People v. Wright

• Decision Date: 18 November 2022
• Docket Number: 722,KA 22-00400
• Citation: 210 A.D.3d 1486,178 N.Y.S.3d 662
• Parties: The PEOPLE of the State of New York, Respondent, v. Roderick WRIGHT, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

210 A.D.3d 1486

178 N.Y.S.3d 662

The PEOPLE of the State of New York, Respondent,

v.Roderick WRIGHT, Defendant-Appellant.

722

KA 22-00400

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

Entered: November 18, 2022

JEREMY D. SCHWARTZ, LACKAWANNA, FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JERRY MARTI OF COUNSEL), FOR RESPONDENT.

PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

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 County Court erred in refusing to suppress physical evidence and his statements as the fruit of an unlawful search and seizure. We reject that contention.

According to the evidence presented at the suppression hearing, a police officer (officer) with the Lancaster Police Department (LPD) was dispatched on an afternoon in late November 2020 to a motel in the Town of Lancaster (Lancaster) in response to a 911 call. In particular, the complainant had reported that a coworker—described as a black male with gold teeth operating a silver Ford SUV with out-of-state license plates—had threatened the complainant with a handgun. The information provided to the officer indicated that, while the complainant had not actually seen the handgun, the complainant believed the suspect had a handgun because the complainant heard a slide rack and the suspect tapping on a closed door with what sounded like a handgun while threatening to kill the complainant.

The officer was provided further information from the complainant that the suspect was staying at an inn located in Cheektowaga. Although the location of the inn was not along the officer's typical patrol route for the LPD, the officer was familiar with that area and noted that the inn was about one mile beyond the border with Lancaster. The officer proceeded in his patrol vehicle to the inn and pulled into the parking lot approximately 15 minutes after receiving the initial complaint. The officer immediately observed a silver Ford SUV with out-of-state license plates parked adjacent to the entrance of the parking lot. The officer parked directly in front of the SUV about 20 feet away and, as soon as he parked, he noticed that a black male with gold teeth—later identified as defendant—exited the SUV from the driver's door.

The officer exited his patrol vehicle and, from about midway between his patrol vehicle and the SUV, a distance of approximately 10 feet, the officer noticed a very strong odor of burnt marihuana. The officer confirmed that he was familiar with that smell from his extensive professional experience. The officer repeatedly insisted that the strong scent of marihuana was emanating from the vicinity of both defendant's person and the SUV. When pressed further on cross-examination, however, the officer agreed that it was "fair to say" that, when he was positioned 10 feet away as defendant stepped out of the SUV, he did not know whether the source of the marihuana scent was something in the SUV or something on defendant's person because defendant and the SUV were right next to each other at that point.

Given the possibility of a gun being involved and the odor of marihuana, the officer immediately directed defendant to the rear of the patrol vehicle and instructed defendant to place his hands on the trunk. Defendant ignored the instruction and, instead, continued to walk toward the inn as if conveying that the officer was wrongly hassling him. The officer attempted to physically place defendant's hands on the patrol vehicle, defendant began to resist by pulling his hands away, and the officer then forcibly handcuffed defendant. By that time, three other police officers from the LPD were on the scene, one of whom assisted the officer with defendant. After defendant was handcuffed, the officer frisked defendant's pockets. According to the officer, defendant was detained based on the strong odor of marihuana and the fact that he matched the description of the suspect who had reportedly threatened the complainant with a gun at the motel in Lancaster.

Two of the other police officers searched the SUV and discovered a handgun. As the officer was placing defendant, who was handcuffed, in the back of his patrol vehicle, one of the other police officers announced aloud that he had found a loaded handgun, and defendant spontaneously responded by saying "hey, that's my gun" as though questioning why the police were taking the handgun that belonged to him. Neither the officer nor any of the other police officers had their service weapons drawn during the interaction. Defendant did not produce a permit for the handgun.

Contrary to defendant's initial contention on appeal that the officer immediately initiated a level four intrusion, i.e., an arrest, without probable cause, we agree with the People that the officer engaged in a forcible nonarrest detention supported by reasonable suspicion. "It is well established that not every forcible detention constitutes an arrest" ( People v. Drake , 93 A.D.3d 1158, 1159, 940 N.Y.S.2d 403 [4th Dept. 2012], lv denied 19 N.Y.3d 1102, 955 N.Y.S.2d 557, 979 N.E.2d 818 [2012] ; see People v. Hicks , 68 N.Y.2d 234, 239, 508 N.Y.S.2d 163, 500 N.E.2d 861 [1986] ), and that an officer may handcuff a detainee out of concern for officer safety (see People v. Allen , 73 N.Y.2d 378, 379-380, 540 N.Y.S.2d 971, 538 N.E.2d 323 [1989] ; People v. Pruitt , 158 A.D.3d 1138, 1139, 70 N.Y.S.3d 691 [4th Dept. 2018], lv denied 31 N.Y.3d 1120, 81 N.Y.S.3d 380, 106 N.E.3d 763 [2018]; People v. Wiggins , 126 A.D.3d 1369, 1370, 4 N.Y.S.3d 798 [4th Dept. 2015] ). "A corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that he is in danger of physical injury by virtue of the detainee being armed" ( People v. De Bour , 40 N.Y.2d 210, 215, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ; see Wiggins , 126 A.D.3d at 1370, 4 N.Y.S.3d 798 ).

