People v. Perez , 37 N.Y.S.3d 243 ( 2016 )

Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered November 29, 2006, convicting defendant, after a jury trial, of robbery in the first degree and violation of probation, and sentencing him, on the robbery conviction, as a second felony offender, to a term of 15 years, and on the violation of probation, to a concurrent term of five years, affirmed. Judgment, Supreme Court, Bronx County (John N. Byrne, J.), rendered March 7, 2005, convicting defendant, upon his plea of guilty, of assault in the second degree, and sentencing him to a term of six months, concurrent with five years’ probation, modified, on the law, to the extent of vacating the sentence and remanding for a youthful offender determination, and otherwise affirmed.

Defendant was apprehended by police officers who were investigating a pattern of robberies inside a New York City Housing Authority (NYCHA) building by performing a “vertical patrol.” The police had made prior arrests for narcotics and trespass at the building, and considered it a high-crime area. The officers were in plain clothes, with their shields displayed around their necks. As part of the investigation, the officers were knocking on residents’ doors and conducting interviews.

While the officers were on the seventh floor, the elevator door opened. Several individuals exited the elevator, followed by defendant, who was wearing a black T-shirt over a yellowish-tan hooded sweatshirt with the hood up. Defendant took one step out of the elevator, but, apparently upon noticing the officers, went back into the elevator. When one of the officers said to him, “Can you hold the door, police, hold the door,” defendant “kept pressing” the elevator button to close the door. The door closed and the elevator went up. According to the officer, defendant’s behavior, coupled with the fact that the building entertained heavy narcotics traffic, motivated him and his colleagues to go up the stairs to verify that defendant belonged in the building. When the elevator did not stop on the eighth floor, the officers walked to the ninth floor and saw defendant in the hallway. One of the officers approached defendant, again identified himself as a police officer, and asked him if he lived in the building. Defendant did not respond, and turned and faced the wall with his head down and his hood up. Upon approaching defendant, the officer observed a bulge in the sleeve covering defendant’s right arm, which defendant was holding stiffly “straight down” from his body with his hands hidden under his sleeves. He again asked defendant if he lived in the building, and again defendant did not respond. The officer then asked defendant if he had any weapons, and, when defendant remained silent, he directed him to show his hands. When defendant refused to comply, the officer repeated his direction “several times,” but defendant would not cooperate. Concerned for his safety, the officer grabbed defendant’s wrist area, where he felt a metal object. He then raised defendant’s arm, pulled back his sweater, and observed the silver tip of a machete. Defendant was ordered to drop the machete, and again refused to comply. The officers removed the two-foot machete from his sleeve. Defendant was arrested, and $175 was recovered from him.

Around the same time, a police sergeant received a radio transmission describing a robbery that had occurred earlier that evening near the building where defendant had been arrested. The sergeant was informed that the complainant reported that he was robbed at the point of a machete by two males, one with a red jacket and the other with a black shirt over a yellow mustard hooded sweatshirt. While canvassing for suspects, the sergeant received a phone call from the officer who had arrested defendant in which the officer reported the arrest and defendant’s possession of a machete. Upon hearing the description of defendant’s clothing, which matched the description of the robbery suspect, the sergeant instructed the arresting officer to hold defendant at the scene until he arrived. He then picked up the complainant and transported him to outside the building where defendant had been arrested and was being held in the lobby. From within a police vehicle, and not having been informed that a machete was recovered or told that the person he would view matched the description he gave to police, the complainant, upon seeing the handcuffed defendant through the window of the building lobby, immediately identified defendant as the person who had robbed him.

Defendant, still handcuffed, was then placed in a police van and met by another officer, who asked him how he was doing. Defendant replied by saying that he knew he was “going up north” and that he would “tell you what you want” if he was given a sandwich. The officer transported defendant to the precinct, placed him in the debriefing room, and instructed two officers to get defendant a sandwich. When they returned with the sandwich 15 to 20 minutes later, the officer gave it to defendant. Immediately, defendant stated that “ [t]he other guy [you are] looking for” was in his apartment. The officer never questioned defendant and did not advise him of his Miranda rights.

Supreme Court denied defendant’s motion to suppress. With regard to the stop and search of defendant, the court found that “all of the police actions were justified from their inception.” The court concluded that defendant caused the officers to become suspicious when he stepped back into the elevator after observing them with their shields displayed and failed to comply with the direction to hold the elevator door. This, the court held, gave the officers the necessary predicate to follow defendant to the ninth floor and ask him if he lived in the building. The court further concluded that the arresting officer had a legitimate concern for his safety and a credible reason to believe defendant had a weapon, based on defendant’s refusal to answer his questions, the manner in which he was holding his arm, and the bulge under his sleeve. The court found that once defendant refused to comply with the officer’s direction to show his hands, the officer was justified in taking the added step of pulling back defendant’s sleeve, which revealed the presence of the machete.

