People v. Franqueira

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: EGAN JR., J.
• Citation: People v. Franqueira, 2016 NY Slip Op 7052, 143 A.D.3d 1164, 40 N.Y.S.3d 588 (N.Y. App. Div. 2016)
• Decision Date: 27 October 2016
• Parties: The PEOPLE of the State of New York, Respondent, v. Thomas FRANQUEIRA Jr., Appellant.

143 A.D.3d 1164

40 N.Y.S.3d 588

2016 N.Y. Slip Op. 07052

The PEOPLE of the State of New York, Respondent,

v.Thomas FRANQUEIRA Jr., Appellant.

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

Oct. 27, 2016.

William D. Robert, Albany, for appellant.

Joel E. Abelove, District Attorney, Troy (Vincent J. O'Neill of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., DEVINE, CLARK and AARONS, JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.), rendered April 30, 2013, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree (two counts) and menacing in the second degree.

Defendant was charged in a six-count indictment with three counts of criminal possession of a weapon in the second degree, two counts of menacing in the second degree and one count of resisting arrest. The charges stemmed from an incident that occurred on the evening of October 14, 2012 in the parking lot of Popeye's Chicken on Hoosick Street in the City of Troy, Rensselaer County. On the evening in question, a woman called for a taxicab to transport her to that location—intending to meet up with defendant. When the cab—then occupied by the woman, her two children, the cab driver and the driver's husband—arrived at Popeye's, a disagreement arose between defendant and the cab driver, during the course of which defendant produced what was described as a silver handgun. Local police were notified, a description of the assailant was transmitted and, minutes later, defendant was stopped as he was observed running through a nearby parking lot and was returned to the scene for a showup identification. Both the cab driver and the driver's husband identified defendant as their assailant, and a black and silver handgun was recovered nearby.

Following unsuccessful motions to suppress, among other things, the pretrial showup identification, the matter proceeded to trial in early March 2013. Defendant's first trial ended in a mistrial but, at the conclusion of the second trial, defendant was convicted of two counts of criminal possession of a weapon in the second degree (counts 1 and 2 pertaining to the cab driver) and one count of menacing in the second degree (count 3 as to the cab driver) and was acquitted of those counts of the indictment charging him with menacing in the second degree (count 4) and criminal possession of a weapon in the second degree (original count 6)¹ as to the cab driver's husband. Defendant thereafter was sentenced, as a second felony offender, to an aggregate term of 10 years in prison followed by five years of postrelease supervision. This appeal by defendant ensued.

Initially, we agree with County Court that defendant was properly stopped and detained pending the showup identification. “Where a police officer reasonably suspects that a particular person has committed, is committing or is about to commit a felony or misdemeanor, the CPL authorizes a forcible stop and detention of that person” (People v. Stroman, 107 A.D.3d 1023, 1023, 967 N.Y.S.2d 202 [2013] [internal quotation marks and citations omitted], lv. denied 21 N.Y.3d 1046, 972 N.Y.S.2d 543, 995 N.E.2d 859 [2013] ; see People v. Godallah, 132 A.D.3d 1146, 1149, 19 N.Y.S.3d 119 [2015] ). “[A]n investigatory stop may be upheld if the authorities knew that a crime actually had been committed, the total period of the detention was brief, the police diligently pursued a minimally intrusive means of investigation likely to confirm or dispel suspicion quickly, during which time it was necessary to detain the defendant and there is no proof of significantly less intrusive means available to accomplish the same purpose” (People v. Mabeus, 68 A.D.3d 1557, 1561, 893 N.Y.S.2d 644 [2009] [internal quotation marks and citations omitted], lv. denied 14 N.Y.3d 842, 901 N.Y.S.2d 148, 927 N.E.2d 569 [2010] ; see People v. Hicks, 68 N.Y.2d 234, 242–243, 508 N.Y.S.2d 163, 500 N.E.2d 861 [1986] ; People v. Dibble, 43 A.D.3d 1363, 1364–1365, 845 N.Y.S.2d 203 [2007], lv. denied 9 N.Y.3d 1032, 852 N.Y.S.2d 18, 881 N.E.2d 1205 [2008] ).

The testimony adduced at the suppression hearing revealed that Brandon Cipperly, a police officer with the City of Troy Police Department, received a radio transmission advising of a possible robbery at Popeye's Chicken on Hoosick Street. While en route to the scene, Cipperly also received a description of the suspect—“[a] light-skinned Hispanic male, longer, curlier hair, dark or gray hooded sweatshirt, a lighter colored sweatshirt underneath, either dark jeans or dark long or shorter jeans.” Cipperly further was advised that the suspect was last seen running east on Hoosick Street and that “there was a possible silver color handgun involved.” Approximately 90 seconds later, Cipperly approached the scene; when he was “[l]ess than 50 yards” away from Popeye's Chicken, Cipperly encountered an individual matching the description given— later identified as defendant—running toward the patrol vehicle “in a full sprint” and with his hands at his sides or in his pockets. Cipperly exited his patrol vehicle with his weapon drawn, ordered defendant to the ground and instructed defendant to show his hands. Defendant refused to comply and continued advancing toward the patrol vehicle. When defendant began slamming his hands on the hood of the vehicle, Cipperly attempted to handcuff him, at which point defendant tried to flee. After defendant was handcuffed, he smashed his head on the pavement, stating his intention to sue the police department. Approximately three or four minutes later, two of Cipperly's fellow officers separately transported the cab driver and the driver's husband to the scene for purposes of a showup identification, whereupon each immediately and unequivocally identified defendant as the individual who had pulled a gun on them.

