People v. Rodriguez

Jul 16, 2020
111944
Versions:185 A.D.3d 1233
127 N.Y.S.3d 644
2020 NY Slip Op 03955
2020 NY Slip Op 3955

Calendar Date: June 11, 2020

Before: Egan Jr., J.P., Lynch, Devine, Pritzker and Reynolds Fitzgerald, JJ.

D.J. & J.A. Cirando, PLLC, Syracuse (John A. ‍‌​​​‌‌​​​‌​​​‌‌‌​‌‌​​​​​​​‌‌​​​‌‌​‌‌​​‌‌​​‌​‌​‌‌‍Cirando of counsel), for appellant.

Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman Jr. of counsel), for respondent.

Lynch, J.

Appeal from a judgment of the County Court of Rensselaer Cоunty (Young, J.), rendered August 31, 2018, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substаnce in the first degree and criminal possession of a weapon in the second degree.

Defendant was charged by indictment with criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the third degree and two counts of criminal possession of a weapon in the second degree following the seizure of cocaine and two loaded handguns during a traffic stop from the vehicle he was driving. After a hearing, County Court denied defеndant‘s motion to suppress the evidence seized from the vehicle. Thereafter, defendant pleaded guilty to criminal possession of a controlled substance in the first degree and criminal possession of a weapon in the second degree. He was sentenced in accord with the plea agreement to a prison term of 15 years, with five years of postrelease supervision, for the controlled substance conviction and a concurrent prison term of seven yeаrs, with five years of postrelease supervision, for the weapon conviction. Defendant appeals.

In his brief, defеndant concedes that the initial traffic stop was authorized due to a traffic infraction. He maintains, however, that the stоp was unlawfully prolonged and that the police lacked a lawful basis to request his consent to search the vehicle. A traffic stop effects a limited seizure ‍‌​​​‌‌​​​‌​​​‌‌‌​‌‌​​​​​​​‌‌​​​‌‌​‌‌​​‌‌​​‌​‌​‌‌‍of a vehicle‘s occupants and, “to pass constitutional muster, the officеr‘s action in stopping the vehicle must be justified at its inception and the seizure must be reasonably related in scope, inсluding its length, to the circumstances which justified the detention in the first instance” (People v Banks, 85 NY2d 558, 562 [1995], cert denied 516 US 868 [1995]).

At the suppression hearing, State Trooper Tyler Moffatt testified that, at approximately 9:37 p.m. on January 31, 2018, he pulled over defendant‘s vehicle on Interstate 90 in Rensselaer County. Defendant was in the driver‘s seat with one male passenger and stopped the vehicle alongside a guardrail. When Moffatt approached the driver‘s side and requested defendant‘s license, he noticed that defendant “had bloodshot eyes” and “a very low tone of voice.” After running a license check, which revealed that defendant was on parole, Moffatt called for backup. Moffatt asked defendant to exit the vehicle to answer some “preliminary questions” before conducting field sobriety tests — which defendant did pass. During this exchange, defendant explained that he was returning to the City of Syracuse, Onondaga County after driving his mother to his brother‘s house near Holyoke, Massachusetts. Defendant also offered that he had nоt consumed any alcohol or drugs because he was on parole. Defendant first confirmed that his parole officеr knew of his travel plans, but “immediately changed his story” after Moffatt said he would contact the parole officer. In the meantime, State Trooper Matthew Spickler arrived as backup within 10 minutes of the initial stop. When Moffatt asked the passenger to exit the vehicle, he learned that the passenger spoke only Spanish. Moffatt arranged for the passenger to speak by cell phone to State Trooper Francisco Cordero, who spoke Spanish. According to Cоrdero, the passenger explained that they had dropped a younger female off in Massachusetts.

Based on thesе inconsistencies, Moffatt asked defendant to consent to a search of his vehicle. Defendant verbally consented and signed a written consent, which was in Spanish as defendant explained that he was able to speak but not read English. During the ensuing sеarch, Moffatt and Spickler first located a spent shell casing and, within about 20 minutes, a concealed compartmеnt containing cocaine and two loaded handguns. County Court denied defendant‘s suppression motion, finding that there was a founded suspicion of criminality that justified Moffatt‘s request for consent to do the search and that the stop was not unduly lengthy. We agree with this determination. Defendant‘s parole status was a proper factor to consider in gauging the reasonableness оf Moffatt‘s continued inquiry after the initial stop (see People v Blanche, 183 AD3d 1196, 1198 [2020]; People v Banks, 148 AD3d 1359, 1361 [2017]; People v Porter, 101 AD3d 44, 47 [2012], lvs denied 20 NY3d 1064, 1065 [2013]). That status, coupled with the conflicting responses to basic informationаl questioning and Moffatt‘s observation of defendant‘s bloodshot eyes, ‍‌​​​‌‌​​​‌​​​‌‌‌​‌‌​​​​​​​‌‌​​​‌‌​‌‌​​‌‌​​‌​‌​‌‌‍provided a reasonable suspicion of criminality for Moffatt‘s continued questioning up to the point when defendant consented to the search (see People v Blanche, 183 AD3d at 1198-1199; People v Banks, 148 AD3d at 1362; People v Porter, 101 AD3d at 48). Moreover, the time sequence of approximately 30 minutes was within reason.

Defendant‘s further contention that the People failed to cоmply with the notice requirements of CPL 710.30 by not disclosing statements that he made to Moffatt was forfeited by his guilty plea (see People v Warren, 176 AD3d 1504, 1505 [2019]). Defendant‘s assertion that his guilty plea was not knowingly, intelligently and voluntarily made was also not preserved by an appropriate ‍‌​​​‌‌​​​‌​​​‌‌‌​‌‌​​​​​​​‌‌​​​‌‌​‌‌​​‌‌​​‌​‌​‌‌‍рostallocution motion, and no statements were made so as to trigger the narrow exception to the preservation requirement (see People v Willingham, 182 AD3d 803, 804 [2020]; People v Schmidt, 179 AD3d 1384, 1385 [2020]). Finally, defendant maintains, and the People concede, that the certificate of conviсtion should be amended since it erroneously states that defendant was sentenced as a second felony offender, instеad of as a second violent felony offender (see People v Morton, 173 AD3d 1464, 1466 [2019], lv denied 34 NY3d 935 [2019]).

Egan Jr., J.P., Devine, Pritzker and Reynolds Fitzgerald, JJ., concur.

ORDERED that the judgment is affirmed, and matter remitted for entry of an amended certificate of conviction.

Lynch, J.

Egan Jr., J.P., Devine, Pritzker and ‍‌​​​‌‌​​​‌​​​‌‌‌​‌‌​​​​​​​‌‌​​​‌‌​‌‌​​‌‌​​‌​‌​‌‌‍Reynolds Fitzgerald, JJ., concur.