THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. [REDACTED], Appellant.
Appellate Division of the Supreme Court of New York, Third Department
73 A.D.3d 1342
Spain, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered February 9, 2009, upon a verdict convicting defendant of the crimes of assault in the first degree, robbery in the first degree (two counts), robbery in the second degree, criminal possession of a weapon in the second degree (two counts) and criminal possession of stolen property in the fourth degree.
Detectives arrived at the barracks around 10:20 p.m., provided Miranda warnings, and questioned both suspects—who denied any involvement in the shooting, but admitted having been in Albany briefly after giving a girl a ride from New York City. The detectives then transported the suspects and their car back to Albany. Brown identified defendant, who he knew as his drug supplier, and Tyrell, as the shooter, and provided a detailed account
Defendant’s central contention on appeal is that the roadside stop of his vehicle and the continued detention of his person exceeded the scope of an investigatory detention and constituted a de facto arrest without probable cause, requiring suppression of all evidence subsequently seized and obtained from the vehicle and from the cell phones, as well as his statement to police and Brown’s identification of them. We find that County Court correctly denied defendant’s motion to suppress this evidence.
Initially, we find that the vehicle was lawfully stopped by State Police on the Thruway and defendant was lawfully handcuffed and detained for questioning because they had reasonable suspicion that he had been involved in this shooting (see People v Hicks, 68 NY2d 234, 238 [1986]; People v Medina, 37 AD3d 240, 242 [2007], lv denied 9 NY3d 847 [2007]; People v Baptiste, 306 AD2d 562, 565 [2003], lv denied 1 NY3d 594 [2004]; see also People v Hollman, 79 NY2d 181, 184-185 [1992]; People v Allen, 73 NY2d 378, 379-380 [1989]; cf. People v May, 81 NY2d 725, 727 [1992]). The vehicle closely matched the BOLO alert description given by the victim, was headed toward New York City as the victim indicated it would be, and a prefelony stop check of the license plate number provided by the toll collector disclosed that it belonged to a woman residing
Upon being stopped, defendant and Tyrell were permissibly ordered to exit their vehicle with their hands up and directed to walk backward to the State Police vehicle; they complied and were patted down and placed in handcuffs in separate police vehicles. Their vehicle was quickly surveyed for other people and weapons (none were found). No guns were drawn, defendant was not questioned, and they awaited the arrival of the State Police supervisor. About 15 minutes later, Albany police were notified that suspects had been stopped and efforts were made to confirm that they matched the victim’s description. At the scene of the stop, the State Police supervisor spoke several times with an Albany detective, first when he was en route to the hospital from the scene of the shooting and then when he was with the victim who was being treated at the emergency room. Police then confirmed that the clothing worn by the vehicle occupants matched the victim’s by-then more detailed description,3 and that the suspects matched the physical descriptions provided by the victim to the first responder at the scene of the shooting: two black male assailants, one about six feet tall, with a thin build, 190 to 200 pounds, in his thirties and wearing a blue button-down shirt with long sleeves, and the other about five feet, six inches, stocky, 180 pounds, in his twenties, wearing a red polo shirt with blue and white stripes. The suspects were advised that they were being detained due to an incident that had occurred in Albany, which would be explained by Albany detectives who were en route to question them.
Under these circumstances, this non-arrest detention was within the scope of the lawful investigative stop, during which a shooting was investigated, because State Police knew that a crime had been committed in Albany, the period of detention and investigation was relatively brief given the condition and treatment of the victim and the distance involved, and “the [State] [P]olice diligently pursued a minimally intrusive means
We also find that, once State Police confirmed that the victim’s developing description of the physical appearances and clothing of the assailants matched the detained suspects, police in fact had “information sufficient to support a reasonable belief that an offense has been . . . committed [by defendant]” (People v Shulman, 6 NY3d 1, 25 [2005], cert denied 547 US 1043 [2006] [internal quotation marks and citation omitted]) and, thus, had probable cause to arrest defendant without a warrant (see
Finally, we are not persuaded by defendant’s claim that County Court failed to consider all relevant factors in imposing sentence, or that the sentence should be reduced as unduly harsh and excessive. The trial evidence demonstrated that defendant initiated the armed confrontation, accompanied by an apparent enforcer, as part of his drug distribution business over money allegedly due from the victim; moreover, after the victim was forced to lie face down, defendant urged Tyrell to “shoot him in the head.” Although defendant was acquitted of attempted murder, the sentencing court’s characterization of this shooting as “a cold, deliberate, premeditated business related hit” is unassailable. Thus, we cannot conclude that the aggregate 25-year predicate felon sentence constituted a clear abuse of discretion or that extraordinary circumstances are present to warrant modification (see People v Sieber, 26 AD3d 535, 536 [2006], lv denied 6 NY3d 853 [2006]).
Mercure, J.P., Rose, Lahtinen and Stein, JJ., concur. Ordered that the judgment is affirmed.