People v. White

• Decision Date: 07 March 2018
• Docket Number: Ind. No. 3/12,2014–11801
• Citation: 159 A.D.3d 741,71 N.Y.S.3d 568
• Parties: The PEOPLE, etc., respondent, v. Samuel WHITE, appellant.
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 741

71 N.Y.S.3d 568

The PEOPLE, etc., respondent,

v.Samuel WHITE, appellant.

2014–11801

Ind. No. 3/12

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

Argued—February 24, 2017

March 7, 2018

Paul Skip Laisure, New York, N.Y. (Benjamin S. Litman of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Samantha S. Alessi, and Tina Grillo of counsel; J. Raymond Mechmann III on the brief), for respondent.

CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (John B. Latella, J.), rendered December 4, 2014, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Michael B. Aloise, J.), of those branches of the defendant's omnibus motion which were to suppress physical evidence and a statement made to law enforcement officials.

ORDERED that the judgment is reversed, on the law, those branches of the defendant's omnibus motion which were to suppress physical evidence and a statement made to law enforcement officials are granted, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

The defendant was charged with criminal possession of a weapon in the second degree (two counts) and criminal possession of a weapon in the fourth degree following a traffic stop at which police officers recovered a loaded firearm and a taser. The arresting officers alleged that the firearm was recovered from the defendant's waistband and the taser from the defendant's pants pocket. The defendant testified at trial that both items were recovered from a bag in the vehicle, and while he admitted to knowing of the firearm, he denied knowledge of the taser. The jury acquitted the defendant of criminal possession of a weapon in the fourth degree, which related to the taser ( Penal Law § 265.01[1] ), and of the count of criminal possession of a weapon in the second degree which alleged that the defendant possessed a loaded firearm with the intent to use it unlawfully ( Penal Law § 265.03[1][b] ). The jury convicted him, however, of the count of criminal possession of a weapon in the second degree which alleged that the defendant possessed a loaded firearm outside of his home or place of business ( Penal Law § 265.03[3] ).

On appeal, the defendant argues that the Supreme Court erred in denying those branches of his omnibus motion which were to suppress the loaded firearm and the statement he made to a police officer at the scene. In the alternative, he contends that he was deprived of the effective assistance of counsel when his trial counsel failed to move to reopen the suppression hearing based upon certain trial testimony by the arresting officers (see CPL 710.40[4] ).

Police Officer James Weibert was the only arresting officer to testify at the suppression hearing. In relevant part, he testified that on December 29, 2011, at approximately 11:10 a.m., he and three other officers pulled over a vehicle on a roadway in Queens because the vehicle was speeding. Officer Weibert also noticed that the middle tail light of the vehicle was not working. There were two occupants in the vehicle's front seat, and the defendant was seated in the rear passenger seat.

As Officer Weibert was approaching the driver's side of the vehicle, he saw the driver reaching toward the center console. When asked whether he feared at that time that violence was about to occur, Officer Weibert answered, "No."

Officer Weibert then asked the driver for his identification and the vehicle's registration and insurance information. The driver produced his identification, but could not provide any valid registration or insurance information for the vehicle. Because the driver had "reach[ed] toward his right side waistband" when Officer Weibert asked for his identification, Officer Weibert feared the driver might be concealing a weapon, and asked him, "politely," to step out of the vehicle. The officers frisked the driver's waistband area and found nothing. The officers then removed the front passenger from the vehicle and patted him down as well. Again, no weapon was found. None of the occupants of the vehicle had been placed in handcuffs at that point, and none of the officers had drawn their weapon. Officer Weibert was standing at the rear of the vehicle, along with the driver and the front passenger.

Officer Weibert then observed the defendant in the back seat "acting very nervous," "shaking his knees and legs up and down," and "leaning forward" with "his arms tucked in tight to his waistband." At that point, Sergeant Aaron Klein asked the defendant to step out of the vehicle, and the defendant complied immediately. Sergeant Klein then asked the defendant "what do you have," and the defendant replied, "I have a piece." Sergeant Klein then recovered a firearm from the defendant's waistband.

