People v. Wideman

• Decision Date: 25 March 2021
• Docket Number: 109274
• Citation: 192 A.D.3d 1384,145 N.Y.S.3d 194
• Parties: The PEOPLE of the State of New York, Respondent, v. Kamil WIDEMAN, also Known as Rashawn Wideman and Jazz, Appellant.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 1384

145 N.Y.S.3d 194

The PEOPLE of the State of New York, Respondent,

v.Kamil WIDEMAN, also Known as Rashawn Wideman and Jazz, Appellant.

109274

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

Calendar Date: February 8, 2021

Decided and Entered: March 25, 2021

Mitch Kessler, Cohoes, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Aarons, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Egan, J.P.

Appeal from a judgment of the County Court of Clinton County (Richards, J.), rendered January 23, 2017, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree (two counts) and conspiracy in the fourth degree.

On August 19, 2015, the State Police stopped a 2002 GMC Envoy on Route 9 in the Town of Champlain, Clinton County to check on the welfare of defendant, a reported missing person. As troopers began to interview defendant and pat frisk him, defendant fled, during the course of which a plastic baggie came out of his pants. Defendant was eventually located and arrested and the contents of the plastic baggie were field tested, with a positive test result for heroin and cocaine.

Defendant was subsequently charged by indictment with two counts of criminal possession of a controlled substance in the third degree, one count of conspiracy in the fourth degree and one count of using drug paraphernalia in the second degree. A stipulation in lieu of motions was thereafter entered into and, following a suppression hearing, County Court (McGill, J.) denied defendant's motion to suppress the evidence seized during the traffic stop. Following a jury trial, defendant was convicted of two counts of criminal possession of a controlled substance in the third degree and one count of conspiracy in the fourth degree but was acquitted of criminally using drug paraphernalia. Defendant's motion to set aside the verdict on the ground that the People failed to timely disclose certain Brady material was denied. County Court (Richards, J.) thereafter sentenced defendant, as a second felony offender, to concurrent prison terms of 10 years to be followed by three years of postrelease supervision on the two convictions of criminal possession of a controlled substance in the third degree and to a lesser concurrent prison term on the remaining conviction. Defendant appeals.

Defendant contends that County Court (McGill, J.) erred in denying his motion to suppress the heroin and cocaine that were found following the traffic stop inasmuch as the police lacked lawful authority to detain, frisk or pursue him when he fled. We disagree. Where the police have executed a lawful stop of a vehicle,¹ "a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants ... to step out of the [vehicle]" ( People v. Garcia, 20 N.Y.3d 317, 321, 959 N.Y.S.2d 464, 983 N.E.2d 259 [2012] ; see People v. Robinson, 74 N.Y.2d 773, 775, 545 N.Y.S.2d 90, 543 N.E.2d 733 [1989], cert denied 493 U.S. 966, 110 S.Ct. 411, 107 L.Ed.2d 376 [1989] ; People v. Martin, 156 A.D.3d 956, 957, 66 N.Y.S.3d 572 [2017], lv denied 31 N.Y.3d 985, 77 N.Y.S.3d 663, 102 N.E.3d 440 [2018] ). In turn, "[a]n officer is authorized to conduct a protective pat frisk when he or she has ‘knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety’ " ( People v. Carey, 163 A.D.3d 1289, 1290, 82 N.Y.S.3d 642 [2018], lv denied 32 N.Y.3d 1124, 93 N.Y.S.3d 262, 117 N.E.3d 821 [2018], quoting People v. Batista, 88 N.Y.2d 650, 654, 649 N.Y.S.2d 356, 672 N.E.2d 581 [1996] ; see People v. Issac, 107 A.D.3d 1055, 1057, 968 N.Y.S.2d 631 [2013] ). A suppression court's factual determinations and credibility assessments are entitled to great weight and will not be overturned on appeal unless clearly erroneous or contrary to the evidence (see People v. Rudolph, 170 A.D.3d 1258, 1259, 95 N.Y.S.3d 629 [2019], lv denied 34 N.Y.3d 937, 109 N.Y.S.3d 724, 133 N.E.3d 427 [2019] ; People v. McClain, 145 A.D.3d 1192, 1193, 43 N.Y.S.3d 195 [2016], lv denied 28 N.Y.3d 1186, 52 N.Y.S.3d 713, 75 N.E.3d 105 [2017] ).

