Opinion
2314/2014
04-28-2015
The People of the State of New York v. Audley Mundy, Defendant.
In the wee small hours of a Bronx summer morning, the stillness of a residential neighborhood was pierced by the blast of a gunshot. A neighborhood resident saw three men standing on a street, and watched as one them held a greyish/silver gun and fired it. He did not get a good look at any of their faces. The witness flagged down police officers who responded to his 911 call. The only physical description he could provide was that all the men were black, and one wore a white t-shirt. He also said the men just rounded the corner of a certain street and were still walking together. As the officers drove in the direction described, they saw three black men walking in the middle of the street, one wearing a white t-shirt. The officers pulled up next to the men; one officer told them to stop. Two did, but defendant ran off, and two police officers gave chase. Defendant pulled out a firearm when he found himself standing face to face with one of the pursuing police officers. The firearm fell to the ground, and the officer placed his own leg over it as defendant tried to retrieve it.
Defendant moved to suppress the gun. The motion court ordered a combined Mapp/Huntley/Dunaway hearing. Following the hearing, this Court credits the testimony of the two police witnesses in their entirety. The motion to suppress the gun, as well as a custodial statement defendant made following his arrest, is denied.
FINDINGS OF FACT
Police Officer William Roettger, a nineteen-year veteran of the New York City Police Department, was working the midnight tour at the 47th Precinct on July 13, 2014. At about 5:10 a.m., just as the officer was finishing his meal break at the precinct, he received a radio run. The 911 caller reported that a gun had been fired on 225th Street between Laconia and Paulding Avenues. The officer and his partner, who were in uniform, jumped into a marked police van and drove immediately to the location noted in the radio run, which was only about five blocks from the precinct. When they arrived, a man gestured to the officers, and they went over to speak to him. The man said he had been the one who called 911. He told the officers he was sitting in his own car when he observed three men a few minutes earlier on 224th Street and Paulding Avenue. The men were all black. In terms of clothing, he could only say that one of them wore a white t-shirt. One of the three men pulled out a greyish/silver gun and fired it into the air. The officers asked the witness if he knew where the men he saw had gone. The witness told them that just before the police officers arrived, the three men "made a left onto 224th Street," and were walking eastbound on that street. The officers asked the witness to get into the marked police van. He declined, telling them that he could not identify the person who fired the gun by face or any other means. The witness also told the police officers he lived on that block of East 224th Street.
Officer Roettger immediately drove his marked car in the direction described by the witness. This residential neighborhood has two and three story town houses, some with driveways. The officers drove south on Laconia Avenue, and then made a left turn onto East 224th Street, heading eastbound. No one else was out on those streets. As the officers turned onto East 224th Street, they saw three black men walking in the street. One of the men wore a white t-shirt. The men walked from the street onto a sidewalk. Officer Roettger, who was driving, pulled up next to the men and stopped the van. His partner jumped out of the van, and ordered the men to stop. Two of the men complied., but defendant immediately ran eastbound on 224th Street. Officer Roettger's partner chased defendant, and Officer Roettger joined the pursuit.
Defendant ran on the sidewalk until he reached the residence located at 1276 East 224th Street. Defendant turned and ran up the driveway and into the backyard. Officer Roettger called for back-up on his police radio, providing details about the chase and the address of the house. He told the dispatcher he and his partner were in pursuit of a subject who possibly had a gun. Officer Roettger drew his own weapon as he ran up the driveway. His partner, who was already in the backyard, shouted that defendant was "jumping over the fence." Officer Roettger saw bushes moving, and turned around to go back to the front of the house, "just in case [defendant] doubles back." As Officer Roettger reached the sidewalk at the front of the house, defendant sprinted from the backyard down the driveway and was "running straight at" the officer. Defendant "bladed his body," turning away from the officer for a moment, while simultaneously reaching for his waistband. Defendant made the same type of motion with his own hand that the officer would make if he were reaching to draw his own gun. The officer pointed his own weapon at defendant, shouting, "Don't do it. Don't do it. Stop. Don't do it. I'll blast you." Defendant continued running toward the officer after drawing the gun.
A car was parked in the driveway and there was a gate separating it from the sidewalk. Defendant tried to run between the officer, the car, and the gate. Defendant bounced off the car and he and Officer Roettger fell back against a fence. Defendant lost his balance, and the silver/grey gun fell to the ground. Officer Roettger shouted to his partner, "Gun," and jumped onto defendant. Defendant reached out to grab the gun. The officer thrust his right leg over the gun, grabbed defendant's right arm, and managed to place defendant in handcuffs. The arrest time was 5:22 a.m., about twelve minutes after the radio run was received.
