Opinion
109330
01-02-2020
The PEOPLE of the State of New York, Respondent, v. Roegester GRAYS, Appellant.
Eric K. Schillinger, Albany, for appellant. Brooks Baker, District Attorney, Bath (John C. Tunney of counsel), for respondent.
Eric K. Schillinger, Albany, for appellant.
Brooks Baker, District Attorney, Bath (John C. Tunney of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Lynch and Aarons, JJ.
MEMORANDUM AND ORDER
Garry, P.J.
In 2012, a deputy with the Chemung County Sheriff's Office saw defendant pull into a parking lot after midnight. Upon returning to the area approximately 20 minutes later, the deputy saw defendant's car in that parking lot, with the brake lights on and the engine running. The deputy parked his vehicle, approached the driver's side window on foot, and discovered defendant with his face down on the steering wheel. Two knocks upon the window roused defendant, and the deputy noticed his "glossy" eyes. As defendant rolled the window down, the deputy smelled alcohol. Upon request, defendant provided a Pennsylvania driver's license. The license indicated that defendant's vehicle required an ignition interlock system, but no such system had been installed. Further investigation revealed that defendant also held a suspended New York driver's license. Defendant failed three field sobriety tests and was then arrested.
In 2013, defendant was charged with criminal offenses in a four-count indictment. He moved, among other things, to suppress his statements to the deputy, claiming that they were involuntary and in violation of his constitutional rights. County Court denied the motion following a hearing and placed the matter on the trial calendar. Thereafter, defendant was convicted upon unrelated charges in Pennsylvania, and sentenced to a prison term of 20 to 40 years. In 2016, defendant was extradited to New York to face the 2013 charges. He ultimately pleaded guilty to aggravated unlicensed operation of a motor vehicle in the first degree and driving while ability impaired by alcohol in full satisfaction of the indictment, and was sentenced to terms of incarceration of 1? to 4 years upon the felony charge and 15 days upon the violation, to run concurrently with each other and with his Pennsylvania sentence. Defendant appeals.
Defendant contends that his constitutional right to a speedy trial was violated by the passage of approximately 3½ years between his indictment and his guilty plea. Although defendant's constitutional right to a speedy trial survives his guilty plea, "this argument is unpreserved for our review given defendant's failure to raise this issue before County Court in the first instance" ( People v. Shufelt , 161 A.D.3d 1451, 1452, 77 N.Y.S.3d 760 [2018], lv denied 32 N.Y.3d 1008, 86 N.Y.S.3d 766, 111 N.E.3d 1122 [2018] ; see People v. Gerald , 153 A.D.3d 1029, 1030, 61 N.Y.S.3d 173 [2017] ; People v. Archie , 116 A.D.3d 1165, 1165, 983 N.Y.S.2d 358 [2014] ). The record thus lacks adequate development to establish the facts underlying the delay in extradition (see People v. Grumberg , 153 A.D.3d 1525, 1527, 62 N.Y.S.3d 199 [2017] ; People v. Gardiner , 159 A.D.3d 1233, 1234, 73 N.Y.S.3d 643 [2018], lv denied 31 N.Y.3d 1082, 79 N.Y.S.3d 103, 103 N.E.3d 1250 [2018] ). If the issue were properly before us, we would not find that the other pertinent factors favor defendant's application (see People v. Taranovich , 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975] ; People v. Pope , 96 A.D.3d 1231, 1233, 947 N.Y.S.2d 634 [2012], lv denied 20 N.Y.3d 1064, 962 N.Y.S.2d 615, 985 N.E.2d 925 [2013] ). Defendant was not incarcerated on the pending charges, and his choice to change counsel early in the action significantly undermines his claim of prejudice arising from the delay.
Defendant further contends that County Court improperly denied his motion to suppress, relying upon the deputy's suppression hearing testimony that he was "unsure" what he would find as he approached defendant's vehicle, and thus arguing that the deputy did not "believe that criminal activity [was] afoot" when he initiated contact with defendant ( Tetreault v. State of New York , 108 A.D.2d 1072, 1073, 485 N.Y.S.2d 864 [1985] ; see generally People v. De Bour , 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ; Terry v. Ohio , 392 U.S. 1, 30–31, 88 S.Ct. 1868, 20 L.Ed.2d 889 [1968] ). However, "[t]he mere approach by police to an occupied parked vehicle, especially one situated as was defendant's, in order to inquire is a minimal intrusion, which is not the equivalent of a ‘stop’ " ( People v. Evans , 175 A.D.2d 456, 457, 572 N.Y.S.2d 508 [1991] [internal citation omitted], lv denied 79 N.Y.2d 856, 580 N.Y.S.2d 728, 588 N.E.2d 763 [1992] ). Such a minimal intrusion must be "supported by an objective, credible reason, not necessarily indicative of criminality" ( People v. Hollman , 79 N.Y.2d 181, 184, 581 N.Y.S.2d 619, 590 N.E.2d 204 [1992] ; see People v. De Bour , 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ). When such an articulable reason exists, the stopped individual can be asked "briefly about his or her identity, destination, or reason for being in the area" ( People v. Hollman , 79 N.Y.2d at 191, 581 N.Y.S.2d 619, 590 N.E.2d 204 ; see People v. Story , 81 A.D.3d 1168, 1168, 917 N.Y.S.2d 403 [2011] ).
Here, the deputy testified that defendant was parked in an area where no businesses were open at that time of night and where an armed robbery and several burglaries had recently occurred. The deputy returned approximately 20 minutes later and found defendant's car in the same area with the engine running and brake lights on, with no other cars nearby. The deputy further testified that when he arrived at the driver's side door, he viewed defendant with "[h]is head against the steering wheel, facing towards the window, with his eyes closed and motionless," thus prompting the deputy to ask if defendant needed medical assistance. The circumstances clearly presented an articulable reason for the deputy to initiate contact with defendant (see People v. Story , 81 A.D.3d at 1168, 917 N.Y.S.2d 403 ; People v. Evans , 175 A.D.2d at 457, 572 N.Y.S.2d 508 ; compare Tetreault v. State of New York , 108 A.D.2d at 1073, 485 N.Y.S.2d 864 ). Considering these circumstances and deferring to County Court's credibility determinations, we find that the court properly denied defendant's motion to suppress (see People v. Jones , 156 A.D.3d 960, 961, 66 N.Y.S.3d 375 [2017], lv denied 30 N.Y.3d 1116, 77 N.Y.S.3d 341, 101 N.E.3d 982 [2018] ; People v. Story , 81 A.D.3d at 1168, 917 N.Y.S.2d 403 ).
Egan Jr., Lynch and Aarons, JJ., concur.
ORDERED that the judgment is affirmed.