People v. Roque — 99 N.Y.2d 50

Majority

p. 50

[780 NE2d 976, 751 NYS2d 165]

The People of the State of New York, Respondent, v Emilio Roque, Appellant.

Argued October 10, 2002;

decided November 19, 2002

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POINTS OF COUNSEL

Malvina Nathanson, New York City, for appellant.

I. The detention of defendant based on little more than his presence in the hallway during a "vertical” was illegal. (United States v Mendenhall, 446 US 544 ; People v Cantor, 36 NY2d 106 ; People v De Bour, 40 NY2d 210 ; People v Hollman, 79 NY2d 181 ; People v Harrison, 57 NY2d 470 ; People v Fripp, 85 AD2d 547 , 58 NY2d 907 ; People v Johnson, 64 NY2d 617 ; People v Farrell, 90 AD2d 396 , 59 NY2d 686 ; People v Carrasquillo, 54 NY2d 248 ; People v Greene, 271 AD2d 235 .) II. Evidence that defendant was in the hallway outside an apartment whose inner room contained drugs was insufficient to support a finding of guilt of constructive possession of the drugs. (Jackson v Virginia, 443 US 307 ; People v Contes, 60 NY2d 620 ; People v Wachowicz, 22 NY2d 369 ; People v Cleague, 22 NY2d 363 ; People v Johnson, 207 AD2d 678 ; People v McLean, 107 AD2d 167 , 65 NY2d 758 ; People v Siplin, 29 NY2d 841 ; People v Headley, 74 NY2d 858 ; People v Scott, 206 AD2d 392 ; People v Rodriguez, 194 AD2d 304 , 82 NY2d 725 .) III. Irrelevant evidence concerning drug problems in the building and the practices of drug dealers substantially prejudiced defendant. (People v Scarola, 71 NY2d 769 ; People v Stanard, 32 NY2d 143 ; People v Le Grand, 76 AD2d 706 ; People v Walker, 165 AD2d 674 ; People v Tucker, 102 AD2d 535 ; People v Alfonso, 194 AD2d 358 ; People v Negron, 136 AD2d 523 ; People v Philpot, 50 AD2d 822 ; People v Soto, 172 AD2d 355 ; People v Sorenson, 70 AD2d 892 .)

Robert M. Morgenthau, District Attorney, New York City (Annica H. Jin and Donald J. Siewert of counsel), for respondent.

I. Justice Rothwax properly denied defendant’s motion to suppress the money recovered from his pockets since defendant’s initial brief detention was proper and in any event the money was recovered later in a search incident to defendant’s undisputedly lawful arrest. Any error in admitting the money was harmless. (People v Oeller, 82 NY2d 774 ; People v Madera, 82 NY2d 775 ; People v Harrison, 57 NY2d 470 ; People

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v McRay, 51 NY2d 594 ; People v De Bour, 40 NY2d 210 ; Pennsylvania v Mimms, 434 US 106 ; Terry v Ohio, 392 US 1 ; People v Chestnut, 51 NY2d 14 ; People v Hollman, 79 NY2d 181 ; People v Holmes, 81 NY2d 1056 .) II. Defendant’s guilt was proved beyond a reasonable doubt. (People v Bleakley, 69 NY2d 490 ; People v Bundy, 235 AD2d 334 , 90 NY2d 918 ; People v Steinberg, 170 AD2d 50 , 79 NY2d 673 ; People v Tejeda, 73 NY2d 958 ; People v Contes, 60 NY2d 620 ; People v Montanez, 41 NY2d 53 ; People v Morales, 162 AD2d 128 ; People v Manini, 79 NY2d 561 ; People v Torres, 68 NY2d 677 ; People v Watson, 56 NY2d 632 .) III. Defendant’s claims of evidentiary error are unpreserved and meritless. (People v Thomas, 50 NY2d 467 ; People v Angelo, 88 NY2d 217 ; People v Kello, 96 NY2d 740 ; People v West, 56 NY2d 662 ; People v Gonzalez, 55 NY2d 720 , 456 US 1010 ; People v Medina, 53 NY2d 951 ; People v Rivera, 96 NY2d 749 ; People v Ramos, 192 AD2d 324 ; People v Almodovar, 178 AD2d 133 ; People v Washington, 259 AD2d 365 .)

OPINION OF THE COURT

In this appeal, we are asked to decide whether, in the context of a stop made in the course of a “vertical sweep” of a residential apartment building, reasonable suspicion that a particular person has committed, is committing or is about to commit a crime arose, justifying police detention of a suspect. We conclude that the record supports a finding of reasonable suspicion justifying police detention of the defendant and therefore affirm defendant’s conviction.

