People v. Turner

• Docket Number: 120 KA 20-01654
• Decision Date: 09 June 2023
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JAMAR TURNER, DEFENDANT-APPELLANT.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 03096

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JAMAR TURNER, DEFENDANT-APPELLANT.

No. 120 KA 20-01654

Supreme Court of New York, Fourth Department

June 9, 2023

KAMAN, BERLOVE, MARAFIOTI, JACOBSTEIN & GOLDMAN, LLP, ROCHESTER (DANIELLE C. WILD OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MERIDETH H. SMITH OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, CURRAN, MONTOUR, AND OGDEN, JJ.

Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.), rendered December 9, 2020. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]), defendant contends that Supreme Court erred in refusing to suppress evidence obtained from him during an encounter with the police because the police lacked the requisite reasonable suspicion that he committed a reported burglary to justify his detention and pat frisk, which resulted in the discovery of a handgun. We reject that contention.

According to the evidence presented at the suppression hearing, in the early morning hours while in her residence, a 10-year-old girl (witness) observed a black male inside her bedroom. Later that day, the police were dispatched to the residential address to investigate the reported burglary. While the police were there, the witness returned from a nearby clothing store and told the police that the person who had committed the reported burglary-i.e., the male who had been inside her bedroom earlier that morning-was currently present inside the store, and provided a detailed description of the suspect. The police immediately responded to the store, where they observed a person-later identified as defendant-who matched the description provided by the witness. Following some discussion with defendant, the police eventually detained him and, during a corresponding pat frisk, discovered a handgun in defendant's waistband.

It is well established that when an officer "confronts an individual whom [the officer] reasonably suspects has committed, is committing or is about to commit such a serious and violent crime as... burglary,... that suspicion not only justifies the detention but also the frisk, thus making it unnecessary to particularize an independent source for the belief of danger" (People v Mack, 26 N.Y.2d 311, 317 [1970], cert denied 400 U.S. 960 [1970]; see People v Moore, 32 N.Y.2d 67, 70 [1973], cert denied 414 U.S. 1011 [1973]; People v Collado, 72 A.D.3d 614, 615 [1st Dept 2010], lv denied 15 N.Y.3d 850 [2010]; People v Williams, 4 A.D.3d 852, 852 [4th Dept 2004], lv denied 2 N.Y.3d 809 [2004]; People v Downes, 259 A.D.2d 424, 424-425 [1st Dept 1999], lv denied 93 N.Y.2d 969 [1999]). The question in this case is thus whether the police had the requisite reasonable suspicion that defendant committed the reported burglary to justify detaining and frisking him in the store. On that question, "[r]egardless of whether we apply a totality of the circumstances test or the Aguilar-Spinelli standard" (People v Argyris, 24 N.Y.3d 1138, 1140 [2014], rearg denied 24 N.Y.3d 1211 [2015], cert denied 577 U.S. 1069 [2016]), we conclude that the detention and frisk of defendant was lawful.

More particularly, with respect to the reliability prong of the Aguilar-Spinelli test, the court properly determined that, despite her age and unsworn hearsay statement recounted by one of the police officers, the 10-year-old witness was "[a]n identified citizen informant" who "is presumed to be personally reliable" (People v...