Judgment, Supreme Court, New York County (Ira F. Beal, J.), rendered September 13, 1989, convicting defendant of criminal possession of stolen property in the fourth degree, unauthorized use of a vehicle in the third degree, and criminal possession of a controlled substance in the seventh degree, and sentencing him to concurrent terms of 2 to 4 years in prison, 90 days and 90 days, respectively, is affirmed.
The facts are accurately stated in Justice Smith’s concurring memorandum. The defendant and the People are in agreement that the issue of the legality of the stop of the vehicle was fully litigated at the Huntley hearing held on defendant’s motion to suppress a statement made to the police, and that this court should decide the issue on the facts [485] adduced at that hearing. The defendant does not argue that the police acted improperly when they stopped their vehicle behind the stolen Oldsmobile. Rather, he urges that the police acted improperly in ordering him to pull the car over when he started the car and began to pull away from the curb.
The police approached the parked vehicle "to investigate to see if the occupants of the vehicle were okay”, or if there was "criminal activity going on inside the vehicle.” As noted in the concurring memorandum’s statement of facts, the street was described as " 'desolate’ ”, with neither commercial nor residential buildings in the area. The street was also classified as a " 'precinct condition’ ” because of the high level of criminal activity centered there, including robberies, drugs and stolen vehicles.* Under these circumstances the police certainly were warranted in making a brief inquiry to see if, for instance, the female passenger was being held against her will, or was possibly the victim of an attempted robbery or sexual assault. After the defendant started the car and began to pull away, obviously in response to the police approach, it would have been irresponsible for the police to simply allow the car to leave, for obvious reasons. As in People v De Bour (40 NY2d 210, 220), the encounter here was devoid of harassment or intimidation, and was brief, lasting only a few minutes, with questions circumscribed in scope to the officers’ task as radio motor patrolmen (i.e., to produce a license, registration and proof of insurance, which defendant could not produce).
In De Bour (supra), the Court of Appeals held that judicial review of police conduct in a citizen encounter requires weighing the interference such conduct entails against the precipitating and attendant conditions known to the police as the encounter enfolds, and that the permissible scope of police intervention in a citizen encounter must correlate with the degree of the officers’ objectively credible belief as to what those conditions indicate. Here, the only reasonable conclusion is that "the level of police intrusion was an appropriate response to the observations and beliefs of the officers involved.” (People v Leung, 68 NY2d 734, 736; see, People v Roman, 167 AD2d 262, lv denied 77 NY2d 881.)
We disagree with the conclusion in the concurring memorandum that the defendant was not entitled to a Mapp hear[486] ing (Mapp v Ohio, 367 US 643) simply by virtue of the fact that he had no right to privacy in the stolen car. People v Wesley (73 NY2d 351), and other leading cases addressing the "legitimate expectation of privacy” issue, do not support Justice Smith’s conclusion in this regard.
In Rakas v Illinois (439 US 128), the police searched an automobile in which the defendants were riding, and the prosecution admitted into evidence incriminating items seized as a result of that search. The Supreme Court held that since the defendants asserted no property or possessory interest in the automobile, they had no legitimate expectation of privacy in the particular areas of the automobile that were searched, and so had no constitutional grounds to suppress the seized evidence. (See, California v Acevedo, 500 US —, 114 L Ed 2d 619.)
In People v Wesley (73 NY2d 351, supra), the police searched a house occupied by the defendant’s girlfriend, and discovered marijuana and a gun, which were introduced at trial against the defendant. The Court of Appeals stated the central tenet of its holding as follows (73 NY2d, supra, at 359): "Placing upon a defendant the burden of asserting an interest in the searched premises at the pretrial stage is fair, sensible and consonant with this court’s long-established view that Fourth Amendment rights are personal. While the People will, of course, have some notion before trial of how the defendant’s possession of the seized contraband is to be proved, it is after all the defendant alone who actually knows his or her connection with the searched area (see, People v Gomez, 67 NY2d 843, 844, supra). It is thus neither unjust nor unreasonable to require that the defendant set forth that interest, protected by the rule that such testimony cannot be used to prove the charges.”
Similarly, in People v Ponder (54 NY2d 160), the Court of Appeals held that the defendant had no reasonable expectation of privacy in his grandmother’s home, and so had no grounds for moving to suppress evidence found therein after a warrantless search.
