People v. Francois ( 2009 )

Judgment, Supreme Court, New York County (John Cataldo, J.), rendered January 29, 2008, convicting defendant, upon his plea of guilty, of criminal possession of stolen property in the fourth degree, and sentencing him, as a second felony offender, to a term of IV2 to 3 years, affirmed.

The court properly denied defendant’s suppression motion. An officer trained and experienced in detecting suspicious use of MetroCard vending machines observed defendant repeatedly attempting to use a credit card in such a machine. The credit card appeared to be functioning, but each time the machine asked defendant to enter a ZIP code, defendant seemed to be unable to enter a ZIP code matching the credit card. Since most people know their own ZIP codes, this behavior was suggestive of a person trying to use someone else’s credit card, as opposed to a person innocently having technical difficulties using his own card. Accordingly, the police had, at least, a founded suspicion of criminality warranting a level-two common-law inquiry (see People v Wilson, 52 AD3d 239 [2008], lv denied 11 NY3d 743 [2008]).

When the officer approached defendant and asked if he needed assistance, defendant said he was having problems with his credit card. The officer asked defendant to accompany him and his partner to a nearby wall of the subway station, in order to continue the inquiry away from the busy area in front of the MetroCard machines, and, without any use of force, he physically guided defendant by briefly grasping his elbow. Even though the officer made slight physical contact with defendant, none of the police conduct elevated the encounter to a seizure requiring reasonable suspicion (see e.g. People v Stevenson, 55 AD3d 486 [2008]; People v Cherry, 30 AD3d 185, 185-186 [2006], lv denied 7 NY3d 811 [2006]; People v Wigfall, 295 AD2d 222 [2002], lv denied 99 NY2d 540 [2002]). The officer lawfully asked to see the credit card and a form of identification, and the discrepancy between the identification card and defendant’s actual appearance provided probable cause for his arrest. Concur— Friedman, J.E, Nardelli and BeGrasse, JJ.