People v. Jones

210 A.D.3d 150

177 N.Y.S.3d 174

The PEOPLE of the State of New York, Respondent,

v.Bruce JONES, Appellant.

110496, 113013

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 8, 2022

Decided and Entered: October 20, 2022

Christopher Hammond, Cooperstown, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Philip A. Alvaro of counsel), for respondent.

Before: Lynch, J.P., Aarons, Reynolds Fitzgerald, Fisher and McShan, JJ.

OPINION AND ORDER

Lynch, J.P.

Appeals (1) from a judgment of the County Court of Chemung County (Christopher P. Baker, J.), rendered March 5, 2018, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree, and (2) by permission, from an order of said court (Ottavio Campanella, J.), entered July 15, 2021, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In connection with the discovery of a loaded semi-automatic handgun during a traffic stop of a vehicle in which defendant was a passenger, defendant was charged by indictment with criminal possession of a weapon in the second degree. Defendant filed an omnibus motion seeking, among other things, suppression of certain statements made to police. Defendant later withdrew his request for a Huntley hearing in exchange for Rosario material provided by the People. Represented by new counsel, defendant ultimately pleaded guilty as charged in exchange for a prison term of six years, with 2½ years of postrelease supervision, to run concurrently with a sentence in another pending matter. He was later sentenced in accord with the plea agreement.

Defendant thereafter moved pursuant to CPL 440.10 to vacate the judgment of conviction arguing, as pertinent here, that he was deprived of the effective assistance of counsel due to the failure to seek suppression of the handgun on the ground that his constitutional rights were violated by a racially-motivated traffic stop. He also asserted a violation of his constitutional rights – separate and distinct from his ineffective assistance of counsel claim – based on the allegedly discriminatory police stop. Defendant, who is black, supported this claim with sworn affidavits from himself and the vehicle's driver. The driver – a white woman – averred in her affidavit that, during the police encounter, the investigator who initiated the stop chided her, saying "you stupid little white b* * * *, you think this black guy cares about you, but he's just using you to run drugs." In a July 2021 order, County Court denied the motion without a hearing. Defendant appeals from the judgment of conviction and, by permission of this Court, from the July 2021 order.

As for defendant's direct appeal, his claim of ineffective assistance of counsel premised on perceived deficiencies in his attorneys’ respective motion practice and discovery efforts was forfeited by his unchallenged guilty plea (see People v. Darby, 206 A.D.3d 1165, 1169, 170 N.Y.S.3d 279 [3d Dept. 2022], lv denied 38 N.Y.3d 1149, 174 N.Y.S.3d 50, 194 N.E.3d 757 [2022] ; People v. Rutigliano, 159 A.D.3d 1280, 1281, 73 N.Y.S.3d 674 [3d Dept. 2018], lv denied 31 N.Y.3d 1121, 81 N.Y.S.3d 381, 106 N.E.3d 764 [2018] ; People v. Islam, 134 A.D.3d 1348, 1349, 21 N.Y.S.3d 648 [3d Dept. 2015] ). In any event, defendant's assertion that both of his attorneys failed to act on his claim of racial profiling by moving to suppress the handgun concerns matters "appearing both in the record on direct appeal and outside of the record, ... present[ing] a mixed but unified claim that is properly addressed in [his] CPL 440.10 motion" ( People v. Thacker, 173 A.D.3d 1360, 1361 n. 2, 102 N.Y.S.3d 764 [3d Dept. 2019], lv denied 34 N.Y.3d 938, 109 N.Y.S.3d 730, 133 N.E.3d 434 [2019] ; see People v. Ballard, 200 A.D.3d 1476, 1479, 159 N.Y.S.3d 242 [3d Dept. 2021], lv denied 38 N.Y.3d 925, 164 N.Y.S.3d 6, 184 N.E.3d 827 [2022] ).