On March 29, 1996, New York City Police Sergeant Mulcahy, along with Police Officers Ferguson, Mylott and Brown, conducted a vertical sweep of a four-floor apartment building located on West 158th Street in Manhattan. The purpose of vertical sweeps, or vertical patrols, is to find and apprehend trespassers who are in residential buildings to buy or sell drugs. Often a building owner or manager files a “trespass affidavit” with police stating that the building has been plagued by illegal drug trade and asks police to patrol the building for trespassers. Police then stop people they encounter in the halls to ask for identification and to inquire if they are residents or otherwise lawfully in the building (see generally People v Powell, 180 Misc 2d 627 [Sup Ct, Bronx County 1999]; People v Carter, 169 Misc 2d 230 [Crim Ct, Kings County 1996]).

In this vertical sweep, Officer Mylott remained on the first floor of the building while the other officers ascended the

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stairway to patrol the three floors above. Officer Ferguson testified that he did not encounter anyone as he passed the second and third floors, nor did he notice an open apartment door. On the top floor, he encountered “Flaco,” an individual he knew from previous narcotics arrests. While talking to Flaco, Officer Ferguson heard a voice call “Flaco, Flaco, Flaco” from a lower floor. Ferguson descended the stairway to the third floor where he encountered defendant in the hallway near the open door of apartment 3D. When defendant caught sight of Officer Ferguson, he appeared surprised and momentarily froze. Defendant then turned and approached apartment 3C, as if to knock on its door. However, instead of knocking, defendant again turned and began walking down a nearby staircase. Officer Ferguson approached and said “Excuse me, sir.” Receiving no response, Officer Ferguson instructed Officer Brown, who was in the area, either to “watch” or “hold” defendant. Officer Brown did not physically hold defendant, but defendant stopped.

Officer Ferguson then looked into the open door of apartment 3D and saw a trail of coffee grounds spread across the threshold and, further inside on a coffee table, saw a calculator, a box of rubber bands, a note pad and aluminum foil. Officer Ferguson testified he knew that coffee grounds were frequently used to conceal drugs from police dogs and that the other items he observed were typically used in the sale of drugs.

Officer Ferguson again instructed Officer Brown to hold the defendant. Along with Sergeant Mulcahy, he then entered the apartment to check for possibly armed occupants. No one was inside the apartment; however, police found cocaine in the kitchen. When the officers returned from the apartment and inquired of defendant, he told them he was visiting a third apartment, apartment 3B; however, a woman answering the door said she did not know defendant. Defendant was then placed under arrest. A search of defendant incident to his arrest yielded $1,354, mostly in $20 bills.

Defendant was indicted for criminal possession of a controlled substance, on a theory of constructive possession of the drugs in apartment 3D. Because he lacked standing, defendant did not challenge the search of the apartment, but moved only to suppress the money found on his person. Supreme Court denied suppression. After a jury trial, defendant was convicted of criminal possession of a controlled substance in the first degree. The Appellate Division affirmed the conviction. A Judge of this Court granted leave to appeal and we now affirm.

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The seizure of a suspect by police must be justified by reasonable suspicion that a crime has been, is being or is about to be committed (see People v Martinez, 80 NY2d 444 , 447 [1992]). The requirement of a reasonable suspicion that a particular person has committed a criminal act as a prerequisite to a forcible stop and temporary detention is part of a continuum of permissible police intrusions in response to escalating evidence of criminal activity. As we stated in People v De Bour, “various intensities of police action are justifiable as the precipitating and attendant factors increase in weight and competence” ( 40 NY2d 210 , 223 [1976]). The determination of whether the circumstances of a particular case rise to the level of reasonable suspicion is a mixed question of law and fact, beyond our review if the determination is supported by the record.

Here, police detention of defendant required reasonable suspicion that he was engaged in criminal activity. Given that the purpose of the police presence in the building was the detection and apprehension of trespassers, and that Penal Law § 140.05 requires only that one enter or remain illegally upon the premises, the record supports the Appellate Division’s conclusion that a reasonable suspicion existed that defendant was at least trespassing in the building. Defendant’s presence outside the open door to a third floor apartment only moments after a male voice called out to Flaco, together with his suspicious behavior upon seeing Police Officer Ferguson, support that determination. The brief detention that followed was therefore justified.

We also reject as meritless defendant’s challenge to his conviction based on the theory of constructive possession of the cocaine in apartment 3D. Constructive possession, requiring a showing that defendant exercised dominion and control over the evidence found in the apartment, is a fact-laden question (see Penal Law § 10.00 [8]). The evidence in this case was sufficient to permit an inference by the trier of fact that defendant did indeed exercise dominion and control over the apartment where the drugs were discovered (see People v Kennedy, 47 NY2d 196 , 201-202 [1979]).

Defendant’s remaining contentions are without merit.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges Smith, Levine, Wesley, Rosenblatt and Graffeo concur.

Order affirmed.

