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People v. Newson

Supreme Court of New York, Second Department

November 8, 2017

The People, etc., respondent,
v.
Takim Newson, appellant. Ind. No. 2308/11

          Argued - November 1, 2016

         D53439 M/hu

          Paul Skip Laisure, New York, NY (Jenin Younes of counsel), for appellant.

          Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Joseph Ferdenzi, and Heather H. Marshall of counsel), for respondent.

          L. PRISCILLA HALL, J.P. SANDRA L. SGROI JOSEPH J. MALTESE COLLEEN D. DUFFY, JJ.

          DECISION & ORDER

         Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered September 26, 2013, convicting him of robbery in the first degree (two counts), robbery in the second degree (three counts), criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree, criminal possession of stolen property in the fifth degree, failing to stop at a steady red signal, and making an unlawful turn, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Paynter, J.), of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.

         ORDERED that the judgment is modified, on the law and the facts, by vacating the convictions of robbery in the first degree (two counts), robbery in the second degree (three counts), criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree, and criminal possession of stolen property in the fifth degree, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed, and those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials are granted.

         At a suppression hearing, the People elicited testimony from the arresting officer, the detective who interviewed the defendant at the police station, and the officer who assisted the arresting officer in conducting an inventory search of the defendant's vehicle.

         The arresting officer testified that at approximately 3:30 a.m. on the night at issue, a red Mitsubishi traveling at a high rate of speed cut off the unmarked police vehicle that he had been driving, made a left turn from the far right lane of traffic, and then made another left turn through a red light. The officer testified that, as a result, he directed the vehicle, which was driven by the defendant, to stop. The officer also testified that, at the time he stopped the vehicle, he had no suspicion that the vehicle or its occupants were connected in any way to a radio run he had received approximately 20 minutes earlier describing a black man wearing a "blue shirt and blue pants" and carrying a firearm in his waistband who had fled on foot from the area of "70-20 Grand Avenue."

         The arresting officer further testified that after the vehicle stopped, he approached the driver's side, where the defendant was sitting in the driver's seat, and his partner approached the passenger's side, where a male passenger was sitting in the front seat. The officer testified that he observed a Coach handbag in the back seat of the vehicle, but he also testified that, at that point, he had no knowledge that the handbag may have been the subject matter of a potential robbery.

         The arresting officer testified that as he approached the vehicle, he thought the front seat passenger could "possibly fit[ ]" the description from the radio run because he was a black male wearing all dark clothing. The officer admitted that the passenger had been wearing grey jeans and a black jacket, not blue pants or a blue shirt, but indicated that in his experience, witnesses easily confuse blue and black.

         The officer did not immediately ask the passenger to get out of the vehicle; instead, he asked the defendant, who was still seated in the vehicle, if there was "anything illegal" on him or in the vehicle. According to the officer, the defendant replied, "No, officer. You can check." The officer did not testify that at that time of his inquiry he was in fear for his safety. Although the officer testified that at the time the defendant responded to his inquiry, the officer smelled a strong odor of alcohol coming from the defendant, his question about "anything illegal" was not based on the smell of alcohol or his belief that the passenger looked like the reported gunman, and he never performed a breathalyzer or other sobriety test on the defendant. The officer also testified that neither he nor his partner drew a gun even though he thought the passenger might have matched the description of a man in dark clothing with a gun.

         The officer testified that he directed the defendant to step out of the vehicle and move to the rear of the vehicle, where he frisked the defendant but did not recover a weapon. The officer and his partner then switched places, and the officer removed the passenger from the vehicle and moved the passenger to the rear of the vehicle. The officer frisked the passenger but did not recover a weapon.

         The officer testified that he asked the defendant where he was coming from, and the defendant answered that he was coming from a strip club and admitted that he had been drinking. The officer testified that this discussion occurred after the defendant had been removed from the vehicle and after the officer had asked the defendant if there was anything illegal on him or in the vehicle. According to the officer, at the time he entered and looked inside the vehicle, the defendant and the passenger were standing at the rear of the vehicle, and he knew that they were unarmed. The defendant and the passenger were not free to go at that point.

         The officer testified that although he had no knowledge that the Coach handbag may have been involved in a robbery, the handbag "grabbed [his] attention, " and he had a hunch or suspicion that there might be something wrong with two men driving with a handbag in the backseat. Next to the handbag, he saw a camera and a cell phone. The officer looked inside the handbag to see if there were any markings that would identify the owner and then turned on the camera and saw that all the photographs were of Asian people. The officer testified that he asked the defendant who the camera belonged to, and the defendant replied that it belonged to his girlfriend, who he described, upon further questioning, as "Dominican." The officer further testified that ...


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