People v. Pruitt

• Citation: 158 A.D.3d 1138,70 N.Y.S.3d 691
• Decision Date: 02 February 2018
• Docket Number: 1297,KA 13–01973
• Parties: The PEOPLE of the State of New York, Respondent, v. Nicole PRUITT, also known as Nickie Pruitt, Defendant–Appellant.
• Court: New York Supreme Court Appellate Division

158 A.D.3d 1138

70 N.Y.S.3d 691

The PEOPLE of the State of New York, Respondent,

v.Nicole PRUITT, also known as Nickie Pruitt, Defendant–Appellant.

1297

KA 13–01973

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

Entered: February 2, 2018

EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (DANIELLE L. WILD OF COUNSEL), FOR DEFENDANT–APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, DEJOSEPH, AND WINSLOW, JJ.

MEMORANDUM AND ORDERMemorandum:

Defendant appeals from a judgment convicting her upon her plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ) and criminal possession of a weapon in the third degree (§ 265.02 [1] ). We reject defendant's contention that County Court erred in refusing to suppress a handgun and her statements to the police.

Contrary to defendant's contention, the court properly determined that the police conduct was "justified in its inception and ... reasonably related in scope to the circumstances [that] rendered its initiation permissible" ( People v. De Bour, 40 N.Y.2d 210, 222, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ). Based upon the totality of the circumstances, including the short period of time between the 911 call reporting a female with a handgun and the arrival of the police officer at the reported location, defendant's presence at that location, and the officer's observations that defendant's physical characteristics and clothing matched the description of the suspect, the officer was " ‘justified in forcibly detaining defendant in order to quickly confirm or dispel [his] reasonable suspicion of defendant's possible [possession of a weapon]’ " ( People v. Williams, 136 A.D.3d 1280, 1283, 24 N.Y.S.3d 464 [4th Dept. 2016], lv denied 27 N.Y.3d 1141, 39 N.Y.S.3d 123, 61 N.E.3d 522 [2016], 29 N.Y.3d 954, 54 N.Y.S.3d 384, 76 N.E.3d 1087 [2017] ). Even assuming, arguendo, that the 911 call to which the officer was responding was made by an anonymous caller, we conclude that "the information provided by the caller was sufficiently corroborated to provide reasonable suspicion" ( People v. Moss, 89 A.D.3d 1526, 1527, 933 N.Y.S.2d 158 [4th Dept. 2011], lv denied 18 N.Y.3d 885, 939 N.Y.S.2d 755, 963 N.E.2d 132 [2012] ; see People v. Argyris, 24 N.Y.3d 1138, 1140, 3 N.Y.S.3d 711, 27 N.E.3d 425 [2014], rearg. denied 24 N.Y.3d 1211, 4 N.Y.S.3d 593, 28 N.E.3d 27 [2015], cert denied 577 U.S. ––––, 136 S.Ct. 793, 193 L.Ed.2d 722 [2016] ).

