The opinion of the court was delivered by: Acosta, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on April 17, 2012
SUPREME COURT, APPELLATE DIVISION First Judicial Department
Peter Tom,J.P. John W. Sweeny, Jr. Rolando T. Acosta Dianne T. Renwick Nelson S. Roman, JJ.
Defendant Maurice Newman appeals from the judgment of the Supreme Court, New York County (Charles H. Solomon, J. at suppression hearing; Daniel P. FitzGerald, J. at jury trial and sentencing), rendered June 12, 2009, as amended June 24, 2009, convicting him of criminal possession of a weapon in the second degree (two counts), attempted criminal possession of a weapon in the second degree (two counts) and possession of an imitation pistol, and imposing sentence. Defendant Freddie Wilson appeals from the judgment, same court and Justices, rendered June 12, 2009, convicting him of criminal possession of a weapon in the second degree (two counts), attempted criminal possession of a weapon in the second degree (two counts), possession of an imitation pistol, criminal possession of stolen property in the fourth degree (11 counts) and criminal possession of stolen property in the fifth degree, and imposing sentence. Defendant Rodger Wilson appeals from the judgment, same court and Justices, rendered June 12, 2009, convicting him of criminal possession of a weapon in the second degree (two counts), attempted criminal possession of a weapon in the second degree (two counts) and possession of an imitation pistol, and imposing sentence. Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for Maurice Newman, appellant. Steven Banks, The Legal Aid Society, New York (Paul Wiener of counsel), for Freddie Wilson, appellant. Office of the Appellate Defender, New York (Richard M. Greenberg of counsel), and Paul, Hastings LLP, New York (Joshua M. Bennett, Kenneth M. Breen and Douglas I. Koff of counsel), for Rodger Wilson, appellant. Cyrus R. Vance, Jr., District Attorney, New York (Grace Vee and Susan Gliner of counsel), for respondent. ACOSTA, J.
This case addresses the kind of showing that must be made to justify a limited intrusion into a vehicle whose occupants have been removed and patted down. Applying the search and seizure provisions of the New York state constitution (NY Const, Art I, § 12), we hold that the police action at issue in this case was proper. We believe that defendant Newman's deception in conjunction with his rather disconcerting movements understandably triggered the officers' concerns that there could be a weapon in the car, which posed an "actual and specific danger." Having sufficient reason to fear for their safety, the officers were thus permitted to make a limited intrusion to verify whether there were weapons in the car. Background
On December 19, 2007, Police Officers Gabriel Diaz and Kwane Kipp, and Sergeant Stephan O'Hagan, were on patrol in an unmarked vehicle. At approximately 10:25 p.m., as they approached the intersection of Columbia Street and Houston Street, they saw a white, four-door Ford Contour in front of them. The name of the state on the rear license plate was covered by the bottom of the license plate holder and was not visible. Since an "obstructed" license plate is a violation of the Vehicle and Traffic Law, the vehicle was pulled over.
Diaz, Kipp and O'Hagan got out of their car and approached the Contour, noticing that the car contained a driver, a front seat passenger and another passenger in the back, behind the front passenger seat. Meanwhile, Officer Jensen Dayle and Lieutenant Derrico saw Diaz stop the Contour, and pulled up in their unmarked car behind Diaz's vehicle.
As Officer Diaz walked toward the car, he saw the occupants of the car "moving a lot" as they "bent down putting something down and picking something up." Officer Kipp noticed all three individuals "moving around in their seats," "ducking down," "moving their head[s] up and down" and "looking down." Kipp believed that "[s]omething was going on," so he warned Diaz and O'Hagan to "[b]e careful, they're moving around." None of the officers had their guns drawn.
Officer Diaz approached the driver's side window and asked defendant Rodger Wilson for his license, registration and insurance card. Rodger [FN1] immediately told the officer that he did not have a driver's license. When Diaz asked Rodger where he was going, Rodger replied that he was lost, and was looking for a highway to head back to Cleveland, Ohio. The car had Ohio license plates, and defendant Maurice Newman, who was pretending to be asleep, was holding a map. Rodger told the officer that the car belonged to Newman, but he was tired, which was why Rodger was driving. Diaz observed that even though Newman had his eyes closed and "acted like he was sleeping," he had been moving before they approached the car.
When Officer Diaz asked Rodger for the paperwork for the car, Rodger tapped Newman on the shoulder "like he was waking Mr. Newman up" and asked for the papers. Newman immediately reacted and opened the glove compartment but closed it right away without looking inside. Two to three seconds later, Newman leaned over the center console and reached under the driver's seat as if he was looking for something. Newman then sat in his seat again, leaned forward and reached under his seat with one hand. At that point, Diaz "did not feel comfortable" and feared for his safety; he thought that Newman "might be reaching for a weapon or something." Officer Diaz ordered Newman to stop, and Newman complied, putting his hands on his lap. Officer Diaz then ordered Rodger, a "pretty big guy," to step out of the car. After Diaz gave Rodger a quick patdown and found no weapons or contraband, he instructed Rodger to walk to the back of the car. Officer Kipp then removed defendant Freddie Wilson from the rear passenger seat and, because of the "movements" he had observed, frisked him for weapons, and then brought him to the back of the car. Sergeant O'Hagan instructed Officer Dayle to take Newman out of the car. Dayle conducted a safety patdown of Newman, and escorted him to the back of the car. There, Officer Kipp and Lieutenant Derrico watched the three men.
Officer Diaz subsequently leaned inside the Contour through the open door on the driver's side. With the upper part of his body positioned between the steering wheel and the center console, he shined his flashlight under the front passenger seat and the driver's seat, the areas that Newman had been "making a movement towards," to find out "what he was looking for under the seat." Officer Diaz then saw the handle of a gun sticking out about three inches from under the front passenger seat. Diaz alerted the officers on his team that there was a firearm in the car. After that, Newman, Rodger and Freddie were arrested. Officer Diaz did not issue a ticket for a traffic violation or for Rodger driving without a license. Upon "completely" ...