People v. Peguero-Sanchez , 35 N.Y.S.3d 423 ( 2016 )

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Condon, J.), rendered February 25, 2014, convicting him of criminal possession of a controlled substance in the first degree and improper equipment of a vehicle (two counts) (Vehicle and Traffic Law § 375 [2] [a] [4]; [10] [a]), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

Ordered that the judgment is modified, on the law, by vacating the conviction of improper equipment of a vehicle under count two of the indictment (Vehicle and Traffic Law § 375 [10] [a]), and the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

At approximately 6:59 p.m. on November 10, 2011, the defendant was arrested in an Applebee’s parking lot in Linden-hurst. He was charged with criiñinal possession of a controlled substance in the first degree and improper equipment of a vehicle (two counts) (Vehicle and Traffic Law § 375 [2] [a] [4]; [10] [a]). At trial, the arresting officer and the defendant each testified and presented markedly different versions of the facts prior to and after the arrest.

The arresting officer testified at a Mapp/Dunaway hearing (see Mapp v Ohio, 367 US 643 [1961]; Dunaway v New York, 442 US 200 [1979]) and at trial that on the date of the incident, he was patrolling an area where there had been public complaints about, and arrests for, drug dealing, when he observed a BMW vehicle (hereinafter the vehicle) with its engine running but with no illuminated license plate. He also observed the defendant in the driver’s seat. As the officer circled the vehicle, he noticed that the vehicle did not have a rear-view mirror. The officer testified that when he made eye contact with the defendant, the defendant reclined his seat and slid down in the seat. The officer parked his patrol vehicle, approached the defendant’s vehicle, and asked the defendant what he was doing. The 'defendant appeared nervous and replied that he was meeting friends and going to Applebee’s. The officer then asked to see the defendant’s driver license. After the defendant turned on the interior lights of the vehicle to retrieve his driver license, the officer observed an open black plastic bag between the defendant’s feet. The officer observed, on top of the bag and in plain view, several sealed clear plastic bags containing “large white rock substances.”

The defendant, in contrast, testified at trial that while he was walking to Applebee’s, he was approached by the arresting officer, who asked for the defendant’s driver license, made an inappropriate remark, and then placed the defendant under arrest. While the defendant was seated in the patrol vehicle, the officer took the key to the defendant’s vehicle from the defendant’s pocket, opened the doors and trunk to the defendant’s vehicle, and searched the vehicle. The defendant was advised 15 minutes later that his arrest was for drugs. The defendant denied the presence of plastic bags in the vehicle, denied that his vehicle’s rear-view mirror was missing, and denied any knowledge of drugs in the vehicle. The defendant explained that he often loaned the vehicle to the employees of his barber business, but did not recall who had last borrowed it. He also testified that, minutes before his arrest, he had been texting his girlfriend about meeting her at Applebee’s.

During the trial, the Supreme Court permitted the People, over the defendant’s objection, to introduce as rebuttal evidence a chart of text messages that had been retrieved from the defendant’s cell phone. The text messages consisted of a conversation with another person about a meeting, and language in the text messages indicated that the other person was a male referred to as “little brother.”

At another point in the trial, a detective who inventoried the plastic bag recovered from the defendant’s vehicle testified, on cross-examination, that DNA on the bag could have belonged to anyone who the defendant had been “dealing with.” The Supreme Court denied the defendant’s request for a mistrial based upon the detective’s statement.

During summation, the prosecutor made reference to, without defense objection, “coded and secretive” language contained in the text messages recovered from the defendant’s cell phone. The defendant was convicted of criminal possession of a controlled substance in the first degree and improper equipment of a vehicle (two counts) (Vehicle and Traffic Law § 375 [2] [a] [4]; [10] [a]).

On appeal, the defendant argues that the Supreme Court erred in failing, at the pre-trial hearing, to suppress the cocaine recovered at the scene of the arrest, and at trial, in admitting the chart of text messages as rebuttal evidence because they pertained merely to a collateral matter. The defendant also argues that his defense was prejudiced by the mention at trial of uncharged cocaine sale crimes, consisting of the detective’s testimony regarding who the defendant had been “dealing with” and the prosecution’s summation implying that the defendant was a cocaine seller.

