People v. Smith

• Decision Date: 16 June 2016
• Citation: 140 A.D.3d 1396,2016 N.Y. Slip Op. 04741,33 N.Y.S.3d 580
• Parties: The PEOPLE of the State of New York, Respondent, v. Bobby SMITH, Appellant.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1396

33 N.Y.S.3d 580

2016 N.Y. Slip Op. 04741

The PEOPLE of the State of New York, Respondent,

v.Bobby SMITH, Appellant.

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

June 16, 2016.

David E. Woodin, Catskill, for appellant.

Paul Czajka, District Attorney, Hudson (James A. Carlucci of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., LYNCH, DEVINE and MULVEY, JJ.

DEVINE

, J.

Appeal from a judgment of the County Court of Columbia County (Koweek, J.), rendered January 15, 2014, upon a verdict convicting defendant of the crimes of burglary in the second degree and robbery in the third degree.

Several masked men participated in a home invasion in Columbia County during the early morning hours of August 2, 2012, but the occupants were able to call 911 before the intruders could restrain them. The perpetrators fled in a vehicle after deputies from the Columbia County Sheriff's Office arrived on the scene. Unaware of that turn in events, troopers dispatched by the State Police were nearing the residence. The troopers observed a vehicle approaching from the direction of the residence and activated their emergency lights in order to ensure that the other vehicle would yield at a narrow bridge. The vehicle responded by making a hard right turn onto another road while its right rear passenger door was open, piquing the suspicions of the troopers and prompting a high speed chase. The chase concluded when the vehicle left the road and became mired in a pond, and defendant was apprehended sitting in the water next to the vehicle.

Defendant and four codefendants were thereafter charged in an indictment with burglary in the first degree and robbery in the first degree. Following a hearing, County Court rejected defendant's application to suppress evidence recovered in the aftermath of the chase. County Court further ordered that defendant be tried separately from his codefendants and, at the end of that trial, a jury convicted defendant of the lesser included offenses of burglary in the second degree and robbery in the third degree. County Court sentenced defendant to an aggregate prison term of 12 years, to be followed by postrelease supervision of three years, and defendant now appeals.

We affirm. Defendant challenges the propriety of County Court's suppression ruling, primarily arguing that the troopers were not justified in beginning the pursuit that led to his arrest. In that regard, “a defendant's flight in response to an approach by the police, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, may give rise to reasonable suspicion, the necessary predicate for police pursuit” (People v. Sierra, 83 N.Y.2d 928, 929, 615 N.Y.S.2d 310, 638 N.E.2d 955 [1994]

; accord.

People v. Woods, 98 N.Y.2d 627, 628, 745 N.Y.S.2d 749, 772 N.E.2d 1107 [2002] ; People v. Daniels, 24 A.D.3d 970, 971–972, 805 N.Y.S.2d 485 [2005], lv. denied 6 N.Y.3d 811, 812 N.Y.S.2d 451, 845 N.E.2d 1282 [2006] ). County Court relied upon the suppression hearing testimony of one of the troopers involved in the pursuit and, inasmuch as our review of the record does not reveal that reliance to have been “clearly erroneous,” we accord “great deference” to it (People v. Musto, 106 A.D.3d 1380, 1380, 966 N.Y.S.2d 263 [2013], lv. denied 21 N.Y.3d 1007, 971 N.Y.S.2d 258, 993 N.E.2d 1281 [2013] ; see

People v. Davis, 83 A.D.3d 1210, 1212, 921 N.Y.S.2d 400 [2011], lv. denied 17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097 [2011] ).

The trooper specifically testified to seeing a vehicle traveling toward them from the direction of a nearby residence that he knew from the dispatch call was in the process of being burglarized. The troopers activated the emergency lights to ensure that the vehicle would yield the right-of-way and allow them to quickly reach the residence but, instead of pulling over, the vehicle made a hard right turn onto another road while the right rear passenger door was open (see Vehicle and Traffic Law § 1144[a]

). At a minimum, that sequence of events gave rise to a reasonable suspicion that the operator of the vehicle was engaging in reckless driving and permitted the pursuit that followed (see Vehicle and Traffic Law § 1212

; People v. Carr, 99 A.D.3d 1173, 1175, 952 N.Y.S.2d 342 [2012], lv. denied 20 N.Y.3d 1010, 960 N.Y.S.2d 353, 984 N.E.2d 328 [2013] ; People v. Cobb, 172 Misc.2d 851, 852–853, 661 N.Y.S.2d 903 [1997], lv. denied 90 N.Y.2d 856, 661 N.Y.S.2d 183, 683 N.E.2d 1057 [1997] ; People v. Simmons, 7 Misc.2d 517, 518, 168 N.Y.S.2d 485 [1957] ). The driver of the vehicle then refused to stop and engaged the troopers in a high speed chase, several of the vehicle's occupants fled after it crashed and defendant was found in close proximity to the abandoned vehicle, all of which afforded probable cause to place defendant under arrest (see Penal Law § 270.25 ; Vehicle and Traffic Law § 1212 ; People v. Samms, 258 A.D.2d 676, 677, 685 N.Y.S.2d 806 [1999], mod. on other grounds 95 N.Y.2d 52, 710 N.Y.S.2d 310, 731 N.E.2d 1118 [2000] ). County Court, as a result, properly denied defendant's suppression motion.

Defendant next contends that County Court committed reversible error in misleadingly charging the jury that a person is guilty of burglary in the second degree when he or she “knowingly enters or remains unlawfully in a [dwelling] with the intent to commit a crime therein” (emphasis added) (cf. People v. Gaines, 74 N.Y.2d 358, 363, 547 N.Y.S.2d 620, 546 N.E.2d 913 [1989]

; CJI2d [NY] Penal Law § 140.25[2] ). Defendant raised no objection to that jury charge before County Court and, as such, the issue is not preserved for appellate review (see CPL 470.05[2] ; People v. Melendez, 16 N.Y.3d 869, 870, 925 N.Y.S.2d 6, 948 N.E.2d 1290 [2011] ; People v. Heiserman, 127 A.D.3d 1422, 1424–1425, 7 N.Y.S.3d 653 [2015] ). Regardless, “defendant did not...