The People, Appellant,v.Ricky D. Gates, Respondent.BriefN.Y.April 24, 2018' WKtfM Immi To Be Argued h> .® George R Shaffer, 111, Hsq. Estimated Time: 15 minutes jjjgjj W: Hi SUPREME COURT OF THE STATE OF NEW YORK I =HIH i11 ||j|| V: APPELLATE DIVISION, FOURTH DEPARTMENT M THE PEOPLE OF THE STATE OF NEW YORK, ■m iiainiiff-Respondent1u against mRICKY CATES:M i? Defendant-Appe'tlan! jjj ■M Appellate Division Docket Number KA 16-02069 Jefferson County Indictment Number 274-14 ■ yy — ; 2Cr ~ Dr cT— zr - - _ RESPONDENT’S BRIL I 9H jyg KRISTYNA S. MILLS Jefferson County District Attorney George R. Shaffer, III, of counsel, 175 Arsenal Save., ' I ..>or Watertown, New York 1 3601 (315) 785-3053 jjjg! jj|(§jj nHi nunn j8j BBMBI HBHI - Table of Contents Page(s): 2Table of Cases and Authorities. 3Preliminary Statement. 4Statement of Facts and Procedural Posture. 12Questions Presented. Argument: 13The Appellant knowingly waived his Miranda Rights.Point I: 18The Police had probable cause to search the vehicle.Point II: The Appellant unequivocally waived his right to counsel. 23Point III: 26Point IV: The Appellant’s guilty plea was properly entered, 29Conclusion. 1 Table of Cases and Authorities Page(s)Cases: Berkemer v. Mccarty, 468 U.S. 420 (1984) Davis v United States, 512 US 452 (1994) Miranda v. Arizona, 3 84 U.S. 436 (1966) Pennsylvania v. Mimms, 434 U.S. 106 (1977) People v. Aguayo, 829 N.Y.S.2d 350 (4th Dept. 2007).... People v. Battaglia, 86 N.Y.2d 755 (1995) People v Belton, 55 NY2d 49 (1982) People v. Bennett, 70 N.Y.2d 891 (1987) People v. Bonilla, 82 N.Y.2d 825 (1993) People v. Branden, 524 N.Y.S.2d 787 (2nd Dept. 1988)... People v. Brito, 244 A.D.2d 631 (3rd Dept. 1997) People v DeBour, 40 NY2d 210 (1976) People v. Dunbar, 5 N.Y.3d 834 (2005) People v. Francisco, 880 N.Y.S.2d 806 (4th Dept. 2009). People v. Gayden, 889 N.Y.S.2d 131 (4th Dept. 2009).... People v. Glover, 87 N.Y.2d 838 (1995) People v. Harris, 111 N.Y.S.2d 767 (4th Dept. 2004) People v. Hollman, 79 N.Y.2d 181 (1992) People v McCarley, 865 N.Y.S.2d 459 (4th Dept. 2008).. People v Mitchell, 2 NY3d 272 (2004) People v Morales, 65 NY2d 997 (1985) People v. Paulman, 5 N.Y.3d 122 (2005) . People v. Peterson, 825 N.Y.S.2d 622 (4th Dept. 2006)... People v. Ralston, 757 N.Y.S.2d 414 (4th Dept. 2003).... People v. Robinson, 74 N.Y.2d 773 (1989) People v. Robinson, 97 N.Y.2d 341 (2001) People v. Rodney, 85 N.Y.2d 289 (1995) People v Tejeda, 630 N.Y.S.2d 160 (4th Dept. 1995) People v. Vaughan, 850 N.Y.S.2d 735 (4th Dept. 2008)... People v. Yukl, 25 N.Y.2d 585 (1969) Rhode Island v. Innis, 446 U.S. 291 (1980) Terry v. Ohio, 3$2 U.S. 1 (1968) US. v. Whren, 517 U.S. 806 (1996) 14,15 23 .8, 9, 13-17, 24, 25 19 26,28 19 15 14 13 14 19 15, 18-20, 22 18 20 22 23 28 18, 19 19 23 15 13, 16 28 19 19 19 16 19 24, 25 14 14 14, 15 19 Authorities: United States Constitution Fourth Amendment Criminal Procedure Law Section 710.60, subdivision 6, New York State Constitution Article I Section 12 New York Tax Law Section 1814, subdivision c(l),(2). 15 ,6, 13,22, 25 15 3,11 2 PRELIMINARY STATEMENT This is an appeal from Indictment No. 15-274-14 from a judgement of conviction, entered August 6, 2015, in Jefferson County Court (Kim Martusewicz, J.), for the crime of Possession/Transporting Thirty Thousand or More Untaxed Cigarettes and the traffic violation of Speeding (82/65 zone), following an August 6, 2015 plea of guilty. Following Appellant’s plea of guilty to one count of New York State Tax Law §1814(c)(2), he was sentenced to a three year conditional discharge, forfeiture of $18,835 U.S. currency, and $1767 in uncashed checks, the surcharges were waived, and a mandatory DNA fee of $50 was imposed. Notice of appeal was filed on August 26, 2015. On March 24, 2016, during the pendency of the conditional discharge, the Appellant was arrested in the Town of Leray, Jefferson County, NY, for violating New York State Tax Law§ 1814(c)(1) Possession/Transporting Ten Thousand or More Untaxed Cigarettes. A violation of the conditional discharge was filed in Jefferson County Court by the People on September 19, 2017. On March 1, 2017, Appellant admitted the violation of conditional discharge filed in relation to indictment #274-14 and was re-sentenced to pay a fine of $1000.00 in addition to the aforementioned sentence in this case. The same day, Appellant plead guilty via Jefferson County SCI #175-16 to New York State Tax Law §1814(c)(1) Possession/Transport 10,000 or more Untaxed Cigarettes and was sentenced on April 21, 2017 to: up to five years probation, a $5000 fine, forfeiture of monies recovered, and executed a written waiver of appeal. This appeal ensues. 3 STATEMENT OF FACTS AND PROCEDURAL HISTORY On May 15, 2014, Trooper Smithers stopped a vehicle operated by the Appellant for speeding on Interstate 81 in the Town of Watertown, Jefferson County, NY. During the stop, the Appellant was found to be in possession of a large quantity of untaxed cigarettes. The Appellant admitted that the untaxed cigarettes belonged to him and provided a written confession to investigators. (Appendix, hereinafter A, at 72a-73a). The Appellant was arrested in the Town of Watertown, Jefferson County, NY, and charged by way of felony complaint to Unlawfully Possessing/Transporting 30,000 or more Untaxed Cigarettes and Speeding (82/65 zone) by way of a Uniform Traffic Ticket (“UTT”). (A at 66a-69a). The Appellant was arraigned on the felony complaint and UTT the next day and released on his own recognizance. On or about January 2015, the Jefferson County Grand Jury returned Indictment No. 274-14, charging Appellant with the crime of Possessing/Transporting Thirty Thousand or more Untaxed Cigarettes and the traffic violation of Speeding (82/65 zone) (A at 10a-l la). The Appellant was arraigned on the indictment on February 27, 2015 (A at 39a). Defense counsel submitted an Omnibus Motion dated May 22, 2015. (A at 107a-125a). The People filed a response on June 12, 2015. (A at 136a-129a). The hearing court issued a written decision to the motions on July 10, 2015 (A at 130a-136a). In that decision/order, the hearing court upheld the indictment and ordered a combined Huntley and Mapp hearing. (A at 135a). A combined suppression hearing (i.e. Mapp/Huntley hearing), was held on August 6, 2015. (Suppression Hearing, hereinafter SH, at 1-87). At the hearing, Trooper Smithers testified that he had been a NY State Trooper for thirteen years and is assigned to the Watertown Interstate Patrol. (SH at 4). On May 15th 2014 at approximately 10pm, in the Town of Watertown, he stopped a vehicle for speeding 82 miles per hour in a 65 mile per hour zone. (SH at 5). Tpr. Smithers 4 identified the Appellant on the record as being the operator of the vehicle that he stopped. (SH at 5-6). During his testimony, Tpr. Smithers indicated that when he approached the vehicle, he noticed the rear of the vehicle to be sagging excessively and noted that it appeared to him that something fairly heavy was in the vehicle. (SH at 6). When he approached the vehicle, several large bags that filled up the rear passenger side of the vehicle caught his attention. (Id.). He further indicated that the bags were heavy nylon type bags with sharp protruding corners, which indicated to him that some type of hard objects were present in the bags. (SH at 7). During his initial conversation with the driver, he asked the driver where he was coming from and where he was headed to which the Appellant responded that they were visiting with family in Ohio and headed to his home in Great Bend, NY. (SH at 7). Trooper Smithers asked about the sagging vehicle and inquired as to whether or not there was more luggage in the trunk of the vehicle to which Appellant responded that there was in fact more luggage in the trunk of the vehicle. (Id.). Appellant also indicated that he has problems with the rear suspension that causes the vehicle to sag a little. (SH at 28). During his initial interview with the occupants of the vehicle, Trooper Smithers indicated that everyone in the vehicle seemed overly nervous in their demeanor in response to his basic interview questions following a roadside stop. (Id.). Tpr. Smithers began inquiring about the bags in the vehicle and asked if the bags were Appellant’s luggage. (SH at 8). To which Appellant replied, that the bags contained clothing. (Id.) Tpr Smithers indicated his observations did not match what the Appellant told him due to the sharp, protruding corners of the bags so he began to inquire further. (Id.). During his follow-up questions, the Appellant indicated that the bags contained clothes in boxes. (SH at 9) Appellant then indicated that the bags did not contain clothes, 5 rather they contained presents for his family and children. (Id.). Based on the inconsistencies, Trooper Smithers began to inquire further about the contents of the bags. (Id.). The Appellant then indicated that the bags contained bicycles. (Id.) Trooper Smithers then testified that he was becoming more suspicious based on the inconsistent answers he was receiving and the demeanor of the occupants of the vehicle. (SH at 10). He asked Appellant to unzip one of the bags to verify the contents of the bag. (SH at 11). Appellant indicated at that point that he did not wish to have his vehicle or the bags searched and that he wished to leave. (SH at 11). Additionally, Appellant did advise Trooper Smithers that he was a retired federal police officer on Fort Drum and requested to be on his way. (SH at 10). Trooper Smithers advised Appellant that he believed a crime was being committed and asked Appellant to step out of the vehicle so that he could investigate further. (SH at 11). When Appellant stepped out of the vehicle, Trooper Smithers noted that all of the pockets on his cargo pants were bulging. (SH at 12). Tpr. Smithers advised Appellant that because he was a retired police officer and because of the bulging pants pockets, he was going to pat him down for safety purposes. (Id.) No Weapons were found on Appellant’s person. (Id.). Tpr. Smithers had a brief discussion with Appellant to verify the answers he was previously provided, and then turned his attention to the passengers of the vehicle. (SH at 13). When Tpr. Smithers interviewed the passengers of the vehicle, he was told by the passengers that none of the luggage in the vehicle belonged to them, and that all the items in the vehicle belonged to Appellant. (SH at 14). It was further revealed that while they were in Ohio, Appellant dropped them off at an unknown residence, left for a short period of time, returned with all the bags in the vehicle and they had no idea what was actually in the bags. (SH at 14). Trooper Smithers indicated that, at this point, he believed that Appellant was involved in some type of illegal activity such as the transportation of narcotics or cash. (Id.). Tpr. Smithers returned to 6 Appellant and reiterated what his investigation revealed. (SH at 15). At that point, Appellant asked if he could just be truthful and indicated to Tpr. Smithers that he had approximately 300 cartons of untaxed cigarettes in the vehicle. (SH at 15-16). Appellant further indicated that he did not own a store and was driving them to his residence where he sells them to his friends and family. (SH at 16). Appellant further indicated that he believed he was allowed to possess the cigarettes as the result of his Native American status. (Id.) Appellant was asked if he was allowed to possess the cigarettes, why he would travel all the way to Pembroke to purchase cigarettes rather than Akwasasne (a closer reservation). (Id.). Appellant indicated that there were too many checkpoints, border patrol, and state police, and he has to answer too many questions so it is easier for him to go to Pembroke. (SH at 15-16). Next, Trooper Smithers testified that based Appellant’s admissions, he went into the vehicle and opened the bags, which revealed untaxed cigarettes. (SH at 17). He further testified that he knew that the cigarettes were untaxed because he knows what a tax stamp looks like and that the cartons present in the bags did not contain tax stamps. (Id). Based upon his findings, Trooper Smithers placed Appellant under arrest and handcuffed him. (SH at 18). Appellant was not Mirandized at the time of arrest by Trooper Smithers (Id.). Trooper Smithers began emptying Appellant’s pockets, which revealed large amounts of cash and several wallets that were filled to the brim. (Id.). Trooper Smithers indicated that he did ask the Appellant how much money was present because, “I was shocked at how much cash he actually had in his pockets and wallets[.]” (Id.). Trooper Smithers testified that he asked the questions for inventory purposes and to ensure the money would be well tracked. (SH at 18-19). Trooper Smithers further testified that he inquired as to where the money came from to which Appellant replied that it was from fixing cars. 7 (SH at 19). Trooper Smithers asked Appellant why he didn’t keep the money in a bank to which Appellant replied that he didn’t believe in banks. (Id.). Trooper Smithers indicated that the entire time of the investigation from initial vehicle stop to actually placing Appellant under arrest lasted approximately 15-20 minutes. (SH at 40). Trooper Smithers testified that he turned over custody of the Appellant to Investigator John Pelton of the New York State Police Bureau of Criminal Investigation (“BCI”). (SH at 22).) Trooper Smithers requested a tow truck and remained with the vehicle until it was towed back to the barracks in Watertown. (SH at 21). Trooper Smithers indicated that he performed an inventory search of the vehicle that revealed a large quantity of cigarettes, tobacco rolls, money, checks, a ledger, and receipts for cigarette purchases. (SH at 21-22; see also A at 84a-106afor a full list of inventory). Following Trooper Smithers’ testimony at the suppression hearing, BCI Investigator John Pelton was called to testify and two exhibits were marked. (SH at 48). Inv. Pelton testified that he has worked with the New York State Police for approximately ten years and that on May 15, 2014, he adopted a possession of untaxed cigarettes case from Trooper Smithers. (SH at 49). Inv. Pelton responded to the scene and took custody of Appellant. (Id.) Inv. Pelton identified Appellant as the person he took custody of. (SH at 50). Inv. Pelton testified that he read Appellant his Miranda warnings off of a card that he keeps with him in his pocket, and that he read the warnings verbatim from the card when he took custody of the Appellant at approximately 11:20 p.m. that evening. (SH at 52; 85). The Appellant having been advised of his rights agreed to speak with Inv. Pelton. (Id.). Appellant was then transported to the NYSP Watertown barracks and an interview was conducted; Appellant was not handcuffed during the interview, and was offered breaks and refreshments. (SH at 53). Appellant indicated that he believed he was allowed to possess the cigarettes based bn his Native American heritage and that he had previously asked border patrol 8 and ATF and was told that he could legally possess them. (Id.) Appellant disclosed that he was initially untruthful with Trooper Smithers and then decided to be truthful. (SH at 54). Appellant indicated that he possessed around 300 cartons of untaxed cigarettes and that he purchased them at the Pembroke Indian Reservation. (Id.). Appellant claimed ownership of the cigarettes in the vehicle. (Id.). During a portion of the interview, Inv. Pelton indicated that Appellant asked him if he thought Appellant should have an attorney. (SH at 55). Inv. Pelton indicated that he could not provide any counsel or guidance and that it was Appellant’s right to have an attorney and it was his choice. (Id.). Inv. Pelton testified that he believed the exact question from Appellant was, “do you think that I need a lawyer?” (Id.). Inv. Pelton further testified that it was not a direct demand to have a lawyer present. (Id.). Inv. Pelton indicated that during the interview, he obtained a written statement from Appellant. (Id.). Inv. Pelton typed up the statement, which Appellant reviewed and signed. (SH at 56). The typed statement included Miranda warnings. (A at 20a-21a; SH at 86-87). Appellant signed his initials next to each warning and signed the statement after he acknowledged that he read the statement and understood it. (SH at 56; SH at 86-87). During the hearing, Inv. Pelton was questioned by defense counsel as to whether or not Appellant advised him that he had an attorney named John Hallett. (SH at 59.) Inv. Pelton testified that he did not recall Appellant telling him that he had an attorney and didn’t remember talking to Appellant about any counsel specifically, but stated that he could have; however, the Appellant did not indicate that he wanted his attorney present and that Inv. Pelton was sure of that. (SH at 59-60). Inv. Pelton was also asked about a handwritten note that Inv. Pelton testified contained some of his handwriting and some other handwriting that he did not recognize. (SH at 61). Inv. Pelton acknowledged that the note contained the name of an attorney Michael Youngs, but that he did not 9 know who wrote the note, did not know how the noted ended up in his file, and indicated that Appellant never asked him to see attorney Michael Youngs (Id.). When Inv. Pelton was inquiring about Appellant’s criminal history, Appellant did inform him about a case that he had. (Id.). When Inv. Pelton was asked what he would have done had Appellant requested counsel, or advised him that he had counsel, Inv. Pelton indicated that he would have stopped his questioning and had Appellant call him. (SH at 62.) The defense did not call any witnesses at the hearing. (SH at 63.). Thereafter, a brief oral argument was made on the record. (SH at 63-73). Following oral argument, the Court indicated on the record that, based on the testimony heard, and after assessing the credibility of the witnesses who testified, suppression would not be granted in this case. (SH at 73.) There was no demand by defense to have the decision reduced to writing. After hearing the Court’s tentative decision, the Appellant agreed to accept a plea bargain. (SH at 74). The proposed disposition was outlined by the People. (Id.). Defense counsel acknowledged an understanding of the proposed disposition and added that Appellant reserved his right to appeal. (SH at 75.). The Appellant was sworn. (Id.). The Court asked the Appellant if he was prepared to plead guilty to the top count of the indictment that alleged possessing or transporting 30,000 or more unstamped cigarettes. (SH at 76.). Appellant indicated that was his intention. (Id.). Appellant was asked if he had talked the proposed disposition over with his attorney. (Id.) Appellant acknowledged that he had and that he was not threatened or forced into doing anything. (Id.). The Court advised the Appellant that in pleading he would be giving up the right to a jury trial, the right to have his guilt proven beyond a reasonable doubt, the right to testify on his own behalf, the right to confront and cross examine his accusers, the right to call witnesses on his own behalf, and that a guilty plea would be the same as being found guilty after trial. (SH at 76-77). Appellant acknowledged that he understood the rights he 10 ■v:V 5 QUESTIONS PRESENTED ■'■iv;s 1. Whether the Appellant properly waived his Miranda rights? Yes, the Appellant knowingly waived his Miranda rights. 2. Whether there was probable cause to search Appellant’s vehicle? Yes, there was probable cause to search Appellant’s vehicle. 3. Whether Appellant unequivocally waived his right to counsel? Yes, the Appellant unequivocally waived his right to counsel. 4. Whether Appellant’s guilty plea was properly entered? Yes, the Appellant’s guilty plea was properly entered. 12 POINT I: APPELLANT’S MIRANDA RIGHTS WERE NOT VIOLATED. The People first contend that the Appellant abandoned his suppression motion by entering his plea of guilty without demanding that the hearing court’s tentative ruling be reduced to writing, and his present claims are unpreserved as a matter of law. Here, the court indicated on the record that the suppression determination was "tentative.” (SH at 73). The Appellant failed to demand a formal ruling before pleading guilty. Therefore, Appellant abandoned his suppression motion, and his present claims are unpreserved as a matter of law. New York State Criminal Procedure Law (Hereinafter “CPL”) § 710.60(6) states, “Regardless of whether a hearing was conducted, the court, upon determining the motion, must set forth on the record its findings of fact, its conclusions of law and the reasons for its determination.” Failure to comply with the requirements of CPL § 710.60(6) effectively precludes informed appellate review. (People v. Bonilla, 82 N.Y.2d 825 (1993)). If, in the alternative, this Honorable Court decides to review the case in the interest of justice, the People submit that the initial traffic stop was not custodial for Miranda purposes and that, once in custody, the Appellant received appropriate Miranda warnings, which he knowingly and voluntarily waived prior to the custodial interrogation. Thus, Appellant's claim that the hearing court erred in refusing to suppress his statements is without merit, and the determinations of the hearing court regarding the admissibility of Appellant’s statements were proper. The requirement of warnings under Miranda v. Arizona,384 U.S. 436 (1966), applies only to statements that are both made in response to police interrogation and made while defendant is in police custody. (Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980); People v. Paulman,5 N.Y.3d 122, 129 (2005)). A defendant is in police custody for Miranda purposes only when “a reasonable 13 man, innocent of any crime, would have thought ... had he been in defendant's position” that he was not free to leave. (.People v. Yukl, 25 N.Y.2d 585, 589 (1969)). The Supreme Court recognized that, as long as a defendant is not in custody, “[gjeneral on-the-scene questioning as to facts surrounding a crime or other general questioning” does not implicate Miranda's obligation to warn a defendant prior to such questioning. {Miranda, 384 U.S. at 477-78; see also Yukl, 25 N.Y.2d at 589). A suspect stopped for a traffic violation is not in custody for purposes of Miranda, though the stop constitutes a seizure under the Fourth Amendment. (Berkemer v. Mccarty, 468 U.S. 420, A 436 (1984); People v. Bennett, 70 N.Y.2d 891, 893-94 (1987); see People v. Branden, 524 N.Y,S.2d 787 (2d Dept 1988) (police questioning after defendant was asked to get out of his vehicle during a traffic stop not custodial)). One reason that a traffic stop is not custody for Miranda purposes is that, unlike custody after an arrest, a traffic stop is “presumptively temporary and brief.” {McCarty, 468 U.S. at 437-38). Another reason is that “an ordinary traffic stop is substantially less police dominated” than custody after an arrest, both because a traffic stop occurs in the open where the public can witness it, which lessens the likelihood of abuse by the police, and because the suspect is confronted by fewer police officers. {Id. at 438-39). Thus, a traffic stop is more analogous to a Terry stop, where an officer can briefly detain a suspect and ask a few questions to confirm or allay suspicions, than it is to a formal arrest. {{Id.) (citing Terry v. Ohio, 392 U.S. 1 (1968)). Here, Appellant’s right to be free from unreasonable searches and seizures was not violated nor were his Miranda rights contravened. Trooper Smithers had a justifiable basis for approaching Appellant's vehicle as a result of his violation of the New York State Vehicle and Traffic Law. While making a routine investigatory inquiry into an observed violation of the vehicle and traffic i:law, Trooper Smithers observed large nylon duffle bags with square corners in plain view in the 14 I rear of the vehicle that the Appellant was operating. (SH at 5-7). During the course of the traffic stop, the combination of the overly nervous demeanor of the passengers, the excessive sagging of the vehicle that was being operated on a public highway, and the deceptive nature of the Appellant’s answers to innocuous questions related to the bags, provided objective facts that support the hearing court’s tentative finding— that there existed reasonable suspicion to briefly detain and question Appellant, (see, People v DeBour, 40 NY2d 210, 223 (1976); see also, Point II, Infra). Once defendant made the incriminating replies to Trooper Smithers’ inquiries, there existed probable cause for defendant's arrest and justification for the subsequent search of defendant's person and vehicle incident to an arrest, (see, People v Belton, 55 NY2d 49). The investigatory inquiries made by Trooper Smithers did not constitute custodial interrogation to which Miranda warnings apply even though the Appellant was “seized” within the meaning of the Fourth Amendment to the United States Constitution and Article I, § 12 of the New York State Constitution during the period of this questioning, (see, Berkemer v McCarty, 468 US 420, 436-437; Terry v Ohio, 392 US 1, 16-17). As such, the Appellant was not, as a matter of law, in custody, so Miranda warnings were not required. When a seizure of a person remains at the stop and frisk inquiry level and does not constitute a restraint on his or her freedom of movement to the degree associated with a formal arrest, Miranda warnings need not be given prior to questioning . {Berkemer v McCarty, supra, at 439-440; People v Morales, 65 NY2d 997, 998 (1985)); however, once Appellant was placed under arrest by Trooper Smithers, he was in custody and should have been Mirandized prior to any interrogative questions. (SH at 18-20) Thus, the statement by Appellant to Trooper Smithers as to the source of the money was arguably subject to suppression. (Id.). Here, it is arguable that questions related to how much money the Appellant possessed were administrative in nature 15 because it is imperative that police maintain an accurate accounting of any seized funds, (see, People v. Rodney, 85 N.Y.2d 289 (1995)). At the conclusion of the suppression hearing, the People conceded on the record that statement made during the post-arrest, pre-Miranda. questioning of Appellant by Trooper Smithers relating to the source of the money would be inadmissible at trial. (SH at 72). This was stated on the record in open court during the People’s closing argument. The hearing court tentatively determined (presumably) that all of Appellant’s statements to police would be admissible against him at trial. This decision was not reduced to writing and no demand was made to have the tentative ruling reduced to writing. If this Honorable Court reaches the issue in the interests of justice, the People submit that Appellant’s statements made following his arrest once he was Mirandized should be admissible against him. The People point to the analysis performed by this Court in People v. Paulman, and argue that a similar situation exists here. (See, Paulman, 5 N.Y.3d 122, supra). In Paulman, the Court of Appeals upheld this Court’s analysis in a situation where Miranda rights were not properly administered prior to one statement, but were considered proper with relation to a subsequent statement when certain conditions are met. (Id.) In upholding this Court’s ruling, the Court of Appeals indicated that a number of factors should be taken into consideration during this analysis such as: the location of initial statement versus the location where the interrogation occurs, any new personnel involved, and the manner of interrogation, while not an exhaustive list, all should play a role in the Court’s determination as to the admissibility of a statement following a Miranda violation.{Id. ) In this case, the People conceded on the record at the suppression hearing that the brief line of questions Trooper Smithers asked the Appellant regarding the source of the money in his pockets occurred after he was placed under arrest but before Appellant was Mirandized; however, just moments after the arguably improper roadside questions, Trooper 16 Smithers turned custody of the Appellant over to Investigator Pelton who immediately Mirandized I the Appellant. Investigator Pelton took the Appellant to the barracks where a relaxed interview was conducted wherein the Appellant was not handcuffed, offered refreshments and breaks, and provided a full written confession. (SH at 86-87). Appellant’s interview was described as relaxed I and there was no indication that any high pressure interrogation techniques were used. The written statement taken by Investigator Pelton during the interview fully apprised Appellant of his Miranda rights, Appellant initialed beside each of the five Miranda rights, Appellant agreed to waive those rights, and then Appellant provided signed the written statement thereby confessing to the crime that he later plead guilty to. (Id.). As such, it cannot be said that Appellant’s written statement to Investigator Pelton was taken in contravention of Miranda. Based on the foregoing, the hearing court’s tentative ruling regarding the admissibility of both the Appellant’s roadside admissions to Trooper Smithers, and the Appellant’s written statement to Investigator Pelton was correct. Thus, the hearing court’s tentative ruling that Appellant’s statements would be admissible against him at trial was proper and should be upheld. 17 POINT II: TROOPER SMITHERS HAD PROBABLE CAUSE TO SEARCH THE VEHICLE. The People reiterate the argument put forth in point I-- that the hearing court did not reduce to writing the tentative ruling issued on the record, no demand was made to reduce the tentative ruling to writing, and the Appellant entered a plea. Thus, the Appellant abandoned his suppression motion, and the issues raised in points I-III of Appellant’s brief are unpreserved for review as a matter of law. Nonetheless, in the event this Honorable Court chooses to review this issue in the interest of justice, the People respectfully submit that the search of the Appellant and his vehicle were proper. : In People v. De BOUT, 40 N.Y.2d 210 (1976), the Court of Appeals set out the four-tiered (Levels one-four) system for evaluating encounters between citizens and the police. These rules are a combination of federal Constitutional requirements (Levels three and four) and New York case law (levels one and two). Levels one and two are not required under the New York Constitution, but are instead based on considerations of reasonableness and sound State policy. ( People v. Hollman, 79 N.Y.2d 181 (1992)). At the first level, police need only have “some objective credible reason” to approach a citizen in a public place to request information not necessarily indicative of criminality, they may approach and ask basic, nonthreatening questions, including questions relating to identity, address, destination, and/or reason for being in the area. (Debour, supra, at 213, 218-19, 223; Hollman, supra, at 185.) At the second level, “a founded suspicion that criminal activity is afoot” justifies, inter alia, a request for consent to search the suspect’s vehicle, and/or a trained canine sniff of the exterior of the vehicle; however, the search will not be upheld unless the officer’s request to search is supported by a founded suspicion of criminality. {People v. Dunbar, 5 N,Y.3d 834, 835 (2005)). Level three requires a “reasonable 18 1 suspicion that a particular person has committed, is committing or is about to commit a crime” in order to temporarily detain a citizen for questioning, and level four requires “probable cause to believe that a person has committed a crime” in order to arrest. (Debour, supra at 223). A police officer will be justified in stopping a vehicle (level three) if the officer observes the vehicle violate the vehicle and traffic law. {People v. Robinson, 97 N.Y.2d 341 (2001) (adopting U.S. v. Whren, 517 U.S. 806 (1996). The Debour-Hollman analysis has been applied to traffic stops in New York. {People v. Battaglia, 86 N.Y.2d 755 (1995)). A traffic-stop can rise to the level of a “common-law inquiry,” justifying an officer's request to search the vehicle, where the officer has a founded suspicion that criminality is afoot. {Battaglia, 86 N.Y.2d 755 (1995), citing People v. DeBour, 79 N.Y.2d 181, 191-192 (1992)). As long as the justification for the initial detention of the vehicle has not been exhausted when the facts giving rise to the founded suspicion of criminality are developed, a more pointed inquiry and request to search the vehicle does not constitute an unreasonable search or seizure. {People v. Brito, 244 A.D.2d 631 (3d Dept. 1997); People v. Tejeda,217 A.D.2d 932, 933 (4th Dept. 1995)). During a lawful vehicle stop, police may order the driver and/or passengers out of the vehicle and no additional suspicions or justification other than a lawful stop is required. {Pennsylvania v. Mimms, 434 U.S. 106 (1977); People v. Robinson, 1A N.Y.2d 773 (1989)). This Court has specifically acknowledged that false or implausible answers, when articulated by the officer on the record, can elevate a level one request for information to a level two inquiry {People v McCarley, 865 N.Y.S.2d 459 (4th Dept 2008); People v Tejeda, 630 N.Y.S.2d 160 (4th Dept 1995). Once the police make an arrest that is supported by probable cause, the police are authorized to search defendant incident to that lawful arrest and seize any evidence or contraband found during that search. (See People v. Ralston, 757 N.Y.S.2d 414 (4th Dept. 2003). In order to withstand a defense challenge to an inventory search, 19 the People should establish the existence of a department policy regulating inventory search, that the officer conducted the search in compliance with such policy and that the officer completed a meaningful inventory list. (See People v. Francisco, 880 N.Y.S.2d 806 (4th Dept. 2009). Here, the hearing court’s tentative ruling, which denied Appellant’s motion to suppress was proper because the credible hearing testimony showed that Trooper Smithers had a founded suspicion that criminality was afoot, justifying his request to search the Appellant's car and allowed for further inquiry into the observed inconsistencies in Appellant’s statements. First, Trooper Smithers pulled the vehicle over for speeding and noted immediately that the vehicle’s suspension was sagging excessively. (SH at 4-6). Trooper Smithers observed several large nylon bags with square protruding edges in the vehicle and observed the demeanor of the occupants as being overly nervous. (SH at 6-8). He began by asking routine questions (Where are you coming from? Where are you going to?). (Id.). He further asked questions related to the condition of the vehicle to ascertain the cause of the vehicle’s excessive sagging in the rear end and to determine whether it was safe to allow the operator to continue operating the vehicle on a public roadway. (SH 6-10). The questions regarding the contents of the bags were plausibly directed at the potential safety issues that an excessively sagging vehicle posed. During this brief investigation, the Trooper incrementally elevated his questioning regarding the contents of the bags that he could see in plain view in accordance with the levels of Debour as a result of the known evasive answers he was receiving from the Appellant. (SH at 8-10). Trooper Smithers testified that it was only after he received multiple inconsistent answers about the bags that he could clearly see were untrue, he asked the Appellant to open one of the bags. (SH at 11). Trooper Smithers indicated that he asked the Appellant to verify the contents of one of the bags so that he could verify his answers, but the Appellant refused. (Id.). At this point, 20 POINT III: THE APPELLANT DID NOT UNEQUIVOCALLY ASSERT HIS RIGHT TO COUNSEL. The People reiterate the argument put forth in point I— that the hearing court did not reduce to writing the tentative ruling issued on the record, no demand was made to reduce the tentative ruling to writing, and the Appellant entered a plea. Thus, the Appellant abandoned his suppression motion, and the issues raised in points I-III of Appellant’s brief are unpreserved for review as a matter of law. Nonetheless, in the event this Honorable Court chooses to review this issue in the interest of justice, the People respectfully submit that Appellant did not unequivocally assert his right to counsel. It is clearly established law that a suspect in custody must unequivocally request the assistance of counsel in order to trigger his indelible right to counsel. {People v. Glover, 87 N.Y.2d 838 (1995)). For an uncharged defendant to invoke his right to counsel, he must issue an “unequivocal” request for an attorney; his words cannot be “consistent with a variety of interpretations,” {People v Mitchell, 2 NY3d 272, 276 (2004)), and must be clear enough that a. “reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” {Davis v United States, 512 US 452, 459 (1994)). The statement is evaluated “with reference to the circumstances surrounding the request, including . . .demeanor, manner of expression, and the particular words.” {Mitchell, 2 NY3d at 276 (internal quotations removed)). Against this standard, it is clear that Appellant never issued the kind of unequivocal request that would trigger his right to counsel. Here, Appellant was placed under arrest at the scene of the crime on Interstate 81 by Trooper Smithers. (SH at 51-52). Once Investigator Pelton arrived on scene, he was Mirandized by Investigator Pelton prior to being transported to NYSP Watertown Barracks for interrogation. (SH 23 ; I at 52-53) The atmosphere of the interview was described as relaxed and casual. (SH at 53). Appellant was not handcuffed during the interview and was offered breaks and refreshments. (Id.). | During testimony, Investigator Pelton stated the Appellant indicated that he was former law enforcement and asked if, “I thought he should have a lawyer.” (SH at 55). At that point, Investigator Pelton reiterated that it was Appellant’s right to have an attorney and told him it was Appellant’s choice. (Id.) When asked for a specific quote during the suppression hearing, Investigator Pelton testified, “I believe he said, do you think that I need a lawyer?” and further testified that he took it as more of a question than a demand. (Id.). Thereafter, Appellant signed a written confession that included all five Miranda rights in written form. (AB at 72a-73a; SH at 86-87). Prior to signing the statement, Appellant initialed next to each individual right indicating that he understood his rights and again agreed to waive them. (Id.). Thus, the Appellant provided a written confession being fully appraised of Miranda, and did not unequivocally demand an attorney prior to providing the full written confession to Investigator Pelton. Appellant’s ambiguous statement made in this case is similar to those in a number of cases throughout New York in which the courts have concluded that phrases containing words that fall short of a declarative “yes” or “no” -such as “I think” or “maybe” or “probably” -do not ! constitute unequivocal requests for counsel. (See Vaughan, supra at 738) (holding that contrary to the contention of defendant, he did not unequivocally request an attorney when he asked the police whether he needed a lawyer.). Unfortunately, The record in this case is unclear as to how an attorney’s name appeared in Investigator Pelton’s case file. (See generally, SH 58-62). There was no proof submitted on the record that the name of the attorney that appeared in Investigator J !Pelton’s file was even related to this case. Because the suppression court’s tentative decision was 24 not reduced to writing, any determination on this issue would necessarily require speculation. Defense had a full and fair opportunity to flesh out this issue during the suppression hearing. (SH at 58-62). Defense had an opportunity to request additional witnesses and did not call any witnesses. (SH at 63). Thereafter, the hearing court issued a “tentative” ruling from the bench properly refusing to suppress the oral and written statements made by the Appellant while in police custody, and no demand was made to have this ruling reduced to writing. (See People’s argument at Point I; See also CPL§ 710.60(6)). The court's tentative determination that Appellant voluntarily waived his Miranda rights prior to making those statements was based upon the credibility of the witnesses at the suppression hearing and thus is entitled to great deference. (See People v. Vaughan, 850 N;Y.S.2d 735, 738 (2008)). Thus, Appellant did not unequivocally assert his right to counsel, the hearing court tentatively determined that Appellant did not unequivocally assert his right to counsel, and his admission/written confession would have been properly admissible at trial. Accordingly, the tentative decision of the hearing court should be upheld because the Appellant abandoned his suppression motion when he plead guilty and because his statements were not taken in contravention of his right to counsel. 25 POINT IV: THE APPELLANT’S GUILTY PLEA WAS PROPERLY ENTERED. The Appellant contends that the court failed to take the proper steps to determine whether his plea was made knowingly, intelligently or voluntarily and thus, he is entitled to have his guilty plea vacated and the matter remitted to the lower court for further proceedings. The People respectfully submit that although an Appellant can challenge a plea, the Appellant must first preserve the issue for review. ( People v. Aguayo,829 N.Y.S.2d 350 (4th Dept. 2007)). Where the Appellant has not made a motion to withdraw his plea/admission, nor made a motion to vacate the conviction, and argues for the first time on appeal that his plea was not voluntary, he has not properly preserved the issue for review. (.People v. Ames, 587 N.Y.S.2d 232 (4th Dept. 1992)). “Although a defendant must be afforded an opportunity to challenge the legality of the proceedings at issue, ‘the very real interest of the State in achieving finality in a criminal prosecution mandates that such objections be timely raised’.” (People v. Lopez, 71 NY2d 662, at 665 (1988) {citing People v. Michael. 