The People, Respondent,v.David Bookman, Appellant.BriefN.Y.September 7, 2016To be argued by ANTARA D. KANTH (TIME REQUESTED: 15 MINUTES) New Vnrk 6upreme Qtnurt Appellate Division--Second Department ADNo.14-01787 THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against DAVID BOOKMAN, Defendant-Appellant. BRIEF FOR RESPONDENT JOHN M. CASTELLANO JOHNNETTE TRAILL JEANETTE LIFSCHITZ ANT ARA D. KANTH RICHARD A. BROWN District Attorney Queens County Attorney for Respondent 125-01 Queens Boulevard Kew Gardens, New York 11415 (718) 286-6654 Assistant District Attorneys Of Counsel APRIL 17, 2015 Queens County Indictment Number 2921/10 TABLE OF CONTENTS Page No. PRELIMINARY STATEMENT .................................. 1 INTRODUCTION ............................................. 2 STATEMENT OF FACTS ...................................... 3 The Dunaway/Huntley/Mapp Hearing ........................ 4 The Defense Case ........................................ 6 The Court's Decision ..................................... 7 Plea and Sentencing ...................................... 8 POINT ONE DEFENDANT'S WAIVER OF HIS RIGHT TO APPEAL WAS KNOWING, INTELLIGENT, AND VOLUNTARY .................................... 10 POINT TWO THE HEARING COURT PROPERLY DETERMINED THAT THE VEHICLE STOP WAS LAWFUL AND ANY CLAIM TO THE CONTRARY IS MERITLESS ........................ 19 CONCLUSION .............................................. 31 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT ----------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK Respondent, -against- DAVID BOOKMAN, Defendant-Appellant. ----------------------------------------------------------------------x BRIEF FOR RESPONDENT PRELIMINARY STATEMENT Defendant David Bookman appeals from a January 10, 2014, judgment of the Supreme Court, Queens County (Griffin, J.) By that judgment, defendant was convicted, after pleading guilty, of Attempted Criminal Possession ofa Weapon in the Second Degree (Penal Law §110/ 265.03[1]). The court sentenced defendant, as a second felony offender, to a determinate term of three years' incarceration with five years' post-release supervision. Defendant is currently subject to post-release supervision in this matter. 1 1Subsequently, the court amended defendant's commitment for his sentence to run nunc pro tune with his Maryland case (Amended Sentence: 2) INTRODUCTION On November 2, 2010, at approximately 4:40 p.m., Officer Colin Sparks stopped a Nissan motor vehicle after observing a defective brake light, and obstructing objects hanging several inches from the rear-view mirror. Defendant was seated in the rear passenger seat of the Nissan, with co- defendants Reedy and Robinson seated in the driver's side and front passenger seat respectively. When he approached the vehicle, Officer Sparks noticed a plastic bag in the cup holder that he believed contained drug residue. He then ordered all the men out of the car, and placed them under arrest. After searching the Nissan for drugs, Officer Sparks observed the butt end of a loaded pistol sticking out of a newspaper, and recovered both the gun and the magazine. Defendant made a post-arrest, post-Miranda statement where he admitted, among other things, that co-defendant Robinson had taken defendant's newspaper and wrapped the gun in it, and that the cocaine belonged to co-defendant Reedy. 2 2Co-defendant Reedy was separately charged with other violations of the Vehicle and Traffic Law. The cases against co-defendants Reedy and Robinson were dismissed, and are currently sealed. A notice of appeal was filed by co-defendant Robinson on August 9, 2012, but no further activity is indicated. 2 Defendant and co-defendants were indicted for two counts of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03(11; § 265.03[2]). On June 8, 2011, a Dunaway/Huntley/Mapp hearing was held in front of the Honorable Gregory L. Lasak. In a written decision dated July 25, 2011, Judge Lasak denied suppression of the gun and defendant's statement. On appeal, defendant raises·two claims. First, defendant argues that his waiver of his right to appeal was invalid. Second, defendant argues that the hearing court erred in finding that the vehicle stop did not violate the Fourth Amendment. Both of defendant's claims are meritless. First, defendant's waiver of his right to appeal was knowing, intelligent, and voluntary. Thus, the Court need not reach his Fourth Amendment claim. Second, even if this Court reaches the suppression issue, which it should not, the lower court properly denied defendant's motion to suppress the firearm. At the outset, the findings of the hearing court, which was best able to evaluate the evidence, are entitled to great weight on appeal. In any event, Officer Sparks had probable cause to stop the vehicle based on the hanging obstructions, and the 3 defective tail light which violated the Vehicle and Traffic Law. Thus, defendant's conviction should be affirmed. STATEMENT OF FACTS The Dunawav/Huntlev/Mapp Hearing On November 2, 2010, Officer COLIN SP ARKS, a three year veteran of the New York City Police Department, was on routine vehicle patrol driving Sergeant Montesquieu in the vicinity of Parsons Boulevard in Queens County. At approximately 4:40 p.m., Sparks' police car was stopped directly behind a Nissan Altima in the left hand tum lane, and Sparks observed that the car had a defective brake light (Hearing: 6), and a "novelty sandal and big heart-shaped necklace" hanging from the rear view mirror (Id., at 7). The hanging items were large enough for the officer to see them from his police car.3 After noticing the defective light,4 and the hanging obstructions, the 3Cross-examination testimony for co-defendants will only be summarized herein where it pertains to the vehicle stop or to defendant. On cross-examination, Sparks stated that the hanging sandal was approximately two inches wide, and four or five inches in length (Sparks: Cross: 23). The sandal was hanging four to five inches in the area from "the bottom of the mirror to th.e top of the dashboard" (Sparks: Cross: 45). The heart shaped necklace was approximately "two to three inches in length and one to two inches in height" (Sparks: Cross: 45). These items were never vouchered, and left in the car when it was picked up by co- defendant Reedy's girlfriend. (Sparks: Cross: 23, 44). 