People v. Foster

• Decision Date: 31 May 1991
• Citation: 571 N.Y.S.2d 948,173 A.D.2d 841
• Parties: The PEOPLE, etc., Respondent, v. Eric FOSTER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 948

571 N.Y.S.2d 948

173 A.D.2d 841

The PEOPLE, etc., Respondent, v. Eric FOSTER, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 31, 1991.

Philip L. Weinstein, New York City (Risa Kane, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Tammy J. Smiley and Mary Catherine Ryan, of counsel), for respondent.

Before THOMPSON, J.P., and BROWN, EIBER and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Douglass, J.), rendered February 9, 1989, convicting him of criminal possession of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

At approximately 11:00 A.M. on April 28, 1986, Police Officer Edward Hueter and his partner Police Officer Joseph Balise, while on motor patrol in the 67th Precinct in Brooklyn, were passed on the right by a red Nissan Sentra bearing out-of-state plates which cut them off and nearly collided with the patrol vehicle. The officers switched on the siren to signal the vehicle to pull to the side of the street. The officers exited the patrol car and Officer Balise approached the driver's side of the stopped vehicle while Officer Hueter approached the passenger's side. The codefendant Patrick Williams was in the driver's seat, the defendant Eric Foster was in the front passenger's seat, and the codefendant Harry Bell was in the rear seat behind Foster. Officer Balise asked Williams for his driver's license and the vehicle's registration and insurance card. Williams was unable to produce any of these documents but the defendant produced a rental agreement from National Car Rental which had expired seven days earlier. The only authorized driver noted on the rental contract was Tawana Foster whom Williams and the defendant identified as the defendant's aunt. The defendant said he had given Williams permission to drive. Williams acknowledged that the vehicle was overdue at the car rental agency and claimed they were going to have it "reregistered". None of the occupants of the car could produce any identification.

Suspicious that the car might be stolen, Officer Balise used his portable radio to run a check on the plates and the vehicle identification number on the car. The check revealed that the car had not been reported stolen. Nevertheless, the officers decided to proceed to the precinct with the defendant and the other two men in order to determine if the car was stolen and the rental contract was valid. The officers requested that one of the occupants of the vehicle accompany them in the patrol car. The other two occupants traveled in the Nissan to the precinct. The defendant volunteered to ride in the patrol car with the officers, while Williams drove the Nissan with Bell as a passenger. Officer Balise provided Williams with directions to the precinct.

The 10 to 12 block trip to the 67th Precinct took approximately 15 to 20 minutes because the area through which they traveled was very populated and congested. Upon arrival at the precinct, the Nissan was parked opposite the front of the precinct and the patrol car which had been following pulled in behind. Officers Balise and Hueter and the defendant exited the patrol car and approached the Nissan in which Williams and Bell were still seated. Officer Balise approached the driver's side and Officer Hueter approached the passenger side of the Nissan. As Bell exited the front passenger seat, Officer Hueter observed a brown paper bag partially protruding from under the front passenger seat. A clear plastic bag containing a white substance was sticking out of the brown paper bag. Officer Hueter grabbed the bag, opened it, and discovered that it contained two plastic bags of a white substance. He showed the bag to his partner and the officers immediately placed the defendant, Williams and Bell under arrest. The suspects were taken into the station house to have the arrests processed.

A subsequent search of the Nissan by Officer Balise produced a .25 caliber gun in a brown paper bag from the back seat, 15 rounds of .25 caliber ammunition on the floor between the driver's and front passenger's seats, a bullet inside the pocket of a jacket belonging to Bell on the back seat, and a beeper from the driver's side visor. Drug paraphernalia was recovered from the trunk of the car.

The Supreme Court denied that branch of the defendant's omnibus motion which was to suppress the physical evidence, fully crediting the testimony of Officers Balise and Hueter. Following the hearing court's denial of his motion, the defendant entered a plea of guilty to the crime of criminal possession of a controlled substance in the second degree, and thereafter sentence was imposed. For the reasons that follow, we affirm the defendant's conviction.

The initial stop of the vehicle in which the defendant was a passenger was justified because it passed the patrol car on the right in violation of the Vehicle and Traffic Law § 1120 (see, People v. Ellis, 62 N.Y.2d 393, 396, 477 N.Y.S.2d 106, 465 N.E.2d 826; People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39; People v. Frank, 161 A.D.2d 794, 556 N.Y.S.2d 368; cf., Vehicle and Traffic Law § 1123). Thereafter, the officers were entitled to ask the driver for his license and registration (see, Vehicle and Traffic Law § 401[4]; People v. Ellis, supra ) and, upon learning that the vehicle was rented, to make a reasonable inquiry to obtain information concerning ownership of the rented vehicle (see, People v. Wilson, 161 A.D.2d 742, 555 N.Y.S.2d 875; People v. Vazquez, 135 A.D.2d 896, 522 N.Y.S.2d 294). The defendant's contention that the officers fabricated the reckless passing scenario in order to justify the stop of the vehicle is without...