People v. May

• Citation: 2012 N.Y. Slip Op. 07472,100 A.D.3d 1411,953 N.Y.S.2d 767
• Parties: The PEOPLE of the State of New York, Respondent, v. Donald M. MAY, Defendant–Appellant.
• Decision Date: 09 November 2012
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 1411
953 N.Y.S.2d 767
2012 N.Y. Slip Op. 07472

The PEOPLE of the State of New York, Respondent,
v.
Donald M. MAY, Defendant–Appellant.

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

Nov. 9, 2012.

[953 N.Y.S.2d 768]

Thomas J. Eoannou, Buffalo (Jeremy D. Schwartz of Counsel), for Defendant–Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.

[953 N.Y.S.2d 769]

MEMORANDUM:

[100 A.D.3d 1411]On appeal from a judgment convicting him upon his plea of guilty of, inter alia, criminal possession of a weapon in the second degree (Penal Law §§ 265.03[3] ), defendant contends that Supreme Court erred in denying his motion to suppress certain physical evidence because he was subjected to an unlawful seizure. We reject that contention. Even assuming, arguendo, that defendant was unlawfully detained when the police positioned their vehicle perpendicular to defendant's vehicle in a parking lot, we conclude that defendant's subsequent conduct severed any causal connection between the unlawful detention and the subsequently-acquired evidence ( see People v. Rogers, 52 N.Y.2d 527, 533–534, 439 N.Y.S.2d 96, 421 N.E.2d 491,rearg. denied54 N.Y.2d 753, 443 N.Y.S.2d 1031, 426 N.E.2d 756,cert. denied454 U.S. 898, 102 S.Ct. 399, 70 L.Ed.2d 214,reh. denied459 U.S. 898, 103 S.Ct. 199, 74 L.Ed.2d 160;see also People v. Evans, 289 A.D.2d 994, 994, 734 N.Y.S.2d 916,lv. denied97 N.Y.2d 728, 740 N.Y.S.2d 701, 767 N.E.2d 158).

After the police officer approached his vehicle, defendant drove backward over a concrete parking barrier and into the roadway, evaded a police vehicle stopped across the roadway by maneuvering his vehicle over the curb of the roadway and onto several lawns, and sped away at approximately twice the posted speed limit. At the very least, defendant's conduct constituted a violation of the misdemeanor of reckless driving (Vehicle and Traffic Law § 1212), or reckless endangerment in the second degree (Penal Law § 120.20). It is well established that “[a] person who is stopped or detained illegally is not immunized from prosecution for crimes committed during his [or her] detention period” [100 A.D.3d 1412]( United States v. Garcia–Jordan, 860 F.2d 159, 160;see Rogers, 52 N.Y.2d at 531–532, 439 N.Y.S.2d 96, 421 N.E.2d 491). Here, inasmuch as defendant's response to the police approach was “unjustified and criminal in nature ... and unrelated to the initial [allegedly] unlawful action on the part of the police,” suppression of the subsequently-acquired evidence was not required ( People v. Townes, 41 N.Y.2d 97, 102, 390 N.Y.S.2d 893, 359 N.E.2d 402;People v. Ellis, 4 A.D.3d 877, 878, 771 N.Y.S.2d 471,lv. denied3 N.Y.3d 639, 782 N.Y.S.2d 410, 816 N.E.2d 200,reconsideration denied3 N.Y.3d 673, 784 N.Y.S.2d 12, 817 N.E.2d 830;cf. People v. Felton, 78 N.Y.2d 1063, 1065, 576 N.Y.S.2d 89, 581 N.E.2d 1344).

Contrary to the further contention of defendant, we conclude that the court did not err in determining, based upon the totality of the circumstances, that...