Opinion
1164 KA 19-00931
03-18-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. PETER DIXON, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (JOHN R. LEWIS OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JESSICA N. CARBONE OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (JOHN R. LEWIS OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JESSICA N. CARBONE OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, AND WINSLOW, JJ.
Appeal from a judgment of the Onondaga County Court (Stephen J. Dougherty, J.), rendered April 12, 2019. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fifth degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]) and criminal possession of a controlled substance in the fifth degree (§ 220.06 [5]). The conviction arises from an incident in which a police officer, accompanied by other officers on patrol, pulled into the parking lot of a cocktail lounge and, after observing defendant sitting in a parked vehicle, approached the vehicle. The officer began to ask defendant for his name, identification and reason for being in the parking lot, when he smelled burning marihuana through a slightly opened window of the vehicle. The officer requested that defendant exit the vehicle, and then discovered during a further interaction that defendant possessed a quantity of cocaine. We affirm.
Defendant primarily contends that County Court erred in refusing to suppress physical evidence obtained during the encounter because the police lacked the requisite objective, credible reason to approach the vehicle and request information from him. We reject that contention. "In evaluating police conduct, a court 'must determine whether the action taken was justified in its inception and at every subsequent stage of the encounter'" (People v Savage, 137 A.D.3d 1637, 1638 [4th Dept 2016]; see People v De Bour, 40 N.Y.2d 210, 222-223 [1976]). At the first level of a police-civilian encounter, i.e., a request for information, a police officer may approach an individual "when there is some objective credible reason for that interference not necessarily indicative of criminality" (De Bour, 40 N.Y.2d at 223), and "[t]he request may 'involve[ ] basic, nonthreatening questions regarding, for instance, identity, address or destination'" (People v Garcia, 20 N.Y.3d 317, 322 [2012], quoting People v Hollman, 79 N.Y.2d 181, 185 [1992]; see People v McIntosh, 96 N.Y.2d 521, 525 [2001]). Although the first level "sets a low bar for an initial encounter" (People v Barksdale, 26 N.Y.3d 139, 143 [2015]), the Court of Appeals has nevertheless observed that, "[i]n determining the legality of an encounter under De Bour and Hollman, it has been crucial whether a nexus to [defendant's] conduct existed, that is, whether the police were aware of or observed conduct which provided a particularized reason to request information. The fact that an encounter occurred in a high-crime vicinity, without more, has not passed De Bour and Hollman scrutiny" (McIntosh, 96 N.Y.2d at 526-527; see Savage, 137 A.D.3d at 1638). The second level of a police-civilian encounter, "the common-law right to inquire, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a[n officer] is entitled to interfere with a [civilian] to the extent necessary to gain explanatory information, but short of a forcible seizure" (De Bour, 40 N.Y.2d at 223).
As an initial matter, to the extent that defendant contends that the officer engaged in a level two intrusion from the outset of the encounter, that contention lacks merit. "The approach of [an] occupant[] of a stopped or parked vehicle to request information is analyzed under the first [level] of the De Bour hierarchy... and need only be justified by an 'articulable basis,' meaning an 'objective, credible reason not necessarily indicative of criminality'" (People v Grady, 272 A.D.2d 952, 952 [4th Dept 2000], lv denied 95 N.Y.2d 905 [2000], quoting People v Ocasio, 85 N.Y.2d 982, 985 [1995]; see People v Witt, 129 A.D.3d 1449, 1450 [4th Dept 2015], lv denied 26 N.Y.3d 937 [2015]). Here, the record of the suppression hearing establishes that the officer did not ask "pointed questions that would lead the person approached reasonably to believe that he or she [was] suspected of some wrongdoing and [was] the focus of the officer's investigation" (Hollman, 79 N.Y.2d at 185; see People v Karagoz, 143 A.D.3d 912, 914 [2d Dept 2016]). Rather, the officer engaged in a level one request for information by making the basic, nonthreatening request for defendant's identification information and his reason for being in the parking lot (see Hollman, 79 N.Y.2d at 191).
Contrary to defendant's primary contention, the officer had an objective, credible reason for approaching the parked vehicle and requesting information, thereby rendering the police encounter lawful at its inception (see Witt, 129 A.D.3d at 1450). Not only was defendant's vehicle located in a high-crime area and parked at an establishment around which criminal activity was known to occur, but the police also had an active trespass affidavit on file for the cocktail lounge that allowed them to deal with the issues that occurred there, the parking lot was governed by a visible no loitering sign, and defendant was observed, albeit briefly, sitting in the lone occupied vehicle without making any attempt to go inside the establishment, thereby suggesting the possibility that defendant lacked a legitimate reason to be there (see Barksdale, 26 N.Y.3d at 141-144; Ocasio, 85 N.Y.2d at 983-985; People v Layou, 134 A.D.3d 1510, 1511-1512 [4th Dept 2015], lv denied 27 N.Y.3d 1070 [2016], reconsideration denied 28 N.Y.3d 932 [2016]). Given the abovementioned additional observations, providing the police with a particularized reason to request information from defendant beyond his mere presence in a high-crime area, the case before us is distinguishable from those upon which defendant relies (cf. People v King, 199 A.D.3d 1454, 1454 [4th Dept 2021]; People v Stover, 181 A.D.3d 1061, 1063-1064 [3d Dept 2020]; Savage, 137 A.D.3d at 1639; People v Miles, 82 A.D.3d 1010, 1010-1011 [2d Dept 2011]). Based on the foregoing, we conclude that "the totality of the information known to the police prior to entering the parking lot and their observations upon doing so provided an articulable reason for approaching the vehicle in question to request information with respect to the identity of the occupant[] and [his] purpose for being in the area" (People v Ramos, 60 A.D.3d 1317, 1317 [4th Dept 2009], lv denied 12 N.Y.3d 928 [2009]).
Contrary to defendant's further contention, which is preserved for our review (see People v Callahan, 134 A.D.3d 1432, 1432 [4th Dept 2015]; cf. People v Nunez, 261 A.D.2d 127, 127 [1st Dept 1999], lv denied 93 N.Y.2d 1004 [1999]; People v Matthews, 249 A.D.2d 963, 963 [4th Dept 1998]), we conclude that the court did not abuse its discretion in denying defense counsel's request to adjourn the rescheduled trial on the drug charges (see People v Resto, 147 A.D.3d 1331, 1332 [4th Dept 2017], lv denied 29 N.Y.3d 1000 [2017], reconsideration denied 29 N.Y.3d 1094 [2017]; People v Garcia, 101 A.D.3d 1604, 1605 [4th Dept 2012], lv denied 20 N.Y.3d 1098 [2013]; see generally People v Spears, 64 N.Y.2d 698, 699-700 [1984]).
Finally, inasmuch as the certificate of conviction and uniform sentence and commitment form incorrectly reflect that defendant was sentenced as a second felony offender, they must be amended to reflect that he was actually sentenced as a second felony drug offender previously convicted of a violent felony offense (see People v Curry, 192 A.D.3d 1649, 1652 [4th Dept 2021], lv denied 37 N.Y.3d 955 [2021]; People v Martinez, 166 A.D.3d 1558, 1560 [4th Dept 2018]).