Turning to that motion, defendant claims that both of his attorneys failed to adequately investigate the case as an encounter premised on racial profiling and to move to suppress the handgun recovered from the vehicle on that basis (see CPL 440.10[1][h] ). With respect to a traffic stop, "a police officer who has probable cause to believe that a driver has committed a traffic infraction may stop a vehicle without violating either the Fourth Amendment of the U.S. Constitution or article 1, § 12 of the N.Y. Constitution, even if the officer's primary motivation is to conduct another investigation" ( People v. Blandford, 190 A.D.3d 1033, 1035, 138 N.Y.S.3d 710 [3d Dept. 2021], affd 37 N.Y.3d 1062, 155 N.Y.S.3d 1, 176 N.E.3d 1043 [2021], cert denied ––– U.S. ––––, 142 S.Ct. 1382, 212 L.Ed.2d 333 [2022] ; see People v. Hinshaw, 35 N.Y.3d 427, 430–437, 132 N.Y.S.3d 90, 156 N.E.3d 812 [2020] ; People v. Robinson, 97 N.Y.2d 341, 346, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001] ). As recounted in the police incident report and the grand jury testimony of the officers involved in the arrest, during the afternoon of July 7, 2017, a lieutenant with the City of Elmira Police Department was conducting stationary surveillance near a convenience store due to recent complaints of narcotics activity when he observed a vehicle pull into the store's parking lot. The lieutenant observed a black male, later identified as defendant, exit the passenger side and walk toward a residential area where the reported narcotics activity took place. The lieutenant also observed a white female exit the driver's side and enter the store. After a few minutes, the female returned to the vehicle, as did defendant. The lieutenant, in the meantime, had communicated his observations to an investigator, who was on what he described as an "impact detail" to patrol for drug activity. During that communication, the lieutenant said to the investigator, "Hey, do you want to come up in this area in the event that this leads ... to something?" The lieutenant observed the vehicle exit the parking lot without using a turn signal and take another left turn without a turn signal, and he communicated this observation to the investigator. The investigator was, by that point, positioned behind the vehicle and effected a traffic stop.

The investigator spoke with the driver, who provided her license and explained that she was late picking up her son. The investigator then approached the passenger side and asked defendant to identify himself. When defendant inquired why the investigator needed his name, the driver pulled defendant's identification from her purse and handed it to the investigator. The investigator then had defendant exit the vehicle and conducted a pat frisk, which did not yield any contraband. The investigator explained that defendant had been observed walking in an area known for narcotics activity, to which defendant responded that he was going to his cousin's house – an address the investigator associated with drug activity. By this point, the driver was also out of the vehicle and explained that defendant walked into the neighborhood to pick up her son at a party but agreed to return once the party was over. Considering this explanation inconsistent, the investigator inquired as to whether there was "anything in the car that was illegal." The driver denied as much and refused the investigator's initial request to search the vehicle, whereupon the investigator advised that he was calling for a K–9 unit. Defendant, in turn, told the investigator that he was leaving and proceeded to do so. According to the investigator, once the driver was informed that her car would not be damaged by a search, she replied, "Well, go ahead and look then."

The investigator opened the passenger door and observed a blue backpack on the bench seat. He opened the backpack and discovered a black semi-automatic handgun. The driver explained that the gun was not hers. She later elaborated that defendant put something in the backpack as they were being pulled over. In the meantime, defendant was picked up by a patrol unit and brought to the police station. While there, the investigator asked defendant if he wanted to talk about "the stuff in the car" and defendant responded, "You want to talk about a weapon that wasn't found on me?" When the investigator pointed out that he had not mentioned a weapon, defendant requested a lawyer. A short time later, defendant acknowledged that he possessed the handgun.

Viewing this traffic stop scenario as one in which the officers were actually motivated to search for drugs, the stop would be valid under the traffic infraction standard enunciated in Robinson (see People v. Robinson, 97 N.Y.2d at 349, 741 N.Y.S.2d 147, 767 N.E.2d 638 ). Defendant essentially maintains, however, that the purported drug investigation was pretextual – that is, the traffic stop here was not really premised on a drug investigation but instead motivated by the racial profiling of an interracial couple. Defendant posits in his brief that, under the Robinson standard, "it is not clear in the law whether a pretextual traffic stop is valid, and evidence seized as a result of the stop admissible as evidence, when the stop was motivated by racial profiling."

In finding that a traffic violation provides probable cause for a traffic stop, the Robinson Court explained that "neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant" ( id. ). In 2016, the First Department interpreted Robinson to mean that "a police stop that is motivated by discrimination or pretext may still be upheld if it is otherwise supported" by either reasonable suspicion (as was the standard being assessed in that case) or, in the case of a traffic violation, by probable cause ( Patrolmen's Benevolent Assn. of the City of N.Y., Inc. v. City of New York, 142 A.D.3d 53, 66, 35 N.Y.S.3d 314 [1st Dept. 2016] [emphasis...