People v. Jemmott

• Decision Date: 17 April 2014
• Citation: 984 N.Y.S.2d 443,116 A.D.3d 1244,2014 N.Y. Slip Op. 02630
• Parties: The PEOPLE of the State of New York, Respondent, v. Malcolm Q. JEMMOTT, Appellant.
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 1244
984 N.Y.S.2d 443
2014 N.Y. Slip Op. 02630

The PEOPLE of the State of New York, Respondent,
v.
Malcolm Q. JEMMOTT, Appellant.

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

April 17, 2014.

[984 N.Y.S.2d 445]

David E. Woodin, Catskill, for appellant.

D. Holley Carnright, District Attorney, Kingston (Joshua Harris Povill of counsel), for respondent.

Before: LAHTINEN, J.P., McCARTHY, GARRY and EGAN JR., JJ.

GARRY, J.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered February 17, 2012, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.

In September 2010, two individuals in the City of Kingston, Ulster County flagged down a police cruiser. Pointing at defendant walking nearby, they stated that he had threatened one of them with a gun. After briefly following defendant, Detective Eric VanAllen stopped him, conducted a pat-down search, and asked him a few questions; defendant was then handcuffed and placed in a police vehicle. Officers searched the vicinity and did not find a weapon, but thereafter located a parked vehicle matching a description of a green minivan that the victims said they had seen defendant driving immediately after the incident. The minivan was registered in the name of an individual whose identification had been found in defendant's possession during the pat-down search, and an officer stated that he saw a gun inside the vehicle. Using a key that had been found on defendant's person during the search, VanAllen unlocked and entered the minivan, where he found a loaded firearm in plain sight. VanAllen then had a brief conversation with defendant, but stopped when defendant stated that he was thinking about talking with a lawyer. Defendant was brought to the police station; several hours later, he asked to speak with VanAllen and made a recorded statement after twice being given Miranda warnings.

Defendant was subsequently indicted for criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree (two counts). Following a joint Huntley, Wade, Mapp and Dunaway hearing, County Court partially denied defendant's motion to suppress evidence and statements. Defendant pleaded guilty to criminal possession of a weapon in the second degree in full satisfaction of the indictment and was sentenced as a second felony offender to a prison term of 12 years. Defendant appeals.

We reject defendant's contention that his responses to VanAllen's inquiries during the pat-down search should have been suppressed. A police officer who reasonably suspects that a person has committed a crime may stop and detain that person, and need not administer Miranda warnings before asking questions “for the purpose of ascertaining [the person's] identity and an explanation of his [or her] conduct” ( People v. Walker, 267 A.D.2d 778, 780, 701 N.Y.S.2d 166 [1999],lv. denied94 N.Y.2d 926, 708 N.Y.S.2d 366, 729 N.E.2d 1165 [2000];seeCPL 140.50[1]; People v. Tunstall, 278 A.D.2d 585, 587, 717 N.Y.S.2d 685 [2000],lv. denied96 N.Y.2d 788, 725 N.Y.S.2d 653, 749 N.E.2d 222 [2001] ). VanAllen's questions as to defendant's name and whether he “had a problem with a girl around the corner” were permissible as “threshold crime scene inquiries designed to clarify the situation” ( People v. Coffey, 107 A.D.3d 1047, 1050, 966 N.Y.S.2d 277 [2013],lv. denied21 N.Y.3d 1041, 972 N.Y.S.2d 538, 995 N.E.2d 854 [2013] [internal quotation

[984 N.Y.S.2d 446]

marks and citations omitted] ). Moreover, his questions as to whether defendant had a gun or had “tossed” a gun away—asked soon after defendant had allegedly threatened the victims with a weapon, near a school that was about to close for the day, releasing children into the neighborhood where police suspected that the gun was located—were justified by “ ‘the immediate necessity of ascertaining the whereabouts of a [threat to the public safety]’ ” ( People v. Strickland, 169 A.D.2d 9, 12, 570 N.Y.S.2d 712 [1991], quoting New York v. Quarles, 467 U.S. 649, 657, 104 S.Ct. 2626, 81 L.Ed.2d 550 [1984];see People v. Scotchmer, 285 A.D.2d 834, 836, 727 N.Y.S.2d 777 [2001],lv. denied96 N.Y.2d 942, 733 N.Y.S.2d 382, 759 N.E.2d 381 [2001];People v. Sanchez, 255 A.D.2d 614, 615, 680 N.Y.S.2d 29 [1998],lv. denied92 N.Y.2d 1053, 685 N.Y.S.2d 431, 708 N.E.2d 188 [1999] ).

County Court properly refused to suppress the gun and other evidence derived from the search of the vehicle. The minivan—found about 150 yards from the crime scene—was the only vehicle in the area that fit the victims' description of the green minivan that defendant had been driving,...