40n cross-examination, Sparks indicated that the center brake light was out (Sparks: Cross: 22). 4 police stopped the Nissan by activating their turret light, and sounding their sirens at Parsons Boulevard and 89th Avenue. Id. Officer Sparks approached the Nissan on the driver's side, with his partner on the passenger side. He observed three men inside the car: co- defendant Reedy was seated in the driver's seat, co-defendant Robinson in the front passenger seat, and defendant in the rear passenger seat (Hearing: 7-8). Officer Sparks approached the vehicle, asked for co-defendant Reedy' s license and registration,5 and noticed a "cloudy" plastic bag" containing a "white, powdery substance"-which Sparks believed to be cocaine residue6 (Hearing: 10). Sparks then ordered all the vehicle occupants out of the car, and arrested them. Both officers briefly searched the driver's side area for safety, and called for back-up (Hearing: 11; Cross: 46). An additional police van arrived at the scene, and defendant and the others were taken back to the precinct (Hearing: 11; Cross: 46).7 Officer 50n cross-examination, Sparks indicated that he observed the bag with residue in the cup holder after co-defendant Reedy produced identification documents (Sparks: Cross: 26). A subsequent laboratory analysis report indicated that the cloudy substance was not a controlled substance. 6At the time he made this observation, Officer Sparks had received training in the identification and detection of controlled substances at the Police Academy (Hearing: 10). Additionally, he previously encountered controlled substa.11ces both in packaging such as the plastic bag here, and in the center consoles of cars. Id 70fficer Love transported the car (Hearing: 11). 5 Sparks returned to the precinct, began processing the arrest, and searched the car from front to back for further narcotics (Hearing 12-13). When Sparks opened up the trunk, he observed a the butt of a loaded firearm "sticking out of the end" of a newspaper. Id. Sparks recovered the gun, 8 and removed the magazine to safeguard it (Id., at 14 ). Following the search of the vehicle, Officer Corecsus informed Sparks that defendant wanted to make a statement. Id. Sparks then brought defendant to the 103rd precinct detective squad, where Detective Wright administered Miranda warnings to defendant (Id., at 15-16).9 The police then asked defendant about the firearm, and how he found himself in the vehicle (Hearing: 19). Defendant made the following admission: co-defendant Reedy picked him up from the train station, and they drove around. When they stopped, Robinson got into the car, and asked defendant for his newspaper. Robinson took defendant's newspaper, wrapped the gun in it, and placed it in the trunk (Hearing: 19-20). The Defense Case Defendant called no witnesses at the hearing. 8The gun was a 9 millimeter High Point pistol (Hearing: Cross: 71 ). 9Detective Wright had a typewritten Miranda sheet, and had defendant initial beside each line to indicate his understanding (Hearing: 15-17). 6 The Court's Decision On July 25, 2011, the hearing court issued a decision and order on defendant's motion for a suppression hearing. In pertinent part, the hearing court denied defendant's motion to suppress physical evidence, finding that the police had "probable cause to stop the vehicle when Police Officer Sparks observed a defective tail light and an obstruction hanging from the rear view mirror" (Decision: 5). The hearing court found that these were violations of the Vehicle and Traffic Law, and did not distinguish which brake light malfunctioned, or the size of the items in the rear-view mirror. Finding the initial ,stop was justified, the hearing court properly determined that Officer Sparks was lawfully able to search the entire car for further drugs, where he observed a plastic bag that he believed contained narcotics. Additionally, the hearing court determined that defendant's statements were voluntarily given after the administration of Miranda wammgs. Thus, the hearing court found that the gun was admissible, and denied defendant's motion in its entirety. 7 Plea and Sentencing On January 10, 2014, defendant appeared with counsel before the Honorable James Griffin, Supreme Court, Queens County. On that date, defendant indicated that he was interested in the People's offer of a plea to Attempted Criminal Possession of a Weapon 'in the Second Degree (Penal Law§ 110/ 265 .03 [l ]), with a promised sentence of three years' incarceration and five years' -post-release supervision, to run nunc pro tune with his Maryland case (P: 2-4). 10 The prosecutor placed on the record that the waiver of appeal as a condition of the offer had been discussed as well (P: 4). The court asked defendant if he had fully discussed the plea with his attorney, and defendant acknowledged that he did (P: 5). Defendant also acknowledged that his mind was clear at that time. Id. The court then discussed the waiver of appeal (P: 6) as follows: THE COURT: Do you understand that even when you plead guilty, you still have a right to appeal, however, here as part of this plea bargain arrangement, you are giving up that right. Do you understand that? THE DEFENDANT: Yes, Sir. THE COURT: Do you freely give up your right to appeal? 10Page citations preceded by "P" refer to the January 10, 2014 plea minutes; page citations preceded by "S" refer to the January 31, 2014 sentencing minutes. 