People v. Grunwald

• Decision Date: 14 February 2006
• Docket Number: 7175.
• Citation: 29 A.D.3d 33,2006 NY Slip Op 01135,810 N.Y.S.2d 437
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. STEPHEN GRUNWALD, Appellant.
• Court: New York Supreme Court — Appellate Division

29 A.D.3d 33

810 N.Y.S.2d 437

2006 NY Slip Op 01135

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. STEPHEN GRUNWALD, Appellant.

7175.

Appellate Division of the Supreme Court of the State of New York, First Department.

February 14, 2006.

APPEAL from a judgment of the Supreme Court, New York County (Robert H. Straus, J., at suppression hearing; Jeffrey M. Atlas, J., at plea and sentence), rendered April 20, 2004. The judgment convicted defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the third degree, and imposed sentence.

Richard M. Greenberg, Office of the Appellate Defender, New York City (Sara Gurwitch of counsel), and Cadwalader, Wickersham & Taft, LLP, New York City (Joshua M. Bennett, Junea M. Williams, Shanna Green and Douglas I. Koff of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Om Gillett and Donald J. Siewert of counsel), for respondent.

OPINION OF THE COURT

SULLIVAN, J.

On appeal from his conviction, by plea of guilty, of attempted criminal possession of a weapon in the third degree, defendant challenges the propriety of the denial, after a hearing, of his motion to suppress drugs recovered from his person and a knife found nearby on the sidewalk at the time of his arrest. Specifically, defendant argues that the police unlawfully seized him before the recovery of the knife and drugs, which then became the fruits of the unlawful police interference.

Police Officer David Riley, the sole witness at the hearing, testified that on the evening of August 7, 2003 he was assigned with two other officers, all in uniform, to summons patrol, looking for "quality of life" offenses, such as peddling or possessing open containers of alcohol. Shortly after 7:00 P.M., while it was still daylight, Riley was driving a marked radio car westbound under 10 miles per hour on West 115th Street in Manhattan, an area known to the police as drug-prone, when he observed defendant, walking east on the sidewalk about 50 feet away, smoking what Riley believed was a small marijuana cigarette. Riley's opinion was based on the size of the object in defendant's hand ("maybe half an inch"), the lack of a filter, that it was rolled and that defendant was smoking it down close to his fingers. Riley never saw defendant exhale smoke nor did he see that the object was lit.

Officer Riley stopped the patrol car, exited about 20 to 25 feet from defendant and called out, "[c]ome over here." As he and his partner approached defendant on foot, Riley smelled PCP. Defendant turned and began walking west. Riley, who had been in the street, then walked around a parked car and positioned himself in defendant's path, about 15 feet in front of him. There was a parked car to defendant's left and a chain-link fence to his right.

At that point, defendant turned away from Riley and threw the object in his hand over the fence into a lot. Defendant then turned back toward Riley, holding a gravity knife in his right hand with the blade exposed, pointing it at Riley. The blade was about four inches. Riley responded by drawing his gun and directing defendant to drop the knife. His partner also drew his gun and ordered defendant to drop the knife. Defendant did not do as ordered but, instead, kept the knife pointed at Riley as he turned his head to look at Riley's partner. As he did so, Riley was able to reholster his gun and knock the knife from defendant's hand. According to Riley, it took him 5 to 10 seconds to approach defendant and knock the knife from his hand. After a brief struggle, Riley and his partner were able to handcuff defendant and place him under arrest. Riley searched him and recovered two bags of PCP and also recovered the knife from the sidewalk.

In urging suppression, defense counsel argued that Riley's initial observation of defendant was equally susceptible of an innocent explanation and, therefore, did not even give him the right to make an inquiry, much less order defendant to stop. Thus, defendant had the right to walk away and refuse to answer Riley's questions. Defendant's act of walking away gave Riley no greater right to inquire of or detain him. Counsel further argued that since Riley did not see the object being thrown, he had no reason to believe defendant was disposing of something. Counsel also suggested that Riley had no clear and unobstructed view of the knife, did not know that it was a gravity knife and, in the absence of any threat, had no right to arrest defendant or even draw his gun.

