People v Perry

People v Perry 2013 NY Slip Op 00135 Decided on January 10, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 10, 2013
Friedman, J.P., Sweeny, Acosta, Abdus-Salaam, Manzanet-Daniels, JJ.
8990 2533/09

[*1]The People of the State of New York, Respondent,

v

Dwight Perry, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Joanne
Legano Ross of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David E.A.
Crowley of counsel), for respondent.

Judgment, Supreme Court, New York County (Laura A. Ward, J. at suppression hearing; Ronald A. Zweibel, J. at plea and sentencing), rendered June 21, 2010, as amended July 21, 2010, convicting defendant of criminal impersonation in the second degree, and sentencing him to a term of one year, unanimously affirmed.

The court properly denied defendant's suppression motion. Defendant did not preserve his present suppression arguments, and we decline to review them in the interest of justice. As an alternative holding, we reject them on the merits. A police officer saw a light flash on a turnstile after defendant swiped a MetroCard, indicating that defendant had used a reduced fare card that only a senior citizen or a person with a qualifying disability would be authorized to use. Since the 28-year-old defendant appeared to be neither, the officer had, at least, a founded suspicion of criminality justifying a common-law inquiry, and the officer's conduct in asking defendant to show identification and the MetroCard he had just used did not exceed the bounds of such an inquiry (see People v Francois, 61 AD3d 524 [1st Dept 2009], affd 14 NY3d 732 [2010]; see also United States v Gregg, 463 F3d 160, 166 [2d Cir 2006] [finding reasonable suspicion for stop based on use of reduced fare MetroCard by person appearing neither elderly [*2]nor disabled]). When defendant produced a MetroCard in someone else's name and with someone else's picture, the officer had probable cause to arrest him and to conduct a search incident to arrest.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 10, 2013

CLERK