8 THE DEFENDANT: Yes, sir. Defendant then pleaded guilty to Attempted Criminal Possession of a Weapon in the Second Degree (Penal Law§ 110/265.03[1]), (P: 7). The court advised defendant that he was giving up his right to a trial, to be presumed innocent until proven guilty, to have his attorney cross-examine the witnesses against him at that trial, to present witnesses or testify on his own behalf, to remain silent, and to have the District Attorney's office prove his guilt beyond a reasonable doubt (P: 6). Defendant stated that he understood that he was giving up these rights by pleading guilty (P: 6). The court then asked if anyone was forcing defendant to plead guilty, and defendant answered, "No" (P: 7). Finally, the court asked defendant if he was pleading guilty because he was in fact guilty, and defendant replied, "Yes, Sir" (Id.). In addition, defendant signed a written waiver of his right to appeal, which indicated defendant was waiving "all issues that may validly be waived" (Waiver of Right to Appeal 'if 1 ). 11 The court then informed defendant of his term of incarceration and post-release supervision, and the effect of this sentence with respect to his Maryland case (P: 8). On January 31, 2014, 11 A copy of the waiver of appeal is annexed to the People's Brief as Exhibit A. 9 defendant appeared with counsel again before Judge Griffin, and was arraigned as a second felony offender, and sentenced, as noted above ( S: 2-4). That sentence was amended on May 28, 2014 by Judge Griffin to run nunc pro tune with defendant's Maryland case (S: 2-3). POINT ONE DEFENDANT'S WAIVER OF HIS RIGHT TO APPEAL WAS KNOWING, INTELLIGENT, AND VOLUNTARY (Answering Defendant's Brief, Point I, pp 8-11). Defendant's waiver ofhis right to appeal was knowing, intelligent and voluntary, which is evident from the record, and this Court need not reach defendant's Fourth Amendment claim. Defendant nevertheless claims that he failed to comprehend that he was waiving the right to appeal the hearing court's decision, and that the court's colloquy was insufficient. Defendant's contention is meritless, and belied by the record. First, the court asked defendant if he understood that he was waiving his right to appeal, and defendant acknowledged that he understood that he was waiving that right. Second, defendant executed a written waiver of his right to appeal in open court, which explicitly foreclosed any right to appeal any otherwise appealable 10 issues. As such, this Court should hold that defendant waived his right to appeal knowingly, intelligently, and voluntarily. As long as the waiver of the right to appeal is both knowingly and voluntarily made, a defendant may be properly held to this condition of the plea bargain agreement. People v. Johnson, 14 N.Y.3d 483, 486 (2010); People v. Callahan, 80 N.Y.2d 273 (1992); People v. Seaberg, 74 N.Y.2d 1 ( 1989). So long as a defendant understands the consequences and import of his waiving his appellate rights, the waiver will be enforced. Johnson, 14 N.Y.3d at 486. Although the court accepting a defendant's waiver must conduct an oral colloquy to ensure that the defendant knowingly, intelligently, and voluntarily waives the right to appeal, there is no mandated catechism and the execution of a detailed written waiver will bolster an otherwise insufficient colloquy between defendant and the court. See generally People v. Ramos, 7 N.Y.3d 737 (2006) ( "[e]ven if there were any ambiguity in the sentencing court's colloquy," executed written waiver of appeal may establish that defendant knowingly, intelligently, and voluntarily waived his right to appeal); People v. Callahan, 80 N.Y.2d 273 (1992) (no requirement of any particular litany to make waiver of appeal valid). 11 The record in this case, including defendant's signed written waiver, sufficiently demonstrates that defendant understood that he was waiving his right to appeal. First, the People, on the record, stated that defendant would be required to waive his right to appeal as a condition of his guilty plea (P: 4) and stated that the waiver was already discussed. The court first inquired if the defendant had "fully discussed"this matter with his lawyer, before even addressing the waiver of appeal (P: 5). The court then explained to defendant, on the record, that he was giving up his right to appeal (P: 5-6). When asked by the court if he understood, defendant replied, "Yes" (P: 5). When asked by the court if he was freely giving up his right to appeal, defendant replied, "Yes" (P: 5). In addition, defendant's written waiver of his right to appeal states that it applies to "all issues that may be validly waived" (Waiver of Right to Appeal, if 1 ). Defendant executed this written waiver of his right to appeal, indicating that he had read the waiver, had discussed it with his attorney, and ·agreed to the terms contained therein. Indeed, as the Court of Appeals held in People v. Ramos, 7 N.Y.3d at 737 (2006), any deficiencies in an oral waiver can be remedied by the execution of a written waiver of right to appeal. See Ramos, 7 N.Y.3d at 738. Thus, defendant's oral acknowledgment that he 12 understood that he was waiving his right to appeal, combined with his written waiver of right to appeal, was sufficient to demonstrate that defendant understood that he was giving up his right to appeal. This case is analogous to the facts of People v. McRae. People v. McRae, 123 A.D.3d 848 (2d Dept. 2014). There, the court upheld a waiver of appeal because defendant received an "explanation of the nature of the right to appeal and the consequences of waiving that right." Id. .Another factor considered by. the McRae court was a "consideration of the defendant's individual characteristics" to determine the validity of that waiver. Id. As the waiver of appeal was valid in that case, the instant case compels a similar result. :Here, defendant received a brief, but adequate explanation that he had a right to appeal even though he opted to plead guilty. When asked if defendant freely relinquished that right, defendant stated "[y]es, sir" (P: 6). Moreover, prior to even raising the nature of a waiver of appeal, the lower court inquired if defendant had an opportunity to confer with his attorney regarding