Defendant does not dispute that the showup identification occurred in close temporal and geographic proximity to the scene of the crime; rather, defendant argues that his detention ripened into a full-blown arrest (for which the police purportedly lacked probable cause) or, alternatively, that the showup identification procedures were unduly suggestive. We disagree on both counts. Contrary to defendant's assertion, his seizure, “made on the basis of reasonable suspicion, was a brief investigative detention for the purpose of prompt identification by the victim[s], and the fact that the police [initially] detained defendant at gunpoint and [thereafter] used handcuffs did not transform the detention into an arrest requiring probable cause” (People v. Gatling, 38 A.D.3d 239, 239–240, 831 N.Y.S.2d 157 [2007], lv. denied 9 N.Y.3d 865, 840 N.Y.S.2d 894, 872 N.E.2d 1200 [2007] ; see People v. Allen, 73 N.Y.2d 378, 379–380, 540 N.Y.S.2d 971, 538 N.E.2d 323 [1989] ; People v. Mabeus, 68 A.D.3d at 1560–1561, 893 N.Y.S.2d 644 ; People v. Medina, 37 A.D.3d 240, 242, 830 N.Y.S.2d 76 [2007], lv. denied 9 N.Y.3d 847, 840 N.Y.S.2d 774, 872 N.E.2d 887 [2007] ; People v. Williams, 305 A.D.2d 804, 806–807, 759 N.Y.S.2d 580 [2003] ). As to the actual showup procedures, the identification occurred in a well-lit area within minutes of—and in close proximity to—the scene of the crime, and the mere fact that defendant was handcuffed and standing next to police officers did not render the showup impermissibly suggestive (see People v. Bellamy, 118 A.D.3d 1113, 1116, 987 N.Y.S.2d 666 [2014], lv. denied 25 N.Y.3d 1159, 15 N.Y.S.3d 292, 36 N.E.3d 95 [2015] ; People v. Mathis, 60 A.D.3d 1144, 1146, 874 N.Y.S.2d 627 [2009], lv. denied 12 N.Y.3d 927, 884 N.Y.S.2d 708, 912 N.E.2d 1089 [2009] ). Similarly, the fact that officers advised the cab driver and the driver's husband that a suspect fitting the description had been stopped did not invalidate the showup, as this information “merely conveyed what a witness of ordinary intelligence would have expected under the circumstances” (People v. Mathis, 60 A.D.3d at 1146, 874 N.Y.S.2d 627 [internal quotation marks and citations omitted] ). In light of this conclusion, we need not consider defendant's probable cause argument.

Defendant next contends that the People failed to establish a sufficient chain of custody for the handgun to permit its introduction into evidence. Again, we disagree. “Real evidence is admissible when it is sufficiently connected with the defendant[ ] to be relevant to [the] issue in the case. If the object [in question] was taken from the defendant or found at the scene of the crime, the foundation is laid once it is shown that the thing offered is the one recovered and that its condition is substantially unchanged. The fact that it might have passed through several hands ... is of little significance when the object possesses unique characteristics or markings and is not subject to material alteration which is not readily apparent” (People v. Connelly, 35 N.Y.2d 171, 174, 359 N.Y.S.2d 266, 316 N.E.2d 706 [1974] [internal quotation marks and citations omitted]; see People v. Shoga, 89 A.D.3d 1225, 1226, 933 N.Y.S.2d 126 [2011], lv. denied 18 N.Y.3d 886, 939 N.Y.S.2d 756, 963 N.E.2d 133 [2012] ; People v. Weiler, 194 A.D.2d 894, 895, 599 N.Y.S.2d 149 [1993], lv. denied 82 N.Y.2d 728, 602 N.Y.S.2d 826, 622 N.E.2d 327 [1993] ).

Here, police officer Justin Ashe testified that he and two other members of the Troy Police Department retraced defendant's steps on the night in question; during the course of that search, Ashe found “a black and silver Sig Sauer Mosquito handgun” lying in a grassy area. Ashe radioed that he had located the handgun and thereafter testified that he “stayed with the weapon until [an evidence] box and camera” were brought to his location. After Ashe photographed the weapon, Sergeant Raymond White ejected the magazine, cleared a round from the chamber and placed the gun, magazine and ejected round into an evidence box, which Ashe retained until he turned the box over to ...