People v. Francois
| Decision Date | 16 April 2009 |
| Docket Number | 85. |
| Citation | 61 A.D.3d 524,877 N.Y.S.2d 54,2009 NY Slip Op 02900 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JERRY FRANCOIS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
The court properly denied defendant's suppression motion. An officer trained and experienced in detecting suspicious use of MetroCard vending machines observed defendant repeatedly attempting to use a credit card in such a machine. The credit card appeared to be functioning, but each time the machine asked defendant to enter a ZIP code, defendant seemed to be unable to enter a ZIP code matching the credit card. Since most people know their own ZIP codes, this behavior was suggestive of a person trying to use someone else's credit card, as opposed to a person innocently having technical difficulties using his own card. Accordingly, the police had, at least, a founded suspicion of criminality warranting a level-two common-law inquiry (see People v Wilson, 52 AD3d 239 [2008], lv denied 11 NY3d 743 [2008]).
When the officer approached defendant and asked if he needed assistance, defendant said he was having problems with his credit card. The officer asked defendant to accompany him and his partner to a nearby wall of the subway station, in order to continue the inquiry away from the busy area in front of the MetroCard machines, and, without any use of force, he physically guided defendant by briefly grasping his elbow. Even though the officer made slight physical contact with defendant, none of the police conduct elevated the encounter to a seizure requiring reasonable suspicion (see e.g. People v Stevenson, 55 AD3d 486 [2008]; People v Cherry, 30 AD3d 185, 185-186 [2006], lv denied 7 NY3d 811 [2006]; People v Wigfall, 295 AD2d 222 [2002], lv denied 99 NY2d 540 [2002]). The officer lawfully asked to see the credit card and a form of identification, and the discrepancy between the identification card and defendant's actual appearance provided probable cause for his arrest.
CATTERSON, J., dissents in a memorandum as follows:
Because I believe that the police forcibly stopped and detained the defendant without a reasonable suspicion that the defendant had committed or was about to commit an offense, I dissent. Initially, I agree with the motion court and the majority that police had a founded suspicion of criminality based on the defendant's furtive behavior at the MetroCard machine. In my view, this founded suspicion merely allowed the police to pursue a common-law right to inquire what the defendant was doing at the MetroCard machine. (People v De Bour, 40 NY2d 210, 223-224 [1976].)
Where I depart from the majority's reasoning is in the characterization of the police conduct as "slight physical contact with defendant." It is uncontested that Police Officer Rodriguez approached the defendant, identified himself by showing his police identification and shield, and asked if the defendant was having a problem with his credit card. Officer Rodriguez was on the defendant's right side and Rodriguez's partner was on the defendant's left. The defendant replied that he was having...
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