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

462
KA 11-00324
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

THOMAS G. WITT, DEFENDANT-APPELLANT.


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

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered October 14, 2010. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of stolen
property in the fourth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal possession of stolen property in the fourth
degree (Penal Law § 165.45 [2]), defendant contends that County Court
erred in refusing to suppress tangible evidence seized from the
vehicle in which he was a passenger, as well as certain statements he
made to a police officer, because the police lacked the requisite
reasonable suspicion of criminal behavior to seize the parked vehicle.
That contention is not preserved for our review (see People v Sanders,
224 AD2d 956, 956, lv denied 88 NY2d 885) and, in any event, it lacks
merit.

     Immediately prior to the police encounter, defendant was a
passenger in a vehicle parked in a handicap zone outside of a Walmart
store. A police officer responded to a report by the manager of a
nearby supermarket that the vehicle had been involved in “an incident
that had occurred” at her store. Based on that information, the
officer approached the vehicle and asked defendant and the other two
occupants if they had valid driver’s licenses. None of the men
produced a valid driver’s license. One of the men identified himself
as the owner of the vehicle, and he told the officer that a fourth man
named “Roger,” who was allegedly inside the Walmart store, had a valid
license. Additional police officers arrived at the scene and
attempted to locate “Roger” inside the Walmart and its immediate
environs, but they were unsuccessful. Because none of the men in the
                                 -2-                           462
                                                         KA 11-00324

vehicle were licensed to operate the vehicle, the police asked the men
to exit the vehicle in order to impound and tow it. During the
subsequent inventory search of the vehicle, the police located several
stolen debit and credit cards.

     In evaluating police conduct, a court “must determine whether the
action taken was justified in its inception and at every subsequent
stage of the encounter” (People v Nicodemus, 247 AD2d 833, 835, lv
denied 92 NY2d 858; see People v De Bour, 40 NY2d 210, 222). It is
well settled that “the right to stop a moving vehicle is distinct from
the right to approach the occupants of a parked vehicle” (People v
Spencer, 84 NY2d 749, 753, cert denied 516 US 905). Where police
officers approach a vehicle that is already parked and stationary, the
only level of suspicion necessary to justify that approach is an
articulable, credible reason for doing so, not necessarily indicative
of criminality (see People v Ocasio, 85 NY2d 982, 985; People v
Phillips, 46 AD3d 1021, 1022, lv denied 10 NY3d 815).

     Here, we conclude that the police officer “had an ‘objective,
credible reason’ for approaching [the] parked vehicle and requesting
information” based upon the supermarket manager’s report (People v
Virges, 118 AD3d 1445, 1445, quoting Ocasio, 85 NY2d at 984; see
People v Thomas, 19 AD3d 32, 33, lv denied 5 NY3d 795), “thereby
rendering the police encounter lawful at its inception” (People v
Cady, 103 AD3d 1155, 1156; see People v Riddick, 70 AD3d 1421, 1422,
lv denied 14 NY3d 844). Upon requesting identification from defendant
and the other two occupants of the vehicle, and learning that none of
the three men had a valid driver’s license, the police searched for
the vehicle’s purported fourth occupant who, they were told, had a
valid driver’s license. The right of inquiry was elevated to the
right to seize the vehicle after a search for the allegedly licensed
driver was unsuccessful. At that point, the officers had a reasonable
suspicion either that the vehicle had been operated by an unlicensed
driver, or that the vehicle was soon going to be operated by an
unlicensed driver, and thus its impoundment and towing was lawful (see
People v Rhodes, 206 AD2d 710, 710-711, lv denied 84 NY2d 1014; People
v Castillo, 150 AD2d 957, 959, lv denied 74 NY2d 806).

     Finally, we reject defendant’s contention that he had standing to
contest the propriety of the seizure of the vehicle. Defendant failed
to establish that he had any reasonable expectation of privacy in the
vehicle in which he was merely a passenger (see Rakas v Illinois, 439
US 128, 142-143, reh denied 439 US 1122; People v Washington, 37 AD3d
1131, 1132, lv denied 8 NY3d 992).




Entered:   June 12, 2015                        Frances E. Cafarell
                                                Clerk of the Court