The prosecutor argued that after observing defendant smoking what appeared to be a marijuana cigarette, Riley had the right to approach and question him. When defendant refused to stop and, instead, turned and walked in the opposite direction, Riley merely walked in the same direction until he was able to confront defendant, who then threw an object over the fence, turned and pointed a knife at the officer. At that point, the prosecutor argued, Riley had the right to protect himself and properly drew his gun. The prosecutor further argued that the police also acted properly in ordering defendant to drop the knife, and that when defendant refused, Riley, believing that "his life was at stake," took reasonable steps to defend himself.

Finding Riley's testimony credible, the hearing court made the following determinations: Riley's initial observations of defendant smoking what appeared to be a marijuana cigarette created a level I situation (see People v De Bour, 40 NY2d 210, 215 [1976]), permitting him to inquire. Thus, Riley had reasonable grounds to ask defendant to stop so that he could ask questions of him. But instead of stopping, defendant walked away. While defendant, to be sure, had the right to walk away, the officer also had the right "to clarify the situation." After the officer moved to a position where he faced defendant, the latter turned and threw whatever he had in his right hand over the fence, and then turned back to face Riley, holding a knife and pointing it at the officer at a distance of 15 feet. Until then, Riley had neither probable cause to arrest nor reasonable suspicion to justify a forcible stop. But this "change of circumstances" escalated the encounter from a level I under De Bour to one in which Officer Riley had probable cause to disarm and arrest defendant. The hearing court found that the knife was properly recovered from the ground and that the PCP was also properly taken from defendant in a search incident to his arrest. The court denied suppression.

Defendant subsequently pleaded guilty to criminal possession of a weapon in the third degree in satisfaction of the indictment. On the sentence date, after vacating his previous guilty plea and allowing defendant to plead guilty to attempted criminal possession of a weapon in the third degree, the court sentenced him as a predicate felon to 1 1/2 to 3 years imprisonment, as promised. This appeal followed. We affirm.

Raising only the issue of the denial of his suppression motion, defendant argues that when Officer Riley deliberately walked ahead and positioned himself in front of him, he was subjected to a seizure without reasonable suspicion. Alternatively, assuming that the encounter did not constitute a seizure, defendant argues that it was, at a minimum, a level II De Bour intrusion without the requisite founded suspicion that criminal activity was afoot to justify it.

At the outset, we reject the concomitant claim that Officer Riley's testimony was, as a matter of law, incredible. There is nothing about Riley's testimony that makes it "impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory" (People v Garafolo, 44 AD2d 86, 88 [1974]). While defendant asserts that Riley could not have seen that defendant was smoking a marijuana cigarette, the hearing court, for proper reasons, found otherwise. "[M]uch weight must be accorded the determination of the suppression court with its peculiar advantages of having seen and heard the witnesses" (People v Prochilo, 41 NY2d 759, 761 [1977]).

As to the operative facts, Riley, on summons patrol, was looking for evidence of crimes such as the marijuana offense in this case. It was still daylight at the time, so Riley's observations were not impeded by darkness. The area was drug-prone, a factor the officer could consider (see People v Martinez, 80 NY2d 444, 448 [1992]). There is nothing in the officer's testimony to cast doubt on his credibility or to suggest that it was tailored to meet constitutional objections. The testimony merely reveals the facts as they were unfolding from the time Riley first noticed defendant on the sidewalk.

Nor was Officer Riley's conduct unlawful, as claimed. It is well settled that the "crucial factor" in evaluating street encounters between a police officer and a civilian is whether the officer acted reasonably under all the circumstances (De Bour, 40 NY2d at 217). In De Bour, the Court of Appeals set forth a four-tiered structure to evaluate police conduct in such encounters. Key to any De Bour analysis is that at each stage of an encounter the level of police intrusion must be justified by the factual basis leading to it. Thus, at the first level, police may approach civilians to request information "when there is some objective credible...