People v. Hogencamp

• Decision Date: 27 June 2002
• Citation: 295 A.D.2d 808,744 N.Y.S.2d 242
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>ALVIN M. HOGENCAMP, Appellant.
• Court: New York Supreme Court — Appellate Division

295 A.D.2d 808

744 N.Y.S.2d 242

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.ALVIN M. HOGENCAMP, Appellant.

Decided June 27, 2002.

Mercure, Crew III, Spain and Rose, JJ., concur.

Cardona, P.J.

Defendant was indicted on four counts of burglary in the third degree, four counts of criminal mischief in the third degree, three counts of petit larceny and one count of criminal possession of stolen property in the fifth degree stemming from his alleged participation in the burglaries of four cabins in the Town of Colchester, Delaware County. Following a hearing resulting in County Court's refusal to suppress physical evidence and certain oral statements, defendant pleaded guilty to four counts of burglary in the third degree, specifically reserving his right to appeal County Court's suppression rulings. He argues, inter alia, that under our state common law his oral statements made to the police and the physical evidence seized from his jacket were obtained as the result of an illegal stop and detention (see, People v Hollman, 79 NY2d 181; People v De Bour, 40 NY2d 210).

The facts as determined from the suppression hearing establish that on January 1, 2000 at 9:30 A.M., Sergeant Paul Buttacavoli of the Department of Environmental Protection (hereinafter DEP) was in his parked patrol vehicle on a dirt pull-off parallel to State Route 30 in Colchester. The vehicle was at a point just north of the gated and locked driveway leading to the east Delaware intake chamber of the Pepacton Reservoir. Buttacavoli was guarding the intake chamber to prevent possible vandalism to the New York City water supply due to Y2K. Through his driver's side view mirror, the officer observed defendant walking in his direction along the shoulder on the same side of Route 30. He could see that defendant's face was frosted from the cold and his hands were inside his bulging front jacket pockets. As defendant drew near, Buttacavoli exited his vehicle and walked toward him. He immediately asked defendant to remove his hands from his pockets and defendant complied.

Buttacavoli asked defendant for his name, which defendant gave, and for identification. Defendant produced his driver's license bearing his picture, which Buttacavoli examined and determined that defendant was a local resident. He asked defendant where he was coming from, and defendant indicated from his grandmother's house on Holiday Brook Road. Buttacavoli then asked defendant where he was going, and defendant replied that he was on his way to the community of Downsville, Delaware County, to use a pay phone. He asked defendant what was making his pockets bulge, and defendant told him that he had change in his jacket. Defendant took his jacket off and handed it to Buttacavoli, who looked in the pockets. Defendant indicated that he was a parolee. At this point, although Buttacavoli expressed that he had no doubt that defendant was on his way to Downsville, he, nevertheless, had defendant stand next to his patrol car while he radioed for a license check. During that five minute period, defendant repeatedly asked Buttacavoli if he was going back to jail and Buttacavoli told defendant no because he did not do anything wrong. Defendant's license was in order, however, due to defendant's nervousness and repeated questions about returning to jail, Buttacavoli's suspicions were aroused, so he asked defendant "is there something you have to tell me?" At that point, defendant told Buttacavoli that his friends had broken into some cabins, but he had no part in it. Defendant, still not wearing his jacket, asked if he could sit in the vehicle because he was cold and shivering. Buttacavoli allowed that and then called his supervisor, DEP Sergeant Joseph Kennedy, who in turn called the Chief of Police of the Town of Colchester, Christopher D'Addezio.

When D'Addezio arrived, Buttacavoli handed him defendant's jacket. D'Addezio looked inside and questioned defendant. In response, defendant informed D'Addezio that his friends were burglarizing camps on Holiday Brook Road. They had a red car...