Opinion
1179 KA 19-01042
02-11-2021
The PEOPLE of the State of New York, Respondent, v. Bosheem BETHEA, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (EDWARD P. DUNN OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (EDWARD P. DUNN OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals 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] ). Initially, we agree with defendant that the waiver of the right to appeal is invalid because County Court " ‘conflated the right to appeal with those rights automatically forfeited by the guilty plea’ " ( People v. Soriano , 178 A.D.3d 1376, 1376, 116 N.Y.S.3d 803 [4th Dept. 2019], lv denied 34 N.Y.3d 1163, 120 N.Y.S.3d 243, 142 N.E.3d 1145 [2020] ). The record therefore does not establish that defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty (see People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).
Contrary to defendant's contention, however, the court properly refused to suppress the handgun recovered from inside defendant's vehicle following a traffic stop. "[I]n evaluating the legality of police conduct, we ‘must determine whether the action taken was justified in its inception and at every subsequent stage of the encounter’ " ( People v. Howard , 129 A.D.3d 1654, 1655, 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 People v. De Bour , 40 N.Y.2d 210, 222-223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ). The court properly determined that the initial stop of defendant's vehicle was justified by the police officers’ observations of multiple traffic infractions, including that the vehicle did not have a front license plate (see People v. Lightner , 56 A.D.3d 1274, 1274, 868 N.Y.S.2d 449 [4th Dept. 2008], lv dismissed 12 N.Y.3d 760, 876 N.Y.S.2d 711, 904 N.E.2d 848 [2009] ), and had an inoperative headlight (see People v. Tittensor , 244 A.D.2d 784, 784, 666 N.Y.S.2d 267 [3d Dept. 1997] ) and an expired registration sticker (see generally People v. Jean-Pierre , 47 A.D.3d 445, 445, 851 N.Y.S.2d 4 [1st Dept. 2008], lv denied 10 N.Y.3d 865, 860 N.Y.S.2d 491, 890 N.E.2d 254 [2008] ). After initiating the traffic stop but before exiting the patrol car, the officers further observed defendant sit up in his seat and make what they described as a "furtive movement" as if defendant was secreting something. Further, upon the officers’ initial approach of the vehicle, one of the officers observed chalky crumbs on defendant's clothing that, based on the officer's experience and training, the officer identified to be crack cocaine. The observation of what the officer identified as cocaine pieces on defendant "provided [the officers with] probable cause to arrest and search defendant" ( People v. Edwards , 14 N.Y.3d 741, 742, 898 N.Y.S.2d 538, 925 N.E.2d 576 [2010], rearg denied 14 N.Y.3d 794, 899 N.Y.S.2d 125, 925 N.E.2d 928 [2010] ). The subsequent search of the vehicle, which resulted in the recovery of the handgun, was justified under the automobile exception to the search warrant requirement inasmuch as "[t]he circumstances furnishing probable cause for the arrest also gave the police probable cause to believe that the vehicle contained evidence of the crime" ( People v. Hampton , 50 A.D.3d 1605, 1606, 857 N.Y.S.2d 836 [4th Dept. 2008], lv denied 10 N.Y.3d 959, 863 N.Y.S.2d 143, 893 N.E.2d 449 [2008] ; see generally People v. Nichols , 175 A.D.3d 1117, 1118-1119, 106 N.Y.S.3d 532 [4th Dept. 2019], lv denied 34 N.Y.3d 1018, 114 N.Y.S.3d 769, 138 N.E.3d 498 [2019] ; People v. Barclay , 201 A.D.2d 952, 953, 607 N.Y.S.2d 531 [4th Dept. 1994] ).
Contrary to defendant's further contention, the sentence is not unduly harsh or severe.