Opinion
79 KA 13-00543
03-20-2015
The PEOPLE of the State of New York, Respondent, v. Robert L. WILLIAMS, Jr., Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND DeJOSEPH, JJ.
Opinion
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 the police improperly stopped the vehicle in which he was a passenger, and that Supreme Court therefore erred in refusing to suppress a handgun seized from the vehicle after the stop. We reject that contention. Here, an unidentified man called 911 and reported that, near a specific location, there were “[s]ome guys in a white car and they look[ed] like they [were] about to fight and one of the guys pulled out a gun.” Two police officers on routine patrol in the area had just left that location and had observed a white vehicle parked on the wrong side of the road. Two men were standing outside the vehicle, and a group of about 15 people were in the general vicinity. The police pulled over, and asked one of the two men standing closest to the vehicle to move it because it was illegally parked. The two individuals entered the white vehicle and drove away. After the officers received the 911 dispatch, they located the white vehicle a few blocks away. After following the vehicle for a short period of time, the police executed a traffic stop and removed the driver and defendant, the front seat passenger. A subsequent search of the vehicle yielded a handgun underneath the front passenger seat.
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 (see People v. Argyris, 24 N.Y.3d 1138, ––––, 3 N.Y.S.3d 711, 27 N.E.3d 425 [2014] ; People v. Moss, 89 A.D.3d 1526, 1527, 933 N.Y.S.2d 158, lv. denied 18 N.Y.3d 885, 939 N.Y.S.2d 755, 963 N.E.2d 132 ; see also Navarette v. California, ––– U.S. ––––, ––––, 134 S.Ct. 1683, 1692, 188 L.Ed.2d 680 ). Here, unlike in Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254, “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 ; see Navarette, ––– U.S. at ––––, 134 S.Ct. at 1688–1689 ; People v. Argyris, 99 A.D.3d 808, 809, 952 N.Y.S.2d 254, affd. 24 N.Y.3d 1138, 3 N.Y.S.3d 711, 27 N.E.3d 425 ; People v. Herold, 282 A.D.2d 1, 7, 726 N.Y.S.2d 65, lv. denied 97 N.Y.2d 682, 738 N.Y.S.2d 298, 764 N.E.2d 402 ), and the caller's statements were corroborated in part by the observations of the police (see Jeffery, 2 A.D.3d at 1272, 769 N.Y.S.2d 675 ; cf. J.L., 529 U.S. at 270, 120 S.Ct. 1375 ; People v. William II, 98 N.Y.2d 93, 99, 745 N.Y.S.2d 792, 772 N.E.2d 1150 ). Moreover, there are other “indicia of the 911 caller's reliability” in this case (Navarette, ––– U.S. at ––––, 134 S.Ct. at 1692 ; see People v. Rivera, 84 A.D.3d 636, 636, 923 N.Y.S.2d 109, lv. denied 17 N.Y.3d 904, 933 N.Y.S.2d 659, 957 N.E.2d 1163 ). After reporting the presence of a man with a gun, the caller told the 911 operator that he was “about to get off the phone [be]cause [he] did[n't] want [any]body to know [he was] doing this,” and “I have to hurry up and get out of here.” Thus, the record reflects that the call was made contemporaneously with the caller's observations and while he was still “under the stress of excitement” that such observations caused (Navarette, ––– U.S. at ––––, 134 S.Ct. at 1689 ; see Rivera, 84 A.D.3d at 636, 923 N.Y.S.2d 109 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.