the plea (P:5) and defendant responded that he had (Id.). Further, a consideration of defendant's circumstances weighs in favor of upholding the waiver here, as the record shows that defendant had 13 been convicted of a prior felony offense (P: 4). In addition, though it was the prosecutor who raised the issue, it was on the record that the waiver of appeal as part and parcel of the plea bargain had been discussed (P: 4). Defendant, however, contends that, because the court's oral colloquy regarding the waiver of the right to appeal did not specifically mention the adverse suppression ruling, defendant's acknowledgment that he understood the waiver cannot be construed as knowing and intelligent (Defendant's Brief at 10). But the lack of a specific reference to the adverse suppression ruling in his oral colloquy is of no legal consequence. When a defendant has waived his right to appeal as part of a negotiated plea agreement, such waiver encompasses appeals concerning adverse suppression rulings, and no "particular litany" is required by the trial court in the course of the oral colloquy. Peoplev. Kemp, 94 N.Y.2d 831, 833 (1999). Indeed, in Kemp, the Court of Appeals upheld the defendant's waiver ofhis right to appeal, although his plea colloquy included no specific reference to a waiver of the right to appeal the suppression issue. Id. at 83 3. Here, as discussed above, defendant stated orally that he understood that he was waiving his right to appeal knowingly and voluntarily, and subsequently signed the written waiver of his right to appeal. Therefore, despite the absence of a specific reference in the 14 colloquy to the adverse suppression ruling, defendant's waiver of his right to appeal was knowing, intelligent and voluntary, and he is barred from appealing the ruling of the lower court. In this case, however, the record demonstrates that the lower court separated defendant's rights "automatically extinguished" by a guilty plea from his waiver of the right to appeal. Id. at 256. Unlike the Lopez court, the lower court here separately advised defendant of the trial rights he was waiving by pleading guilty and of his waiver of his right to appeal. It was only after the People stated that the waiver of appeal had been a previously discussed condition of defendant's plea, and after inquiring if defendant had conferred with his attorney, that the court conducted its colloquy regarding the waiver of the right to appeal. Following that colloquy, it was only then that the court advised defendant of the automatic forfeiture of certain rights upon pleading guilty. Thus, in this case, there was a clear separation in the court's colloquy between the rights automatically forfeited upon defendant's guilty plea and the waiver of defendant's rightto appeal. To support his claim that both the written waiver and the court's colloquy were insufficient, defendant relies on People v. Lopez, 6 N.Y.3d 248 (2006), and similar cases which are distinguishable from the instant matter. 15 In Lopez, the Court of Appeals held that a waiver of the right to appeal was ineffective where the defendant gave one-word replies to incorrect information about the waiver. Id. But that case is distinguishable on two grounds. First, the court in Lopez held that"[ w ]hen a trial court characterizes an appeal as one of the many rights automatically extinguished upon entry of a guilty plea, a reviewing court cannot be certain that the defendant comprehended the nature of the waiver of appellate rights." Id. at 256. Therefore, where the trial court stated, "when you plead guilty you waive your right of appeal," the Court found this misstatement of the relationship between the guilty plea and the waiver of the right to appeal fatal to the validity of the waiver. See Id. at 257. Further, in Lopez, the defendant did not execute a written waiver of her right to appeal at all. See Lopez, 6 N.Y.3d at 254. As discussed above, the execution of a written waiver of the rightto appeal has a curative effect on deficiencies or ambiguities in the oral colloquy. See Ramos, 7 N.Y.3d at 738. And in this case, defendant executed a written waiver of his right to appeal, which included the language, "any and all issues that may validly be waived" (Waiver of Right to Appeal,~ 1). While it may have been "better practice," Kemp, 94 N.Y.2d at 833, for the lower court to fully explain that defendant was waiving his right 16 to appeal the suppression issue, this was not a misstatement to the degree contemplated by the Court of Appeals in Lopez. See Lopez, 6 N.Y.3d at 256- 57. There, the Court invalidated a waiver where the court below mis- characterized the waiver of right to appeal as an automatic consequence of the guilty plea. Id. at 257. Here, the lower court never made an erroneous statement of that nature when advising defendant of the right he was waiving. Furthermore, in this case, defendant's written waiver of his right to appeal, which included the language, "any and all issues that may validly be waived" remedied any ambiguity created by the lower court's explanation (Waiver of Right to Appeal, ~ 1 ). Thus, Lopez is distinguishable from the case at bar. 12 Defendant points to People v. Cohen, and People v. Bradshaw to demonstrate the failures of the colloquy and written waiver here. People v. Bradshaw, 18 N.Y.3d 257(2011 ); People v. Cohen, 210 A.D.2d 343 (2d Dept. 12To support his contention that the lower court's "terse" (Defendant's Brief at 9) colloquy was insufficient, defendant also points to People v. Brown. People v. Brown, 122 A.D.3d 133, 142 (2d Dept. 2014)(Invalidating waiver of appeal where trial court's colloquy was insufficient). As previously noted, it would have been better practice for the explanation here to include that defendant also waived the "appointment of appellate counsel," and that defendant's "conviction and sentence would not receive any further review" with the waiver. Id. In Brown, there was "no discussion on the record" between the court and defendant regarding the waiver of appeal. Id., at 145. Here, the court did participate in an on-the- record discussion with the defendant regarding the waiver of appeal (P: 5-6). The prosecutor also stated that the waiver had been discussed (P: 4). Thus, the instant case is distinguishable from Brown, and this Court should uphold defendant's waiver of appeal. 