People v. Fox

• Decision Date: 02 January 2015
• Citation: 124 A.D.3d 1252,999 N.Y.S.2d 293,2015 N.Y. Slip Op. 00034
• Parties: The PEOPLE of the State of New York, Respondent, v. Javell FOX, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 1252
999 N.Y.S.2d 293
2015 N.Y. Slip Op. 00034

The PEOPLE of the State of New York, Respondent
v.
Javell FOX, Defendant–Appellant.

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

Jan. 2, 2015.

999 N.Y.S.2d 294

Peter J. Digiorgio, Jr., Utica, for Defendant–Appellant.

Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.

PRESENT: CENTRA, J.P., FAHEY, SCONIERS, WHALEN, and DeJOSEPH, JJ.

Opinion

MEMORANDUM:

124 A.D.3d 1252

Defendant appeals from a judgment convicting him upon a nonjury verdict of, inter alia, criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ). The charges arose from an incident involving the traffic stop by a police officer of a vehicle in which defendant was a passenger. During the stop, defendant was instructed to exit the vehicle and, while being frisked by a police officer, defendant pushed him and fled. The police officer who stopped the vehicle and an assisting police officer captured defendant and arrested him. After the arrest, the police officers found drugs on the ground where defendant had been standing and under the backseat of the patrol car where defendant had been sitting.

Defendant contends that County Court erred in denying his motion to suppress the above physical evidence inasmuch as the initial frisk was unlawful, which renders the subsequent arrest unlawful and any evidence discovered thereafter by the police inadmissible. We reject that contention. Even assuming, arguendo, that the frisk was unlawful, we conclude that defendant's act of pushing the frisking officer was not “spontaneous and precipitated by the illegality ... [but] was a calculated act not provoked by the unlawful police activity and thus attenuated from it” (People v. Wilkerson, 64 N.Y.2d 749, 750, 485 N.Y.S.2d 981, 475 N.E.2d 448 ; see People v. Stone, 197 A.D.2d 356, 356, 602 N.Y.S.2d 124, lv. denied 82 N.Y.2d 904, 610 N.Y.S.2d 171, 632 N.E.2d 481 ). We therefore conclude that there was probable

124 A.D.3d 1253

cause for defendant's subsequent arrest for harassment of the frisking officer (cf. People v. Felton, 78 N.Y.2d 1063, 1064–1065, 576 N.Y.S.2d 89, 581 N.E.2d 1344 ). Consequently, the drugs seized from defendant's person and the backseat of the patrol car were discovered incident to a lawful arrest (see People v. Cooper, 85 A.D.3d 1594, 1595, 926 N.Y.S.2d 777, affd. 19 N.Y.3d 501, 950 N.Y.S.2d 77, 973 N.E.2d...