People v. Vanness

• Decision Date: 16 May 2013
• Citation: 964 N.Y.S.2d 763,106 A.D.3d 1262,2013 N.Y. Slip Op. 03505
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael VANNESS, Appellant.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 1262

964 N.Y.S.2d 763

2013 N.Y. Slip Op. 03505

The PEOPLE of the State of New York, Respondent,

v.Michael VANNESS, Appellant.

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

May 16, 2013.

G. Scott Walling, Queensbury, for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.

Before: ROSE, J.P., LAHTINEN, McCARTHY and EGAN JR., JJ.

McCARTHY, J.

Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered January 13, 2010, convicting defendant upon his plea of guilty of the crimes of burglary in the second degree, disseminating indecent material to a minor in the first degree and endangering the welfare of a child (two counts).

Defendant, who was 27 years old, was intercepted by police when he went to meet a 15–year–old girl (hereinafter the victim) he had been text messaging. After speaking with police, defendant was charged with endangering the welfare of a child. A few days later, a homeowner caught defendant climbing into the bedroom window of his 14–year–old daughter. After admitting that he sent that girl a text message picture of his penis on the cell phone that was secured from him after his first arrest, defendant was charged with burglary in the second degree, disseminating indecent material to a minor in the first degree and endangering the welfare of a child. Following a hearing, County Court denied defendant's suppression motion. During jury selection, defendant pleaded guilty to all four counts of the indictment. County Court sentenced defendant to an aggregate prison term of 12 years and five years of postrelease supervision. Defendant appeals.

County Court did not err in denying defendant's motion to suppress his statements to police and evidence obtained from his cell phone. Defendant's arguments are all based on his assertion that the police unlawfully seized him without probable cause prior to his first arrest.¹ The arresting sergeant testified that the victim's father walked into the police station with her and informed the sergeant that defendant, an older man, had been text messaging the victim. The father had impersonated the victim and arranged a meeting with the man behind a bar at 11:00 p.m. that night. The sergeant did not have time before the arranged meeting to read the text messages, but the father stated that he had reviewed them. From what the father said regarding those messages, the sergeant was led to believe that the meeting “was going to be a sexual encounter” and the father “was very concerned that this guy was going to try to have sex with his daughter.” When the sergeant arrived at the meeting place, he saw defendant—a person the sergeant recognized as a registered sex offender—walking toward the bar whose parking lot was the meeting spot. Defendant stated that he was there to meet someone. The sergeant responded that the person that defendant was meeting was probably too young for him, which defendant apparently did not deny. The sergeant handcuffed defendant and drove him to the police station, removed the handcuffs, advised defendant of his Miranda rights, obtained a written statement, secured defendant's cell phone, and then arrested him.

Defendant was in custody when he was placed in handcuffs and brought to the police station. The only question raised is whether the sergeant had probable cause to seize him. Police have probable cause to arrest an individual if, absent circumstancesthat would materially impeach the proffered information, an identified citizen provides information accusing that individual of committing a specific crime; such information is presumptively reliable ( see People v. Bailey, 295 A.D.2d 758, 759, 744 N.Y.S.2d 231 [2002],lv. denied99 N.Y.2d 533, 752 N.Y.S.2d 593, 782 N.E.2d 571 [2002];People v. Bingham, 263 A.D.2d 611, 612, 692 N.Y.S.2d 823 [1999],lv. denied93 N.Y.2d 1014, 697 N.Y.S.2d 573, 719 N.E.2d 934 [1999];People v. Peterkin, 151 A.D.2d 407, 407, 543 N.Y.S.2d 438 [1989],affd.75 N.Y.2d 985, 557 N.Y.S.2d 261, 556 N.E.2d 1068 [1990];People v. Gonzalez, 138 A.D.2d 622, 623, 526 N.Y.S.2d 208 [1988],lv. denied71 N.Y.2d 1027, 530 N.Y.S.2d 562, 526 N.E.2d 54 [1988];see also Medina v. City of New York, 102 A.D.3d 101, 103–104, 953 N.Y.S.2d 43 [2012];Guntlow v. Barbera, 76 A.D.3d 760, 768, 907 N.Y.S.2d 86 [2010],appeal dismissed15 N.Y.3d 906, 912 N.Y.S.2d 572, 938 N.E.2d 1007 [2010] ). Although the sergeant had not read the text messages, the father—who was an identified citizen with no apparent reason to make up these allegations—related that defendant had been sending...