People v. Reynoso-Fabian

Anthony Vona, a criminal investigator for the Department of Taxation and Finance, testified that the Department received a complaint from an industry source that the variety store “had untaxed cigarettes in the back of the store” and that someone there was “stamping their own cigarettes with counterfeit stamps.” Upon arriving at the location with fellow investigator Holly Stah, Vona spoke with defendant, who identified himself as the owner of the store and indicated that no one else was on the premises. As Stah spoke with defendant about obtaining invoices for the products located behind the counter, Vona walked to the rear of the store, where he observed a partition and a door leading to a back room. Through a gap in the door frame, Vona saw a quantity of brand-name cigarettes on the floor. When Vona informed defendant that he would need access to the back room, defendant’s demeanor immediately changed; according to Vona, defendant became very nervous, began making phone calls — in Spanish — where cigarettes were discussed, changed his status from store owner to store manager, claimed that the back room was locked and instructed the investigators that they would need to return later when the owner arrived with a key.

Vona and defendant then walked to the rear of the store, where Vona stated to defendant, “[L]ook, I can see cigarettes clear [ly] in this back room; you’re going to need to open this door.” As this conversation was taking place, Vona heard movement in the room; defendant then opened the door — without a key — and Vona discovered another individual, identified by defendant as his “helper,” in the back room.^[1] The cigarettes that Vona had observed only moments earlier were now covered by a blanket or clothing;^[2] when this covering was removed, Vona found a “master case” of cigarettes, which defendant — as a retailer — was not authorized to have, as well as another half case of cigarettes, for a total of 90 cartons of cigarettes. Vona

Inasmuch as defendant was “operating a retail outlet where cigarettes were sold openly and notoriously!,] [the investigators were authorized] ... to enter the premises and inspect the cigarettes for possible fraudulent stamping” (Mubarez v State of New York, 115 Misc 2d 57 , 59-60 [Ct Cl 1982]; see People v Rizzo, 40 NY2d at 428-429 ). While lawfully on those premises, Vona observed a quantity of cigarettes — in plain view — through a crack in the door leading to a back room, which was a “logical place to keep such additional stock” (Mubarez v State of New York, 115 Misc 2d at 60 ). Vona’s observations, coupled with defendant’s nervous demeanor, misrepresentations and suspicious behavior, provided the investigators with a reasonable basis upon which to demand access to this storage area — where, among other things, a quantity of untaxed cigarettes were discovered. Although the counterfeit tax stamps themselves were located in a half bathroom off of this storage area, the half bathroom was immediately adjacent to the back room; additionally, Stah testified that the half bathroom was — based upon her observations — “probably not being used” for its intended purpose and, further, that the counterfeit tax stamps were recovered from the “same general area” as, among other things, the untaxed cigarettes. Under these circumstances, we do not find that the investigators exceeded the permissible scope of their regulatory search (see People v Sciacca, 64 AD2d 677 , 680 [1978]; see also Mubarez v State of New York, 115 Misc 2d at 59-60 ; compare People v Sciacca, 45 NY2d at 128-129 ; People v Rizzo, 40 NY2d at 429-430 ). Accordingly, County Court properly

As for the subsequent search of defendant’s van, one of the investigators testified at the suppression hearing that, although defendant initially refused a request to search his vehicle, he thereafter signed a written consent to search — a consent that the investigator read to defendant in its entirety in order to ensure that he understood the contents thereof, including that portion of the document advising defendant that he was not required to consent to a search of the vehicle. County Court credited the investigator’s testimony on this point and, upon reviewing the transcript of the suppression hearing, we are satisfied that the People met their burden of establishing “that the consent was freely and voluntarily given based on the totality of the circumstances” (People v Williford, 124 AD3d 1076 , 1078 [2015], lv denied 25 NY3d 1209 [2015]).^[4]

Nor are we persuaded that the photographic array shown to the individual to whom defendant allegedly sold cigarettes on October 16, 2011 was unduly suggestive. Preliminarily, we note that defendant was acquitted of the charge relative to this incident, and the witness in question offered no testimony beyond the confines of this transaction. Hence, we are hard pressed to discern the impact of the allegedly flawed identification procedures upon defendant’s convictions. That said, upon reviewing the testimony offered at the suppression hearing detailing the manner in which the array was prepared and presented to the witness in question, as well as the array itself, we are satisfied that the People met their initial burden of “establish [ing] the reasonableness of the police conduct and the lack of any undue suggestiveness in [the] pretrial identification procedure” employed (People v Smith, 122 AD3d 1162 , 1163 [2014] [internal quotation marks and citations omitted]; see People v Lanier, 130 AD3d 1310 , 1312-1313 [2015], lv denied 26 NY3d 1009 [2015]; People v Matthews, 101 AD3d 1363 , 1364 [2012], lv denied 20 NY3d 1101 [2013]). We are equally satisfied that defendant thereafter failed to meet his ultimate burden of demonstrating that the procedure utilized was unduly suggestive (see People v Lanier, 130 AD3d at 1313 ; People v Matthews, 101 AD3d at 1364 ). Indeed, “[t]he physical characteristics of the people included in the [subject] array are sufficiently similar and the variations [are] not such as to create a substantial likelihood that . . . defendant would be

As for County Court’s Sandoval and Molineux rulings, defendant — as so limited by his brief — ascribes error to the admission of evidence regarding (1) his 2008 arrest for, among other things, possession of untaxed tobacco, (2) an allegedly fake sublease for the variety store entered into between defendant’s purported girlfriend and a third party, and (3) his October 2011 sale of untaxed cigarettes to one of the witnesses who testified at trial. With respect to defendant’s 2008 arrest in Schenectady County, County Court ruled that the People could inquire as to whether defendant possessed untaxed tobacco for sale on the date in question, but that the People could not imply that defendant actually had been arrested, and no mention could be made of the subsequent disposition of those charges. Defendant raised no objection in this regard at the suppression hearing, stating that there were reasons why the defense would wish to explore this issue at trial, nor did he raise any objection when this testimony was elicited at trial. Accordingly, we deem this issue to be unpreserved for our review (see People v Tinning, 142 AD2d 402 , 406 [1988], lv denied 73 NY2d 1022 [1989]).^[5]

With respect to the testimony that defendant sold untaxed cigarettes to another convenience store owner on October 16, 2011, three points are worth noting. First, defendant did not raise a Molineux objection to such testimony at trial, nor did he request any sort of limiting instruction. Additionally, even accepting defendant’s premise that such testimony constituted proof of an uncharged crime, which we do not, we are satisfied that this testimony would fall within any number of the recognized Molineux exceptions — including absence of mistake (see People v Molineux, 168 NY 264 , 293 [1901]). Finally, inasmuch as defendant was acquitted of the charge to which this testimony most directly related (count 14 of the consolidated indictment charging criminal possession of a forged instrument in the first degree), we fail to discern any resulting prejudice. We reach a similar conclusion regarding the chal