People v. Rollins

• Decision Date: 13 February 2015
• Citation: 4 N.Y.S.3d 443,2015 N.Y. Slip Op. 01366,125 A.D.3d 1540
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael ROLLINS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

125 A.D.3d 1540

4 N.Y.S.3d 443

2015 N.Y. Slip Op. 01366

The PEOPLE of the State of New York, Respondent

v.Michael ROLLINS, Defendant–Appellant.

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

Feb. 13, 2015.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of Counsel), for Defendant–Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, and SCONIERS, JJ.

OpinionMEMORANDUM:

Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03 ) and criminal possession of a weapon in the second degree (§ 265.03[3] ). Defendant's sole contention on appeal is that Supreme Court erred in refusing to suppress physical evidence seized by the police and statements he made to them. The evidence at the suppression hearing established that, on March 21, 2012, City of Buffalo police officers responded to a report of gambling by a group of men in the road near 58 Wick Street. As officers approached the group, one officer observed defendant drop some dice on the ground and walk away from the group and onto a nearby porch. The other men remained standing near some money and open alcohol containers. The observing officer ordered defendant off the porch, and placed him under arrest for possession of a gambling device (§ 225.30[a][2] ) and disorderly conduct (§ 240.20[5] ). During a search of defendant's person, the officer discovered a loaded gun in defendant's jeans pocket, and defendant told the officer that he had been “[s]hooting dice for drinks.” A second officer searched defendant and discovered crack cocaine in his shirt pocket. Defendant later told officers that he had obtained the gun from his cousin and thought it was “fake.” The court determined that the officer had probable cause to arrest defendant for “gambling” and therefore refused to suppress the gun, the cocaine and defendant's statement. That was error.

A police officer may arrest a person without a warrant where the officer has probable cause to believe that such person has committed or is presently committing an offense (see CPL 140.10 ; see also People v. Maldonado, 86 N.Y.2d 631, 635, 635 N.Y.S.2d 155, 658 N.E.2d 1028 ; People v. Hicks, 68 N.Y.2d 234, 238, 508 N.Y.S.2d 163, 500 N.E.2d 861 ; People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 ). However, where an officer lacks probable cause to arrest the person, any evidence obtained as a result thereof must be suppressed (see People v. Johnson, 66 N.Y.2d 398, 407–408, 497 N.Y.S.2d 618, 488 N.E.2d 439 ; People v. Ayers, 85 A.D.3d 1583, 1584–1585, 925 N.Y.S.2d 293, lv. denied 18 N.Y.3d 922, 942 N.Y.S.2d 461, 965 N.E.2d 963 ).

A person commits the crime of possession of a gambling device “when, with knowledge of the character thereof, he ... possesses ... [a] gambling device, believing that the same is to be used in the advancement of unlawful gambling activity” (Penal Law § 225.30[a][2] ). A person “[a]dvance[s] gambling activity” when he, “acting other than as a player, ... engages in conduct which materially aids any form of gambling activity” (§ 225.00[4] ). Thus, “a person who engages in any form of gambling solely as a contestant or bettor,” i.e., a player, is excluded from criminal culpability (§ 225.00[3] ; see Matter of Victor M., 9 N.Y.3d 84, 87, 845 N.Y.S.2d 771, 876 N.E.2d 1187 ).

Here, there was no evidence before the suppression court that defendant was anything more than a contestant or player in a game of dice (see Penal Law §§ 225.00, 225.30[a][2] ; Victor M., 9 N.Y.3d at 87, 845 N.Y.S.2d 771, 876 N.E.2d 1187 ). The observing officer did not see defendant holding money, exchanging money with the other men in the group, or even rolling the dice (cf. People v. Wilder, 38 A.D.3d 263, 263, 834 N.Y.S.2d 92, lv. denied 8 N.Y.3d 951, 836 N.Y.S.2d 561, 868 N.E.2d 244 ; Matter of Curtis H., 216 A.D.2d 173, 174, 629 N.Y.S.2d 402 ). Therefore, contrary to the determination of the suppression court, the officer did not have “knowledge of facts and circumstances ‘sufficient to support a reasonable belief’ ” that defendant was using the dice in the advancement of a gambling activity (Maldonado, 86 N.Y.2d at 635, 635 N.Y.S.2d 155, 658 N.E.2d 1028 ; see §§ 225.00[3], [4] ; 225.30[a][2] ).

As an alternative ground for affirmance, the People contend that the observing officer had probable cause to arrest defendant for loitering for the purpose of gambling (Penal Law § 240.35[2] ). “It is well settled than an appellate court may not uphold a police action on a theory not argued before the suppression court” (People v. Lloyd, 167 A.D.2d 856, 856, 562 N.Y.S.2d 257 ; see People v. Dodt, 61 N.Y.2d 408, 415–416, 474 N.Y.S.2d 441, 462 N.E.2d 1159 ). Here, the People argued before the suppression court that the officer had probable cause to arrest defendant for possession of a gambling device, disorderly conduct, and possession of an open...