BRACY, MARIO, PEOPLE v ( 2012 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    49
    KA 10-01766
    PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GORSKI, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    MARIO BRACY, DEFENDANT-APPELLANT.
    THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (KRISTI M. AHLSTROM
    OF COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Erie County Court (Michael L.
    D’Amico, J.), rendered May 21, 2010. The judgment convicted
    defendant, upon his plea of guilty, of criminal possession of a weapon
    in the second degree, criminal possession of a weapon in the third
    degree and unlawful possession of marihuana.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously modified on the law and the facts by vacating the part
    convicting defendant of unlawful possession of marihuana, granting the
    omnibus motion insofar as it sought to suppress the marihuana found on
    defendant’s person, and dismissing the third count of the indictment,
    and as modified the judgment is affirmed.
    Memorandum: Defendant appeals 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]), criminal possession of a
    weapon in the third degree (§ 265.02 [3]) and unlawful possession of
    marihuana (§ 221.05). After indictment, defendant moved, inter alia,
    to suppress a loaded handgun and marihuana that were seized from his
    person by a police officer. County Court denied the motion, and
    defendant pleaded guilty to the indictment. Defendant’s sole
    contention on appeal is that the court erred in denying that part of
    his omnibus motion seeking to suppress the handgun and marihuana
    seized from his person. We conclude that the court properly refused
    to suppress the handgun that was seized from the pocket of defendant’s
    pants, but we agree with defendant that the court should have
    suppressed the marihuana seized from the waistband of his pants. We
    therefore modify the judgment accordingly.
    We reject defendant’s initial contention that the arresting
    officer violated his rights by approaching him and asking for
    identification. According to the testimony presented by the People at
    -2-                            49
    KA 10-01766
    the suppression hearing, when the officer approached defendant, he and
    another man were standing in a street next to an occupied parked
    vehicle in an area that the officer knew to be subject to violence.
    Defendant and the other man were standing in the street in a manner
    that forced any passing vehicles to drive around them, into the
    opposing traffic lane. Thus, “[t]he testimony at the suppression
    hearing establishes that the police officer[] had an objective,
    credible reason for initially approaching defendant and requesting
    information from him” (People v Hill, 302 AD2d 958, 959, lv denied 100
    NY2d 539; see generally People v Hollman, 79 NY2d 181, 190-193; People
    v De Bour, 40 NY2d 210, 213).
    Contrary to defendant’s further contention, the evidence
    presented at the suppression hearing establishes that the arresting
    officer had reasonable suspicion to believe that defendant posed a
    threat to her safety at the time of the frisk. When the officer first
    asked if the four men present, i.e., defendant, the other man outside
    the car, and two additional men inside the car, had identification,
    the only person who responded was the person in the driver’s seat of
    the car, and his response was merely that he was not driving. The
    officer exited her vehicle, stood next to defendant and the other man
    outside the car, and again asked if the four men had identification.
    This time no one spoke, but both defendant and the other man quickly
    reached toward their pockets or the waistbands of their pants. In
    addition, both men were wearing long hooded jackets that covered their
    pants below the pockets, and as previously noted the officer was aware
    that the area in which the incident occurred was subject to violence.
    The officer was thus confronted by two men in proximity to her, both
    of whom were reaching for their pockets or the waistbands of their
    pants. The officer grabbed the sweatshirts of both men, placed one
    man in her vehicle, and frisked defendant. The officer therefore was
    justified in lifting defendant’s sweatshirt to check for weapons, and
    in patting down the outside of defendant’s clothing. While doing so,
    the officer felt a hard object that she concluded was a handgun, which
    led to the seizure of the loaded firearm from defendant’s pocket.
    Based on that evidence, we conclude that the frisk of defendant was a
    “constitutionally justified intrusion designed to protect the safety
    of the officer[]” (People v Robinson, 278 AD2d 808, 809, lv denied 96
    NY2d 787; see People v Mack, 49 AD3d 1291, 1292, lv denied 10 NY3d
    866).
    We note that, although the men may have been reaching for their
    identification papers in response to the officer’s inquiry, the
    officer “had a reasonable basis for fearing for [her] safety and was
    not required to ‘await the glint of steel’ ” (People v Stokes, 262
    AD2d 975, 976, lv denied 93 NY2d 1028, quoting People v Benjamin, 51
    NY2d 267, 271). Moreover, given that the police officer touched a
    bulging pocket and felt a hard object that she reasonably feared to be
    a weapon, the officer did not act unlawfully in reaching into the
    pocket and removing the object (see People v Davenport, 9 AD3d 316, lv
    denied 3 NY3d 705).
    We agree with defendant, however, that the court erred in
    refusing to suppress the bag of marihuana that the officer removed
    -3-                            49
    KA 10-01766
    from his waistband. The information that the officer possessed when
    she seized the bag justified only a limited pat frisk to protect her
    safety. Indeed, “ ‘[t]he purpose of this limited search is not to
    discover evidence of crime, but to allow the officer to pursue his [or
    her] investigation without fear of violence’ ” (Minnesota v Dickerson,
    
    508 US 366
    , 373). “Rather, a protective search—permitted without a
    warrant and on the basis of reasonable suspicion less than probable
    cause—must be strictly ‘limited to that which is necessary for the
    discovery of weapons which might be used to harm the officer or others
    nearby’ ” (id.; see People v Cantor, 36 NY2d 106, 110-111; People v
    Lazcano, 66 AD3d 1474, lv denied 13 NY3d 940). Here, to the contrary,
    the officer testified that she observed the bag when she lifted
    defendant’s sweatshirt, and she thought that it was a kit used to test
    for marihuana. Thus, the officer exceeded the permitted scope of the
    search by removing the bag from the suspect’s waistband to identify
    its contents (see People v Dobson, 41 AD3d 496, 497, lv denied 9 NY3d
    874). The court’s finding that the officer knew that the bag
    contained marihuana before she removed it from defendant’s waistband
    is not supported by the evidence at the suppression hearing, including
    the testimony of the officer herself.
    Finally, insofar as defendant contends that the improper seizure
    of the marihuana requires suppression of the handgun, we reject that
    contention. The evidence presented at the suppression hearing
    establishes, and the court properly concluded, that the officer found
    the handgun as part of a pat frisk that she conducted for her safety.
    Finding the bag of marihuana before discovering the handgun neither
    eliminated nor diminished the safety factors confronting her. Thus,
    she was permitted to continue frisking defendant’s clothing, which is
    when she discovered the weapon.
    Entered:   January 31, 2012                     Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 10-01766

Filed Date: 1/31/2012

Precedential Status: Precedential

Modified Date: 10/8/2016