The Supreme Court properly denied that branch of the defendant’s omnibus motion which was to suppress physical evidence. Where, as here, a police officer has probable cause to detain a motorist in his vehicle for a traffic violation, such a seizure is reasonable even though the underlying reason for the stop may have been to investigate some other matter (see Whren v United States, 517 US 806 [1996]; People v Robinson, 97 NY2d 341 [2001]; People v Davis, 103 AD3d 810, 811 [2013]; People v Ortiz, 265 AD2d 579 [1999]; People v Dougherty, 251 AD2d 344 [1998]). In this case, the court’s determination crediting the evidence presented by the People at the Mapp/Dunaway hearing, that the defendant was lawfully detained for a traffic violation when the police officer observed cocaine in plain view on the floor of the vehicle in which the defendant was seated, is supported by the record. Accordingly, the cocaine was lawfully seized (see Wong Sun v United States, 371 US 471, 488 [1963]; People v Edwards, 82 AD3d 1005 [2011]).

Regarding the trial evidence, the text messages were properly admitted into evidence on the People’s rebuttal case and not to impeach the defendant’s credibility on a mere “collateral” matter. The testimony of the arresting officer and the defendant were so diametrically opposed to each other regarding the circumstances of the arrest that they could not be reconciled absent a determination that one version was essentially true and the other version essentially false. The arresting officer testified that the defendant told him that he was meeting friends and going to Applebee’s. The defendant, in contrast, testified that, minutes before his arrest, he was texting his girlfriend about meeting her at Applebee’s. The defendant also denied referring to his girlfriend as “brother.” In the text messages, the defendant referred to their recipient as “little brother,” and the recipient referred to the defendant as “old man.” The language of the text messages corroborated the officer’s testimony that the defendant had stated at the scene that he was meeting friends at Applebee’s and not, as the defendant had testified, texting his girlfriend. Since the defendant’s overall testimony placed the arresting officer’s credibility at issue, and the defendant had opened the door to the nature of the text messages, they were properly admissible on rebuttal for their probative value in enabling the jury to assess the officer’s credibility (see People v Harris, 57 NY2d 335, 345 [1982]). Indeed, as noted by the Court of Appeals, rebuttal evidence is “not merely evidence which contradicts the witnesses on the opposite side and corroborates those of the [rebutting] party who began, but evidence in denial of some affirmative fact which the answering party has endeavored to prove” {id. at 345). Here, the arresting officer, through his testimony, sought to establish his conversation with the defendant at the scene as part of the overall sequence of events, including the defendant’s representation at that time that he was waiting to meet friends at the restaurant. Thus, the text messages were properly admitted as rebuttal evidence to corroborate the nature of that conversation which the defendant, during his own testimony, had refuted.

Contrary to the defendant’s contention, the detective’s testimony on cross-examination regarding whom the defendant may have been “dealing with” did not accuse the defendant of selling cocaine, for which he was not charged. Rather, the statement, taken in context, necessarily and innocuously referred to the person from, whom the defendant allegedly obtained the bags of cocaine.

The prosecutor’s summation provides no basis for reversing the judgment. Defense counsel made no objections during the summation and, thus, any summation-related arguments made on appeal are unpreserved (see CPL 470.05 [2]; People v Ricketts, 125 AD3d 893 [2015]). In any event, contrary to the defendant’s contentions, the prosecutor did not argue that based on the text messages the defendant was a cocaine seller. Rather, the prosecutor appropriately argued that the coded language in the text messages helped to establish that the defendant knowingly possessed cocaine, an offense with which he had been charged, and helped to refute the defendant’s contention that the cocaine had merely been unwittingly left in the car by one of his employees.

The People correctly concede that the defendant’s conviction for violating Vehicle and Traffic Law § 375 (10) (a) cannot be sustained. An indictment must provide a defendant with fair notice of the charges against him or her (see People v Keindl, 68 NY2d 410, 416 [1986]; People v Morris, 61 NY2d 290, 293 [1984]). Here, count two of the indictment failed to provide the defendant with fair notice that he was being charged with violating Vehicle and Traffic Law § 375 (10) (a). Accordingly, the defendant’s conviction for a violation of Vehicle and Traffic Law § 375 (10) (a) must be vacated, and count two of the indictment dismissed.

The defendant’s remaining contentions are without merit.

Dillon, J.P., Dickerson and Roman, JJ., concur.