Opinion
2011-10-18
The PEOPLE, etc., respondent,v.Leonard BECKETT, appellant.
Valerie A. Hawkins, Hempstead, N.Y., for appellant.Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Cristin N. Connell of counsel), for respondent.
Valerie A. Hawkins, Hempstead, N.Y., for appellant.Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Cristin N. Connell of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Kase, J.), rendered November 15, 2010, as amended November 23, 2010, convicting him of robbery in the first degree (two counts), robbery in the second degree (two counts), assault in the second degree (four counts), assault in the third degree (two counts), criminal possession of a weapon in the third degree, and resisting arrest, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions, of the suppression of physical evidence, identification testimony, and his statement to law enforcement officials.
ORDERED that the judgment is reversed, on the law, the plea is vacated, suppression of the physical evidence, identification testimony, and the defendant's statement to law enforcement officials is granted, and the matter is remitted to the County Court, Nassau County, for further proceedings on the indictment.
As developed at a combined Huntley/Dunaway/Mapp hearing ( see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179), on February 6, 2010, at or around 7:50 P.M., a police officer of the Village of Freeport Police Department was working in plain clothes and responded to a radio call about a robbery at a liquor store in Freeport. The description of the suspect was a “male black with a black jacket.” The officer, who was driving an unmarked Crown Victoria patrol car, responded to the call and was traveling on Southside Avenue when, at approximately “7:54, 7:55” P.M., he observed the defendant, “a male black with a black jacket and a red and white, like a high school jacket, walking eastbound on Southside Avenue.” The officer observed the defendant walking “at a fairly fast pace.” When the officer slowed down his vehicle, the defendant looked at the vehicle, and began to run southbound through the backyards of Southside Avenue. The officer pursued the defendant, identifying himself as a police officer during the pursuit, and ultimately detained the defendant. Subsequently, three victims of the robbery appeared at the scene, identified the defendant as the robber, and the defendant was placed under arrest. Subsequent to his arrest, physical evidence was recovered from the defendant and he provided a statement admitting his guilt to law enforcement officials.
At the conclusion of the hearing, the County Court found that the police conduct was reasonably responsive to the situation presented, and denied suppression of the physical evidence, identification testimony, and the defendant's statement to law enforcement officials. We reverse.
“The police may lawfully pursue an individual if they have reasonable suspicion that he or she has committed or is about to commit a crime” ( People v. Brogdon, 8 A.D.3d 290, 292, 778 N.Y.S.2d 45; see People v. Holmes, 81 N.Y.2d 1056, 1057–1058, 601 N.Y.S.2d 459, 619 N.E.2d 396). Flight plus “other specific circumstances indicating that the suspect may be engaged in criminal activity” can provide reasonable suspicion ( People v. Sierra, 83 N.Y.2d 928, 929, 615 N.Y.S.2d 310, 638 N.E.2d 955). “However, flight alone or in conjunction with equivocal circumstances that might permit a request for information is insufficient to justify pursuit” ( People v. Brogdon, 8 A.D.3d at 292, 778 N.Y.S.2d 45; see People v. Holmes, 81 N.Y.2d at 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396; People v. Howard, 50 N.Y.2d 583, 592, 430 N.Y.S.2d 578, 408 N.E.2d 908, cert. denied 449 U.S. 1023, 101 S.Ct. 590, 66 L.Ed.2d 484).
Here, the People failed to establish the distance between the location of the defendant when he was first observed by the officer and the location of the robbery. As such, the People failed to establish spatial proximity between the crime and the location of the defendant. Furthermore, the evidence presented at the hearing was insufficient to establish that the defendant knew that the officer was a police officer at the time he started to flee, as the officer was in plain clothes and was driving an unmarked Crown Victoria patrol car ( see People v. Riddick, 70 A.D.3d 1421, 1423–1424, 894 N.Y.S.2d 260). Indeed, at the hearing, the officer acknowledged that he did not identify himself as a police officer until he was in the midst of pursuing the defendant.
Moreover, there were no specific circumstances indicating that the defendant might be engaged in criminal activity. Therefore, the defendant's flight did not justify the officer's pursuit ( see People v. Brogdon, 8 A.D.3d at 292, 778 N.Y.S.2d 45;
People v. Holmes, 81 N.Y.2d at 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396). That the defendant matched an extremely vague description of the suspect, which contained no information regarding the suspect's height or weight, and did not indicate that the suspect was wearing a red and white jacket, was not sufficiently indicative of criminal activity ( see People v. Waters, 259 A.D.2d 642, 686 N.Y.S.2d 798). In the radio call received by the officer, the suspect was described as a “male black with a black jacket,” but the defendant was observed wearing a red and white jacket over a black jacket. In addition, the radio call did not indicate the direction the suspect was traveling, and the testimony at the hearing did not establish exactly when the robbery occurred. Thus, on this record, there are no circumstances that, when combined with the defendant's flight, would constitute reasonable suspicion sufficient to justify the officer's pursuit ( see People v. Smalls, 83 A.D.3d 1103, 1104–1105, 922 N.Y.S.2d 461; Matter of Emmanuel O., 32 A.D.3d 948, 949–950, 821 N.Y.S.2d 255; People v. Brogdon, 8 A.D.3d at 292, 778 N.Y.S.2d 45).
As a result, the pursuit of the defendant and his seizure were unlawful. Consequently, the physical evidence, identification testimony, and the defendant's statement to law enforcement officials should have been suppressed as “fruit of the poisonous tree” ( Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 [internal quotation marks omitted]; see People v. Day, 8 A.D.3d 495, 496, 778 N.Y.S.2d 513).
Accordingly, we reverse the judgment, vacate the plea, and remit the matter to the County Court, Nassau County, for further proceedings on the indictment.