People v. Shands

• Decision Date: 21 June 2011
• Citation: 85 A.D.3d 583,2011 N.Y. Slip Op. 05356,925 N.Y.S.2d 488
• Parties: The PEOPLE of the State of New York, Respondent,v.Calvin SHANDS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 583

925 N.Y.S.2d 488

2011 N.Y. Slip Op. 05356

The PEOPLE of the State of New York, Respondent,

v.Calvin SHANDS, Defendant–Appellant.

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

June 21, 2011.

Richard M. Greenberg, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Nicole A. Coviello of counsel), for respondent.MAZZARELLI, J.P., ANDRIAS, MOSKOWITZ, RICHTER, ABDUS–SALAAM, JJ.

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J. at suppression hearing; Marcy L. Kahn, J. at plea and sentencing), rendered April 27, 2010, convicting defendant of criminal possession of stolen property in the fourth degree, and sentencing him, as a second felony offender, to a term of 1 1/2 to 3 years, unanimously affirmed.

The court properly denied defendant's motion to suppress physical evidence. Defendant engaged in a pattern of suspicious conduct that warranted, at least, a common-law inquiry ( see e.g. People v. Wilson, 52 A.D.3d 239, 859 N.Y.S.2d 165 [2008], lv. denied 11 N.Y.3d 743, 864 N.Y.S.2d 401, 894 N.E.2d 665 [2008] ). An officer was informed by store security personnel that two men were randomly collecting merchandise without looking at it, behavior that the officer recognized as suspicious. The police saw defendant acting in an unusually nervous manner while he was unsuccessfully attempting to pay for a large amount of merchandise with a credit card. When the card was rejected, defendant declined the store clerk's offer to assist defendant by calling the bank. Defendant and his companion left the store without the merchandise, with the officers following behind. The fact that defendant did not actually take anything from the store did not detract from the officers' founded suspicion of criminality.

The police then conducted a common-law inquiry, not a seizure requiring reasonable suspicion. The record fails to support defendant's assertion that the police placed him against a wall, or engaged in any other coercive or intimidating conduct that would elevate the encounter to a seizure ( see e.g. People v. Francois, 61 A.D.3d 524, 877 N.Y.S.2d 54 [2009], affd. 14 N.Y.3d 732, 896 N.Y.S.2d 300, 923 N.E.2d 583 [2010]; People v. Grunwald, 29 A.D.3d 33, 38–39, 810 N.Y.S.2d 437 [2006], lv. denied 6 N.Y.3d 848, 816 N.Y.S.2d 754, 849 N.E.2d 977 [2006] ).

The officers properly asked defendant for identification. After defenda...