The evidence at the suppression hearing established that, on August 18, 2015, the City of Plattsburgh Police Department received a telephone call from an attorney in New Jersey who reported that she had received text messages from her client, defendant, leading her to believe that he had been kidnapped or abducted, was in the Plattsburgh area and was potentially in danger. Police commenced a "File 6" or missing and endangered persons investigation and, as part thereof, obtained defendant's cell phone records, which indicated that his cell phone was active and had recently made calls to a telephone number belonging to one Brenna Lonsbury, a resident of the Town of Chazy, Clinton County. Police located Lonsbury the following morning and, upon being shown defendant's picture, she identified him as one of two individuals who had spent the last four days at her apartment and indicated that these individuals had in their possession a large quantity of heroin and cocaine. Lonsbury indicated that she had given defendant a ride to the City of Plattsburgh, Clinton County earlier that morning and last saw him getting into a "dark blue" sport utility vehicle and that the other individual, Shaquan Spencer, was at her apartment.

Police thereafter obtained Lonsbury's written consent to search her apartment and, upon their arrival, located Spencer and a quantity of heroin and cocaine. While police were still present at the apartment, they observed a blue 2002 GMC Envoy drive by with defendant in the front passenger seat. Two state troopers followed after the Envoy and then stopped it. At a trooper's request, defendant stepped out of the vehicle and walked to the rear thereof, where one of the troopers proceeded to conduct a pat frisk. Defendant then fled, dropping a plastic baggie as he ran across a field. Troopers pursued defendant across the field, over a creek, through the woods and into a cornfield before taking him into custody. Troopers subsequently secured the plastic baggie that came out of defendant's pants and a subsequent field test of its contents was positive for the presence of heroin and cocaine.

The traffic stop and subsequent request for defendant to exit the vehicle were permissible given that defendant was a reported missing and possibly endangered person and was located in a vehicle with two other unknown individuals (see People v. Garcia, 20 N.Y.3d at 321, 959 N.Y.S.2d 464, 983 N.E.2d 259 ; People v. Robinson, 74 N.Y.2d at 775, 545 N.Y.S.2d 90, 543 N.E.2d 733 ). Defendant was not unlawfully detained as the troopers' questions pertained solely to ascertaining defendant's identity, were not accusatory in nature and lasted only a matter of minutes before he fled (see People v. Banks, 85 N.Y.2d 558, 562, 626 N.Y.S.2d 986, 650 N.E.2d 833 [1995], cert denied 516 U.S. 868, 116 S.Ct. 187, 133 L.Ed.2d 124 [1995] ; People v. Martin, 156 A.D.3d at 957–958, 66 N.Y.S.3d 572 ). The pat frisk of defendant was justified as he was the subject of a missing and endangered person report and a parallel narcotics investigation such that the trooper had a reasonable basis to perform a protective pat frisk (see People v. Batista, 88 N.Y.2d at 653–654, 649 N.Y.S.2d 356, 672 N.E.2d 581 ; People v. Martin, 156 A.D.3d at 958, 66 N.Y.S.3d 572 ; People v. Issac, 107 A.D.3d at 1058, 968 N.Y.S.2d 631 ; compare People v. Driscoll, 101 A.D.3d 1466, 1467, 957 N.Y.S.2d 476 [2012] ). Accordingly, defendant's subsequent flight from police and loss of a plastic baggie containing narcotics was not the product of any unlawful police conduct, and County Court appropriately denied his motion to suppress the heroin and cocaine found following the stop.

Defendant next contends that the modified Allen charge that County Court (Richards, J.) provided to the jury was coercive. However,...