        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1105
KA 13-00035
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JORDAN J. ELLISON, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Thomas E. Moran, J.), rendered January 7, 2013. The judgment
convicted defendant, upon a jury verdict, of burglary in the third
degree (two counts) and criminal possession of stolen property in the
fourth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice by reducing the sentences imposed to concurrent indeterminate
terms of incarceration of 15 years to life and as modified the
judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of criminal possession of stolen property in
the fourth degree (Penal Law § 165.45 [1]) and two counts of burglary
in the third degree (§ 140.20). One of the burglary counts arose from
an incident that occurred at Marketplace Mall when defendant entered
Macy’s Department Store and filled two garbage bags with clothes
before running out of the store without paying for the items.
Although defendant jumped into a waiting vehicle that sped away, the
theft was captured on the store’s surveillance video, and store
security officers recognized defendant from prior shoplifting arrests.
Due to the prior thefts, defendant had been barred for life from
entering Macy’s and the mall itself.

     Five days later, defendant entered the Gap store at Greece Ridge
Mall and filled a large black garbage bag with clothes. A store
security officer observed defendant on surveillance video. Upon
checking the video of the parking lot area, the security officer
determined that defendant had arrived at the mall in a gray Ford
Taurus with the license plate number ELT 1037. As defendant
approached the door without having paid for the items, the security
                                 -2-                          1105
                                                         KA 13-00035

officer contacted a deputy sheriff who was on patrol outside the mall.
Minutes later, the deputy sheriff, who had been apprised of the make,
model and license plate number of the suspect’s vehicle, observed
defendant in the mall parking lot carrying a large black garbage bag
and walking toward a parked gray Ford Taurus with the license plate
number ELT 1037. The deputy sheriff approached defendant and, when he
asked what was in the bag, which appeared to be filled, defendant
responded, “Nothing.” The deputy sheriff then asked defendant where
he was going, whereupon defendant said “right here.” The deputy
sheriff ordered defendant to drop the bag, and defendant complied with
that request. After frisking defendant for weapons, the officer
looked inside the bag and observed 61 shirts on hangers. A Gap
employee summoned to the scene informed the deputy sheriff that
defendant had not purchased any of the shirts, the total value of
which exceeded $2,000.

     Defendant was later indicted on two counts of burglary in the
third degree, for unlawfully entering Macy’s and Marketplace Mall with
the intent to commit a crime therein, and criminal possession of
stolen property in the fourth degree, for possessing the 61 stolen
shirts from the Gap. In his omnibus motion, defendant sought
suppression of the shirts he had stolen from the Gap, contending that
the evidence was unlawfully seized by the police. Following a
hearing, Supreme Court denied the omnibus motion insofar as it sought
suppression of the stolen property. After defendant rejected a plea
offer that would have resulted in an aggregate sentence of two to four
years’ imprisonment, the matter proceeded to trial before a jury,
which found defendant guilty of all three counts of the indictment.
The court thereafter adjudicated defendant to be a persistent felony
offender and sentenced him to concurrent indeterminate terms of
imprisonment of 20 years to life. This appeal ensued.

     Defendant contends that he was unlawfully detained by the deputy
sheriff in the parking lot at Greece Ridge Mall, and that the court
therefore erred in refusing to suppress the stolen shirts found by the
deputy sheriff during the subsequent search of the garbage bag
defendant was carrying. We reject that contention. As noted, the
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 (see generally People v De Bour, 40 NY2d 210, 223;
People v Carr, 103 AD3d 1194, 1195; People v McKinley, 101 AD3d 1747,
1748, lv denied 21 NY3d 1017).

     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 (see
id. at 215; see also People v Torres, 74 NY2d 224, 229-230; People v
Davis, 81 AD3d 1321, 1321-1322, lv denied 16 NY3d 858). In response
                                 -3-                          1105
                                                         KA 13-00035

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 (see People v Ralston, 303 AD2d 1014, 1014, lv denied 100 NY2d
565). It thus follows that the deputy sheriff acted lawfully in
stopping and detaining defendant for investigative purposes.

     Defendant further contends that the court erred in conducting a
Sandoval conference outside his presence. We reject that contention
as well. Although it is well settled that “a defendant has a right to
be present during the substantive portion of the Sandoval hearing”
(People v Favor, 82 NY2d 254, 265, rearg denied 83 NY2d 801), “a
defendant’s absence from the initial Sandoval conference does not
require reversal where subsequent proceedings conducted on the record
in defendant’s presence constitute a de novo inquiry” (People v
Vargas, 201 AD2d 963, 964, lv denied 83 NY2d 859). Here, although
defendant was not present at a pretrial conference in chambers during
which Sandoval matters were discussed, defendant was present during a
subsequent court appearance during which the People stated their
intention to cross-examine defendant with respect to all of his
criminal convictions from the past 10 years. Notably, the court
recited each of the 20 convictions and the dates they were entered
and, after hearing arguments from defense counsel, rendered its
Sandoval ruling. Under the circumstances, we conclude that the court
conducted a de novo Sandoval hearing, and did not, as defendant
contends, merely recite “in the defendant’s presence . . . what has
already been determined in his absence” (People v Monclavo, 87 NY2d
1029, 1031).

     We agree with defendant, however, that his sentence should be
modified in the interest of justice. Although defendant has an
extensive criminal record and for decades has demonstrated a
consistent disregard for the property rights of others, he is
essentially a serial shoplifter who does not engage in acts of
violence. We also note that the pretrial plea offer extended to
defendant included a sentence promise of two to four years in prison.
We thus conclude that the sentence of 20 years to life is unduly harsh
and severe. Because defendant does not challenge the court’s finding
that he is a persistent felony offender, the minimum sentence
permitted by law is 15 years to life (see Penal Law §§ 70.00 [3] [a]
[i]; 70.10 [2]), and we exercise our discretion to modify the judgment
accordingly (see generally CPL 470.15 [6] [b]).




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
