People v. Milaski

— Appeal from a judgment of the County Court of Broome County (Coutant, J.), rendered March 22,1982, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree. On this appeal, defendant contests the determination of the trial court which, after a pretrial suppression hearing, ruled admissible certain property (a shotgun) seized from him and his oral and written statements which implicated him in the crime to which he pleaded guilty. The investigation of defendant commenced on or about October 29, 1981 at about 4:00 a.m. when he drove an automobile to the dead-ended parking area of Scarborough Drive near the Riverhouse Lanes and the Reel to Reel disco in the Town of Union, Broome County. This area had been the scene of a number of complaints and arrests for public disturbances, drug-related offenses, and assaults, and earlier that same evening an arrest had been made there for public mischief. Therefore, the 964 State Police kept it under routine surveillance and at the time of defendant’s arrival two veteran troopers were checking a couple in an unlighted car that was parked there. Defendant was driving a 1970 Plymouth and approached at a fairly high rate of speed. When he was within 50 feet of the unlighted troop car, he turned his lights off and on quickly, stopped abruptly and began to back up. One of the troopers approached the car and defendant jumped out, leaving the driver’s door open. When asked, defendant said he was looking for his buddy and that he had driven there to urinate. In response to the trooper’s request for his license and registration, defendant produced his license, but said that the car was registered in his buddy’s name and that he was in the area to return the car to his buddy. When defendant leaned into the car to check the glove compartment for the registration, the trooper shined his flashlight into the vehicle to assist him. Personal household items were visible and defendant explained that he was moving to his girlfriend’s house. After defendant went to an area to urinate, he returned to the car, was told to empty his pockets, and was then frisked by one of the troopers. No contraband or any incriminating evidence was found, nor was anything dropped by defendant in the vicinity of the urination. A radio check of the vehicle revealed that it was owned by a Ricky Spencer, a known burglar. The trooper again checked the vehicle with a flashlight by the opened driver’s door, and spotted a Browning 16 gauge shotgun wrapped in a piece of cloth tucked halfway under the driver’s seat. The trooper took the gun and determined that it was unloaded. The trooper asked his companion trooper to run “a special file check” on the gun. Defendant said he received it as a Christmas gift from his father. The first radio report made on the gun informed the troopers that it was not stolen. Shortly thereafter, a second transmission stated that defendant was known to hang around with Ricky Spencer and that defendant had previously been arrested for burglary. After this report, and in order to test defendant’s familiarity with the criminal justice system, one of the troopers asked defendant if he had a “P.O.” Knowing that this abbreviation meant probation or parole officer, defendant told the trooper the name of his officer and the conditions of his probation. Defendant was advised of his Miranda rights after being informed that his possession of the gun might have violated the law or the conditions of his probation. The gun was confiscated and defendant was issued an equipment violation ticket and permitted to go his own way. Several days later, on November 2, 1981, after it had been ascertained that the gun had been stolen in a series of burglaries, an investigator went to defendant’s girlfriend’s home to speak with him. Another investigator had already spoken to a Robert Hammond, who implicated defendant and Ricky Spencer in the burglaries. At first, defendant’s girlfriend told the trooper that defendant was not home, but then the girlfriend invited the trooper into the house where defendant agreed to speak to him unofficially, “man to man”. Defendant accompanied the trooper to his car and admitted his involvement in the. burglary in which the shotgun was stolen. Defendant was allowed to returned to the house to speak to his girlfriend, and he then accompanied the trooper to the police station. There, in a telephone conversation with the Broome County District Attorney, defendant was promised that no further charges would be brought against him if defendant gave a written statement about the burglary involving the shotgun. Defendant signed such a statement, as well as one about the disposal of numerous stolen guns from the Town of Fenton. On March 4, 1982, a pretrial suppression hearing was held to determine the admissibility of the property seized from defendant and his statements and admissions. After defendant’s motion to suppress was in all respects denied, defendant pleaded guilty to attempted burglary in the second degree in satisfaction of all pending charges and was sentenced as a second felony 965 offender to an indeterminate term of two to four years’ imprisonment. We agree with the suppression court’s ruling that the evidence was permissibly obtained. Although defendant truthfully admitted the ownership of the car he was driving and did not possess any contraband on his person and was not participating in any criminal activity when first observed by the State Police, his presence in a known crime area at 4:00 a.m., the manner in which he flashed his car lights off as if signaling, and his backing the car up when he saw the troopers, provided the troopers with reasonable suspicion to inquire of defendant his identity and an explanation for his being there. Significantly, defendant never asked to leave, nor is there any indication of forcible detention. The nervous attitude of defendant and the evasiveness of some of his answers, as well as the household goods that were visible, permitted the troopers to have the vehicle checked out. The degree of interference by the State Police from its inception was reasonably related in scope to the circumstances which rendered its initiation permissible (see People v De Bour, 40 NY2d 210). The body search of defendant may have been unreasonable under the circumstances, but it revealed nothing and did not intimidate defendant in any way and so may be disregarded. Having decided that the intrusion was warranted in the degree exercised by the police, it follows that the shotgun was properly seized. The shotgun was observed by the troopers, partially under the front seat, in plain view from outside of the car since its door was left open by defendant. The fact that the gun was not observed when the police first looked into the car or when defendant went to the glove compartment to obtain the registration is not significant, for there is no showing that the troopers were looking for a gun, or had stopped defendant in order to search his car, or expected to find any contraband when they flashed their light inside (see Texas v Brown, 460 US_, 103 S Ct 1535). If it had been daytime, the gun would have been visible without any visual aid. In this sense, the gun’s discovery was properly held inadvertent, rendering it admissible. After the seizure of the gun, defendant was given his Miranda warnings. The admissions that followed were, therefore, also properly received. It is important to note that defendant was not apprehended on October 29,1981. Only the gun was confiscated. It was days later, after it was learned that the gun had been stolen and defendant had been implicated in the theft, that defendant was again interviewed at his girlfriend’s home and, after again being given his Miranda rights, gave statements that were properly ruled admissible. Inasmuch as defendant’s constitutional rights were not violated, the judgment of conviction should be affirmed. Judgment affirmed. Casey, Yesawich, Jr., and Weiss, JJ., concur.