People v. Richards

• Decision Date: 09 June 2017
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Antoine RICHARDS, also known as Antoine Richards, Jr., Defendant–Appellant.

151 A.D.3d 1717

57 N.Y.S.3d 803

The PEOPLE of the State of New York, Respondent,

v.Antoine RICHARDS, also known as Antoine Richards, Jr., Defendant–Appellant.

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

June 9, 2017.

Sessler Law PC, Geneseo (Steven D. Sessler of Counsel), for Defendant–Appellant.

Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.

PRESENT: SMITH, J.P., LINDLEY, DeJOSEPH, NEMOYER, AND CURRAN, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16[1] ). We agree with defendant that County Court erred in denying that part of his omnibus motion seeking to suppress physical evidence found on his person.

The evidence at the suppression hearing established that defendant was a passenger in a vehicle that was stopped for a violation of the Vehicle and Traffic Law. The sheriff's deputy conducting the stop learned that the driver did not have a valid driver's license and placed the driver under arrest for aggravated unlicensed operation of a motor vehicle in the first degree (see § 511[3] ). In checking defendant's "data," the deputy learned that defendant also did not have a valid driver's license and that there was a warrant for defendant from the Elmira Police Department. The deputy took defendant into custody on the warrant and conducted a pat-down search of defendant, which yielded cocaine and other evidence. When questioned by defense counsel about the warrant, the deputy admitted that, at no time did he confirm the status of the warrant or determine whether the warrant was "still valid." The deputy testified, however, that, in situations where there is a passenger and there is no warrant, he would either call for someone to pick up the person or drive the person to a gas station or residence. If he were going to transport the person, the deputy would "pat the person down before putting them in [his] car to transport" that person somewhere. After the court refused to suppress the physical evidence, defendant entered his plea.

Defendant now contends that the search of his person was not a lawful search incident to an arrest on a warrant because the People failed to meet their burden of establishing the existence of a valid and outstanding warrant (see generally People v. Jennings, 54 N.Y.2d 518, 522, 446 N.Y.S.2d 229, 430 N.E.2d 1282 ). Contrary to the People's contention, defendant challenged the validity of the warrant at the hearing and, therefore, his contention is preserved for our review (cf. People v. Ebron, 275 A.D.2d 490, 491, 712 N.Y.S.2d 212, lv. denied 95 N.Y.2d 934, 721 N.Y.S.2d 610, 744 N.E.2d 146 ; People v. Boone, 269 A.D.2d 459, 459, 704 N.Y.S.2d 265, lv. denied 95 N.Y.2d 850, 714 N.Y.S.2d 1, 736 N.E.2d 862, reconsideration denied 95 N.Y.2d 961, 722 N.Y.S.2d 478, 745 N.E.2d 398 ). We also note that the People, in response to defendant's suppression motion, asserted that the deputy arrested defendant after learning about the warrant.

In any event, we cannot address the merits of the People's contention that the search was a lawful search incident to an arrest on a warrant inasmuch as the court did not rule on that issue and, therefore, that " ‘issue was not determined adversely to defendant’ " ( People v. Lee, 96 A.D.3d 1522, 1526, 947 N.Y.S.2d 241 ; see People v. Concepcion, 17 N.Y.3d 192, 194–195, 929 N.Y.S.2d 541, 953 N.E.2d 779 ; People v. LaFontaine, 92 N.Y.2d 470, 472–474, 682 N.Y.S.2d 671, 705 N.E.2d 663, rearg. denied 93 N.Y.2d 849, 688 N.Y.S.2d 495, 710 N.E.2d 1094 ; cf. People v. Garrett, 23 N.Y.3d 878, 885 n. 2, 994 N.Y.S.2d 22, 18 N.E.3d 722, rearg. denied 25 N.Y.3d 1215, 16 N.Y.S.3d 508, 37 N.E.3d 1151 ). In denying suppression of the physical evidence, the court stated it did not find "any problems with the protocol that was followed. [The deputy] has got an unlicensed driver, so obviously he has an obligation to check the other individual to see if he can drive the vehicle. He is also unlicensed; suspended. It is a pat-down, safety pat-down." At no time did the court determine that defendant was subjected to a lawful search incident to arrest.

We agree with defendant that the court erred in upholding the search on the ground that it was a lawful "safety pat-down." There was no evidence in the record of the hearing to support a conclusion that "defendant had a weapon or was a threat to [the deputy's] safety" ( People v. Driscoll, 101 A.D.3d 1466, 1468, 957 N.Y.S.2d 476 ; see People v. Ford, 145 A.D.3d 1454, 1456, 45 N.Y.S.3d 720, lv. denied 29 N.Y.3d 997, 57 N.Y.S.2d 718, 80 N.E.3d 411 [2017] ). Moreover, "[a]lthough a police officer may reasonably pat down a person before he [or she] places [that person] in the back of a police vehicle, the legitimacy of that procedure depends on the legitimacy of placing [the person] in the police car in the first place" ( People v. Kinsella, 139 A.D.2d 909, 911, 527 N.Y.S.2d 899 ; see People v. Rosa, 30 A.D.3d 905, 908, 819 N.Y.S.2d 312, lv. denied 7 N.Y.3d 851, 823 N.Y.S.2d 780, 857 N.E.2d 75 ; ...