Asked on cross-examination to describe in more detail the defendant's conduct while he was seated in the vehicle, Officer Weibert stated that the defendant was leaning forward, his legs were shaking, his arms were "tucked in" or "folded," and his hands were "tucked tightly into his lap." At no time did the defendant make any furtive motion or reach for anything.

Based on the foregoing evidence, the Supreme Court denied the defendant's motion to suppress, finding that the defendant's "particularized behavior" had caused the officers to have a founded suspicion that criminality was afoot.

At the trial, Sergeant Klein testified that he observed the defendant engaging nervously in the same behavior previously described at the suppression hearing by Officer Weibert, but he added the fact that the defendant was texting on a cell phone. Officer Weibert testified at trial that the defendant had a cell phone in his hands when he observed him in the vehicle, and admitted that he had not testified to that fact in his testimony before the grand jury and at the suppression hearing. The defendant contends that his trial counsel should have moved at that point to reopen the suppression hearing, and that his failure to do so deprived the defendant of the effective assistance of counsel.

A suppression hearing may be reopened upon a showing that "additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion" ( CPL 710.40[4] ; see People v. John, 38 A.D.3d 568, 569, 832 N.Y.S.2d 238 ). "The new facts need not, on their face, establish a constitutional violation, but they must be such ‘that they would materially affect or have affected the earlier [constitutional] determination’ " ( People v. Velez, 39 A.D.3d 38, 42, 829 N.Y.S.2d 209, quoting People v. Clark, 88 N.Y.2d 552, 555, 647 N.Y.S.2d 479, 670 N.E.2d 980 ). Here, the defendant contends, in relevant part, that Sergeant Klein's trial testimony that the defendant was texting on his cell phone explains why he was leaning forward with his arms tucked in by his side, and that this additional contextual information would have affected the hearing court's ultimate determination.

In our view, it is at least arguable that Officer Weibert's failure to mention that the defendant was texting on his cell phone amounted to the omission of a material fact necessary to provide the hearing court with an explicit description of the defendant's movements, rather than the ambiguous and incomplete account actually given by Officer Weibert. Nevertheless, we need not decide whether this omission provided sufficient grounds to move to reopen the suppression hearing, or whether trial counsel was ineffective for failing to do so, as we agree with the defendant that the People failed to meet their burden of proof at the suppression hearing. The evidence fell short of establishing a founded suspicion of criminal activity sufficient to justify Sergeant Klein's asking the defendant, "what do you have."

As a threshold matter, and contrary to the dissent's suggestion, we take no issue with the People's decision to produce only Officer Weibert at the suppression hearing, and not Sergeant Klein (see CPL 710.60[4] ; People v. Edwards, 95 N.Y.2d 486, 719 N.Y.S.2d 202, 741 N.E.2d 876 ; People v. Ortiz, 87 A.D.3d 602, 927 N.Y.S.2d 920 ).

There was nothing improper about the police officers' direction that the defendant and the two other occupants exit the vehicle. "In light of the heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car" ( People v. Garcia, 20 N.Y.3d 317, 321, 959 N.Y.S.2d 464, 983 N.E.2d 259 ; see Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 ; People v. Robinson, 74 N.Y.2d 773, 775, 545 N.Y.S.2d 90, 543 N.E.2d 733). However, the scope of that authority is limited to guarding against "the unique danger of a partially concealed automobile occupant by allowing the officer to order occupants out of a car and readily observe their movements" ( People v. Garcia, 20 N.Y.3d at 323, 959 N.Y.S.2d 464, 983 N.E.2d 259 ). The reasonableness of police conduct beyond that limited authority must be assessed in accordance with the framework set forth in People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 and People v. Hollman, 79 N.Y.2d 181, 581 N.Y.S.2d 619, 590 N.E.2d 204 (see People v. Garcia, 20 N.Y.3d at 322, 959 N.Y.S.2d 464, 983 N.E.2d 259 ).

Under level one of the De Bour analysis, a police officer may approach a private citizen to "request information" when there is "some objective credible reason for that interference not...