Contrary to defendant's further contention, she was not subjected to an unlawful de facto arrest when, after exiting his patrol vehicle and approaching defendant on foot, the officer handcuffed her, conducted a pat frisk, and placed her in the back of the patrol vehicle. "It is well established that not every forcible detention constitutes an arrest" ( People v. Drake, 93 A.D.3d 1158, 1159, 940 N.Y.S.2d 403 [4th Dept. 2012], lv denied 19 N.Y.3d 1102, 955 N.Y.S.2d 557, 979 N.E.2d 818 [2012] ; see People v. Hicks, 68 N.Y.2d 234, 239, 508 N.Y.S.2d 163, 500 N.E.2d 861 [1986] ), and that an "officer[ ] may handcuff a detainee out of concern for officer safety" ( People v. Wiggins, 126 A.D.3d 1369, 1370, 4 N.Y.S.3d 798 [4th Dept. 2015] ; see People v. Allen, 73 N.Y.2d 378, 379–380, 540 N.Y.S.2d 971, 538 N.E.2d 323 [1989] ). Moreover, a "corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that he is in danger of physical injury by virtue of the detainee being armed" ( De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; see Wiggins, 126 A.D.3d at 1370, 4 N.Y.S.3d 798 ). Here, we conclude that defendant was not under arrest when she was handcuffed, pat frisked, and placed in the patrol vehicle for an investigatory detention (see People v. McCoy, 46 A.D.3d 1348, 1349, 848 N.Y.S.2d 505 [4th Dept. 2007], lv denied 10 N.Y.3d 813, 857 N.Y.S.2d 47, 886 N.E.2d 812 [2008] ). Contrary to defendant's related contention, although the pat frisk did not reveal any weapons, her continued detention in the patrol vehicle was justified while the officer immediately searched for anything that had been surreptitiously left behind a nearby parked SUV inasmuch as the officer, prior to approaching defendant, had observed her crossing the street with another individual and had lost sight of her as she walked behind the SUV. Under these circumstances, we conclude that defendant's brief, continued detention was reasonable inasmuch as the officer "diligently pursued a minimally intrusive means of investigation likely to confirm or dispel suspicion quickly" ( Hicks, 68 N.Y.2d at 242, 508 N.Y.S.2d 163, 500 N.E.2d 861 ; see Allen, 73 N.Y.2d at 380, 540 N.Y.S.2d 971, 538 N.E.2d 323 ), and " ‘a less intrusive means of fulfilling the police investigation was not readily apparent’ " ( People v. Howard, 129 A.D.3d 1654, 1656, 12 N.Y.S.3d 708 [4th Dept. 2015], lv denied 27 N.Y.3d 999, 38 N.Y.S.3d 109, 59 N.E.3d 1221 [2016] ).

Contrary to defendant's further contention, even if she had been in custody, we conclude under the circumstances of this case that the court properly refused to suppress her pre-Miranda statements and any fruits thereof. The statements, which were made after the officer discovered a purse behind the SUV, "were responses to threshold inquiries by the [officer] that were intended to ascertain the nature of the situation during initial investigation of a crime, rather than to elicit evidence of a crime, and those statements thus were not subject to suppression" ( People v. Mitchell, 132 A.D.3d 1413, 1414, 17 N.Y.S.3d 563 [4th Dept. 2015], lv denied 27 N.Y.3d 1072, 38 N.Y.S.3d 842, 60 N.E.3d 1208 [2016] [internal quotation marks omitted]; see People v. Coffey, 107 A.D.3d 1047, 1050, 966 N.Y.S.2d 277 [3d Dept. 2013], lv denied 21 N.Y.3d 1041, 972 N.Y.S.2d 538, 995 N.E.2d 854 [2013] ).

Defendant also contends that the court erred in refusing to suppress the handgun on the ground that the officer's discovery of it was the result of an unlawful warrantless search of the contents of the purse. We reject that contention. " ‘It is well settled that the suppression court's credibility determinations and choice between conflicting inferences to be drawn from the proof are granted deference and will not be disturbed unless unsupported by the record’ " ( People v. Sylvester, 129 A.D.3d 1666, 1667, 12 N.Y.S.3d 469 [4th Dept. 2015], lv denied 26 N.Y.3d 1092, 23 N.Y.S.3d 649, 44 N.E.3d 947 [2015] ). Here, the evidence established that the officer discovered the purse discarded in a public place on the ground behind the SUV and acted reasonably in picking it up, and that he did not open or look inside it at that time (see generally People v. Wright, 88 A.D.2d 879, 880, 452 N.Y.S.2d 594 [1st Dept. 1982], affd 58 N.Y.2d 797, 459 N.Y.S.2d 265, 445 N.E.2d 648 [1983] ; People v. Branson, 81 A.D.2d 1031, 1032, 440 N.Y.S.2d 427 [4th Dept. 1981] ). After defendant indicated that the purse belonged to her, the officer put the purse down. Despite some equivocal testimony from the officer, the record supports the court's determination that the barrel of the handgun came into the plain view of the officer when the open, flexible purse "laid flat" upon being placed on the trunk of the patrol vehicle (cf. People v. Johnson, 241 A.D.2d 527, 527–528, 660 N.Y.S.2d 730 [2d Dept....