17 1994). In Bradshaw, the lower court improperly advised defendant that the waiver of appeal meant "that there is not a higher court that you can take the case to." Bradshaw, 18 N.Y.3d at 261. Unlike Bradshaw, the court did not offer such a confusing and incorrect statement. Additionally, Bradshaw is further distinguishable because the defendant there suffered from mental health issues, further clouding the issue of whether the waiver was knowing and voluntary. Though the lower court here failed to inquire if defendant executed the waiver on the record as in Cohen, this alone was not fatal, given that defendant indicated that he freely waived his right to appeal. In addition, defendant claims that the written waiver here was insufficient, as it did not explicitly reference the hearing court's decision (Defendant's Brief at 10). As previously stated, the waiver included the language "any and all issues" that may be waived (Waiver of Right to Appeal,~ 1). Because the hearing court's ruling is encompassed in this language, this claim is also meritless. Thus, the colloquy and written waiver were sufficient, and this Court need not entertain defendant's remaining claim. In sum, defendant's waiver of his right to appeal was knowing, intelligent, and voluntary. Defendant's remaining claim need not be entertained. 18 POINT TWO THE HEARING COURT PROPERLY DETERMINED THAT THE VEHICLE STOP WAS LAWFUL, AND ANY CLAIM TO THE CONTRARY IS MERITLESS. (Answering Defendant's Brief, Point II, pp 11-15). The hearing court properly upheld the vehicle stop in this case, because Officer Sparks observed obstructions hanging from the rear view mirror, and a defective brake light, which violated the Vehicle and Traffic Law. Indeed, it is well settled that the hearing court's factual findings are entitled to great weight on appeal, and should not be disturbed as long as the record supports them. See People v. Prochilo, 41 N.Y.2d 759, 761 (1977). Appellate courts should only reject hearing court findings when the testimony upon which they are based seems "manifestly untrue, physically impossible, contrary to experience, or self-contradictory." People v. Lebron, 184 A.D.2d 784, 785 (2d Dept. 1992); People v. Garafalo, 44 A.D.2d 86, 88 (2d Dept. 197 4 ). Because the hearing court, which had the best view of the evidence, properly determined that the police conduct was lawful, this Court need not disturb that finding. Nevertheless, defendant contends that the stop was improper because the People failed to prove that the ornaments were obstructing the driver's view and "hanging below the dashboard," and that the 19 officer failed to issue a summons for those items (Defendant's Brief at 14 ). 13 Defendant's claim fails on the merits. At the hearing, Officer Sparks testified that the items were "obstructions," and that he could see the hanging items from a car length away (Hearing: 4-6). This observation justified the vehicle stop, and warranted Officer Sparks' approach of the vehicle.· Once Sparks observed what he believed to be cocaine residue in the plastic bag inside the cup holder, based on his training and experience in narcotics, he had probable cause to arrest the vehicle occupants, and search the entire car for further contraband. Contrary to defendant's claims, these obstructions were not simply a pretext for the stop, because Officer Sparks did not observe any possible contraband until he approached the car. 14 Thus, defendant's claim that the police conduct was unlawful is meritless. 13 Defendant annexed the memorandum of law submitted on his behalf at the suppression hearing to his brief as an exhibit. As these are largely the same arguments raised on appeal, accordingly, the arguments contained herein encompass both defendant's memorandum and exhibit. 14Indeed, even if the Court were to find that the traffic violations were pretextual, this still would not invalidate the stop and subsequent search of the car based on the facts contained herein. Whren v. United States, 517 U.S. 806 (1996); see also People v. Robinson, 97 N.Y.2d 341 (2001). 20 Defendant further complains that the stop was improper because the vehicle's center tail light malfunctioned, and not either of the side brake lights. Defendant is wrong. The officer had already observed hanging obstructions from a car length away, which observation alone would have justified the stop. This observation, coupled with the defective tail light, further justified the vehicle stop, as many courts have upheld stops based on defective tail lights. Moreover, the officer had a reasonable belief that the center light's malfunction constituted a traffic infraction. Thus, defendant's claims are all meritless and his conviction and sentence should be affirmed. It is well settled that, in most situations, a minimum of reasonable suspicion is required to justify a vehicle stop. See People v. Sobotker, 43 N.Y. 2d 559 (1978). It is further well-settled that car stops are lawful where the police have probable cause to stop a vehicle for traffic violations. See generally Whren v. United States, 517 U.S. 806 (1996); People v. Robinson, 97 N.Y.2d 341, 346 (2001). Central to the inquiry is whether "[a] police officer can articulate credible facts establishing reasonable cause that someone has violated a law." Robinson, 97 N.Y.2d at 353. Generally, it is the defendant who bears the burden at suppression hearings; however, the People assume the burden of "going forward to show the legality of the police conduct in the first 21 instance." People v. Malinsky, 15 N.Y.2d 86, 92, n.2 (1965). As the People more than met their burden that Officer Sparks' conduct was lawful, because