Opinion
832 KA 21-01580
02-03-2023
The PEOPLE of the State of New York, Respondent, v. Horace SHEPARD, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SUSAN HURLBURT OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SUSAN HURLBURT OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, BANNISTER, AND MONTOUR, 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, as the product of an unlawful search and seizure following a vehicle stop, a loaded firearm found on his person. We reject that contention.
Defendant contends that the police improperly relied solely on an anonymous tip as the basis for the stop of the vehicle he was driving and thus they lacked the requisite reasonable suspicion for the stop (see generally People v. Hinshaw , 35 N.Y.3d 427, 430, 132 N.Y.S.3d 90, 156 N.E.3d 812 [2020] ; People v. Spencer , 84 N.Y.2d 749, 752-753, 622 N.Y.S.2d 483, 646 N.E.2d 785 [1995], cert denied 516 U.S. 905, 116 S.Ct. 271, 133 L.Ed.2d 192 [1995] ). Assuming, arguendo, that the 911 call to which the officers were responding, concerning a man with a gun, was made by an anonymous caller (see People v. Tantao , 178 A.D.3d 1391, 1393, 117 N.Y.S.3d 397 [4th Dept. 2019], lv denied 35 N.Y.3d 945, 124 N.Y.S.3d 275, 147 N.E.3d 545 [2020] ; cf. People v. Dixon , 289 A.D.2d 937, 937-938, 734 N.Y.S.2d 761 [4th Dept. 2001], lv denied 98 N.Y.2d 637, 744 N.Y.S.2d 765, 771 N.E.2d 838 [2002] ), we conclude that the police had reasonable suspicion to stop the vehicle based upon the contents of the 911 call and the confirmatory observations of the police officers involved (see People v. Argyris , 24 N.Y.3d 1138, 1140-1141, 3 N.Y.S.3d 711, 27 N.E.3d 425 [2014], rearg denied 24 N.Y.3d 1211, 4 N.Y.S.3d 593, 28 N.E.3d 27 [2015], cert denied 577 U.S. 1069, 136 S.Ct. 793, 193 L.Ed.2d 722 [2016] ; People v. Moss , 89 A.D.3d 1526, 1527, 933 N.Y.S.2d 158 [4th Dept. 2011], lv denied 18 N.Y.3d 885, 939 N.Y.S.2d 755, 963 N.E.2d 132 [2012] ; see also Prado Navarette v. California , 572 U.S. 393, 398-402, 134 S.Ct. 1683, 188 L.Ed.2d 680 [2014] ). Specifically, "the report of the 911 caller was based on the contemporaneous observation of conduct that was not concealed" ( People v. Jeffery , 2 A.D.3d 1271, 1272, 769 N.Y.S.2d 675 [4th Dept. 2003] ; see People v. Argyris , 99 A.D.3d 808, 809-810, 952 N.Y.S.2d 254 [2d Dept. 2012], affd 24 N.Y.3d 1138, 3 N.Y.S.3d 711, 27 N.E.3d 425 [2014], rearg denied 24 N.Y.3d 1211, 4 N.Y.S.3d 593, 28 N.E.3d 27 [2015], cert denied 577 U.S. 1069, 136 S.Ct. 793, 193 L.Ed.2d 722 [2016] ; see also People v. Herold , 282 A.D.2d 1, 6-7, 726 N.Y.S.2d 65 [1st Dept. 2001], lv denied 97 N.Y.2d 682, 738 N.Y.S.2d 298, 764 N.E.2d 402 [2001] ), and the call was an excited utterance (see People v. Rivera , 84 A.D.3d 636, 636, 923 N.Y.S.2d 109 [1st Dept. 2011], lv denied 17 N.Y.3d 904, 933 N.Y.S.2d 659, 957 N.E.2d 1163 [2011] ). In addition, when the first officer arrived, the people whom he initially encountered immediately confirmed that a fight had occurred and directed him to the location where the 911 caller was found. The caller remained at the scene, and, in excited utterances made when the first officer approached her, she said at least four times that the suspect had "just" driven off, and she confirmed that she was referring to a particular vehicle. A detective observed defendant driving that vehicle, dressed in clothing that matched the initial 911 description, and stopped the vehicle. We conclude that the caller's statements were sufficiently corroborated by the observations of the police to provide reasonable suspicion for the stop (see Jeffery , 2 A.D.3d at 1272, 769 N.Y.S.2d 675 ; cf. People v. William II , 98 N.Y.2d 93, 99, 745 N.Y.S.2d 792, 772 N.E.2d 1150 [2002] ).
Defendant's further contention, that the court erred in declining to reopen the suppression hearing, is "expressly waived" ( People v. Hamilton , 159 A.D.3d 559, 559, 73 N.Y.S.3d 161 [1st Dept. 2018], lv denied 31 N.Y.3d 1117, 81 N.Y.S.3d 377, 106 N.E.3d 760 [2018] ).
Finally, the sentence is not unduly harsh or severe.