In the case now before us, the evidence was seized from defendant’s pocket, not from the stolen automobile, so the principle enunciated in Rakas (supra), Wesley (supra) and Ponder (supra) with respect to a defendant’s reasonable expectation of privacy in an automobile or living premises as a prerequisite to his moving to suppress evidence seized therein, is inapplicable. In other words, the defendant was not re[487] quired to assert a reasonable expectation of privacy in the stolen automobile in order to obtain a Mapp hearing because it was not a search of the stolen automobile that turned up the cocaine.
We add, in response to Presiding Justice Murphy’s dissent, that the police merely directed the driver to pull over after the car was started and began to move away, in response to the police presence, which in the particular circumstances presented raised a reasonable suspicion that the driver had something to hide from the police, i.e. that criminal activity was afoot. Significantly, in People v Cantor (36 NY2d 106, 113), the Court of Appeals specifically observed: "Nor was the defendant’s behavior furtive or evasive”. Here, the defendant’s actions were evasive. As previously noted, supra, the police acted properly in attempting to make a brief inquiry to see if the female passenger was being held against her will, or was possibly the victim of an attempted robbery or sexual assault. After the defendant started the car and began to pull away, obviously in response to the police approach, it would have been irresponsible for the police to simply allow the car to leave.
The dissent appears to conclude from the fact that the police ordered the car to pull over, that there was an unreasonable and unjustified seizure of the defendant at that point. To the contrary, the police merely exercised their common-law right to inquire, pursuant to which "a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure”. (People v De Bour, 40 NY2d, supra, at 223.)
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Judgment, Supreme Court, New York County (Ira F. Beal, J.), rendered September 13, 1989, convicting defendant of criminal possession of stolen property in the fourth degree, unauthorized use of a vehicle in the third degree, and criminal possession of a controlled substance in the seventh degree, and sentencing him to concurrent terms of 2 to 4 years in prison, 90 days and 90 days, respectively, is affirmed.
The facts are accurately stated in Justice Smith’s concurring memorandum. The defendant and the People are in agreement that the issue of the legality of the stop of the vehicle was fully litigated at the Huntley hearing held on defendant’s motion to suppress a statement made to the police, and that this court should decide the issue on the facts [485] adduced at that hearing. The defendant does not argue that the police acted improperly when they stopped their vehicle behind the stolen Oldsmobile. Rather, he urges that the police acted improperly in ordering him to pull the car over when he started the car and began to pull away from the curb.
The police approached the parked vehicle "to investigate to see if the occupants of the vehicle were okay”, or if there was "criminal activity going on inside the vehicle.” As noted in the concurring memorandum’s statement of facts, the street was described as " 'desolate’ ”, with neither commercial nor residential buildings in the area. The street was also classified as a " 'precinct condition’ ” because of the high level of criminal activity centered there, including robberies, drugs and stolen vehicles.* Under these circumstances the police certainly were warranted in making a brief inquiry to see if, for instance, the female passenger was being held against her will, or was possibly the victim of an attempted robbery or sexual assault. After the defendant started the car and began to pull away, obviously in response to the police approach, it would have been irresponsible for the police to simply allow the car to leave, for obvious reasons. As in People v De Bour (40 NY2d 210, 220), the encounter here was devoid of harassment or intimidation, and was brief, lasting only a few minutes, with questions circumscribed in scope to the officers’ task as radio motor patrolmen (i.e., to produce a license, registration and proof of insurance, which defendant could not produce).
In De Bour (supra), the Court of Appeals held that judicial review of police conduct in a citizen encounter requires weighing the interference such conduct entails against the precipitating and attendant conditions known to the police as the encounter enfolds, and that the permissible scope of police intervention in a citizen encounter must correlate with the degree of the officers’ objectively credible belief as to what those conditions indicate. Here, the only reasonable conclusion is that "the level of police intrusion was an appropriate response to the observations and beliefs of the officers involved.” (People v Leung, 68 NY2d 734, 736; see, People v Roman, 167 AD2d 262, lv denied 77 NY2d 881.)
We disagree with the conclusion in the concurring memorandum that the defendant was not entitled to a Mapp hear[486] ing (Mapp v Ohio, 367 US 643) simply by virtue of the fact that he had no right to privacy in the stolen car. People v Wesley (73 NY2d 351), and other leading cases addressing the "legitimate expectation of privacy” issue, do not support Justice Smith’s conclusion in this regard.