he had probable cause to stop the Nissan motor vehicle for traffic violations, this Court should deny defendant's claim. As the hearing court properly determined, Officer's Sparks' testimony established that there was probable cause to stop the vehicle based upon violations of the Vehicle and Traffic Law. Section 375(30) of the New York State Vehicle and Traffic Law provides, in relevant part, that "[i]t shall be unlawful for any person to operate a motor vehicle with any object placed or hung in or upon the vehicle .. .in such a manner as to obstruct or interfere with the view of the operator through the windshield, or prevent him from having a clear and full view of the road." Vehicle and Traffic Law§ 375 (30) (LEXIS, 2015). In this case, Officer Sparks' testimony established that the hanging items were obstructions within the meaning of the statute. Officer Sparks testified that he was directly behind the Nissan when he saw the items, which he described as "obstructions" hanging from the car's rear view mirror (Hearing: 6). Sparks further characterized the heart necklace as "big" (Id., at 7) and indicated that he intended to issue a citation for these items (Sparks: Cross: 24). Sparks further indicated that the sandal 22 was hanging "four or five inches" between the mirror and the dashboard, and "about two inches wide" (Sparks: Cross: 23). Regarding the "big" heart shaped necklace (Hearing: 7), Sparks testified that this particular item was "one to two inches" in height, and hung '"two to three inches" in length, and was also hanging from the mirror (Sparks: Cross: 45). Accordingly, both items were displayed between the bottom of the rear view mirror and the top of the dashboard. It follows that these items were hanging "in such a manner as to interfere with the view of the operator through the windshield," as both objects were therefore blocking the center part of the windshield in an area where the driver would otherwise have a clear view. In addition, the fact that the officer described that the items were "obstructions"(Hearing: 6) supports the inference that the objects were interfering with a clear road view. Thus, defendant's claim that there was no testimony demonstrating that the hanging items violated the Vehicle and Traffic Law is belied by the record. Courts have found violations of the Vehicle and Traffic Law in situations similar to that of the case at bar. For instance, in People v. Harrington, the Fourth Department upheld the recovery of drugs from a car 23 where the initial stop was based on "numerous air fresheners" hanging from the rear-view mirror. People v. Harrington, 817 N.Y.S.2d 483, (4th Dept. 2006). The Harrington court noted that those items obstructed the view of the road. Id. Likewise, in People v. Carver, the police stopped a car because of an object hanging from the rear-view mirror. People v. Carver, 124 A.D.3d 1276, 1280 (4th Dept. 2015). In Carver, the proceeds ofa burglary, and burglar's tools, were subsequently recovered from the car. Id., at 1277. On appeal, the defendant claimed, inter alia, that his counsel was ineffective. In discussing the legality of the initial stop, the Fourth Department noted that the officer: " stopped the vehicle because he observed an item hanging from the rear-view mirror and a sticker on the front windshield, both of which constitute violations of the Vehicle and Traffic Law." Id., at 1280. Because of that testimony, the court found that the defense attorney there had "no grounds to challenge the legality of the stop." Id. By contrast, in People v. Diodato the Appellate Term, Second Department did not find a violation of Section 3 7 5 (3 0) of the Vehicle and Traffic Law because there was no testimony that the hanging object in that car "obstructed or interfered" with the driver's view of the road. People v. Diodato, 14 Misc3d 127(A), 127(A) (N.Y. App. Term. 2004). In People v. 24 David, the officer observed the vehicle traveling at twenty miles an hour on Route 17, observed "some objects" hanging from the rear-view mirror, and the defendant was not wearing a seat belt. People v. David, 223 A.D.2d 551, 551 (2d Dept. 1996). There, the court disbelieved that officer's testimony regarding the infractions, as that officer made no inquiry regarding the infractions, and found that the stop was a mere pretext. 15 David, 223 A.D.2d at 553. Here, like Carver and Harrington, Officer Sparks' testimony demonstrated that the hanging sandal and heart necklace were substantial enough to be considered obstructions to the driver's view. Unlike Diodato, Officer Sparks described the dimensions of the items. Further, unlike David, Officer Sparks testified that he was going to issue the driver a citation when he approached the vehicle. Thus, the record demonstrates that Officer Sparks conducted a lawful car stop, based in part upon a violation of section 3 75 (30) of the Vehicle and Traffic Law. As Officer Sparks was in a lawful position 15 As previously stated, a finding that the traffic violations here were pretextual, still would not justify suppression of the gun. 25 when he observed what he believed to be a bag of cocaine residue, his further search of the car was also proper, 16 and defendant's claim fails. Nonetheless, defendant complains that the obstructing items were never vouchered, and no citations were ever issued. This is of no legal consequence. It is logical that Officer Sparks failed to issue a citation because he observed the plastic bag containing a "cloudy" substance (Sparks: Cross: 34 ), and became focused on the search for narcotics. It is not uncommon for officers to decline to issue traffic summonses in arrests for violent felony offenses, and it does not invalidate the stop where an officer fails to issue a summons. People v. Miller, 216 A.D.2d 421 (2d Dept. l 995)(Upholding car stop where police never issued summons for stolen license plate). Further, the fact that the items were never vouchered does not render Officer Sparks' entire testimony unworthy of belief, or invalidate the police action here. Defendant further contends that if Officer Sparks' testimony is to be believed regarding the existence of these obstructions, "the police could stop every motorist using a dashboard mounted G .P. S." (Defendant's Brief at 16It is well-settled that an officer's mistaken identification of an item as contraband will not invalidate a search predicated on that belief. See People v. Argentina, 150 A.D.2d 703 (2d Dept. 1989)(Upholding recovery of weapons from car where officer's search was based on mistaken belief that defendant possessed a switchblade). 