People v. Muhammed

• Decision Date: 16 July 2021
• Docket Number: KA 18-00688,435
• Citation: People v. Muhammed, 196 A.D.3d 1151, 150 N.Y.S.3d 858 (N.Y. App. Div. 2021)
• Parties: The PEOPLE of the State of New York, Respondent, v. Saleem K. MUHAMMED, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

196 A.D.3d 1151

150 N.Y.S.3d 858

The PEOPLE of the State of New York, Respondent,

v.Saleem K. MUHAMMED, Defendant-Appellant.

435

KA 18-00688

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

Entered: July 16, 2021

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BRITTNEY N. CLARK OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ).On appeal, defendant argues that Supreme Court erred in refusing to suppress a gun recovered from his coat pocket during the initial 40 seconds of a traffic stop.We affirm.

At the outset, defendant correctly concedes that the initial traffic stop was lawful based on the driver's traffic infractions and suspended license (seePeople v. Robinson , 97 N.Y.2d 341, 350, 741 N.Y.S.2d 147, 767 N.E.2d 638[2001];People v. Jarrett , 157 A.D.3d 534, 534, 67 N.Y.S.3d 625[1st Dept.2018], lv denied31 N.Y.3d 1014, 78 N.Y.S.3d 284, 102 N.E.3d 1065[2018] ).Defendant also correctly concedes that the police properly directed him to exit the vehicle (seePeople v. Garcia , 20 N.Y.3d 317, 321, 959 N.Y.S.2d 464, 983 N.E.2d 259[2012] ).Defendant further correctly concedes that, at the inception of the traffic stop, a recent tip from his parole officer supplied the police with founded suspicion that he was in possession of a gun; defendant therefore acknowledges that the police were authorized to conduct a level two common-law inquiry at the inception of the traffic stop.

Defendant asserts, however, that the gun was not actually discovered until the police had already effectuated a level three detention of his person by grabbing his arms after he exited the vehicle.That purported level three detention was impermissible, according to defendant, because the police lacked any reasonable suspicion of criminality at its inception.Thus, defendant reasons, the court erred in refusing to suppress the gun discovered during the ostensibly impermissible level three detention.We reject defendant's contention for the following reasons.

First, defendant was not subject to a level three detention at any point before the police saw the gun.It is well established that "minimal self-protective measure[s are] permissible in furtherance of the common-law right of inquiry, where sufficient concerns for [officer] safety are present"( People v. Butler , 127 A.D.3d 623, 624, 10 N.Y.S.3d 1[1st Dept.2015][internal quotation marks omitted];seePeople v. Chin , 192 A.D.2d 413, 413, 596 N.Y.S.2d 391[1st Dept.1993], lv denied81 N.Y.2d 1071, 601 N.Y.S.2d 590, 619 N.E.2d 668[1993] ).As such, a level one or two encounter is not transformed into a level three detention whenever law enforcement briefly grabs the defendant in response to a sudden movement that made it "objectively reasonable, under all the circumstances, for the officer to be concerned that [the]defendant might be reaching for a weapon"( People v. Davis , 106 A.D.3d 144, 151, 963 N.Y.S.2d 48[1st Dept.2013], lv denied21 N.Y.3d 1073, 974 N.Y.S.2d 322, 997 N.E.2d 147[2013];seePeople v. Wyatt , 14 A.D.3d 441, 441-442, 788 N.Y.S.2d 362[1st Dept.2005], lv denied4 N.Y.3d 837, 796 N.Y.S.2d 592, 829 N.E.2d 685[2005];People v. Campbell , 293 A.D.2d 396, 396-397, 740 N.Y.S.2d 619[1st Dept.2002], lv denied98 N.Y.2d 695, 747 N.Y.S.2d 413, 776 N.E.2d 2[2002];Chin , 192 A.D.2d at 413, 596 N.Y.S.2d 391 ).Put simply, grabbing a suspect's arm after he or she reaches furtively or suspiciously for his or her pocket during a level two encounter is a "justified" and "minimal self-protective measure"( Davis , 106 A.D.3d at 151, 963 N.Y.S.2d 48 ); such a protective action is "not a frisk" subject to level three scrutiny ( Wyatt , 14 A.D.3d at 441-442, 788 N.Y.S.2d 362[internal quotation marks omitted]).Here, the parole officer's tip that defendant had a gun, combined with defendant's continuous clutching at his right side and evasive efforts to shield whatever he was clutching as he exited the vehicle, made it "objectively reasonable, under all the circumstances, for the officer[s] to be concerned that defendant might be reaching for a weapon"( Davis , 106 A.D.3d at 151, 963 N.Y.S.2d 48 ).Thus, the officers’ momentary actions in grabbing and attempting to secure defendant's arms to ensure that he did not draw a gun were a proper "minimal self-protective measure" that did not transform the indisputably permissible level two inquiry into a level three detention requiring reasonable suspicion ( id.;seeWyatt , 14 A.D.3d at 441-442, 788 N.Y.S.2d 362;Campbell , 293 A.D.2d at 396-397, 740 N.Y.S.2d 619;Chin , 192 A.D.2d at 413, 596 N.Y.S.2d 391 ).

Second, even had the police effectuated a level three detention simply by grabbing defendant's arms, any such level three detention would have been justified by the requisite reasonable suspicion of criminality.Specifically, given the combined effect of the parole officer's tip, defendant's continuous and unnatural clutching at his right side, defendant's evasive efforts to extricate himself from the scene by forcefully...