People v. DavisPeople v. Davis
Calendar Date: February 10, 2022
Before: Egan Jr., J.P., Clark, Aarons, Reynolds Fitzgerald and McShan, JJ.
Aaron Louridas, Delmar, for appellant, and appellant pro se.
Paul Czajka, District Attorney, Hudson (James A. Carlucci of counsel), for respоndent.
McShan, J.
Appeal from a judgment of the County Court of Columbia County (Nichols, J.), rendered March 10, 2017, convicting defendant upon his plea of guilty of the crimes of, among others, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree.
Defendant was charged by indictment with criminal possession of a
Initially, we agree with defendant that his waiver of the right to appeal was not valid. During thе plea colloquy, County Court mischaracterized the appellate rights encompassed by an appeal waiver, erroneously advising defendant that, by waiving his right to appeal, he was giving up his right to appeal “anything” that had occurred in the course of the criminal action as well as the sentence to be imposed pursuant to the plea agreement. The written appeal waiver was similarly overbroad, purported to erect an absolute bar to a direct appeal and failed to indicate that certain issues survived the waiver.
Defendant‘s challenge to the voluntariness of his plea, while not precluded, is unpreserved for our review duе to his failure to make an appropriate postallocution motion despite having had ample opportunity to do so (see People v Conceicao, 26 NY3d 375, 381-382 [2015]; People v Dickerson, 198 AD3d 1190, 1192-1193 [2021]; People v Botts, 191 AD3d 1044, 1045 [2021], lv denied 36 NY3d 1095 [2021]). Further, the narrow exception to the preservation requirement was not triggеred, as defendant made no statements during the plea colloquy that cast doubt on his guilt, negated an essential element of the charged crimes or otherwise called into question the voluntariness of his plea (see People v McCoy, 198 AD3d 1021, 1022-1023 [2021], lv denied 37 NY3d 1162 [2022]; People v Daniels, 193 AD3d 1179, 1180 [2021]; People v Botts, 191 AD3d at 1445). Were we to address this issue, we would find that the record establishes that defendant entered a knowing, intelligent and voluntary plea (see People v Conceicao, 26 NY3d at 382; People v Agueda, 202 AD3d 1153, 1154-1155 [2022]). To the extent that defendant‘s arguments involve matters outside of the record, they are more properly the subject of a
Defendant next challenges the denial of his suppression motion, asserting that the police did not have reasonable suspicion to stop his vehicle or probable cause to make an arrest. “Street encounters initiated by police are governed by the well-established graduated four-level test in which, generally stated, the level of permissible intrusion increases with the level of еvidence of criminality” (People v Tillery, 60 AD3d 1203, 1204-1205 [2009] [citations omitted], lv denied 12 NY3d 860 [2009]; see People v De Bour, 40 NY2d 210, 225 [1976]). Police may legally stop a vehicle and detain its occupants “if they have reasonable suspicion that a defendant has committed, is committing or is about to commit a crime” (People v Cook, 134 AD3d 1241, 1243 [2015] [internal quotation marks, brackets
The testimony at the suppression hearing established that Patrick Logue, an investigator with the Columbia County Sheriff‘s Department, received information from the CI that she had previously purchased heroin from a black male known to her by the name “John.” While in Logue‘s рresence, the CI contacted this individual by cell phone to arrange the purchase of a quantity of heroin. Following a series of text messages that were overseen by Logue, this individual agreed to drive to the CI‘s rеsidence to sell her the heroin. In addition to the information gleaned from the text communications, Logue was also informed by the CI that the seller would be driving a red sport utility vehicle (hereinafter SUV). Later that day, while waiting in а parked vehicle near the CI‘s residence, Logue observed a red SUV, driven by a black male, pull into the CI‘s driveway. Logue then pulled his vehicle into the CI‘s driveway, positioning it behind the rear of the SUV, and exited his vehicle. Upon approaching the driver side door of the SUV, Logue observed defendant “reach in, underneath his backside.” Logue then directed defendant to step outside of the vehicle and asked him whether he had any hеroin on him. Defendant responded that he did and proceeded to reach into his front pocket and remove a bag containing a powdery substance that was later determined to be heroin. After being handсuffed, defendant claimed to be dizzy and appeared faint. This prompted Logue to radio emergency medical personnel, who responded to the scene and evaluated defendant. When defendant was informed by Logue that the police would accompany him to the hospital if he wished to go, defendant asked “how much time he was looking at” and then volunteered that he had additional heroin
To the extent that defendant contends that the reliability of the CI was not sufficiently established at the suppression hearing, we do not agree. Although the investigator acknowledged that he had not previously worked with the CI, a history of providing accurate information is not the only way to establish reliability. Reliability may be demonstrated “where details of [the CI‘s] story have been confirmed by police observation” (People v Rodriguez, 52 NY2d 483, 488-489 [1981]; see People v Elwell, 50 NY2d 231, 237 [1980]; People v Lambey, 197 AD3d 728, 729 [2021], lv denied 37 NY3d 1060 [2021]; People v Vargas, 72 AD3d 1114, 1115-1116 [2010], lv denied 15 NY3d 758 [2010]). Here, the CI had purchased heroin from defendant in the past, Logue observed the text communications between the CI and defendant in which the CI arranged the purchase and defendant agreed to sell the heroin, and officers observed a black male driving a vehicle that matched the description providеd by the CI show up at the address specified by the CI. The accuracy of the information that the CI conveyed to the police, the veracity of which the officers were able to confirm as they observed the events unfolding as she had described them, sufficiently demonstrated the CI‘s reliability (see People v Argyris, 24 NY3d 1138, 1140-1141 [2014], cert denied 577 US 1069 [2016]; People v Wolfe, 103 AD3d 1031, 1034 [2013], lv denied 21 NY3d 1021 [2013]; People v Glover, 23 AD3d 688, 688-689 [2005], lv denied 6 NY3d 776 [2006]; People v Alston, 1 AD3d 627, 628 [2003], lv denied 1 NY3d 594 [2004]; People v Mantia, 299 AD2d 664, 666 [2002], lv denied 99 NY2d 617 [2003]).
