S. Dean, Center for Appellate Litigation, New York (Jan Hoth
of counsel), for appellant.
R. Vance, Jr., District Attorney, New York (John T. Hughes of
counsel), for respondent.
Renwick, J.P., Richter, Manzanet-Daniels, Kahn, Kern, JJ.
Supreme Court, New York County (Anthony J. Ferrara, J.),
rendered December 9, 2015, as amended February 16, 2016,
convicting defendant, after a jury trial, of three counts of
criminal possession of a forged instrument in the second
degree, and sentencing him, as a second felony offender, to
concurrent terms of 3½ to 7 years, unanimously
hearing court properly denied defendant's motion to
suppress forged debit and gift cards recovered from his
wallet subsequent to his arrest. The record does not support
any of defendant's multiple arguments for suppression.
that defendant's car was stopped with its lights off in a
no parking zone, the police had an objective, credible reason
to approach for information (see People v Ruiz, 100
A.D.3d 451 [1st Dept 2012], lv denied 20 N.Y.3d 1065');">20 N.Y.3d 1065
). Defendant argues that the objective, credible reason
dissipated at a point in the encounter when the testifying
officer no longer believed that the car was illegally parked.
However, the officer's testimony demonstrates that
defendant engaged in suspicious conduct before the officer
abandoned his belief about the illegal parking.
the officers' approach to his car, defendant's
"furtive motion in attempting to stuff something under
the passenger seat... caused the officer to reasonably fear
for his safety and reasonably believe that defendant might
possess a weapon" (People v Feldman, 114 A.D.3d
603, 603-04 [1st Dept 2014], lv denied 23 N.Y.3d 962');">23 N.Y.3d 962
; see also People v Alejandro, 142 A.D.3d 876');">142 A.D.3d 876
[1st Dept 2016], lv denied 28 N.Y.3d 1070');">28 N.Y.3d 1070 ).
The officers were thus justified in directing defendant to
show his hands and get out of the car, and in performing a
limited search of the area where defendant appeared to have
hidden something (see Feldman, 114 A.D.3d at 603-04;
People v Anderson, 17 A.D.3d 166, 168 [1st Dept
2005]). The search revealed contraband, providing probable
cause for defendant's arrest.
failed to preserve his next suppression argument, which is
that the police unlawfully searched his wallet at the
precinct after his arrest (see People v Miranda, 27
N.Y.3d 931 ), and we decline to review it in the
interest of justice. Because of defendant's failure to
raise this issue at the suppression hearing, "the People
were never placed on notice of any need to develop the record
as to th[is] issue, or to otherwise establish the validity
of the search" (People v Hawkins, 130 A.D.3d
426, 427 [1st Dept 2015], lv denied 26 N.Y.3d 1088');">26 N.Y.3d 1088
; see People v Tutt, 38 N.Y.2d 1011');">38 N.Y.2d 1011, 1012-13
). In particular, defendant never claimed that the
People needed to introduce more evidence at the hearing
concerning police inventory procedures. Accordingly, the
record was insufficiently developed to permit appellate
review of this issue (see People v Martin, 50 N.Y.2d
1029 ; People v Tutt, 38 N.Y.2d 1011');">38 N.Y.2d 1011 ).
final suppression argument is that when the police used a
bank card reader to determine whether the account information
contained in the magnetic strips of the cards recovered from
defendant's wallet matched the information printed on the
front of the cards, this action was similar to a cell phone
search, and it thus required a search warrant under Riley
v California (573 US, 134 S.Ct. 2473');">134 S.Ct. 2473 ). However, a
growing number of cases addressing this technology recognize
that this type of police action does not violate any privacy
interest protected by the Fourth Amendment (see e.g.
People v Dent, 57 Misc.3d 300, 308-10 [Sup Ct Queens
County 2017]; United States v Hillaire, 857 F.3d
128, 129-30 [1st Cir 2017]; United States v Turner,
839 F.3d 429, 434- 437 [5th Cir 2016]; United States v DE
L'Isle, 825 F.3d 426, 431-433 [8th Cir 2016];
United States v Bah, 794 F.3d 617, 630-633 [6th Cir
2015], cert denied sub nom. Harvey v United States,
___ U.S. ___, 136 S.Ct. 561');">136 S.Ct. 561 ).
verdict was not against the weight of the evidence, as viewed
in light of the court's charge (see People v
Noble, 86 N.Y.2d 814');">86 N.Y.2d 814 ). The charge, read as a
whole, permitted the jury to convict defendant of criminal
possession of a forged instrument based on the types of
forged cards he actually possessed.
court's Sandoval ruling balanced the appropriate
factors and was a provident exercise of discretion (see
People v Hayes, 97 N.Y.2d 203');">97 N.Y.2d 203 ; People v
Pavao, 59 N.Y.2d 282, 292 ). The court permitted
inquiry into a conviction that was highly probative of