People v. Ford

• Decision Date: 23 December 2016
• Citation: People v. Ford, 2016 NY Slip Op 8631, 145 A.D.3d 1454, 45 N.Y.S.3d 720 (N.Y. App. Div. 2016)
• Parties: The PEOPLE of the State of New York, Respondent, v. Anthony FORD, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 1454

45 N.Y.S.3d 720

2016 N.Y. Slip Op. 08631

The PEOPLE of the State of New York, Respondent,

v.Anthony FORD, Defendant–Appellant.

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

Dec. 23, 2016.

Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant.

William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.

PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1], [12] ).The charges arose from the seizure by police officers of a quantity of cocaine from defendant following the stop of the vehicle in which he was a passenger.Defendant moved, inter alia, to suppress the cocaine and statements he made to the police as the fruit of illegal police conduct.The evidence at the suppression hearing established that, after the stop, a police officer directed defendant to exit the vehicle.When defendant asked why he was being directed out of the vehicle, the officer physically removed him from the vehicle, placed him face down on the ground, handcuffed him and patted him down, which resulted in the seizure of three bags of crack cocaine from defendant's pants pocket and defendant's statement that he possessed the drugs.

Defendant contends that Supreme Court erred in denying his motion to suppress the cocaine.At the outset, we note that "[d]efendant failed to preserve for our review his contention that the conduct of the police following the stop ... constituted a de facto arrest for which the police did not have probable cause"(People v. Andrews,57 A.D.3d 1428, 1429, 870 N.Y.S.2d 182, lv. denied12 N.Y.3d 850, 881 N.Y.S.2d 662, 909 N.E.2d 585;seePeople v. Cash J.Y.,60 A.D.3d 1487, 1489, 876 N.Y.S.2d 289, lv. denied12 N.Y.3d 913, 884 N.Y.S.2d 694, 912 N.E.2d 1075 ).We see no reason to exercise our power to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15[3][c] ), inasmuch as we find merit in defendant's alternative, preserved contention that the patdown was unlawful.

We also note that defendant does not dispute that the vehicle was lawfully stopped based upon a police officer's observation of a Vehicle and Traffic Law violation(seePeople v. Robinson,97 N.Y.2d 341, 349, 741 N.Y.S.2d 147, 767 N.E.2d 638;People v. Grimes,133 A.D.3d 1201, 1202, 20 N.Y.S.3d 261 ), or that the officers were thereafter entitled to direct defendant to exit the vehicle "as a precautionary measure and without particularized suspicion"(People v. Garcia,20 N.Y.3d 317, 321, 959 N.Y.S.2d 464, 983 N.E.2d 259;seePeople v. Robinson,74 N.Y.2d 773, 775, 545 N.Y.S.2d 90, 543 N.E.2d 733, cert. denied493 U.S. 966, 110 S.Ct. 411, 107 L.Ed.2d 376 ).Defendant contends, however, that the patdown was not justified inasmuch as the police officers lacked the requisite reasonable basis to suspect that he was concealing a weapon or that they were otherwise in danger (see generallyPeople v. Goodson,85 A.D.3d 1569, 1570, 924 N.Y.S.2d 875, lv. denied17 N.Y.3d 953, 936 N.Y.S.2d 79, 959 N.E.2d 1028;People v. Everett,82 A.D.3d 1666, 1666, 919 N.Y.S.2d 663 ).We agree.

Based upon the evidence at the suppression hearing, we conclude that "the officers did not have any ‘knowledge of some fact or circumstance that support [ed] a reasonable suspicion that the [defendant was] armed or pose[d] a threat to [their] safety’ "(Everett,82 A.D.3d at 1666, 919 N.Y.S.2d 663, quotingPeople v. Batista,88 N.Y.2d 650, 654, 649 N.Y.S.2d 356, 672 N.E.2d 581 ).Defendant's evident nervousness as the officers approached the vehicle was not an indication of criminality or a threat to officer safety (seeGarcia,20 N.Y.3d at 324, 959 N.Y.S.2d 464, 983 N.E.2d 259;People v. Hightower,136 A.D.3d 1396, 1397, 25 N.Y.S.3d 764 ).Nor was the patdown justified by the fact that the vehicle was in a high crime area (seePeople v. Carr,103 A.D.3d 1194, 1195, 962 N.Y.S.2d 520;People v. Riddick,70 A.D.3d 1421, 1423, 894 N.Y.S.2d 260, lv. denied14 N.Y.3d 844, 901 N.Y.S.2d 150, 927 N.E.2d 571 ), particularly when the stop occurred on a busy street during rush hour (seePeople v. Savage,137 A.D.3d 1637, 1639, 28 N.Y.S.3d 184 ).Moreover, "there was no suggestion that a weapon was present or that violence was imminent"...