstances (see, People v. Sora, 176 A.D.2d 1172, 1173, 575 N.Y.S.2d 970, lv. denied 79 N.Y.2d 864, 580 N.Y.S.2d 736, 588 N.E.2d 771). According to testimony in the suppression record, defendants were detained for a total of 10 to 12 minutes from the time the vehicle was stopped until it sped off. During this period, the Troopers obtained the driver's license and vehicle's registration, conducted a field sobriety test on the driver, and returned to their vehicle to check the license and registration and to write the ticket. Pastuf testified that after he and Slater returned to their vehicle to write the ticket, they discussed the fact that the passenger, defendant Paul Durgey, had a large duffle bag between his legs, where it would be uncomfortable, despite the fact that the back seat was entirely empty. The Troopers were also aware that Corbitt had received a ticket in the Town of Williamson, Wayne County, on November 21, 1989. According to Pastuf, after returning to defendants' vehicle and handing the ticket to Corbitt, Pastuf asked Corbitt where he and Durgey had been; Corbitt responded that they had been in the City of Watertown, Jefferson County for three days visiting friends, but Pastuf stated that Corbitt was very hesitant about providing details such as where the friends lived. Recognizing that defendants could not have been in both Williamson and Watertown at the same time and already suspicious about the manner in which the duffle bag was stuffed under Durgey's legs, Pastuf asked Corbitt for permission to search the car and the trunk. In these circumstances, which distinguish this case from People v. Milaski, 62 N.Y.2d 147, 476 N.Y.S.2d 104, 464 N.E.2d 472, and in view of the minimal intrusion, we find nothing improper in the police conduct leading up to the request for permission to search the vehicle (see, People v. Sora, supra ).

Turning to the propriety of the search itself, the issue depends upon whether Corbitt voluntarily consented to the search (see, People v. Bapp, 149 A.D.2d 804, 805, 539 N.Y.S.2d 592, lv. denied 74 N.Y.2d 736, 545 N.Y.S.2d 110, 543 N.E.2d 753). The question of voluntary consent depends largely upon the credibility of two witnesses at the suppression hearing: Pastuf, who testified that Corbitt consented to the search, and Corbitt, who testified that he did not give the Troopers permission to search the inside of the vehicle. Defendants challenge the scope of the search, suggesting that if Corbitt did consent to any search it was limited to the trunk. When questioned about the scope of his request, Pastuf testified that he asked to search both in the trunk and in the vehicle and that Corbitt consented. A review of Pastuf's testimony in its entirety establishes that it was neither incredible as a matter of law nor patently tailored to avoid constitutional objections, and we see no basis for disturbing County Court's decision following the suppression hearing to credit Pastuf's testimony over that of Corbitt (compare People v. Bapp, supra, ...