26 13). As noted by the Court of Appeals in Robinson, "many New Yorkers often violate some provision of the Vehicle and Traffic Law." Robinson, supra, at 358. In response to that assertion, the Court of Appeals noted that "probable cause under the Vehicle and Traffic Law," provides the public with the necessary protections against "arbitrary police conduct." Id. As the record is devoid of such arbitrary conduct, and because Officer Sparks had probable cause to stop the Nissan vehicle in this case, defendant's claim is meritless. To support his claim that there was no violation of the Vehicle and Traffic Law, defendant points to People v. 0 'Hare. People v. 0 'Hare, 73 A.D.3d 812, 813 (2d Dept. 2010). This case is inapplicable because the sole item prompting the stop was an air freshener hanging from the rear-view mirror, which was one-tenth of one inch long. Id. In this case, not just one, but two relatively large items were hanging from the rear-view mirror (Hearing: 6). The items were hanging several inches in between the bottom of the rear-view mirror and the top of the dashboard (Sparks: Cross: 24). As the record here is far stronger than that of 0 'Hare, defendant's reliance on that case is misplaced. Just as the objects hanging from the rear-view mirror justified the stop, the defective tail light also provided an additional basis for the car stop, 27 particularly in light of the observations of the hanging items previously discussed. Section 375 (40)(b) of the Vehicle and Traffic Law provides, in relevant part, that "[ e ]very motor vehicle .. operated or driven on the public highways of the state ... shall be equipped with at least two stop lamps, one on each side, each of which shall display a red to amber light visible at least five hundred feet from the rear of the vehicle when the brake of such vehicle is applied." Vehicle and Traffic Law§ 375 (40)(b) (LEXIS, 2015). Defendant correctly points out that the law is silent regarding the function of the center light. However, the officer had a reasonable belief that the broken tail light constituted a traffic infraction, and his actions in stopping the car were proper. Indeed, car stops based on defective tail lights have been upheld, irrespective of which tail light is inoperable. For example, in People v. Hale, the court upheld a conviction for a firearm recovered from a car, where the stop was based on "nonoperative tail lights." People v. Hale, 75 A.D.2d 606 (2d Dept. 1980); see also People v. Carter, 109 A.D.3d 1188 (4th Dept. 2013)(Affirmed conviction for criminal possession of a weapon during a frisk, where initial stop was based on broken tail light). Like Hale and Carter, the stop here was based, in part, on an observation of a broken tail light. Given those cases, the officer's belief that the broken tail light here justified the car 28 stop was not unreasonable, and the Court should disregard any claim to the contrary. In that vein, People v. Edwards is particularly applicable to these facts. In that case, police officers observed and recovered a gun from a passenger inside a livery car. People v. Edwards, 222 A.D.2d 603, 604 (2d Dept. 1995). There, the officers stopped the car because they observed "pitch black tinting" on the vehicle's windows. Id. The Edwards court held that "[s]ince the police reasonably believed that the tinted windows constituted a violation of the Vehicle and Traffic Law, their stop of the vehicle was lawful." Id. Here, Officer Sparks was one car length away from the Nissan where defendant was a passenger, when he saw the car make a left tum (Hearing: 6). He saw the hanging obstructions, and noticed a "defective brake light" (Id.). Under these facts, when the car was making a tum, Officer Sparks already knew that the vehicle had committed a traffic violation, and it was not unreasonable for him to believe that the defective tail light also required a summons. Because this belief was enough to sustain the vehicle stop in Edwards, this Court should apply similar reasoning to find that the officer's conduct in stopping the car because of the defective tail light was proper. 29 In any event, because the officer already observed the hanging obstructions, he had probable cause to stop the vehicle even without the observation of the broken tail light. Nonetheless, defendant contends that because the side tail lights were functioning, the officer's belief that the broken center tail light was a traffic infraction was a mistake of law, and the entire stop was invalid. Defendant is wrong, since the stop was not solely predicated on a defective center tail light. There was no mistake of law here, because the stop was based on a separate violation of the Vehicle and Traffic Law for the obstructing items hanging from the rear view mirror. Because the officer already knew that the vehicle committed a separate traffic infraction, defendant's mistake of law claim fails. In sum, the lower court properly denied defendant's motion for suppression of the firearm, because Officer Sparks had probable cause to stop the vehicle based on violations of the Vehicle and Traffic Law. As the officer's stop of the car was completely lawful, the Court should not disturb defendant's conviction. 