Opinion
416 KA 19-02347
04-29-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. RYAN J. REEDER, DEFENDANT-APPELLANT.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT. MARK S. SINKIEWICZ, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT.
MARK S. SINKIEWICZ, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, NEMOYER, AND BANNISTER, JJ.
Appeal from a judgment of the Seneca County Court (Richard M. Healy, A.J.), rendered November 16, 2018. The judgment convicted defendant upon a nonjury verdict of criminal possession of a controlled substance in the seventh degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). Defendant contends that County Court erred in refusing to suppress the drugs seized following the stop of the vehicle in which defendant was a passenger. We reject that contention. An automobile stop is lawful "when based on a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime" (People v Hinshaw, 35 N.Y.3d 427, 430 [2020]). The evidence at the suppression hearing established that the police had observed defendant engaging in drug transactions and had prepared a felony complaint against him. When the police observed defendant in the subject vehicle the following month, they had reasonable suspicion that he had committed a crime and thus the stop was lawful (see People v Pate, 52 A.D.3d 1118, 1118-1119 [3d Dept 2008], lv denied 11 N.Y.3d 740 [2008]).
Defendant further contends that the verdict is against the weight of the evidence because the police, through a confidential informant, entrapped him into possessing the drugs. We note that defendant did not raise a defense of entrapment before the court (see People v Santana, 70 A.D.3d 448, 449 [1st Dept 2010], lv denied 14 N.Y.3d 844 [2010]; People v Rivera, 47 A.D.3d 515, 516 [1st Dept 2008], lv denied 10 N.Y.3d 815 [2008]; see also People v Douglas, 17 A.D.3d 380, 381 [2d Dept 2005]). The affirmative defense of entrapment, which must be proven by a defendant by a preponderance of the evidence (see Penal Law §§ 25.00 [2]; 40.05), requires a defendant "to demonstrate that: (1) he [or she] was actively induced or encouraged to commit the offense by a public official; and (2) such inducement or encouragement created a 'substantial risk' that the offense would be committed by defendant who was not otherwise disposed to commit it" (People v Brown, 82 N.Y.2d 869, 871 [1993]; see § 40.05; People v Vickers, 168 A.D.3d 1268, 1273 [3d Dept 2019], lv denied 33 N.Y.3d 1036 [2019]). Viewing the evidence in light of the elements of the crime in this nonjury trial (see People v Danielson, 9 N.Y.3d 342, 349 [2007]), we conclude that it cannot be said that the court failed to give the evidence the weight it should be accorded in rejecting any such defense (see generally People v Bleakley, 69 N.Y.2d 490, 495 [1987]). The evidence established that the police involvement with the confidential informant on the date of the incident "merely afforded defendant an opportunity to commit the offense, which standing alone is insufficient" to establish the affirmative defense of entrapment (Brown, 82 N.Y.2d at 872; see Vickers, 168 A.D.3d at 1273). Moreover, the evidence, including defendant's own testimony that he was a drug user, established that he was predisposed to possess drugs (see generally People v Castro, 299 A.D.2d 557, 558 [2d Dept 2002], lv denied 99 N.Y.2d 626 [2003]; People v Cole, 224 A.D.2d 540, 541 [2d Dept 1996], lv denied 88 N.Y.2d 965 [1996]).