In Rakas v Illinois (439 US 128), the police searched an automobile in which the defendants were riding, and the prosecution admitted into evidence incriminating items seized as a result of that search. The Supreme Court held that since the defendants asserted no property or possessory interest in the automobile, they had no legitimate expectation of privacy in the particular areas of the automobile that were searched, and so had no constitutional grounds to suppress the seized evidence. (See, California v Acevedo, 500 US —, 114 L Ed 2d 619.)
In People v Wesley (73 NY2d 351, supra), the police searched a house occupied by the defendant’s girlfriend, and discovered marijuana and a gun, which were introduced at trial against the defendant. The Court of Appeals stated the central tenet of its holding as follows (73 NY2d, supra, at 359): "Placing upon a defendant the burden of asserting an interest in the searched premises at the pretrial stage is fair, sensible and consonant with this court’s long-established view that Fourth Amendment rights are personal. While the People will, of course, have some notion before trial of how the defendant’s possession of the seized contraband is to be proved, it is after all the defendant alone who actually knows his or her connection with the searched area (see, People v Gomez, 67 NY2d 843, 844, supra). It is thus neither unjust nor unreasonable to require that the defendant set forth that interest, protected by the rule that such testimony cannot be used to prove the charges.”
Similarly, in People v Ponder (54 NY2d 160), the Court of Appeals held that the defendant had no reasonable expectation of privacy in his grandmother’s home, and so had no grounds for moving to suppress evidence found therein after a warrantless search.
In the case now before us, the evidence was seized from defendant’s pocket, not from the stolen automobile, so the principle enunciated in Rakas (supra), Wesley (supra) and Ponder (supra) with respect to a defendant’s reasonable expectation of privacy in an automobile or living premises as a prerequisite to his moving to suppress evidence seized therein, is inapplicable. In other words, the defendant was not re[487] quired to assert a reasonable expectation of privacy in the stolen automobile in order to obtain a Mapp hearing because it was not a search of the stolen automobile that turned up the cocaine.
We add, in response to Presiding Justice Murphy’s dissent, that the police merely directed the driver to pull over after the car was started and began to move away, in response to the police presence, which in the particular circumstances presented raised a reasonable suspicion that the driver had something to hide from the police, i.e. that criminal activity was afoot. Significantly, in People v Cantor (36 NY2d 106, 113), the Court of Appeals specifically observed: "Nor was the defendant’s behavior furtive or evasive”. Here, the defendant’s actions were evasive. As previously noted, supra, the police acted properly in attempting to make a brief inquiry to see if the female passenger was being held against her will, or was possibly the victim of an attempted robbery or sexual assault. After the defendant started the car and began to pull away, obviously in response to the police approach, it would have been irresponsible for the police to simply allow the car to leave.
The dissent appears to conclude from the fact that the police ordered the car to pull over, that there was an unreasonable and unjustified seizure of the defendant at that point. To the contrary, the police merely exercised their common-law right to inquire, pursuant to which "a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure”. (People v De Bour, 40 NY2d, supra, at 223.)
Nor was the defendant searched "as a direct consequence” of complying with the order to pull the car over. As Justice Smith noted in his factual recitation, which the majority has adopted, the officers approached the car, and one officer asked for the car’s license, registration and insurance card. Defendant could not produce them. The other officer noticed that a towel had been draped over the steering wheel, hiding the fact that the ignition lock had been pulled out and the wiring removed. A check at the scene resulted in a report that the car was stolen. Only then was the defendant arrested and searched.
Our inquiry, as the Supreme Court stated in Terry v Ohio (392 US 1, 20) "is a dual one—whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” "And in making that assessment it [488] is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or search 'warrant a man of reasonable caution in the belief that the action taken was appropriate?” (392 US, supra, at 21-22.) We have little hesitation in concluding that the conduct of the officers here, measured by the common sense principles enunciated in Terry v Ohio (supra), was entirely appropriate.
Defendant’s remaining contentions, that the court’s supplemental charge on the meaning of the term "use” when applied to a car was inadequate, and that the sentence was excessive, are without merit. Concur—Carro, Kupferman and Smith, JJ. Smith, J., concurs separately in a memorandum in which Kupferman, J., also concurs; and Murphy, P. J., dissents in a memorandum as follows: