The People, Appellant,v.Ricky D. Gates, Respondent.BriefN.Y.April 24, 2018 D.J. & J.A. CIRANDO ATTORNEYS AND COUNSELORS AT LAW 101 SOUTH SALINA STREET SUITE 1010 SYRACUSE, NEW YORK 13202-1350 Telephone (315) 474-1285 Facsimile (not for service) (315) 474-1233 JOHN A. CIRANDO DANIEL J. CIRANDO BRADLEY E. KEEM (1936-1976) ELIZABETH deV. MOELLER February 19, 2018 Hon. Janet M. DeFiore Chief Judge, Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207 Attn: Hon. John P. Asiello, Clerk Re: People v. Ricky D. Gates APL-2017-00199 May it Please the Court: We are submitting this Letter Response in accordance with the Court’s Rules of Practice 22 NYCRR §500.11, and in reply to the People’s January 8, 2018 submission. The time for respondent’s submission was extended to on or before February 20, 2018. 2 | Page People v. Ricky Gates February 19, 2018 Procedural History On or about February 25, 2015, the Jefferson County Grand Jury returned Indictment No. 2015-0464, charging respondent with the crime of POSSESSING/TRANSPORTING THIRTY THOUSAND OR MORE UNTAXED CIGARETTES, and the traffic violation of SPEEDING [82/65] (10a-11a). Respondent was arraigned on February 27, 2015 (39a). Defense counsel, as part of his May 22, 2015 Omnibus Motion requested the suppression of tangible property seized by means of an unlawful search and seizure, and suppression of his statements (107a). A Mapp/Huntley Hearing regarding the issue was held, on August 6, 2015 (1). At the conclusion of the Hearing, the trial court held that there was probable cause to search respondent’s vehicle (73). Based on the trial court’s Decision, respondent elected to enter a guilty plea (76-78). During the same proceedings, respondent was sentenced to a Conditional Discharge of three years, forfeiture of $18,835 cash, and $1,767 in uncashed checks for the crime of POSSESSION/TRANSPORTING THIRTY THOUSAND OR MORE UNTAXED CIGARETTES (81-82). Notice of Appeal was filed on August 26, 2015 (3a-5a). 3 | Page People v. Ricky Gates February 19, 2018 As relevant to the issues presented, on appeal to the Appellate Division, Fourth Department, respondent indicated that his statements were made while he was in custody, the Trooper lacked probable cause to search his vehicle, and the Trooper did not comply with People v. DeBour (40 N.Y.2d 210, 213) during their roadside interaction. A three-judge majority of the Appellate Division, Fourth Department reversed the judgment of conviction on the law, vacated the plea, granted the part of defense counsel’s Omnibus Motion seeking the suppression of physical evidence and statements, dismissed the Indictment, and remitted the matter for further proceedings (People v. Gates, 152 A.D.3d 1222, 1223 [4th Dept.]). The Appellate Division, Fourth Department held that despite the trial court’s failure to issue a written Decision addressing the suppression issues raised by respondent, the Record established that the trial court implicitly, but conclusively denied that part of the Omnibus Motion (Gates, 152 A.D.3d at 1223). Next, as relevant here, the Appellate Division, Fourth Department determined that the initial inquiry concerning the contents of the bags, in the stopped vehicle, constituted a level two common-law inquiry, which required a founded suspicion of criminality that was not present at the time (Gates, 152 A.D.3d at 1223). Specifically, the Appellate Division, Fourth Department stressed that “nervousness, 4 | Page People v. Ricky Gates February 19, 2018 fidgeting, and illogical or contradictory responses to level one inquiries do not permit an officer to escalate an encounter to a level two DeBour (40 N.Y.2d at 223) confrontation (Gates, 152 A.D.3d at 1223). The Appellate Division, Fourth Department noted that respondent’s evasive and inconsistent answers were only induced by the improper level two inquiry from the Trooper, and that any founded suspicion of criminality did not arise until after the Trooper asked respondent what was inside the bags (Gates, 152 A.D.3d at 1223). The People submitted an Application for Leave to Appeal to the Appellate Division, Fourth Department, and on September 29, 2017, the Honorable Joanne M. Winslow, Associate Justice of the Appellate Division Fourth Department, granted the People leave to appeal to this Court pursuant to Criminal Procedure Law §460.20 (2) (a) and 22 NYCRR §1000.13 (p) (4) (iii). On November 9, 2017, this Court informed the parties that it had, on its own Motion pursuant to 22 NYCRR §500.11 of the Court’s Rules of Practice, determined that the appeal may be determined on the Appellate Division Record and Briefs, the writings of the courts below and letter submissions from counsel. 5 | Page People v. Ricky Gates February 19, 2018 The Stop The Trooper stopped respondent on Interstate 81 northbound after observing him travel 82 miles an hour in a 65 mile an hour zone (4-5, 24). The Trooper observed that the rear of respondent’s vehicle was sagging, as if there was a heavy object in the trunk (6, 25, 28). He also noticed, in plain view, several large bags in the rear driver’s side on the floor (7). The Trooper asked respondent where he was going (6-7, 25). Respondent replied that he was returning to Great Bend from Ohio after visiting family (7). The Trooper told respondent that the rear of his vehicle was low (8). The Trooper asked respondent whether he had more luggage in his trunk, and respondent replied that he did (8). The Trooper believed that respondent, and his two passengers---a father and son---were acting nervous (8). Upon inquiry as to the content of the bags, respondent replied that there was clothing in his luggage bags (8). The Trooper continued, telling respondent that it appeared as though there were boxes in his bags (8, 26). Respondent replied that there was clothing in the boxes (8-9, 26). Respondent then indicated that there were presents for his family in the bags (8-9, 26-27). The Trooper continued his inquiry, and respondent added that there were bicycles in the boxes (9, 26-27). 6 | Page People v. Ricky Gates February 19, 2018 Upon revealing that he was a retired Federal police officer from Fort Drum, the respondent requested to be on his way (10). The Trooper, however, indicated that he believed there was suspicious criminal activity taking place, and asked respondent if he could unzip the bags behind him (10). Respondent explicitly stated that he did not want his bags searched, and wished to leave (11). The Trooper declined, and asked respondent to step out of his vehicle (11- 12). The Trooper once again requested information about the content of the bags (13). Respondent acknowledged initially stating that there were clothes in his bags; then presents; and then bicycles (13). The Trooper left respondent, and spoke to the passengers (13, 31-34). The passengers denied ownership of the bags (13-14). When the Trooper returned to respondent, respondent admitted that he had untaxed cigarettes in his vehicle (15-16). As a result, respondent was handcuffed, and placed under arrest (18). Summary of the Argument The Appellate Division, Fourth Department’s Memorandum and Order should be affirmed. In regard to the People’s first claim (see The People’s Letter, pp. 7-11), this Court, in People v. Elmer (19 N.Y.3d 501, 509) held that a defendant is not precluded from challenging the trial court’s suppression Order simply because he 7 | Page People v. Ricky Gates February 19, 2018 did not request that it be memorialized in writing. In the case at bar, where the trial court’s Decision conclusively determined that there was probable cause to search respondent’s vehicle, clarity and appealability were present (73-74) (see Elmer, 19 N.Y.3d at 509). In regard to the People’s second claim (see The People’s Letter, pp. 11-24)--- that suppression was not appropriate---this Court, in People v. Allen (9 N.Y.3d 1013, 1015) held that a determination of reasonable suspicion is a mixed question of law and fact, beyond the Court’s review if the determination is supported by the Record. Here, because the Appellate Division, Fourth Department’s determination to suppress the evidence and statements was amply supported by the Record the issue is beyond this Court’s review (6-16, 26-27) (see Allen, 9 N.Y.3d at 1015). The trial court’s Decision was a final, appealable order. At the conclusion of the Huntley/Mapp Hearing a conference was held with the trial court and respective counsel (73). Following the recess, the trial court stated (73), Record should indicated that we have had the benefit of a conference. I shared my tentative findings with both counsel, and after assessing the credibility of the witnesses, that I felt that the levels were met that are called for by the People versus DeBour, which would be the main case law that I would follow, and that the suppression sought by the defense would not be granted. 