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Stop and Investigative Detention of Defendant Was Proper Under DeBour Analysis/Defendant’s Absence from Initial Sandoval Conference Cured by His Presence at a Subsequent Sandoval Hearing/Defendant’s Sentence Reduced Based In Part on a Much Lower Sentence Attached to a Plea Offer

The Fourth Department determined that the arresting officer had enough information about the defendant’s behavior to justify stopping the defendant after he left a store with a plastic garbage bag (which turned out to be full of shirts on hangers).  The court explained and applied the DeBour criteria for street stops and investigative detention.  The court further determined that defendant’s absence from a discussion in chambers of the prior crimes about which the defendant could be questioned if he testified (a Sandoval hearing) was not reversible error because the same discussion was later held on the record in defendant’s presence.  The Fourth Department reduced defendant’s sentence, who was found to be a persistent felony offender, from 20 to 15 years, noting that he was a non-violent serial shoplifter and he had been offered a plea deal with a sentence of two to four years.  With respect to the legality of stopping and detaining the defendant, the court wrote:

…[T]he deputy sheriff observed defendant carrying the bag while walking away from the scene of a recently reported larceny and in the direction of the suspected getaway vehicle. Although there were other people in the parking lot at the time, defendant was the only person walking toward that vehicle and the only person carrying a large garbage bag, which is unusual in that setting. Based on those observations, we conclude that the deputy sheriff had the requisite founded suspicion that criminal activity was afoot sufficient to justify the common-law right of inquiry … .

Moving to the next step of the DeBour analysis, we conclude that the deputy sheriff’s questions of defendant were reasonably related to the scope of the circumstances that justified the interference … . In response to the deputy sheriff’s first question, defendant offered the obviously false answer that there was nothing in the bag, which contained 61 shirts on hangers. That false answer, combined with the information already obtained by the deputy sheriff, gave rise to a reasonable suspicion that defendant had committed or was committing a crime … . It thus follows that the deputy sheriff acted lawfully in stopping and detaining defendant for investigative purposes. People v Ellison, 2015 NY Slip Op 00015, 4th Dept 1-2-15

 

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