People v. Lewis

• Decision Date: 10 August 2022
• Docket Number: 2019-11790,Ind. No. 1010/18
• Parties: The PEOPLE, etc., respondent, v. Shawn LEWIS, appellant.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 595

172 N.Y.S.3d 116

The PEOPLE, etc., respondent,

v.Shawn LEWIS, appellant.

2019-11790

Ind. No. 1010/18

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

Argued—May 6, 2022

August 10, 2022

Patricia Pazner, New York, NY (Sarah B. Cohen of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Roni C. Piplani, and Joseph M. DiPietro of counsel), for respondent.

BETSY BARROS, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Evelyn L. Braun, J.), rendered September 12, 2019, convicting him of robbery in the second degree, robbery in the third degree, grand larceny in the fourth degree (five counts), criminal possession of stolen property in the fourth degree (four counts), criminal possession of stolen property in the fifth degree (two counts), criminal mischief in the fourth degree, possession of burglar's tools (three counts), obstructing governmental administration in the second degree, resisting arrest, unlawful fleeing a police officer in a motor vehicle in the third degree, reckless driving, failing to comply with a police officer's direction, failing to stop at a steady red signal, driving a vehicle on the left side of no-passing markers, failing to signal, driving in excess of the maximum speed limit, and operating a motor vehicle without a license, after a nonjury trial, and imposing sentence. The appeal brings up for review the denial, after a hearing (Deborah Stevens Modica, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is modified, on the law, by vacating the convictions of robbery in the second degree, robbery in the third degree, grand larceny in the fourth degree (five counts), criminal possession of stolen property in the fourth degree (four counts), criminal possession of stolen property in the fifth degree (two counts), and possession of burglar's tools (three counts), and vacating the sentences imposed thereon; as so modified, the judgment is affirmed, that branch of the defendant's omnibus motion which was to suppress physical evidence is granted, and a new trial is ordered on those counts of the indictment.

The defendant was charged with robbery in the first degree and various other offenses after he allegedly confronted the complainant on a street corner, indicated that he had a weapon, and took the complainant's wallet. When police officers responded to the scene, the defendant allegedly fled, first on foot and then in a car, and was later apprehended by other officers. The defendant was handcuffed, and a wallet was removed from his pocket. A police officer examined the contents of the wallet and determined that it was the complainant's wallet.

Prior to trial, the defendant moved, inter alia, to suppress the wallet that was recovered from his pocket and its contents. The Supreme Court conducted a suppression hearing, at which the People presented testimony from Police Officers Christopher Catapano and David Fitchik. Those officers testified that they responded to the scene after a passing delivery driver alerted them to the encounter between the perpetrator and the complainant. When the officers arrived, less than a minute after they were notified of the incident, the perpetrator was facing away from the officers, had his jacket hood up and his hand in his front right pocket, and was talking with the complainant. The perpetrator then looked over his shoulder, toward the officers, at which point he turned and began to run away, while the complainant pointed frantically at him. Catapano and Fitchik pursued the perpetrator on foot, and used their police radio to call for backup, describing the perpetrator as a "[m]ale black approximately 20 years old, 5–foot–8, dark jeans, dark jacket." After the officers pursued him for about four blocks, the perpetrator entered a white Toyota Camry with Texas licence plates, and drove away at a high rate of speed. Before the perpetrator drove away, Fitchik used his baton to break the back window of the car, to make the car more easily identifiable by other officers. The officers transmitted by radio a description of the car now being driven by the perpetrator, and then returned to the scene of the robbery, where the complainant told them that the perpetrator robbed him and took his wallet.

The officers received a radio transmission indicating that another officer had "picked up" the vehicle and directing the officers to a backyard about half a mile from the scene of the robbery. The officers drove to that location, where Police Officer Brian Nelson and his partner were present with the defendant, who was on the ground in handcuffs. Catapano testified that he saw Nelson "pat [the defendant] down to search him." According to Fitchik, the officers "were frisking [the defendant] for officer safety searching him for anything." Nelson reached into the defendant's pants pocket and recovered a wallet. Nelson handed the wallet to Catapano, who "looked through it to try and I.D. the defendant." The wallet contained credit cards, debit cards, and a work identification card, all bearing the complainant's name. Fitchik also opened the wallet and, upon examining its contents, determined that the pictures on the identification cards matched the complainant, not the defendant.

