People v. Long

OPINION OF THE COURT

Nardelli, J.

In this appeal, we are asked to determine whether Supreme Court’s summary denial of defendant’s suppression motion was proper.

CPL 710.60 (1) requires a suppression motion be in writing, state the legal grounds upon which it is based, and “contain sworn allegations of fact, whether of the defendant or of another person or persons, supporting such grounds.” A court is permitted to summarily deny a motion to suppress if the movant’s papers do not allege a ground constituting a legal basis for such motion, or the sworn allegations fail, as a matter of law, to support the ground alleged (CPL 710.60 [3]; People v Pagan, 304 AD2d 980 [2003], lv denied 100 NY2d 564 [2003]). In assessing the sufficiency of a defendant’s factual allegations, and whether a defendant is entitled to a hearing, the Court of Appeals, in People v Mendoza (82 NY2d 415 [1993]), provided the following guidance: “[T]he sufficiency of defendant’s factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant’s access to information” (82 NY2d at 426; see also People v Jones, 95 NY2d 721, 725 [2001]). The Court in Mendoza, however, also cautioned that “[h]earings are not automatic or generally available for the asking by boilerplate allegations” (82 NY2d at 422; see also People v Gadsden, 273 AD2d 701 [2000], lv denied 95 NY2d 934 [2000]).

Defendant, at her arraignment on June 2, 2004, pleaded not guilty, at which point Justice Berkman read the following arrest write-up in open court:

“Defendants observed together at Circuit City by security attempting to buy a camcorder with credit cards. Long produced a credit card. When asked for *134ID, she is unable to produce it. Cox offers a separate credit card but refuses to remove identification from his wallet.
“Both defendants leave the store. Security calls the police. After observing the defendants for twenty minutes, approximately, the police stopped the car in which both defendants are passengers. Cox is driving, Long is in the back seat.
“The arresting officer notices heroin on the front passenger floorboard in front of separately charged Joseph Brown. . . . Black leather wallet recovered from the backseat contains six credit cards in the name of Dana Brockman (phonetic), which were reported stolen earlier that day.”

The prosecutor also noted during the proceedings that defendant had been “caught on video,” and served her with a copy of the indictment and the People’s voluntary disclosure form (VDF). The VDF, among other things, indicated that six credit cards and/or banking cards, a black wallet, and two envelopes of heroin had been recovered from defendant.

Defendant thereafter filed an omnibus motion on June 28, 2004 seeking, inter alia, to suppress the physical evidence seized from her or, in the alternative, for a hearing. In support of the motion, defense counsel averred that there was nothing illegal about the operation or ownership of the vehicle in which defendant was a passenger, and that she had a legitimate expectation of privacy in the automobile. Defendant denied that she had been involved “in any illegal activity and asserts that she had the consent of the owner and was a lawful user of the vehicle,” and that she “was not holding in open view any contraband nor did she drop any contraband to the ground.”

The motion court, in a written decision dated July 22, 2004, summarily denied the motion to suppress, finding that defendant merely denied illegal activity and failed to address any of the allegations underlying her arrest. We agree and affirm.

Defendant, in our view, had ample access to relevant information, given the totality of the record and, in particular, the court’s colloquy concerning the facts of this case, to make a proper suppression motion (see People v Roberts, 23 AD3d 245, 245-246 [2005], lv denied 6 NY3d 817 [2006]; People v Zigler, 305 AD2d 332 [2003], lv denied 100 NY2d 590 [2003]). Instead, *135defendant set forth general denials which failed to raise a factual dispute requiring a hearing, and her assertions of innocent conduct in the vehicle, at the time of her arrest, are unavailing (People v Jones, 95 NY2d at 726; People v Lopez, 13 AD3d 152 [2004], affd 5 NY3d 753 [2005]).

The arrest write-up described, in detail, the predicate for defendant’s arrest. According to the write-up, the police stopped the vehicle based on information, which, as will be discussed in further detail, at least arguably provided reasonable suspicion that defendant tried to commit a crime in the Circuit City store. The write-up further alleged that during the stop of the vehicle, the police observed drugs in open view (see Penal Law § 220.25 [presumption of possession by automobile occupants]). In her moving papers, defendant did not deny the allegations regarding her conduct in the store, assert that such conduct was an insufficient basis for an automobile stop, or set forth any other basis for suppression.

Although defendant made additional allegations in a renewal motion (denominated a reargument motion), the motion court properly exercised its discretion in denying that motion, since defendant did not establish any reason for omitting the new allegations from her original motion (see People v Ruth, 260 AD2d 296 [1999], lv denied 93 NY2d 929 [1999]; People v Roberts, 23 AD3d at 246; Foley v Roche, 68 AD2d 558, 568 [1979]). The trial court also properly exercised its discretion when it declined to entertain a further renewal motion during trial (see CPL 710.40 [4]).

The dissent, in reaching a contrary conclusion, engages in a lengthy discussion of the trial testimony, which, in our view, has no retroactive application to the suppression motions before Justice Berkman and the issue of whether or not they were properly decided. In any event, it is settled that the police may stop a vehicle based upon a “reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime” (People v Spencer, 84 NY2d 749, 753 [1995], cert denied 516 US 905 [1995]; see also People v Taylor, 31 AD3d 1141, 1142 [2006]). Reasonable suspicion is “ ‘that “quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand” ’ ” (People v William II, 98 NY2d 93, 98 [2002] [emphasis added], quoting People v Martinez, 80 NY2d 444, 448 [1992], quoting People v Cantor, 36 NY2d 106, 112-113 [1975]).

*136In this case, defendant and a companion, Robert Cox, entered a Circuit City store where defendant, through security cameras, was viewed repeatedly wiping her face with a napkin and fanning herself with a wallet. Defendant and Cox subsequently selected a camcorder from a display and, when attempting to purchase the item, defendant produced a credit card. When asked to produce identification in conjunction with the purchase, defendant stated that she had none, despite the fact she was in possession of a wallet. Cox, in response, provided a second credit card and, when asked to produce identification, he showed that he had a New York State identification card in his wallet. Cox was then requested to remove the identification so that it could be inspected, at which point he said something to defendant and they both left the store.

Given that both defendant and Cox were unable, or unwilling, to produce identification in conjunction with a credit card purchase, a common security check utilized to deter credit card theft, and suspiciously abandoned their efforts to make a purchase, we find such conduct sufficient to induce an ordinarily prudent and cautious person, under the circumstances, to believe that criminal activity is at hand. The police, who had been called by the Circuit City store investigator, therefore, had reasonable suspicion to stop the vehicle in which defendant was a passenger.

Thus, even if, like the dissent, we were to consider the evidence adduced at trial, we would reject the dissent’s conclusion that defendant has, on this appeal, demonstrated an illegal search and seizure. Of course, in the present procedural posture of the case, the issue is not the ultimate legality of the search and seizure, but defendant’s entitlement to a hearing. We conclude that the description of the events in the Circuit City store that was contained in the People’s write-up was sufficient to apprise defendant of the basis upon which the People were seeking to justify the vehicle stop and ensuing seizure. Since defendant did not address her alleged conduct in Circuit City, her assertions of innocent conduct at the time of the vehicle stop did not entitle her to a hearing.

Accordingly, the judgment of the Supreme Court, New York County (Carol Berkman, J., at motions; Michael J. Obús, J., at renewal motion, jury trial and sentence), rendered December 16, 2004, convicting defendant, after a jury trial, of six counts of criminal possession of stolen property in the fourth degree, and sentencing her, as a second felony offender, to concurrent terms of 2 to 4 years, should be affirmed.