Cases cited

United States v. Mendenhall 446 US 544 SCOTUS 1980-05-27 p. 51
People v. Cantor 36 NY2d 106 N.Y. 1975-02-18 p. 51
People v. De Bour 40 NY2d 210 N.Y. 1976-06-15 at 223 p. 51, p. 52, p. 54
People v. Hollman 79 NY2d 181 N.Y. 1992-02-20 p. 51, p. 52
People v. Harrison 57 NY2d 470 N.Y. 1982-11-18 p. 51
People v. Fripp 85 AD2d 547 N.Y. App. Div. 1981-12-10 p. 51
People v. Fripp 58 NY2d 907 N.Y. 1983-02-17 p. 51
People v. Johnson 64 NY2d 617 N.Y. 1984-11-27 p. 51
People v. Farrell 90 AD2d 396 N.Y. App. Div. 1982-12-28 p. 51
People v. Farrell 59 NY2d 686 N.Y. 1983-05-03 p. 51
People v. Carrasquillo 54 NY2d 248 N.Y. 1981-11-23 p. 51
Jackson v. Virginia 443 US 307 SCOTUS 1979-06-28 p. 51
People v. Contes 60 NY2d 620 N.Y. 1983-09-01 p. 51, p. 52
People v. Wachowicz 22 NY2d 369 N.Y. 1968-07-01 p. 51
People v. Cleague 22 NY2d 363 N.Y. 1968-07-01 p. 51
People v. Johnson 207 AD2d 678 N.Y. App. Div. 1994-09-08 p. 51
People v. McLean 107 AD2d 167 N.Y. App. Div. 1985-03-05 p. 51
People v. Siplin 29 NY2d 841 N.Y. 1971-12-01 p. 51
People v. Headley 74 NY2d 858 N.Y. 1989-10-12 p. 51
People v. Rodriguez 194 AD2d 304 N.Y. App. Div. 1993-06-01 p. 51
People v. Scarola 71 NY2d 769 N.Y. 1988-06-07 p. 51
People v. Stanard 32 NY2d 143 N.Y. 1973-04-25 p. 51
People v. Le Grand 76 AD2d 706 N.Y. App. Div. 1980-09-29 p. 51
People v. Walker 165 AD2d 674 N.Y. App. Div. 1990-09-11 p. 51
People v. Tucker 102 AD2d 535 N.Y. App. Div. 1984-07-09 p. 51
People v. Alfonso 194 AD2d 358 N.Y. App. Div. 1993-06-08 p. 51
People v. Negron 136 AD2d 523 N.Y. App. Div. 1988-01-28 p. 51
People v. Soto 172 AD2d 355 N.Y. App. Div. 1991-04-23 p. 51
People v. Sorenson 70 AD2d 892 N.Y. App. Div. 1979-06-04 p. 51
People v. Oeller 82 NY2d 774 N.Y. 1993-10-12 p. 51
People v. Madera 82 NY2d 775 N.Y. 1993-10-12 p. 51
People v. McRay 51 NY2d 594 N.Y. 1980-12-18 p. 52
Pennsylvania v. Mimms 434 US 106 SCOTUS 1977-12-05 p. 52
Terry v. Ohio 392 US 1 SCOTUS 1968-06-10 p. 52
People v. Chestnut 51 NY2d 14 N.Y. 1980-07-08 p. 52
People v. Holmes 81 NY2d 1056 N.Y. 1993-06-15 p. 52
People v. Bleakley 69 NY2d 490 N.Y. 1987-05-07 p. 52
People v. Bundy 235 AD2d 334 N.Y. App. Div. 1997-01-28 p. 52
People v. Bundy 90 NY2d 918 N.Y. 1997-09-16 p. 52
People v. Steinberg 170 AD2d 50 N.Y. App. Div. 1991-08-08 p. 52
People v. Steinberg 79 NY2d 673 N.Y. 1992-06-11 p. 52
People v. Tejeda 73 NY2d 958 N.Y. 1989-03-30 p. 52
People v. Manini 79 NY2d 561 N.Y. 1992-03-31 p. 52
People v. Torres 68 NY2d 677 N.Y. 1986-07-01 p. 52
People v. Thomas 50 NY2d 467 N.Y. 1980-06-05 p. 52
People v. Angelo 88 NY2d 217 N.Y. 1996-03-28 p. 52
People v. Kello 96 NY2d 740 N.Y. 2001-02-08 p. 52
People v. West 56 NY2d 662 N.Y. 1982-05-04 p. 52
People v. Gonzalez 55 NY2d 720 N.Y. 1981-11-24 p. 52
People v. Medina 53 NY2d 951 N.Y. 1981-06-02 p. 52
People v. Rivera 96 NY2d 749 N.Y. 2001-02-20 p. 52
People v. Almodovar 178 AD2d 133 N.Y. App. Div. 1991-12-03 p. 52
People v. Washington 259 AD2d 365 N.Y. App. Div. 1999-03-18 p. 52
People v. Powell 180 Misc 2d 627 N.Y. Sup. Ct. 1999-01-14 p. 52
People v. Carter 169 Misc 2d 230 N.Y. Crim. Ct. 1996-05-01 p. 52
People v. Martinez 80 NY2d 444 N.Y. 1992-12-16 at 447 p. 54
People v. Kennedy 47 NY2d 196 N.Y. 1979-06-05 at 201-202 p. 54