People v. Watford

178 N.Y.S.3d 833

The PEOPLE of the State of New York, Respondent,

v.Letroy WATFORD, Appellant.

112185

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

Calendar Date: October 12, 2022

Decided and Entered: December 1, 2022

Robert N. Gregor, Lake George, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Nichole M. Sands of counsel), for respondent.

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

MEMORANDUM AND ORDER

Lynch, J.P.

Appeal from a judgment of the County Court of Clinton County (Timothy J. Lawliss, J.), rendered July 24, 2019, convicting defendant following a nonjury trial of the crimes of criminal possession of a controlled substance in the third degree (two counts), tampering with physical evidence and unlawful possession of marihuana.

In January 2019, as part of a drug task force operation, a State Police investigator observed defendant cautiously exit a bus looking in both directions before stepping out into a parking lot with no luggage and enter the passenger side of an empty vehicle parked nearby. Upon running the vehicle's license plate (see People v. Bushey, 29 N.Y.3d 158, 163, 53 N.Y.S.3d 604, 75 N.E.3d 1165 [2017] ), the investigator discovered that it was registered to an individual connected to an ongoing narcotics investigation. Minutes later, an individual got into the driver's side of the vehicle, and the vehicle drove away. By then, the investigator had conveyed his observations and the vehicle information to nearby officers tasked to the operation. Among them was a state trooper who briefly pursued the vehicle, which was travelling faster than the posted speed limit, thereby providing probable cause for a traffic stop (see 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] ).

After stopping the vehicle, the trooper approached the passenger side and, during the ensuing conversation through the open window, detected the odor of unburnt marihuana. Upon the trooper's request, defendant exited the vehicle and, when the trooper asked him if he had anything on him, defendant admitted that he possessed a marihuana blunt and produced same. The trooper pat frisked defendant, who then attempted to flee on foot only to be apprehended moments later. While in the back of a patrol car following his arrest, defendant was observed throwing a small bag of cocaine out the window, some of which spilled on him and the seat.

Defendant was charged by indictment with two counts of criminal possession of a controlled substance in the third degree, tampering with physical evidence, resisting arrest, unlawful possession of marihuana and conspiracy in the fourth degree. Defendant moved to suppress all of the evidence and statements collected against him, asserting that his questioning and pat frisk outside of the vehicle violated his constitutional right against unlawful searches and seizures. A pretrial hearing ensued, during which the investigator and trooper testified to the above facts. County Court denied defendant's motion, holding, as relevant here, that the trooper validly asked defendant to exit the vehicle and converse with him.

Following a bench trial, defendant was convicted of two counts of criminal possession of a controlled substance in the third degree, tampering with physical evidence and unlawful possession of marihuana (see Penal Law §§ 220.16[1], [12] ; 215.40[2]; former 221.05). County Court sentenced defendant, as a second felony offender, to concurrent prison terms of eight years followed by three years of postrelease supervision for his criminal possession of a controlled substance convictions, and to a consecutive prison term of 1½ to 3 years for his tampering with physical evidence conviction; for his unlawful possession of marihuana conviction, defendant received an unconditional discharge. Defendant appeals, contending only that the trooper unlawfully asked him to exit the vehicle during the stop, requiring suppression of all evidence and statements flowing from that request.¹ We disagree, and therefore affirm.

Having effected a lawful stop of the vehicle (compare People v. Hinshaw, 35 N.Y.3d 427, 439, 132 N.Y.S.3d 90, 156 N.E.3d 812 [2020] ), the trooper was authorized "as a precautionary measure and without particularized suspicion" to order defendant to step out ( People v. Garcia, 20 N.Y.3d 317, 321, 959 N.Y.S.2d 464, 983 N.E.2d 259 [2012] ; see People v. Robinson, 74 N.Y.2d 773, 775, 545 N.Y.S.2d 90, 543 N.E.2d 733 [1989], cert denied 493 U.S. 966, 110 S.Ct. 411, 107 L.Ed.2d 376 [1989] ; People v. Gabriel, 155 A.D.3d 1438, 1441, 66 N.Y.S.3d 359 [3d Dept. 2017], lv denied 31 N.Y.3d 1081, 79 N.Y.S.3d 103, 103 N.E.3d 1250 [2018] ; People v. Ross, 106 A.D.3d 1194, 1196, 964 N.Y.S.2d 740 [3d Dept. 2013], lv denied 22 N.Y.3d 1090, 981 N.Y.S.2d 676, 4 N.E.3d 978 [2014] ). Defendant points out that the trooper did not indicate that his request for defendant to exit the vehicle was precautionary. Indeed, the trooper testified that his request stemmed from smelling the odor of marihuana and observing defendant's nervous behavior inside the vehicle, in particular, that defendant and the driver were shaking and whispering to each other. The Fourth Amendment inquiry centers on the reasonableness of the officer's actions in view of the circumstances (see People v. Kalabakas, 183 A.D.3d 1133, 1138, 124 N.Y.S.3d 448 [3d Dept. 2020], lv denied 35 N.Y.3d 1067, 129 N.Y.S.3d 407, 152 N.E.3d 1209 [2020] ; People v. Hines, 172 A.D.3d 1649, 1652, 99 N.Y.S.3d 786 [3d Dept. 2019], lv denied 34 N.Y.3d 951, 110 N.Y.S.3d 650, 134 N.E.3d 649 [2019] ). Applying this principle, the trooper's request was a reasonable precaution given the information known to the trooper at the time of the stop, the odor of marihuana and defendant's "extremely nervous" demeanor during the encounter (see People v. Martin, 156 A.D.3d 956, 957, 66 N.Y.S.3d 572 [3d Dept. 2017], lv denied 31 N.Y.3d 985, 77 N.Y.S.3d 663, 102 N.E.3d 440 [2018] ). We further note that at the time of the traffic stop, the underlying facts also provided probable cause for the trooper to search defendant (see People v. Sostre, 172 A.D.3d 1623, 1624, 100 N.Y.S.3d 768 [3d Dept. 2019], lv denied 34 N.Y.3d 938, 109 N.Y.S.3d 726, 133 N.E.3d 429 [2019] ; People v. Dolan, 165...