People v. Bookman

131 A.D.3d 1258, 16 N.Y.S.3d 848

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 30, 2015
• Docket: 2014-01787
• Status: Published

Opinions

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.), rendered January 31, 2014, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Lasak, J.), of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

Ordered that the judgment is affirmed.

On November 2, 2010, in Queens County, a police officer stopped his patrol car at a red light, behind a Nissan Altima. Upon noticing that the Altima’s center brake light was inoperative and that several items, including an ornamental sandal, were hanging from the rearview mirror, the officer signaled to the driver of the Altima to pull over. When the officer approached the Altima after the driver complied, the officer saw a “cloudy” plastic bag on a cupholder in the center console. Believing that the plastic bag contained cocaine residue, the officer arrested the Altima’s three occupants, including the defendant, who was a passenger. Upon searching the vehicle at the precinct station house, the officer found a loaded handgun in the Altima’s trunk.

The defendant moved, inter alia, to suppress the gun on the ground that the police officer who stopped the Altima did not have probable cause to believe that the inoperative center brake lamp or the items hanging from the rearview mirror were infractions under the Vehicle and Traffic Law. The suppression court denied that branch of the defendant’s omnibus motion, and the defendant ultimately pleaded guilty to one count of attempted criminal possession of a weapon in the second degree. On this appeal, he contends that the stop of the Altima was improper.

Initially, we conclude that the defendant’s purported waiver of the right to appeal is not enforceable, since the record does not demonstrate that the defendant “grasped the concept of the appeal waiver and the nature of the right he was forgoing” (People v Bradshaw, 18 NY3d 257, 267 [2011]; see People v Jemmott, 125 AD3d 1005, 1005 [2015]). The court never explained to the defendant the nature of the right to appeal. Moreover, although the defendant signed a written waiver of the right to appeal, the record contains no information about the circumstances under which it was executed, including whether the defendant read it, was aware of its contents, or understood it (see People v Brown, 122 AD3d 133, 139 [2014]; People v Reyes, 121 AD3d 820, 821 [2014]). Because the record does not establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal, review of his claim regarding the suppression ruling is not foreclosed (see People v Jemmott, 125 AD3d at 1005).

A suppression court’s credibility findings are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record (see People v Rowley, 127 AD3d 884, 885 [2015]; Matter of Jose T., 127 AD3d 875, 876-877 [2015]; People v Reaves, 112 AD3d 746, 747 [2013]). Here, the suppression court’s credibility finding is supported by the record and we therefore decline to disturb it (see Matter of Jose T., 127 AD3d at 877).

Under the Fourth Amendment to the United States Constitution and article I, § 12, of the New York State Constitution, a police officer may stop a vehicle when the officer has probable cause to believe that the driver of the vehicle has committed a traffic infraction (see People v Guthrie, 25 NY3d 130, 133 [2015]; People v Robinson, 97 NY2d 341, 349 [2001]). In this case, the credible evidence adduced at the suppression hearing established that the police had probable cause to stop the Altima. The officer who stopped the Altima testified that when he stopped his patrol car behind the Altima, he saw an ornamental sandal on a string and a necklace hanging from the Altima’s rearview mirror. The officer further testified that the sandal was four to five inches long and “[p]ossibly about [two] inches in width,” and that it was hanging about four to five inches beneath the rearview mirror. Contrary to the defendant’s contention and to our colleague’s dissent, this testimony demonstrated that the officer had reasonable cause to believe that the sandal was hung “in such a manner as to obstruct or interfere with the view of the operator through the windshield” (Vehicle and Traffic Law § 375 [30]; cf. People v O’Hare, 73 AD3d 812, 813 [2010]). Accordingly, the officer’s stop of the Altima was not improper (see People v Guthrie, 25 NY3d at 133; cf. People v O’Hare, 73 AD3d at 813). Probable cause does not require certainty, and the officer’s testimony about the size and location of the ornaments was sufficient to establish probable cause.

One point need be made with respect to the dissent. Although our dissenting colleague asserts that credibility is not at issue, much of the dissent implicitly challenges the arresting officer’s credibility. For example, the dissent makes much of the fact that the arresting officer did not issue traffic summonses to the defendant. While true, it seems reasonable to us that the significance of the traffic violations diminished in the officer’s mind when he saw what he believed to be cocaine on the center console. Moreover, by the time the police permitted the driver’s girlfriend to drive the car away from the station house following the search and recovery of the loaded handgun, the case had escalated from one involving, at most, a misdemeanor drug possession to one involving a class C violent felony offense, thereby diminishing the importance of the traffic violations even more. In any event, the indictment itself contained counts alleging the traffic violations about which the officer had testified.

Finally, because the officer had probable cause to stop the Altima in light of the violation of Vehicle and Traffic Law § 375 (30), the parties’ contentions regarding the inoperative center brake light are academic.

Balkin, J.P., Sgroi and LaSalle, JJ., concur.