People v. Osborne

• Decision Date: 01 February 1990
• Citation: 158 A.D.2d 740,551 N.Y.S.2d 336
• Parties: The PEOPLE of the State of New York, Respondent, v. Paul OSBORNE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 336

551 N.Y.S.2d 336

158 A.D.2d 740

The PEOPLE of the State of New York, Respondent, v. Paul OSBORNE, Appellant.

Supreme Court, Appellate Division,

Third Department.

Feb. 1, 1990.

John Ferrara, Legal Aid Society of Sullivan County, Inc., Monticello, for appellant.

Stephen F. Lungen, Dist. Atty. (K.C. Garn, of counsel), Monticello, for respondent.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and HARVEY, JJ.

WEISS, Justice.

Appeal from a judgment of the County Court of Sullivan County (Hanofee, J.), rendered January 7, 1988, convicting defendant upon his plea of guilty of the crimes of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree.

Defendant's automobile was stopped by Police Officer Carlo Pittaluga on Broadway in the Village of Monticello, Sullivan County, at about 9:30 P.M. on December 14, 1986 because its windows were excessively tinted (see, Vehicle and Traffic Law § 375[12-a][b]. Earlier that week all of the officers on duty were advised by their supervisor that defendant's vehicle had been identified and was suspected of involvement in drug sales in the vicinity of the Pub Bar on Broadway. Pittaluga had also learned that defendant had a record of previous arrests, including a drug possession charge and resisting arrest, and that defendant's address was shown to be the same as Joseph McKensie, an individual with numerous prior drug arrests and against whom there were outstanding warrants. When defendant exhibited difficulty producing his driver's license and insurance card he was asked to exit the automobile. His passenger, Barbara Lewis, ignored Pittaluga's request to remain at the scene and she left to enter the Pub Bar. Pittaluga observed that defendant had difficulty reaching into his pockets because he was holding a large piece of blue cloth in one hand and also noticed a large bulge in one of his pockets. Pittaluga felt something hard and long in defendant's pocket, which defendant said "was a knife * * * [not] a gun or anything like that". While Pittaluga removed a 12-inch knife and a large roll of currency containing approximately $1,800, all in $20 bills, he perceived that defendant dropped a gray leather change purse to the ground. When recovered, Pittaluga found that the purse contained more than 20 vials of crack cocaine. Defendant was placed under arrest and indicted for criminal possession of a controlled substance in the third and fourth degrees. An inventory search of his car revealed 30 "nickel bags" of marihuana. Following denial of his motion to suppress the evidence seized, defendant pleaded guilty to the indictment pursuant to a negotiated plea bargain and was sentenced to concurrent terms of imprisonment of 2 to 6 years.

Defendant initially challenges the stop of his automobile as unlawful, arguing that Pittaluga lacked reasonable suspicion to believe that a violation of Vehicle and Traffic Law § 375(12-a)(b) had occurred. He is mistaken. "All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity. It is enough if the stop is based upon 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion' " (People v. Ingle, 36 N.Y.2d 413, 420, 369 N.Y.S.2d 67, 330 N.E.2d 39, quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889). Pittaluga believed that the tinted windows constituted a violation of Vehicle and Traffic Law § 375 (12-a)(b) because, as he testified, "you are not supposed to have windows on your vehicle * * * to be more than thirty-five percent reflective * * * if you can't see through the window, then it is more than thirty-five percent". He stated that, while he could see there was a driver of the car, he could not identify who it was. Pittaluga also testified that he recognized the vehicle and knew that it was suspected of being used for drug transactions and that defendant, as owner, had given his address as that of McKensie, a known drug offender. Defendant conceded that he had the windows tinted himself, and that it was possible to both see into and out of the car through the windows.

In People v. Hoffman, 135 A.D.2d 299, 525 N.Y.S.2d 376, this court held that a police officer may stop a vehicle when he reasonably suspects a violation of the Vehicle and Traffic Law and there is no requirement that the violation be substantial. "[T]he facts observed by the officer need only support a reasonable suspicion; they need not be of sufficient probative force to support a conviction of the violation" (id., at 301, 525 N.Y.S.2d 376). More recently, this court upheld a stop of an automobile at night on the Thruway because, inter alia, the windows were excessively tinted (People v. Bapp, 149 A.D.2d 804, 539 N.Y.S.2d 592). In the instant case, Pittagula's observation of the tinted windows and his inability to identify the driver were a proper predicate for the stop, which justified the extent of the intrusion. "[T]he predicate established...