8 | Page People v. Ricky Gates February 19, 2018 While the trial court characterized its determination as “tentative” it also made it clear that it: assessed the credibility of the witnesses; relied on People v. DeBour (40 N.Y.2d at 223); and denied the suppression Motion (73). It was only with this understanding that respondent elected to enter his plea of guilty (73-74). In fact, the trial court even stated that “...having heard that tentative decision, it is my understanding there is a proposed disposition” (74). The People (see The People’s Letter, p. 7) even acknowledge that this Court has held that appeal from an Order denying suppression is not foreclosed merely because the order is not in writing (People v. Elmer, 19 N.Y.3d 501, 509-510). The People, however, maintain (see The People’s Letter, pp. 7-9) that the trial court’s use of the word “tentative” rendered the Order not final (73). When viewing the entirety of the trial court’s statement, however, clarity and appealibilty were provided by the trial court in that it stated its Decision to deny suppression was based on both the credibility of the witnesses and the Debour (40 N.Y.2d at 213) standard (73) (Elmer, 19 N.Y.3d at 509). It also must be stressed that there was no dispute among the Appellate Division, Fourth Department Justices as to the whether the trial court’s Order permitted an adequate review (People v. Gates, 152 A.D.3d 1222, 1223 [4th Dept.]). 9 | Page People v. Ricky Gates February 19, 2018 As such, because the Appellate Division, Fourth Department correctly determined that the trial court’s Order was sufficiently final to provide an adequate basis for appellate review, its determination in that regard should be affirmed (73- 74) (Elmer, 19 N.Y.3d at 509; Gates 152 A.D.3d at 1223). Limited review of this issue is not appropriate because the Appellate Division, Fourth Department’s determination was supported by the Record. This Court, in People v. Allen (9 N.Y.3d 1013, 1015), determined that “Whether the circumstances of a particular case rise to the level of reasonable suspicion is a mixed question of law and fact, beyond our review if the determination is supported by the Record.” The limited review of this Court is, therefore, inappropriate considering the Appellate Division, Fourth Department’s determination on the issue of lack of reasonable suspicion to support a level two People v. Debour (40 N.Y.2d 210, 213) inquiry was supported by the facts as found in the Record (6-16, 26-27) (see People v. Garcia, 20 N.Y.3d 317, 324; People v. Gates 152 A.D.3d 1222, 1223 [4th Dept.]). Specifically, though the Trooper possessed an objectively credible reason to approach respondent---due to his excessive speed---the encounter never reached a level two Debour (40 N.Y.2d at 213) inquiry (6-16). The Trooper began the interaction with a level one inquiry concerning respondent’s destination (6-10). 10 | Page People v. Ricky Gates February 19, 2018 Respondent replied that he was returning to Great Bend from Ohio after visiting family, and explained that he had luggage in his trunk, which accounted for the Troopers observation that the vehicle was low (7-8). Despite such responses, the Trooper, because he believed that respondent, and his two passengers---a father and son---were acting nervous, inquired as to the content of the bags (8). At that point, the Trooper’s inquiry raised to a level two common-law inquiry, which required a founded suspicion of criminality that simply was not present (6-10) (Debour, 40 N.Y.2d at 213). Nervousness, and even inconsistent answers are not sufficient to raise a level one inquiry to a level two inquiry (see People v. Banks, 85 N.Y.2d 558, 562---nervousness and different stories provided by passengers of a vehicle did not provide police with founded suspicion of criminality). The Trooper’s question concerning the content of respondent’s bags was a pointed question that would lead any person approached by law enforcement to believe they were being suspected of wrongdoing (People v. Hollman, 79 N.Y.2d 181, 185). 11 | Page People v. Ricky Gates February 19, 2018 In Hollman (79 N.Y.2d at 185) this Court stated: ...a request for information is a general nonthreatening encounter in which an individual is approached for an articulable reason and asked briefly about his or her identity, destination, or reason for being in an area. If the individual is carrying something that would appear to a trained police officer to be unusual, the police officer can ask about that object. A pillowcase containing a television set is clearly unusual. A zippered blue bag carried by an individual about to board a bus is not. Once the police officer’s questions become extended and accusatory and the officer’s inquiry focuses on the possible criminality of the person approached, this is not a simple request for information. The Trooper’s pointed questions concerning the content of respondent’s bags, after respondent explained that he was traveling from Ohio to Great Bend, were not supported by reasonable suspicion, and as such, the Appellate