People v. Smith

• Citation: 185 A.D.3d 1203,126 N.Y.S.3d 819
• Decision Date: 16 July 2020
• Docket Number: 107314
• Parties: The PEOPLE of the State of New York, Respondent, v. Tyon SMITH, Appellant.
• Court: New York Supreme Court Appellate Division

185 A.D.3d 1203

126 N.Y.S.3d 819

The PEOPLE of the State of New York, Respondent,

v.Tyon SMITH, Appellant.

107314

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

Calendar Date: June 10, 2020

Decided and Entered: July 16, 2020

Dana L. Salazar, East Greenbush, for appellant.

Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman Jr. of counsel), for respondent.

Before: Garry, P.J., Clark, Mulvey, Aarons and Colangelo, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeal from a judgment of the County Court of Rensselaer County (Young, J.), rendered December 3, 2014, convicting defendant upon his plea of guilty of the crimes of robbery in the second degree, petit larceny and criminal possession of a weapon in the fourth degree.

In June 2014, defendant and two others were arrested following the robbery of a convenience store in the City of Troy, Rensselaer County. Defendant was charged with robbery in the second degree, petit larceny and criminal possession of a weapon in the fourth degree. Defendant moved to suppress a showup identification and certain evidence found in the vehicle in which he was a passenger at the time of his arrest. Following County Court's denial of this motion, defendant pleaded guilty to the crimes as charged, but did not waive his right to appeal. Defendant was sentenced as a second felony offender to a prison term of seven years to be followed by five years of postrelease supervision for the robbery conviction, and to concurrent terms of one year for his other convictions. Defendant appeals.

Defendant argues that County Court erred in denying his suppression motion, asserting that the stop was improper. "[A]n investigatory stop may be upheld if the authorities knew that a crime actually had been committed, the total period of the detention was brief, ‘the police diligently pursued a minimally intrusive means of investigation likely to confirm or dispel suspicion quickly, during which time it was necessary to detain the defendant’ and ‘there is no proof of significantly less intrusive means available to accomplish the same purpose’ " ( People v. Mabeus, 68 A.D.3d 1557, 1561, 893 N.Y.S.2d 644 [2009], lv denied 14 N.Y.3d 842, 901 N.Y.S.2d 148, 927 N.E.2d 569 [2010], quoting People v. Hicks, 68 N.Y.2d 234, 242–243, 508 N.Y.S.2d 163, 500 N.E.2d 861 [1986] ). "Where a police officer reasonably suspects that a particular person has committed, is committing or is about to commit a felony or misdemeanor, the CPL authorizes a forcible stop and detention of that person" ( People v. Franqueira, 143 A.D.3d 1164, 1165, 40 N.Y.S.3d 588 [2016] [internal quotation marks and citations omitted]; see CPL 140.50[1] ; see also People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ). "To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion" ( People v. Nesbitt, 56 A.D.3d 816, 818, 867 N.Y.S.2d 736 [2008] [internal quotation marks and citation omitted], lv denied 11 N.Y.3d 928, 874 N.Y.S.2d 13, 902 N.E.2d 447 [2009] ). The People bear the "initial burden of showing that the stop was lawful" ( People v. Allen, 90 A.D.3d 1082, 1085, 933 N.Y.S.2d 756 [2011] ; accord People v. Driscoll, 145 A.D.3d 1349, 1349, 44 N.Y.S.3d 269 [2016] ).

During the suppression hearing, an officer (hereinafter the responding officer) with the City of Troy Police Department testified that he responded just after midnight to a 911 call from a convenience store on Pawling Avenue. Upon his arrival, he spoke with the store clerk, who reported that, a few moments earlier, a male and female had entered the store, pushed her to the ground, and demanded that she open the safe. She gave detailed descriptions of the height, build and clothing of both individuals. Among other things, she stated that both individuals were wearing sweatshirts with the hoods up and had something covering their faces. The store clerk described their clothing, stating that the female's sweatshirt was dark-colored and the male's was gray. The responding officer also spoke with two customers who had arrived outside the convenience store during the robbery. The customers stated that the suspects wore "gray[-]colored clothing" and headed toward Plum Avenue after exiting.

Shortly after the robbery, a passerby telephoned the convenience store and spoke with the responding officer. The passerby stated that he saw two individuals "run out of the store towards Plum Avenue," with the male wearing "gray[-] colored clothing, gray sweats." He indicated that the male appeared to get into the front passenger seat of a vehicle parked on Plum Avenue, and the vehicle began to travel away from Pawling Avenue, toward Congress Street. The passerby claimed that he encountered the same vehicle a few moments later, at the intersection of Pawling Avenue and Spring Avenue, and described the vehicle as a "tan/gold[-]colored Ford Taurus" from the early 2000s; he said that he followed the car until it turned left onto Linden Avenue. The responding officer then radioed other officers with this information.

A second police officer (hereinafter the second responding officer) also went to the convenience store, spoke with the store clerk, and radioed an updated description of the suspects to other officers. He viewed surveillance video footage that showed the male suspect wearing clothing corresponding with the store clerk's description, including a gray jacket with black trim. On cross-examination, the second responding officer stated that he had a telephone conversation with the police sergeant who ultimately detained defendant.¹ He acknowledged that in this conversation he had provided the sergeant with a different description of the male suspect's race and skin color than he had first provided over the radio.

The sergeant testified that, upon learning of the robbery, he drove downtown based on his belief that the vehicle containing the suspects was heading in that direction. At approximately 12:20 a.m., he noticed a "tan, beige or champagne[-]colored Ford Taurus, four-door sedan, early 2000s," carrying three occupants. The sergeant followed the vehicle as it "closely matched the description" of the vehicle that had been seen leaving the convenience store. He informed dispatch of his intent to stop the vehicle, but the vehicle pulled over before he could do so. The sergeant activated his emergency lights and approached the vehicle. The sergeant testified that, at this time, he did not think the vehicle's occupants were the robbery suspects due, in part, to inconsistencies relative to the skin color and racial identity with the initial descriptions of the perpetrators that had been communicated. However, upon approaching the vehicle, the sergeant saw defendant in the front passenger seat and observed that, although defendant's race differed from the descriptions that he had received, defendant's general appearance otherwise corresponded with that information, specifically including the description of his clothing; among other things, the sergeant noticed that defendant was wearing a gray sweatshirt jacket, and that a T-shirt on the floor in front of his seat had apparently been "fashioned in[to] some type of bandana." The other occupants of the vehicle were a male driver and a female in the backseat. The sergeant described defendant and the other occupants of the vehicle to officers at the convenience store, and the officers responded that the description "possibly" matched that of the suspects. The sergeant then removed defendant and the other occupants from the vehicle and placed them in separate patrol cars for a showup identification.

Approximately an hour later, the second responding officer escorted the store clerk to the area where defendant was being detained to conduct a showup identification. This officer testified that he took a specific route while driving the store clerk to the area to minimize opportunities for her to see police officers before the identification. When the vehicle in which the store clerk was riding arrived, defendant was standing approximately 25 feet in front of a police vehicle, with his hands cuffed behind his back. Defendant was illuminated by a spotlight and was standing between two police officers. After viewing defendant, the store clerk said that his clothes and build were "very similar" to those worn by one of the suspects, but...