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Split court upholds weapon conviction

Dissenters say police lacked reasonable suspicion

By: Bennett Loudon//March 16, 2023

Split court upholds weapon conviction

Dissenters say police lacked reasonable suspicion

By: Bennett Loudon//March 16, 2023//

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In a split decision, a state appeals court has affirmed a weapon conviction.

Defendant Joshua Messano, 41, pleaded guilty in July 2021 in Onondaga County Court before Judge Thomas J. Miller to second-degree criminal possession of a weapon. Messano was sentenced to a maximum of five years in state prison.

In a 3-2 decision, the Appellate Division of state Supreme Court, Fourth Department, affirmed the conviction.

Messano’s appellate attorney, Sara A. Goldfarb, argued that Miller should have suppressed the weapon found in a Messano’s car.

“We reject that contention, and thus we affirm,” the majority wrote.

Voting with the majority were justices Nancy E. Smith, Erin M. Peradotto, and John M. Curran. Justices Gerald J. Whalen and Tracey E. Bannister dissented.

According to the decision, an Onondaga County Sheriff’s detective saw a car commit several traffic violations before approaching a second vehicle.

Both vehicles pulled into a parking lot of a closed business where the detective saw Messano — the driver of the second vehicle —get out of his car and lean into the other car to talk to someone inside that car.

“In between talking to the occupant, defendant looked around outside the vehicle, and also looked at and texted on his phone. The detective described what he observed, based on his experience of observing hundreds of similar transactions, as a drug transaction,” the majority wrote.

The detective saw a third car drive into the parking lot. The driver of that car was known to the detective as someone with prior narcotics arrests.

The detective called for assistance, and several deputies responded. As one of the deputies approached Messano’s car, Messano got out, closed the driver’s door, and walked toward the deputy. The deputy frisked Messano, which yielded no evidence, and then told Messano to wait behind his car.

The deputy saw a rolled-up dollar bill and white powdery substance on the seat of Messano’s car. Police also found a gun in the car.

“We reject defendant’s contention that he was unlawfully seized. The court properly determined that, based on the totality of the observations by the detective, which he communicated with the deputy, the deputy had a reasonable suspicion that defendant was involved in a drug transaction,” the majority wrote.

The seizure of items inside the vehicle “was not the result of the allegedly illegal detention of defendant,” the majority wrote.

“The deputy’s observations of the rolled-up dollar bill and white powdery substance provided probable cause to arrest defendant for possession of drugs,” the majority wrote.

Whalen and Bannister wrote in their dissent that the gun found in the car should have been suppressed.

“We agree with defendant that the law enforcement officers lacked reasonable suspicion to detain him,” they wrote.

“In our opinion, the facts of this case are indistinguishable from People v Hernandez (a 2020 case) where we concluded that the police officers lacked reasonable suspicion to detain the defendant,” Whalen and Bannister wrote.

The officer conducting the surveillance and directing the stop of defendant did not see what the defendant and the alleged buyer exchanged, and did not see money pass between the two, they wrote.

The detective “admitted at the suppression hearing that he did not actually observe a hand-to-hand drug transaction,” the minority wrote.

The detective testified that he did not see Messano drive erratically “or commit any traffic violations before defendant drove into the parking lot with the other vehicle,” they wrote.

“The arrival of the third man with prior convictions for narcotics possession after the presumed hand-to-hand drug transaction occurred lacks any significance inasmuch as an officer’s awareness that an individual has a history of drug-related convictions, without more, does not provide a reasonable suspicion that a crime has been committed, is being committed, or is about to be committed,” they wrote.

“The detective did not observe any interaction between defendant and this third man and did not testify to any knowledge of a relationship between the two men. Additionally, the sheriff’s deputy who detained defendant testified that he observed no indicia of criminality himself and acknowledged that defendant was not acting in a threatening manner when he approached the deputy,” the minority wrote.

“The law enforcement officers lacked the requisite reasonable suspicion to detain defendant,” they wrote.

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