Division, Fourth Department’s determination, regarding this mixed question of law and fact, was supported by the Record, and thus beyond this Court’s review (6-16, 26-27) (Allen, 9 N.Y.3d at 1015; see Hollman, 79 N.Y.2d at 185). The People claim (see The People’s Letter, pp. 11-12, 17-24) that the Appellate Division, Fourth Department expanded the scope of what constitutes a DeBour (40 N.Y.2d at 213) inquiry beyond Hollman (79 N.Y.2d at 185). The majority at the Appellate Division, Fourth Department, however, merely followed 12 | Page People v. Ricky Gates February 19, 2018 the law as explained by this Court (see Garcia, 20 N.Y.3d at 320-322; Banks, 85 N.Y.2d at 562). There was nothing unusual about three passengers having luggage in their vehicle after a trip to Ohio (7). It also should be noted that the People (see The People’s Letter, p. 20) make a number of statements that are simply not supported by the Record (1a-93). The People claim that one of the passengers in respondent’s vehicle was “petite,” but the size of the passengers was never discussed on the Record (1a-93). Similarly the People claim (see The People’s Letter, p. 23) that the “...backseat passenger barely ha[d] enough room to be in the vehicle following an overnight trip back from Ohio” and that the vehicle was travelling on a “known smuggling route,” but such information was not contained in the Record (1a-93). The majority of the Appellate Division, Fourth Department properly applied the law, and as such, the evidence was correctly suppressed; the guilty plea was properly vacated; and the Indictment was properly dismissed (6-16, 26-27) (DeBour 40 N.Y.2d at 213; Gates 152 A.D.3d at 1223). 13 | Page People v. Ricky Gates February 19, 2018 Conclusion The Appellate Division, Fourth Department’s unanimous determination that the trial court’s ruling regarding suppression was a final, appealable Order should not be disturbed as it appropriately follows this Court’s guidance as to when an Order is final. Additionally, the majority of the Appellate Division, Fourth Department’s determination that the evidence should be suppressed should be affirmed because the majority adeptly followed this Court’s guidance concerning what type of inquiry constitutes a level one versus level two inquiry, and the ramifications flowing therefrom. Accordingly, it is respectfully submitted that the Appellate Division, Fourth Department’s Memorandum and Order should be affirmed in all respects. Very truly yours, D.J. & J.A. CIRANDO /s/JOHN A. CIRANDO John A. Cirando JAC/mjl cc: George R. Shaffer, III, Esq. Mr. Ricky Gates People v. Ricky D. Gates APL-2017-00199 CERTIFICATE OF COMPLIANCE Pursuant to 22 NYCRR §500.1 of the Court of Appeals the undersigned counsel hereby certifies that this Letter Response was prepared on a computer in 14-point Times New Roman font, double spaced, with a word count of 2,441, as measured by the word-processing system used to prepare this Letter Response. Dated: February 19, 2018 /s/JOHN A. CIRANDO D.J. & J.A. CIRANDO, ESQS. Attorneys for Defendant/Respondent 101 South Salina Street, Suite 1010 Syracuse, New York 13202 (315) 474-1285 AFFIDAVIT OF SERVICE MELISSA J. LADUKE, being duly sworn, deposes and says that she is over twenty-one years of age and is employed by D.J. & J.A. CIRANDO, ESQS., 101 South Salina Street, Suite 1010, Syracuse, New York 13202, that on the 19th day of February 2018, deponent served a copy of the within LETTER RESPONSE PURSUANT TO 22 NYCRR §500.11 in the action entitled "PEOPLE v. GATES (Ricky D)" by Electronic Filing via PASS and/or Overnight Delivery and/or by depositing the same securely enclosed in a postpaid wrapper on this day, in an official depository under the exclusive care and custody of FedEx or the United States Postal Service in Syracuse, New York, addressed to the following with copies as required: HON. JANET M. DEFIORE (Original and one (1) copy) Chief Judge, Court of Appeals (via FedEx Overnight) Attn: Hon. John P. Asiello, Clerk (Electronic Filing via PASS) 20 Eagle Street Albany, New York 12207 GEORGE R. SHAFFER, III, ESQ. (One (1) copy) Jefferson County DA’s Office (via regular USPS mail delivery) 175 Arsenal Street Watertown, New York 13601 MR. RICKY GATES (One (1) copy) 32912 State Route 3 (via regular USPS mail delivery) Great Bend, New York 13643 and that there is a regularly established route between said addresses and Syracuse, New York. MELISSA J. LADUKE MELISSA J. LADUKE Subscribed and sworn to before me this 19th day of February 2018 /s/ CARA A. GRENIER Notary Public State of New York County of Onondaga No. 01GR6314762 Commission Expires November 17, 2018