Here, based on the evidence adduced at the suppression hearing, we conclude that the court properly found that the encounter, from its outset, constituted a forcible stop and nonarrest detention of defendant (see People v. Hough , 151 A.D.3d 1591, 1592, 57 N.Y.S.3d 780 [4th Dept. 2017], lv denied 30 N.Y.3d 950, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017] ). In particular, contrary to defendant's contention, he was "not subjected to an unlawful de facto arrest when, after exiting his patrol vehicle and approaching defendant on foot, the officer [ultimately] handcuffed [defendant], conducted a pat frisk, and [started to] place [him] in the back of the patrol vehicle" prior to discovery of the handgun ( Pruitt , 158 A.D.3d at 1139, 70 N.Y.S.3d 691 ; see People v. Griffin , 188 A.D.3d 1701, 1703, 136 N.Y.S.3d 619 [4th Dept. 2020], lv denied 36 N.Y.3d 1050, 140 N.Y.S.3d 879, 164 N.E.3d 966 [2021], cert denied ––– U.S. ––––, 141 S. Ct. 2538, 209 L.Ed.2d 561 [2021] ; People v. Harmon , 170 A.D.3d 1674, 1675, 96 N.Y.S.3d 783 [4th Dept. 2019], lv denied 34 N.Y.3d 932, 109 N.Y.S.3d 695, 133 N.E.3d 395 [2019] ; People v. McCoy , 46 A.D.3d 1348, 1349, 848 N.Y.S.2d 505 [4th Dept. 2007], lv denied 10 N.Y.3d 813, 857 N.Y.S.2d 47, 886 N.E.2d 812 [2008] ). Instead, given the detailed description by the known complainant that a person matching defendant's characteristics and location was in possession of and had threatened to use a handgun, along with the strong odor of marihuana emanating from defendant's vicinity and his evasive and resistant behavior when first confronted, the officer effectuated a forcible nonarrest detention—including through the use of handcuffs—to facilitate the investigation before the handgun was located (see Harmon , 170 A.D.3d at 1675, 96 N.Y.S.3d 783 ; Pruitt , 158 A.D.3d at 1139, 70 N.Y.S.3d 691 ; see also People v. McKee , 174 A.D.3d 1444, 1445, 105 N.Y.S.3d 747 [4th Dept. 2019], lv denied 34 N.Y.3d 982, 113 N.Y.S.3d 654, 137 N.E.3d 24 [2019] ; People v. McDonald , 173 A.D.3d 1633, 1634, 102 N.Y.S.3d 368 [4th Dept. 2019], lv denied 34 N.Y.3d 934, 109 N.Y.S.3d 709, 133 N.E.3d 410 [2019] ; see generally Allen , 73 N.Y.2d at 379-380, 540 N.Y.S.2d 971, 538 N.E.2d 323 ). In sum, "the police action fell short of the level of intrusion upon defendant's liberty and privacy that constitutes an arrest" ( Hicks , 68 N.Y.2d at 240, 508 N.Y.S.2d 163, 500 N.E.2d 861 ; see People v. Howard , 129 A.D.3d 1654, 1655-1656, 12 N.Y.S.3d 708 [4th Dept. 2015], lv denied 27 N.Y.3d 999, 38 N.Y.S.3d 109, 59 N.E.3d 1221 [2016] ; see generally People v. Yukl , 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969], cert denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 [1970] ).

We further agree with the People that the forcible nonarrest detention was supported by the requisite reasonable suspicion (see generally People v. Cooper , 196 A.D.3d 855, 857, 151 N.Y.S.3d 250 [3d Dept. 2021], lv denied 37 N.Y.3d 1160, 160 N.Y.S.3d 690, 181 N.E.3d 1118 [2022] ). A nonarrest investigative detention must be "justified by reasonable suspicion that a crime [had] been, [was] being or [was] about to be committed" ( People v. Roque , 99 N.Y.2d 50, 54, 751 N.Y.S.2d 165, 780 N.E.2d 976 [2002] ), i.e., "that quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand" ( People v. Woods , 98 N.Y.2d 627, 628, 745 N.Y.S.2d 749, 772 N.E.2d 1107 [2002] [internal quotation marks omitted]; see Howard , 129 A.D.3d at 1656, 12 N.Y.S.3d 708 ).

Here, we conclude that, "[b]ased upon the totality of the circumstances, including the short period of time between the 911 call [by the known complainant] reporting [that a specifically described male had] a handgun and the arrival of the police officer at the...