People v. Rose

• Citation: 899 N.Y.S.2d 414,72 A.D.3d 1341
• Parties: The PEOPLE of the State of New York, Respondent, v. Nakia ROSE, Appellant.
• Decision Date: 22 April 2010
• Court: New York Supreme Court — Appellate Division

899 N.Y.S.2d 414
72 A.D.3d 1341

The PEOPLE of the State of New York, Respondent,
v.
Nakia ROSE, Appellant.

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

April 22, 2010.

899 N.Y.S.2d 415

James Kousouros, Kew Gardens, for appellant.

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.

Before: MERCURE, J.P., SPAIN, ROSE, LAHTINEN and STEIN, JJ.

SPAIN, J.

72 A.D.3d 1342

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered February 9, 2009, upon a verdict convicting defendant of the crimes of assault in the first degree, robbery in the first degree (two counts), robbery in the second degree, criminal possession of a weapon in the second degree (two counts) and criminal possession of stolen property in the fourth degree.

At about 7:30 P.M. on May 25, 2007, officers with the Albany Police Department responded to a 911 call regarding a shooting on Beverly Avenue in the City of Albany, where they found the victim, Michael Brown, lying on the floor, severely injured and covered in blood from gunshot wounds to his chest and leg. Brown provided a description of his assailants, two black males, who were both armed with handguns and were driving a black BMW X5 SUV with chrome or silver wheel rims. He believed that they were headed to New York City. The police issued an officer safety be-on-the-lookout (hereinafter BOLO) alert for the car and assailants to regional law enforcement. After an astute toll booth collector reported that a vehicle matching the BOLO alert had entered the New York State Thruway and provided a license plate number, a State Trooper observed a BMW X5 matching the BOLO description and bearing that plate number driving southbound on the Thruway north of the City of Kingston, Ulster County. At about 8:12 P.M., State Troopers effected a felony stop of the vehicle, directing the occupants to exit the vehicle and placing them in handcuffs in the rear of separate police vehicles. Troopers spoke by cell phone with an Albany detective who was at an Albany hospital with the victim, who was being treated but fully conscious and confirmed that the clothing and physical description of the occupants of the vehicle matched that of the assailants. The suspects-defendant and Damion Tyrell-were transported to the Kingston State Police barracks around 9:30 P.M. to await the arrival of Albany detectives for questioning.

Detectives arrived at the barracks around 10:20 P.M., provided Miranda warnings, and questioned both suspects-who denied any involvement in the shooting, but admitted having been in Albany briefly after giving a girl a ride from New York City. The detectives then transported the suspects and their car back to Albany. Brown identified defendant, who he knew as his drug supplier, and Tyrell, as the shooter, and provided a detailed account

72 A.D.3d 1343

of the shooting and robbery. Brown recounted that his house had reportedly been recently burglarized and a large amount of cash taken, leaving him unable to pay defendant when he came to collect money due for drugs. Defendant was placed under arrest by the detectives in the early morning hours of the following day, and a search of the BMW X5 pursuant to search warrants disclosed two guns, cash and cellular telephones in a hidden compartment in the dash board, and shell casings and other evidence in the vehicle. After an unsuccessful suppression hearing and a jury trial,¹ defendant was acquitted of attempted murder but convicted of assault in

899 N.Y.S.2d 416

the first degree, robbery in the first degree (two counts), robbery in the second degree, criminal possession of a weapon in the second degree (two counts) and criminal possession of stolen property in the fourth degree. Sentenced as a second felony offender to an aggregate prison term of 25 years, plus five years of postrelease supervision, defendant now appeals.

Defendant's central contention on appeal is that the roadside stop of his vehicle and the continued detention of his person exceeded the scope of an investigatory detention and constituted a de facto arrest without probable cause, requiring suppression of all evidence subsequently seized and obtained from the vehicle and from the cell phones, as well as his statement to police and Brown's identification of them. We find that County Court correctly denied defendant's motion to suppress this evidence.

Initially, we find that the vehicle was lawfully stopped by State Police on the Thruway and defendant was lawfully handcuffed and detained for questioning because they had reasonable suspicion that he had been involved in this shooting ( see People v. Hicks, 68 N.Y.2d 234, 238, 508 N.Y.S.2d 163, 500 N.E.2d 861 [1986]; People v. Medina, 37 A.D.3d 240, 242, 830 N.Y.S.2d 76 [2007], lv. denied 9 N.Y.3d 847, 840 N.Y.S.2d 774, 872 N.E.2d 887 [2007]; People v. Baptiste, 306 A.D.2d 562, 565,...