People v. Reed

• Decision Date: 30 May 2013
• Citation: 2013 N.Y. Slip Op. 03930,106 A.D.3d 673,965 N.Y.S.2d 506
• Parties: The PEOPLE of the State of New York, Respondent, v. Everett REED, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 673

965 N.Y.S.2d 506

2013 N.Y. Slip Op. 03930

The PEOPLE of the State of New York, Respondent,

v.Everett REED, Defendant–Appellant.

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

May 30, 2013.

Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Philip Morrow of counsel), for respondent.

ANDRIAS, J.P., ACOSTA, FREEDMAN, RICHTER, GISCHE, JJ.

Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered September 16, 2010, convicting defendant, after a jury trial, of two counts of criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 12 years, unanimously affirmed.

The hearing court properly concluded that the police had reasonable suspicion to stop defendant based on the similarity between his appearance and a wanted poster that was in the patrol car, and then properly frisked defendant for a weapon because he was a suspect in a series of armed robberies. Here, Officer Perez, who testified at the suppression hearing, explained that in the early morning hours of July 17, 2009, he was on anti-crime patrol in an unmarked car with a sergeant and another officer. Officer Perez had been in the Anti–Crime Unit for several years and had made numerous gun-related arrests. He was involved in an investigation of pattern robberies that had occurred within Manhattan North. Perez testified that he had in his patrol car a wanted poster that contained a photograph of an individual involved in a robbery pattern that was identified as number 69. Those robberies occurred from July 10, 2009 through July 15, 2009 in the 30th and 32nd precincts. The poster, which was introduced in evidence at the suppression hearing, contained a description in addition to an actual photograph of the suspect. The description was of a male, black, 40 to 50 years old, 5' 7?–5? 9? tall, slender build, unshaven beard, and wearing a white cap and white shirt. The suspect is pictured holding a gun and the description of the robberies notes that the suspect brandished a firearm during the crimes.

Perez further explained that at some time prior to his patrol that morning, he also had seen an artist's sketch contained in another wanted poster relating to a gunpoint robbery in the 24th precinct on July 3, 2009 in the early morning hours. The suspect in that crime was described as a male black, late 40s or early 50s, wearing a dirty white baseball cap and an off-white t-shirt with gray tip sleeves.

Perez saw defendant walking northbound on Lenox Avenue, around West 137 Street, at about 1:25 a.m. Defendant appeared to match the description of the suspect in pattern robbery 69. Defendant also matched the age group and general clothing description of the suspect in the artist's sketch arising out of the 24th precinct crime.

When Perez first saw defendant, he was a few feet away from him. Nothing was obstructing his view and Lenox Avenue was well lit. Perez, who was in the rear passenger seat, had the driver of the police car pull the vehicle up close to defendant and was able to “get a good look at him.” Perez, the sergeant and the other officer got out of their vehicle, without their guns out, identified themselves as police officers and positioned themselves around defendant. Perez frisked defendant in his waistband area and, when he felt a firearm, he pulled the weapon out of the waistband. Defendant was then arrested. Perez explained that he frisked defendant because the wanted posted was for a violent crime and the frisk was for the officers' safety.

The People correctly argue that the similarity between defendant's appearance and that of the suspect in the wanted poster provide reasonable suspicion for the stop ( see People v. Medina, 66 A.D.3d 555, 887 N.Y.S.2d 567 [1st Dept. 2009] [officer was carrying surveillance photographs and the defendant matched description provided by crime victims], lv. denied13 N.Y.3d 908, 895 N.Y.S.2d 323, 922 N.E.2d 912 [2009];People v. Joseph, 10 A.D.3d 580, 782 N.Y.S.2d 89 [1st Dept. 2004] [passenger's resemblance to suspect in a wanted poster furnished reasonable suspicion to stop the vehicle], lv. denied3 N.Y.3d 740, 786 N.Y.S.2d 819, 820 N.E.2d 298 [2004] ). Moreover, the stop only was two days after the last of the pattern robberies in the wanted poster and defendant's clothing was similar to that of the suspect in both the poster and the sketch. Also, as Perez noted, the stop was in the early morning hours in Northern Manhattan, which was consistent with the information the police had on the pattern crimes. The wanted poster photograph also shows someone with a beard, and Perez specifically noted defendant had a beard. These factors all support a finding of reasonable suspicion ( see People v. Johnson, 22 A.D.3d 371, 802 N.Y.S.2d 444 [1st Dept. 2005], lv. denied6 N.Y.3d 754, 810 N.Y.S.2d 422, 843 N.E.2d 1162 [2005] ).

On appeal, defendant does not offer any reason to disturb the court's credibility findings, in which the court accepted Perez's version of the events.¹ Rather, defendant focuses on the differences between the wanted poster and the artist's sketch. No question exists that the artist's sketch poster describes the suspect as having a scar on the left jaw and reddish hair, and these details are not mentioned in the wanted poster. These differences are of no consequence, however, because the wanted poster, which is what the police had in the car, has an actual photograph of the suspect. Similarly, the fact that the wanted poster describes the suspect as 5' 7?–5' 9? and the artist's sketch poster says the...