30 officer's stop of the car was completely lawful, the Court should not disturb defendant's conviction. CONCLUSION For the reasons set forth above, defendant's judgment of conviction and sentence should be affirmed. JOHN M. CASTELLANO JOHNNETTE TRAILL JEANETTE LIFSCHITZ ANT ARA D. KANTH Assistant District Attorneys Of Counsel April 17, 2015 31 Respectfully submitted, RICHARD A. BROWN District Attorney Queens County EXHIBIT A Part __ 1(-'---~--·-- l'>Upreme coun or me ~tate or New York COUNTY OF QUEENS In,,_..;tment# d q~f / ~t:J/0 THE PEOPLE OF THE STATE OF NEW YORK Defendant WAIVER OF RIGHT TO APPEAL AND OTHER RIGHTS I, the undersigned defendant, acknowledge that, in addition to the rights that I am giving up as a direct consequence of my plea of guilty, I have been advised of, and waive, all of the separate and distinct rights listed below and I agree to all of the terms and conditions appearing below. 1. Waiver of Right to Appeal: I acknowledge that I have been advised of, and waive, my right to appeal from the judgment of conviction or sentence. This includes, but is not limited to, my right to prosecute the appeal as a poor person and to have an attorney assigned in the event that I am indigent, and to submit a brief and/or have argument before the appellate cour:t on any iS$Ues relating to the conviction and sentence. This waiver applies to all issues that may ,validly be waived. This includes but is not limited to any issue regarding the effectiveness of counsel prior to my plea in this case and any issue with regard to the imposition of sentence. I also waive any issue that may arise with regard to my adjudication as a second felony offender, second violent felony offender, second felony drug offender, persistent felony offender, persistent violent felony offender, or any other adjudication involving a prior offense for the purpose of increasing my sentence. I also understand that if I fail to live up to the conditions imposed by the court pending sentence or as part of the sentence itself, I will receive an increased sentence, and I hereby waive any issue that may arise regarding the imposition or terms of the increased sentence. In addition to the above issues, my waiver also inclucies the following specific issues: 2. Waiver of Right to File Post-Conviction Motions and Applications: I have been advised of, and waive, my right to file motions to vacate my conviction and to set aside my sentence under C.P:L. Article 440, my rights to file habeas corpus petitions to challenge my conviction in state and federal court, and any right I may have to file any other motion or application attacking my conviction in state or federal court This waiver applies to all issues that may validly be waived., including all those listed above. 3. Independence of Plea: I understand that, unless otherwise specified on the record of the plea proceedings, this plea is independent of any other plea 0r conviction after trial in any other case in any jurisdiction. · I specifically waive my right to contest the plea and sentence in this case even in the event that my conviction or sentence in any other case is reversed or otherwise overturned or modified, and even if the conviction or sentence of my co-defendant is reversed., overturned., or modified. 4. Extradition: I also freely, knowingly and voluntarily, waive my right to contest extradition back to New York State should I leave this state prior to the beginning of or during the perioc of the sentence imposed in this matter. This agreement includes an explicit waiver of my constitutional right to dei:::iand the issuance of a governor's extradition warrant and/or any other legal documents, procedures or hearings which would otherwise be required to secure my return to New York State. I hereby consent to my involuntary rendition and return to New York State without the issuance of any such legal documents, procedures, or hearings which might otherwise be required under either the Uniform Criminal EXtradition Act or the Interstate Agreement on Detainers. S. Post-Release Supervision: I have been advised and understand that my sentence may include a periOd of post-release supervision of up to five years, and I waive my right to raise any issue with respect to that period on appeal or in any post-judgment proceeding of any kind in state or federal court. 6. Immigration and Deportation Consequences: I also understand that if I am not a U.S. citizen, my plea may result in my deportation, exclusion from admission to the U.S., or denial of naturalization, and I wish to enter into the plea agreement notwithstanding any immigration or deportation consequences. I understand that my plea and sentence will stand as valid notwithstanding any immigration or deportation consequences. 7. Freedom of Information Law: I also waive my right to seek information regarding this case under the Freedom of Information law. !>M waj>'e !1.-)liese rights voluntarily and knowingly after being fully informed of them by my attorney, lj!!.; V'-~ "" standing beside me. I have had a full opportunity to discuss these matters with my attorney and to raise them with the court, and any questions I may have had have been answered to my satisfaction. De;endant ,$ ~ Date .!/dtt_ Defendant's Attorney~ Date 1/;o/tf The above-named defendant appeared before this court on this&::~ the presence of this court, and with the approval of this court and with the advice and consent of his attorney, signed the foregoing waiver of his rights. ~ Judge ~ Dated:_l.._/_tc:>,.,_(_1.:-r ____ _ 11'\lf\L CERTIFICATE OF COMPLIANCE I certify the following in compliance with section 670.10.3 of the Rules of this Court: 1. The foregoing brief was prepared on a computer. 2. The typeface used is Times New Roman. 3. The point size of the text is 14 point, except for footnotes, which are 12 point. 4. The brief is double spaced, except for the Table of Contents, point headings, footnotes, and block quotes. 5. The brief contains 6,632 words, exclusive of the Table of Contents, proof of service, and the certificate of compliance, based on the word count of the word-processing system used to prepare this brief. Dated: Kew Gardens, New York April 17, 2015