The court ruled that the showup was not suggestive because the sergeant who brought the complainant to the building where defendant was arrested did not reveal to the complainant that defendant possessed a machete and that defendant matched the complainant’s description of his assailant to police. It noted that the complainant’s immediate identification of defendant, without any prompting, indicated that the identification was not tainted by suggestiveness and was not the fruit of any unlawful police conduct. Regarding defendant’s statements, the court held that while the People conceded custody, defendant was not interrogated and that his statements were completely spontaneous.

Defendant argues on appeal that his arrest was wrongful because the entire series of events that precipitated it was based on a misperception of behavior that was not inherently suspicious and that was consistent with his right to be left alone. The People maintain that the police officers had the right to question defendant based on his mere presence in the building, since it was a NYCHA building that was rife with trespassing and other illegal activity. In any event, the People contend that defendant’s retreat into the elevator was sufficient to, at the very least, trigger their right to inquire, and that the actions by defendant that followed justified the officers’ decisions to grab his arm and arrest him after discovering the machete.

In determining whether a police encounter with a member of the public is justified, we must consider all of the attendant circumstances (see People v Benjamin, 51 NY2d 267, 271 [1980]; People v Stephens, 47 AD3d 586, 588-589 [1st Dept 2008], lv denied 10 NY3d 940 [2008]). Here, one such circumstance was the fact that the building was owned by NYCHA and that the officers had a duty to keep it free of trespassers (see People v Williams, 16 AD3d 151 [1st Dept 2005], lv denied 5 NY3d 771 [2005]). It is unclear from People v Barksdale (26 NY3d 139 [2015]), recently decided by the Court of Appeals, whether defendant’s mere presence in the building gave rise to a level one inquiry under People v De Bour (40 NY2d 210 [1976]), since Barksdale specifically dealt with a private building registered in the trespass affidavit program. However, the officers did not testify that defendant’s mere presence in the building caused them to suspect that he did not belong there; rather, it was that fact combined with his effort to prevent them from getting into the elevator with him. Even if the officers did not have an objective credible reason to question defendant based only on Barksdale, the building’s trespass history, together with defendant’s apparently panicked attempt to avoid contact with them upon their attempt to enter the elevator, gave the officers the right to inquire of defendant.

It is not insignificant that defendant actively evaded the officers’ efforts to get into the elevator with him. Indeed, that is what distinguishes this case from People v Johnson (109 AD3d 449 [1st Dept 2013], appeal dismissed 23 NY3d 1001 [2014]). In Johnson, this Court reversed the denial of suppression of a gun recovered from the defendant. The sole predicate for the initial encounter there was, according to the officers in that case, the reputation of the building as “drug-prone” and the defendant’s action of, while descending a staircase immediately upon seeing the officers in the lobby, freezing and jerking back (109 AD3d at 449). Notably, the defendant in Johnson did not attempt to retreat from the officers (id.). Here, to the contrary, defendant not only retreated back into the elevator after initially stepping out of it, but also tried to bar the officers from following him into the elevator.

Further, in Johnson, there was no mention of a history of trespass in the building, whereas the officer who initially encountered defendant testified that he had made trespass arrests before in the subject building. While, again, the building may not have been a trespass affidavit building like the building in Barksdale (which, notably, was decided after Johnson), it is at the very least relevant that the officers were on alert for people who did not belong in the building (see People v Holmes, 81 NY2d 1056, 1058 [1993] [“Flight, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit”]). Similarly distinguishable is Matter of Michael F. (84 AD3d 468 [1st Dept 2011]), on which defendant relies, since the stop in that case did not take place in a building with a history of trespassers. Considering, again as we must, the totality of the circumstances (see People v Benjamin, 51 NY2d at 271), we find that the police had an objective, credible reason under De Bour to follow defendant to the ninth floor and ask him if he lived in the building.

The police action that followed was also proper. Defendant’s refusal to respond to the officer’s repeated inquiries, first into whether he lived in the building and next whether he was armed, and the direction to show his hands, was, while perhaps not determinative, still a significant factor escalating the encounter beyond the level one intrusion warranted by the earlier behavior (see People v Fabian, 56 AD3d 334 [1st Dept 2008], lv denied 12 NY3d 783 [2009]). Moreover, the officer testified that he was concerned for his safety, which was justifiable based on the bulge he observed in defendant’s sleeve, the awkward manner in which he was . holding his arm, and his recalcitrance upon being asked if he had a weapon and directed to display his hands (see People v Chin, 192 AD2d 413 [1st Dept 1993], lv denied 81 NY2d 1071 [1993]). The situation encountered by the police in this case differs significantly from cases cited by defendant, such as People v Crawford (89 AD3d 422 [1st Dept 2011]) and People v Powell (246 AD2d 366 [1st Dept 1998], appeal dismissed 92 NY2d 886 [1998]), insofar as those cases involved defendants whom the police initially stopped having no reason to believe that criminal activity was afoot and whom the police searched with no justification for thinking that the defendant was carrying a weapon. Considering the totality of the circumstances, we reject defendant’s challenge to the specific manner in which the officer searched him for the presence of a weapon.

