People v. Vieweg

• Decision Date: 22 November 2017
• Citation: 155 A.D.3d 1305,65 N.Y.S.3d 275
• Parties: The PEOPLE of the State of New York, Respondent, v. Rishawn M. VIEWEG, Appellant.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 1305

65 N.Y.S.3d 275

The PEOPLE of the State of New York, Respondent,

v.Rishawn M. VIEWEG, Appellant.

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

Nov. 22, 2017.

Thomas H. Kheel, Ithaca, for appellant.

Matthew Van Houten, District Attorney, Ithaca (Dan W. Johnson of counsel), for respondent.

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

LYNCH, J.

Appeal from a judgment of the County Court of Tompkins County (Rowley, J.), rendered August 15, 2014, upon a verdict convicting defendant of the crimes of robbery in the first degree and criminal possession of a weapon in the third degree.

Defendant was charged with robbery in the first degree and criminal possession of a weapon in the third degree after he was arrested in November 2013 for the knife-point robbery of a café located on the Cornell University campus. In pretrial motions, defendant sought to suppress certain evidence as the product of an unlawful stop and detention, and the People sought orders compelling defendant to provide his DNA and to allow the use of reasonable force to obtain defendant's DNA. County Court denied defendant's motion to suppress and granted the People's motion to obtain DNA evidence, but defendant refused to provide a buccal swab sample. The court then granted the People's request to allow testimony of the efforts by the police to obtain a DNA sample and defendant's refusal to cooperate. In addition, the court provided a consciousness of guilt charge, which permitted the jury to infer defendant's guilt from the refusals. Following a jury trial, defendant was found guilty as charged, and was sentenced to concurrent prison terms of 10 years plus five years of postrelease supervision for the robbery conviction and 3 ½ to 7 years for the criminal possession of a weapon conviction. Defendant now appeals.

Initially, we find that defendant's motion to suppress was properly denied. "Where a police officer entertains a reasonable suspicion 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. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] [citations omitted]; see CPL 140.50[1] ; People v. Stroman, 107 A.D.3d 1023, 1023, 967 N.Y.S.2d 202 [2013], lv. denied 21 N.Y.3d 1046, 972 N.Y.S.2d 543, 995 N.E.2d 859 [2013] ). "Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand" ( People v. Cantor, 36 N.Y.2d 106, 112–113, 365 N.Y.S.2d 509, 324 N.E.2d 872 [1975] [citations omitted] ). "[I]n justifying the particular intrusion[,] the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion" ( People v. Rosa, 30 A.D.3d 905, 907, 819 N.Y.S.2d 312 [2006], lv. denied 7 N.Y.3d 851, 823 N.Y.S.2d 780, 857 N.E.2d 75 [2006] [internal quotation marks and citations omitted]; see People v. Brannon, 16 N.Y.3d 596, 602, 925 N.Y.S.2d 393, 949 N.E.2d 484 [2011] ; People v. Nesbitt, 56 A.D.3d 816, 818, 867 N.Y.S.2d 736 [2008], lv. denied 11 N.Y.3d 928, 874 N.Y.S.2d 13, 902 N.E.2d 447 [2009] ).

At the suppression hearing, Michael Scott, a uniformed officer at the Cornell University Police Department testified that he received a call to respond to a robbery at a café located on campus. While en route, Scott received via radio transmission information that the suspect had used a knife during the incident and that he fled to the Plant Sciences Building (hereinafter PSB), which was located approximately 100 yards away from the building where the café was located. Scott also received a description of the subject as a "black male, approximately [five feet five inches] to [five feet seven inches], wearing a dark hoodie, jeans ... [and] a [light colored] blue or white hat or scarf."

When Scott arrived at the PSB, he met another Cornell University officer and they decided that one would enter the PSB at the front of the building and the other at the back. Scott testified that, before entering the building, he observed through a window "a shorter black male" wearing a grey hat, and, though it was cold, a white short sleeved shirt, jeans and sneakers. Further, he observed this individual "looking at [his] cell phone and then quickly looking up ... as if he was hesitating what direction to go." Scott testified that he entered the building and, "as soon as [defendant] observed [him], [defendant] immediately looked away and started moving away from [him]," down the hallway, up a flight of stairs and out of the building. Scott, recalling that defendant was "quickly moving" but not running, testified that he followed defendant outside and yelled "police, stop" from a distance of about 50 feet. Defendant ignored Scott as he continued to move quickly across the field outside of the PSB. When Scott caught up to defendant and asked what he was doing on campus, defendant explained that he was going to a café but could not remember its name, and pointed to a building that he also could not name. After acknowledging that he did not attend the university, defendant claimed that he was visiting his girlfriend, who was a student, but he would not give her name. Scott handcuffed defendant, informing him that he was being investigated for a recent crime, but that he was not under arrest. Scott estimated that approximately five minutes had elapsed between the time that he received the first radio transmission to the time that he questioned defendant outside of the PSB.

Defendant's primary argument is that his behavior was innocuous and, thus, not sufficient to justify his detention (see People v. Morrow, 97 A.D.3d 991, 992, 948 N.Y.S.2d 463 [2012] ). We disagree. Unlike in Morrow, Scott was aware that an armed robbery had just taken place in close proximity to the PSB and that the perpetrator had fled into the PSB. Although defendant was not wearing a hooded sweatshirt, he otherwise closely fit the description of the assailant (see People v. Johnson, 245 A.D.2d 112, 112–113, 666 N.Y.S.2d 142 [1997], lv. denied 91 N.Y.2d 1008, 676 N.Y.S.2d 137, 698 N.E.2d 966 [1998] ). Defendant appeared to hesitate on which direction to walk, but quickly left the building when he saw Scott, and he failed to stop in response to Scott's demand. In our view, this testimony supported County Court's finding that Scott had a reasonable suspicion to detain defendant (see People v. Ford, 110 A.D.3d 1368, 1371, 973 N.Y.S.2d 859 [2013], lv. denied 24 N.Y.3d 1043, 998 N.Y.S.2d 313, 23 N.E.3d 156 [2014] ; People v. Belle, 74 A.D.3d 1477, 1479–1480, 902 N.Y.S.2d 258 [2010], lv. denied 15 N.Y.3d 918, 913 N.Y.S.2d 645, 939 N.E.2d 811 [2010] ).

Defendant also contends that County Court should not have granted the People's motion pursuant to CPL 240.40(2)(b)(v) to compel the production of a DNA sample via a buccal swab test. The motion was supported by a State Police forensic report that DNA was present on a knife, eyeglasses and certain items of clothing—including a black hooded sweatshirt—that were found outside of the PSB. After defendant refused to submit to the buccal swab, County Court issued an order authorizing the use of reasonable force to obtain a sample, but the People decided that rather than risk injury to defendant or the...