Based upon the information provided by the CI and the corroborating police observations, the officers “had reasonable suspicion of criminal activity to approach the already stopped vehicle and, upon doing so, were authorized to order [defendant] out of the vehicle” (People v Wolfe, 103 AD3d at 1034; see People v Pettigrew, 161 AD3d at 1308; People v Cook, 134 AD3d at 1243; People v Coffey, 107 AD3d 1047, 1049 [2013], lv denied
We also reject defendant‘s assertion that the physical evidence and statements obtained from him at the scene should have been suppressed because they were the product of custodial interrogation prior to the administration of Miranda warnings. Although defendant was seized within the meaning of the Fourth Amendment during the initial period of questioning outside of his vehicle (see People v Bennett, 70 NY2d at 893-894; People v Cantor, 36 NY2d 106, 111-112 [1975]; People v Strahin, 114 AD3d 1284, 1284 [2014], lv denied 23 NY3d 968 [2014]; People v Walker, 267 AD2d 778, 780 [1999], lv denied 94 NY2d 926 [2000]), the detention did not “constitute a restraint on his . . . freedom of mоvement of the degree associated with a formal arrest” (People v Bennett, 70 NY2d at 894; see People v Figueroa, 156 AD3d 1348, 1348 [2017], lv denied 31 NY3d 1013 [2018]; People v Shelton, 111 AD3d 1334, 1336 [2013], lv denied 23 NY3d 1025 [2014]; People v Richardson, 70 AD3d 1327, 1328 [2010], lv denied 15 NY3d 756 [2010]; People v Buchta, 182 AD2d 853, 854 [1992], lv denied 80 NY2d 829 [1992]). As defendant was not in custody at the time that he was questioned as to whether he had heroin on him, Miranda warnings did not need to precede the inquiry (see People v Bennett, 70 NY2d at 894; People v Buchta, 182 AD2d at 854). Although defendant‘s subsequent statements at the scene were mаde while he was handcuffed, in custody and at a time when he had not been advised of his Miranda rights, Logue‘s testimony — which County Court explicitly found to be consistent and credible — established that such statements were spontaneous and nоt the product of questioning or its functional equivalent (see People v Ero, 139 AD3d 1248, 1249 [2016], lv denied 28 NY3d 929 [2016]; People v Kenyon, 108 AD3d 933, 936 [2013], lv denied 21 NY3d 1075 [2013]; People v Rabideau, 82 AD3d 1283, 1284 [2011], lv denied 17 NY3d 799 [2011]; People v Starks, 37 AD3d 863, 864 [2007]). Our conclusion that defendant‘s statements were not the product of pre-Miranda custodial interrogation disposes of defendant‘s further contention
Finally, we do not perceive the sentence imposed to be harsh оr excessive. The sentence fell well within the permissible statutory range for defendant, a predicate violent felony offender. Considering defendant‘s criminal history and the fact that he agreed to the sentence as part of the plea agreement, we find no extraordinary circumstances or abuse of discretion warranting a modification of the sentence in the interest of justice (see People v Avera, 192 AD3d 1382, 1383 [2021], lv denied 37 NY3d 953 [2021]; People v Cancer, 185 AD3d 1353, 1354 [2020]; People v Latifi, 171 AD3d 1351, 1351 [2019]).
Egan Jr., J.P., Clark, Aarons and Reynolds Fitzgerald, JJ., concur.
ORDERED that the judgment is affirmed.