We take a broader view than the dissent, one authorized by People v De Bour, which recognized “that police-citizen encounters are dynamic situations during which the degree of belief possessed at the point of inception may blossom by virtue of responses or other matters which authorize and indeed require additional action as the scenario unfolds” (40 NY2d at 225). Here, defendant’s active escape from the presence of the police, coupled with his utter refusal to face the officers or answer their questions, including whether he was armed, created a situation that was “fraught with tension” {id. at 226) and thus justified the police intrusion. Our view is also more broad than the dissent’s with respect to whether the officers were authorized in searching defendant for a weapon. The dissent takes too narrow a view when it focuses only on the officers’ inability to definitively ascribe the bulge in defendant’s sleeve to the presence of a weapon. The focus should be on all of the attendant circumstances, including the manner in which defendant was holding his arm and his refusal to state whether he was armed or to show his hands when asked.

The showup, in close geographic and temporal proximity to the robbery, was appropriate and was not rendered unduly suggestive by the fact that defendant was handcuffed and flanked by officers (see People v Gilford, 16 NY3d 864, 868 [2011]; People v Gatling, 38 AD3d 239 [1st Dept 2007], lv denied 9 NY3d 865 [2007]). Further, the record supports the court’s determination that defendant’s statements were spontaneous and not the product of interrogation (see People v Lynes, 49 NY2d 286 [1980]). The objections to the prosecutor’s remarks fell within the broad leeway afforded prosecutors to address defense arguments on summation (see People v Galloway, 54 NY2d 396 [1981]). In any event, any error was harmless in light of the overwhelming evidence of guilt (see People v Crimmins, 36 NY2d 230 [1975]).

The People concede, as they must, that defendant is entitled to vacatur of his sentence for the earlier assault conviction and to a resentencing that considers whether he qualifies for youthful offender status (People v Rudolph, 21 NY3d 497 [2013]). Nevertheless, defendant is not entitled to vacatur of the sentence for the robbery conviction. It is true that, for a prior conviction to serve as a predicate violent felony conviction, “[s]entence upon such prior conviction must have been imposed before commission of the present felony” (Penal Law § 70.04 [1] [b] [ii]). However, we find that a remand for an adjudication of youthful offender status is, for purposes of determining such sequentiality, analogous to a remand for the imposition of post-release supervision under People v Sparber (10 NY3d 457 [2008]). A Sparber resentencing has been held not to upset sequentiality for purposes of determining whether the conviction for which the remand was ordered can serve as a predicate for multiple felony offender status (see People v Boyer, 22 NY3d 15 [2013]; People v Acevedo, 17 NY3d 297 [2011]). To be sure, a remand for a youthful offender determination differs somewhat from a Sparber remand since the former can result in an actual change to the incarceration element of the sentence whereas as the latter “does not permit the resentencing court to alter the defendant’s prison term or otherwise change any aspect of his or her sentence” (Boyer, 22 NY3d at 24, citing People v Lingle, 16 NY3d 621, 634-635 [2011]). However, as stated in Boyer, “Importantly, the rule that the original sentence date controls for purposes of a conviction’s qualification as a predicate felony conviction serves the public policy underlying the recidivist sentencing statutes. As we have previously observed, those laws are meant to enhance sentences for defendants who refuse to reform after receiving a valid conviction for a crime and hearing the court pronounce sentence (see People v Morse, 62 NY2d 205, 222 [1984]). Under this rationale, a defendant who was sentenced for a prior conviction and then commits a new crime plainly deserves enhanced punishment for the new crime because the defendant remains unchastened after the court’s pronouncement of the sentence for the prior conviction, and the defendant’s heightened culpability cannot be mitigated in any way by a subsequent Sparber resentencing. Under those circumstances, it would make no sense to set the date of sentence for the defendant’s prior conviction to the date of the Sparber resentencing and thereby prevent the court from enhancing the defendant’s sentence for the current crime” (22 NY3d at 26).

We see no reason why the same public policy behind Boyer does not apply in the context of remands for youthful offender determinations. Of course, to the extent that, upon remand, the court determines that defendant should receive youthful offender status on the earlier conviction, defendant will be entitled to challenge the sentence on the later conviction by moving pursuant to CPL 440.20.

We have considered and rejected defendant’s remaining claims and including those set forth in his pro se supplemental briefs.

Concur — Mazzarelli, J.P., Sweeny and Kahn, JJ.