People v. McCoy

• Decision Date: 04 November 1999
• Citation: 699 N.Y.S.2d 131,266 A.D.2d 589
• Parties: The PEOPLE of the State of New York, Respondent, v. Isaiah McCOY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 131

699 N.Y.S.2d 131

The PEOPLE of the State of New York, Respondent, v. Isaiah McCOY, Appellant.

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

Nov. 4, 1999.

Michael P. Graven, Owego, for appellant.

Thomas F. O'Mara, District Attorney, Elmira, for respondent.

Before: CARDONA, P.J., MERCURE, SPAIN, CARPINELLO and GRAFFEO, JJ.

CARDONA, P.J.

Appeal from a judgment of the County Court of Chemung County (Castellino, J.), rendered September 27, 1996, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the third degree (two counts) and criminal possession of a controlled substance in the third degree.

While on patrol during the early morning hours of December 12, 1995 in the Village of Watkins Glen, Schuyler County, State Troopers David Waite and Daniel Buchy observed a grey Honda Civic automobile weaving within its own lane. The officers noticed that the vehicle was traveling slower than the posted speed limit and, believing that it posed a safety hazard and the driver might be intoxicated, they stopped the vehicle in Chemung County. There were three individuals occupying the vehicle with defendant seated in the back seat behind the front passenger. At Waite's direction, the driver, Nathaniel Hollins, exited the vehicle and successfully performed certain sobriety tests.

Since Hollins only had a learner's permit and the other occupants did not possess valid driver's licenses, Waite advised Hollins that he would have to be seated in the patrol vehicle while a computer check of his driving status was performed. Waite informed Hollins that he needed to pat him down before he entered the patrol vehicle. During the pat-down, Hollins attempted to pull away from Waite and grabbed for his right coat pocket. Waite discovered a loaded revolver in Hollins' coat pocket. After additional officers arrived at the scene, the other occupants were removed from the vehicle and patted down. While no weapons were found on defendant, he was handcuffed and placed in a patrol vehicle driven by Deputy Sheriff Scott Smith. A subsequent search of the automobile revealed a loaded handgun wrapped in a yellow shopping bag on the floor in the rear behind the front passenger's seat. After defendant was removed from Smith's patrol vehicle, it was also searched and a plastic bag containing cocaine, marihuana and a metal crack pipe were found.

Thereafter, defendant was charged in counts one and two of the indictment with criminal possession of a weapon in the third degree and in the third count with criminal possession of a controlled substance in the third degree. Although the first trial ended in a mistrial, defendant was convicted of all charges following a second trial. As to the first count of the indictment, defendant was sentenced as a predicate violent felony offender to a determinate prison term of seven years. As to the second and third counts of the indictment, defendant was sentenced as a predicate felony offender to 3 1/2 to 7 years and 10 to 20 years in prison, respectively. All sentences were to run concurrently. Defendant appeals.

Initially, we find no merit to defendant's claim that the stop and search of the vehicle was illegal and required the suppression of all evidence derived therefrom. Since the vehicle was weaving and traveling at a slow rate of speed, the officers had a reasonable basis for stopping the vehicle in the first instance for the purpose of conducting a routine traffic check (see, People v. Ingle, 36 N.Y.2d 413, 414, 369 N.Y.S.2d 67, 330 N.E.2d 39; People v. Hoffman, 135 A.D.2d 299, 301, 525 N.Y.S.2d 376). As we noted in People v. Hollins (248 A.D.2d 892, 894, 670 N.Y.S.2d 925), the subsequent pat-down of Hollins by the officers for the purpose of searching for weapons was justified under the circumstances. Since a weapon was, in fact, found in Hollins' pocket, this provided probable cause for the officers' pat down of the other occupants and search of the automobile (see, e.g., People v. Pincus, 184 A.D.2d 666, 584 N.Y.S.2d 866, lv. denied 80 N.Y.2d 976, 591 N.Y.S.2d 145, 605 N.E.2d 881; People v. Campbell, 176 A.D.2d 814, 575 N.Y.S.2d 138). Consequently, we find no basis to disturb County Court's denial of defendant's suppression motion.

In addition, defendant contends that the prosecution improperly used a peremptory challenge to strike the only African American on the jury panel and that County Court erred in failing to conduct a hearing pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, prior to allowing the prosecution to strike this juror. We disagree. It is understood that the use of a peremptory challenge to exclude a potential juror on the basis of race violates the Equal Protection Clause of the 14th Amendment of the U.S. Constitution (see, People v. Payne, 88 N.Y.2d 172, 181, 643 N.Y.S.2d 949, 666 N.E.2d 542). The initial burden is on the defendant objecting to the use of the peremptory challenge to allege facts raising the inference of discrimination (see, People v. Allen, 86 N.Y.2d 101, 104, 629 N.Y.S.2d 1003, 653 N.E.2d 1173), whereupon the burden shifts to the prosecution to articulate a race-neutral reason for striking the juror (see, id., at 109, 629 N.Y.S.2d 1003, 653 N.E.2d 1173). Once a facially neutral explanation has been advanced, the trial court must determine if the proffered explanation is pretextual based upon the proof put forth by the defendant (see, id., at 110, 629 N.Y.S.2d 1003, 653 N.E.2d 1173). Notably, "[t]he trial court's factual assessment of the prosecutor's motivation is entitled to great weight" (People v. Duncan, 177 A.D.2d 187, 194, 582 N.Y.S.2d 847, lv. denied 79 N.Y.2d 1048, 584 N.Y.S.2d 1016, 596 N.E.2d 414).

During jury selection, the prosecutor inquired whether any of the prospective jurors had any positive or negative experiences with police officers. The only African American on the panel, a female whose surname was Swan, responded that her sons had "run-ins" with the police. The prosecutor exercised a peremptory challenge striking the juror from the...