People v. Sanders, 109090

• Decision Date: 23 July 2020
• Docket Number: 109090,110049
• Citation: 128 N.Y.S.3d 350,185 A.D.3d 1280
• Parties: The PEOPLE of the State of New York, Respondent, v. Rasheen SANDERS, Appellant.
• Court: New York Supreme Court — Appellate Division

185 A.D.3d 1280
128 N.Y.S.3d 350

The PEOPLE of the State of New York, Respondent,
v.
Rasheen SANDERS, Appellant.

109090
110049

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

Calendar Date: June 9, 2020
Decided and Entered: July 23, 2020

128 N.Y.S.3d 352

John A. Cirando, Syracuse, for appellant.

Michael A. Korchak, District Attorney, Binghamton (Stephen D. Ferri of counsel), for respondent.

Before: Lynch, J.P., Devine, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

185 A.D.3d 1281

128 N.Y.S.3d 353

Appeals (1) from a judgment of the County Court of Broome County (Dooley, J.), rendered January 18, 2017, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree (two counts) and tampering with physical evidence, and (2) by permission, from an order of said court, entered January 6, 2018, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

On April 26, 2016, State Trooper Bruce Shive was in an unmarked car with his K–9 partner when he noticed a vehicle ahead of him that had excessively tinted windows. There was a minivan behind this vehicle and Shive activated his emergency lights to alert the driver of the minivan that he intended to effectuate a traffic stop. At that point, the vehicle accelerated and then turned down a city street and cut through the parking lot of a KFC, driving the wrong way through the drive-through lane. As Shive navigated through the KFC parking lot, he activated his lights and siren; defendant stopped approximately one block later. After questioning defendant, Shive performed a canine search of the exterior of the vehicle. The subsequent "alert" by the dog led to a search of the KFC parking lot, which resulted in the discovery of a bag containing a substance later determined to be 18.712 grams of heroin. Defendant was arrested and indicted on two counts of criminal possession of a controlled substance in the third degree and one count of tampering with physical evidence.

Defendant moved to suppress, among other things, any oral and/or written statements on the basis that the People failed to comply with CPL 710.30, and also to suppress the physical evidence. County Court summarily denied that part of the motion seeking to suppress the heroin found in the KFC parking lot on the ground that defendant abandoned it. Following a hearing, County Court orally granted the motion to preclude defendant's statements and, thereafter, issued a written decision denying suppression of the physical evidence found in defendant's vehicle. At the conclusion of a jury trial, defendant was convicted as charged and sentenced to a concurrent prison term of 12 years, with three years of postrelease supervision, for each criminal possession of a controlled substance conviction and a lesser concurrent prison term for the tampering with physical evidence conviction. Defendant's subsequent motion to vacate the judgment of conviction on the basis of ineffective assistance of counsel, pursuant to CPL 440.10, was

185 A.D.3d 1282

unsuccessful. Defendant appeals from the judgment of conviction and, by permission, from the order denying his postjudgment motion.

Defendant argues that the search of his vehicle was unlawful as there was no "founded suspicion" of criminal activity to warrant a search. "In People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976], the Court of Appeals set forth a graduated four level test for evaluating street encounters initiated by the police: level one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two, the common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot; level three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor; level four, arrest, requires

128 N.Y.S.3d 354

probable cause to believe that the person to be arrested has committed a crime" ( People v. Stover, 181 A.D.3d 1061, 1061–1062, 120 N.Y.S.3d 650 [2020] [internal quotation marks and citations omitted] ). At the suppression hearing, Shive testified that, prior to stopping defendant, he had noticed the tinted windows and, when he activated his emergency lights, defendant "rapidly accelerated" and "squared the block." Shive observed defendant cut through the KFC parking lot against the one-way markers and then proceed to "slow roll"¹ for a block before actually stopping. When explaining the "slow roll," Shive testified that defendant did not immediately stop and that he continued for the distance of a city block before actually coming to a complete stop. He said that when he approached defendant and questioned him, defendant was contentious and evasive in his responses.