After the hearing, the Supreme Court issued a written decision denying that branch of the defendant's motion which was to suppress the wallet and its contents. The court determined that the officers had a reasonable suspicion that the defendant had committed a robbery, which justified a temporary detention of the defendant for the purpose of arranging for an identification procedure. The court reasoned that the frisk of the defendant which resulted in the recovery of the wallet from his pocket "was necessary to ensure the safety of the police officers" during that detention.

The case proceeded to a nonjury trial, at which Catapano gave testimony similar to his suppression hearing testimony. On cross-examination, Catapano acknowledged that, when he initially arrived at the location where the complainant and the perpetrator were standing, he was approximately 20 to 30 feet away from the two men. The perpetrator was facing away from Catapano with a hood over his head, and Catapano saw the perpetrator from the front only when he briefly looked over his shoulder toward the officers. Catapano testified that he could not remember whether the perpetrator was wearing a ski mask over his face. While he was pursuing the perpetrator on foot, Catapano was a little more than 15 feet behind him, and the perpetrator's back was to Catapano throughout the chase. When the perpetrator entered the white Toyota Camry, Catapano was 20 feet behind him.

The complainant testified that on the day of the incident, he was walking home from work when he noticed someone approaching him from behind. The person was wearing a green jacket with the hood pulled up over his head. The complainant could not see the person's face because the person was wearing a mask, but he believed that he was a Black man, based on part of his hand being exposed when he reached toward the complainant. The complainant tried to run away, but stopped when the perpetrator said, "If you run, I'll shoot you." The perpetrator approached the complainant with his right hand inside his jacket, and the complainant was convinced that he had a gun. The perpetrator demanded the complainant's wallet, and the complainant handed the perpetrator his wallet. As the perpetrator began to walk away, two police officers arrived, and they chased the perpetrator. A short time later, police officers showed the complainant his wallet, at a location where they had located the perpetrator. The complainant got his wallet back a couple of days later, after going to a police station and filling out paperwork.

Nelson testified at trial that he received a radio transmission requesting assistance with regard to a robbery. Based on the information he received, he canvassed a particular area, looking for a suspect in a white, four-door sedan with Texas license plates and a damaged rear windshield. Nelson spotted the vehicle at a location approximately eight blocks from the scene of the robbery. The vehicle drove past a stop sign without stopping, and Nelson attempted to pull it over. After a chase, the vehicle crashed into a stop sign, and was struck by Nelson's vehicle. The defendant emerged from the vehicle and fled on foot. Nelson caught up to the defendant and, after a struggle, was able to restrain him. The defendant was placed in handcuffs, and, after Catapano and Fitchik arrived, Nelson searched the defendant and recovered a wallet. The identification cards inside the wallet did not match the defendant, and Nelson gave the wallet to Catapano and Fitchik. Catapano testified that he showed the wallet to the complainant, who confirmed that it was his.

Catapano then examined the vehicle the defendant had been driving, and found three ski masks on the front passenger seat and floor. The ski masks formed the basis of three counts of possession of burglar's tools, which may be committed by possessing an item commonly used for facilitating offenses involving larceny by a physical taking, "under circumstances evincing an intent to use ... the same in the commission of an offense of such character" ( Penal Law § 140.35 ).

At the conclusion of the trial, the Supreme Court rendered its verdict, finding initially that the People proved the defendant's identity as the perpetrator beyond a reasonable doubt through circumstantial evidence. The court found the defendant guilty of robbery in the second degree, as a lesser included offense of robbery in the first degree, as well as robbery in the third degree, grand larceny in the fourth degree (five counts), ...