48 NY2d 1(1979)). In the case at bar, the Appellant entered a plea of guilty to Possessing or Transporting 30,000 or more untaxed cigarettes for the purpose of sale and never moved the hearing court to withdraw his plea or to vacate the conviction for any reason. Accordingly, this issue is not preserved for appeal. Should the Court reach this issue in the interest of justice, it is submitted that Appellant’s plea was knowing, voluntary, and intelligent. He entered a detailed admission to the factual allegation that he had possessed or transported 30,000 or more untaxed cigarettes for the purpose of sale on the record. (SH at 78-79 ). He made no protest that he was not of sound mind or body at the time of the admission and did not indicate that he was unable to understand the 26 proceedings at any point, and in fact was asked what level of education he had completed, whether he understood the English language, or had taken any kind of drugs or alcohol in the preceding twenty four hours. (SH at 77-78). The record reflects that the Appellant, after being asked to admit specific facts laying out the crime he was being accused of, admitted the facts forming the basis of the charges under oath, while his attorney stood by him. (SH at 78-79). Additionally, the court thoroughly explained the rights that the Appellant would be waiving by entering an admission on the record in the Appellant’s presence and verified that the Appellant understood that he was actually waiving those rights. (SH at 76-77). Finally, the Appellant was afforded the opportunity to speak on the record to the court, to address any objections or confusion if there was any, which he took advantage of and indicated that he believed he was allowed to possess the cigarettes due to his native American status and queried the court where he should pay taxes on the cigarettes if he is tax exempt. (SH at 79-80). Under these circumstances, it is clear that the Appellant’s admission of guilt and subsequent plea was knowingly, voluntarily, and intelligently made. The Appellant erroneously contends that the court accepted an ambiguous allocution and failed to rectify the ambiguity without further inquiry. (Appellant’s Brief at 26). Here, Appellant argues that his plea allocution falls under the narrow and rare exception to the rule announced in Lopez, arguing that his allocution either negated an essential element of the crime pleaded to or that the recitation of the facts cast significant doubt on the Appellant’s guilt, thus triggering the court’s duty to inquire further to ensure a knowing and voluntary plea. {People v. Lopez, 71 N.Y.2d 662 (1988)). This Court has recently held that even where the defendant plead guilty by way of an Alford plea and where the record contains strong evidence of guilt that the very narrow Lopez exception does not apply. {People v. Jones, 980 N.Y.S.2d 670 (4th Dept. 2014)). Further, 27 where there is nothing in the plea allocution which calls into doubt the voluntariness of the plea or casts significant doubt on defendant’s guilt, there is no basis under Lopez to nullify a plea. {See People v. Harris, 771 N.Y.S.2d 767 (4th Dept. 2004). In the case at hand, the Appellant was asked by the court, “[d]o you admit that on or about May 15th of last year, here in Jefferson County, in the Town of Watertown, that you did possess and/or transport more than 30,000 cigarettes that were not stamped by the state taxing authority?” (SH at 78) To which Appellant answered, “[y]es, sir.” (Id.). He was then asked by the People, “[d]o you agree, 'sir, those cigarettes were being transported for the purpose of sale?” (SH at 79). To which he replied, “[y]es, sir.” (Id.). As such, it is clear that the entirety of the Appellant’s pleas and admissions were knowing, intelligent, and voluntary. Additionally, there is no requirement that the defendant himself recite the facts to support that his plea is knowingly, voluntarily and intelligently made, but that confirmation of the court’s recitation of the facts is sufficient. (See Aguayo, supra; People v. Peterson, 825 N.Y.S.2d 622 (4th Dept. 2006)). Since the Appellant has failed to preserve the issue for appeal, and the facts of the Appellant’s admission do not call into question whether his admission was voluntarily, intelligently or knowingly made, the People submit that this Court should deny his appeal in all aspects. 28 CONCLUSION In light of the foregoing, it is respectfully submitted that this Court should uphold the lower court’s judgment of conviction. Respectfully submitted, Dated: May 3, 2017 Kristyna S. Mills, Esq. Jefferson County District Attorney By: George R. Shaffer III, of counsel Assistant District Attorney Jefferson County District Attorney’s Office 175 Arsenal Street, 7th Floor Watertown, New York 13601 (315) 785-3053 i 29 :> 35UUA * uwi?'AA '> 13157853371 Faye SUPREME COURT OF THE STATE OF NEW YORK Appellate SBtbution, jfourtf) department PRESENT: CARNI, J.P., DEJOSEPH, CURRAN, TROUTMAN, AND SCUPPER, JJ. KA 16-02069 THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V RICKY GATES, DEFENDANT-APPELLANT. Indictment No: 0465/15 Respondent having moved for an extension of the time to file and serve a brief on the appeal taken from a judgment of Jefferson County Court, rendered August 6, 2015, Now, upon reading and filing the affidavit of George R. Shaffer, III, Esq. sworn to April 13, 2017, the notice of motion with proof of service thereof, the affidavit of John A. Cirando, Esq. sworn to May 5, 2017, and due deliberation having been had thereon, It is hereby ORDERED that the motion is granted to theextent that the time to file and serve a respondent's brief is extended to May 11, 2017, and It is further ORDERED that the time to file and serve a reply brief be and the same hereby is extended to May 26, 2017, and It is further ORDERED that the People shall not be permitted oral argument. : j Entered: May 8, 2017 FRANCES E. CAFARELL, Clerk