Based on the foregoing, we agree with County Court's conclusion that Shive possessed a founded suspicion of criminal activity so as to justify his request to search defendant's vehicle (see People v. Whalen, 101 A.D.3d 1167, 1167–1168, 956 N.Y.S.2d 598 [2012], lv denied 20 N.Y.3d 1105, 965 N.Y.S.2d 801, 988 N.E.2d 539 [2013] ) and, when defendant refused, allowed him to employ the use of his K–9 partner (see People v. Devone, 15 N.Y.3d 106, 113, 905 N.Y.S.2d 101, 931 N.E.2d 70 [2010] ). The subsequent search of the interior of the vehicle was justified by the canine alerting at the driver side window (see People v. Boler, 106 A.D.3d 1119, 1122, 964 N.Y.S.2d 688 [2013] ; People v. Abdur–Rashid, 64 A.D.3d 1087, 1089, 883 N.Y.S.2d 644 [2009], affd

185 A.D.3d 1283

15 N.Y.3d 106, 905 N.Y.S.2d 101, 931 N.E.2d 70 [2010] ). To the extent that defendant argues that the heroin found in the KFC parking lot should have been suppressed, the record supports County Court's conclusion that it was abandoned (see People v. Boodle, 47 N.Y.2d 398, 404, 418 N.Y.S.2d 352, 391 N.E.2d 1329 [1979], cert denied 444 U.S. 969, 100 S.Ct. 461, 62 L.Ed.2d 383 [1979] ; People v. Smith, 256 A.D.2d 732, 733, 682 N.Y.S.2d 257 [1998], lv denied 93 N.Y.2d 929, 693 N.Y.S.2d 513, 715 N.E.2d 516 [1999] ).

Next, defendant contends that the surveillance footage of the KFC parking lot should not have been admitted into evidence because it was not properly authenticated. "The decision to admit videotape evidence rests within the sound discretion of the trial court and will not be disturbed absent a lack of foundation for its introduction or a demonstrated abuse of the court's discretion" ( People v. Carter, 131 A.D.3d 717, 721, 15 N.Y.S.3d 855 [2015] [internal quotation marks and citations omitted], lv denied 26 N.Y.3d 1007, 20 N.Y.S.3d 548, 42 N.E.3d 218 [2015] ). "A videotape may be authenticated by the testimony of a witness to the recorded events or of an operator or installer or maintainer of the equipment that the videotape accurately represents the subject matter depicted" ( People v. Edmonds, 165 A.D.3d 1494, 1497, 85 N.Y.S.3d 282 [2018] [internal quotation marks, brackets and citations omitted]; see People v. Junior, 119 A.D.3d 1228, 1231, 990 N.Y.S.2d 689 [2014], lv denied 24 N.Y.3d 1044, 998 N.Y.S.2d 314, 23 N.E.3d 157 [2014] ). A discrepancy between the time of the event and the time stamp upon a surveillance recording goes to the weight of the evidence, not its admissibility (see

128 N.Y.S.3d 355

Cicco v. Durolek, 171 A.D.3d 1477, 1477, 99 N.Y.S.3d 815 [2019] ; People v. Costello, 128 A.D.3d 848, 848, 9 N.Y.S.3d 132 [2015], lv denied 26 N.Y.3d 927, 17 N.Y.S.3d 90, 38 N.E.3d 836 [2015] ).

David Mabus, a general manager of the KFC, provided testimony at trial concerning the surveillance footage. He testified that KFC has a surveillance system consisting of 14 cameras. The data gathered from the surveillance system is stored for 30 days in the general manager's office. The information is recorded digitally and removed via a thumb drive or burned onto a disk. He stated that he was the only employee at the store with access to the place where the surveillance cameras are kept. Mabus testified that the regional manager of KFC made a copy of the surveillance footage at the request of the State Police investigators on April 26, 2016, and he burned a second disk on April 28, 2016, the latter of which was admitted as evidence at trial. He further testified that the two disks were identical, the content was the same as what he watched on the surveillance system at the store on the day of the arrest, and that the video fairly and accurately represented the parking lot of the KFC and the events that were recorded. The record discloses that Mabus, as a maintainer and operator of the surveillance footage, authenticated the tapes by providing

185 A.D.3d 1284

testimony that...