Defendant was taken back to the 47th Precinct. Five hours later, at about 10:32 a.m., he was interviewed by Detective Hugh Stanton, a fourteen-and-a-half-year veteran of the police force, and Detective Konner. Detective Stanton read defendant his Miranda warnings from a printed form before conducting the interview. Defendant acknowledged he understood each of the rights, and agreed to speak to the detective without an attorney present. The interview was conducted in a designated, non-descript interview room at the 47th Precinct. Neither detective had their guns with them during the interview. Defendant was not threatened in any way. Defendant told the detectives, in substance, that he found the gun about two weeks earlier and that he had the gun in his waistband at the time of his arrest.
CONCLUSIONS OF LAW
In this police-civilian street encounter, defendant argues that without having been given any specific clothing or other description of a particular armed individual, the police had no reason to ask him to stop, and that request constituted a seizure. Defendant asserts he not only had a right to ignore the request, but also had a right to run away without being pursued by the officers. This Court finds the officers' actions entirely justified, both at their inception and throughout their encounter with defendant.
First, having received a radio run via a 911 call describing a gun having been fired only a few blocks away from their precinct, the police were " duty bound to take action'" to investigate that report. People v. Perez, 224 AD2d 313 (1st Dept (citing People v. Benjamin, 51 NY2d 267, 270 (1980)), aff'd, 88 NY2d 1059 (1996). Within five minutes, when the police reached the location described, they were flagged down by a citizen-informant, who told them that he had been the one who called after he saw the gun being fired. He had gotten a good look at the gun, which he described as greyish/silver in color. He told them he was familiar with the neighborhood, and lived just down the street from where they were speaking. Although the witness was unable to provide any physical description of the individual who actually fired the gun, he was able to say that it had to be one of three men he had seen standing together when the gun was fired. In terms of a physical description of the men, the witness could only say they were all black, and one of them wore a white-t-shirt. The witness last saw the trio only a moment earlier, when they were still walking together, heading eastbound on East 224th Street, the same street where the witness said he lived.
It is not clear from the record whether the police ever learned the identity of the citizen informant. For the purposes of this decision, the Court is treating this individual as an unidentified citizen informant.
At this point, the police had a good deal of information to investigate. They certainly had reason to believe that criminal activity was afoot, and that the criminal activity involved possession and use of a loaded gun by one of three men described by a witness to that crime. See People v. Joseph, 38 AD3d 403 (1st Dept. 2007); People v. Flores, 226 AD2d 181 (1st Dept 1986). This information, imparted to them via a 911 call, and confirmed in a face to face encounter with the caller himself, provided the officers with, at a minimum, the founded suspicion necessary to conduct a common-law inquiry of anyone they found who matched the general description given and was walking in the direction described by the eyewitness. See People v. Bora, 83 NY2d 531, 535 (1994); see also People v. Brown, 216 AD2d 3 (1st Dept 1995).
When the officer spotted defendant moments later, he and his companions were on the very street and heading in the very direction the informant described. They matched the description given; there were three of them, they were men, they were all black, and one of them wore a white t-shirt. There was also no one else out on any of the streets in that area the officer drove on. The neighborhood was quiet, and not as densely populated as would be expected in one with high-rise apartment buildings. Defendant argues that without more of a physical description of the individuals, and particularly the lack of a description of the person who fired the gun, the police had no right to do any more than perhaps request information. To the contrary, the information in this case was more than adequate to provide Officer Roettger with the ability to conduct a legal, common law right of inquiry of each of the three men they encountered. Such an inquiry would have been appropriate to ask the men to provide an explanation about what the eyewitness reported — namely, that at least one of them carried and fired a gun. See People v. Ziegler, 61AD 3d 1098 (4th Dept 2009); People v. Weismore, 204 AD2d 1003 (4th Dept. 1994).
Arguably, the police might have also had reasonable suspicion to stop and detain the three men for an extended period of time, given the fact that they were the only ones on the street at the time other than the witness, and they matched the witness's limited physical description of the perpetrator as being one of the three men. See People v. McNeill, 39 AD3d 206, 208-09 (1st Dept 2007). Defendant's immediate flight would have also under these circumstances also justified the police pursuit. See People v. Benjamin, 272 AD2d 67, 68 (1st Dept 2000).
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The officers initial reaction when they spotted the group was reasonable and measured. One uniformed officer left the marked car and told all three individuals, in a non-threatening manner, without a gun drawn, to "stop," a necessary prelude to conducting any type of constitutionally permissible inquiry. See e.g. People v. Reyes, 199 AD2d 153, 154 (1st Dept 1993) aff'd, 83 NY2d (1994). Contrary to defendant's claim that this was a "level 3" seizure under People v. DeBour, 40 NY2d 210 (1976), requiring, at a minimum, reasonable suspicion, it was at that point not that type of seizure at all. The officers made a minimally intrusive request to three individuals to stop in order to investigate and answer questions. see Bora, 83 NY2d at 535; see also People v. Correa, 77 AD2d 555 (1st Dept 2010).
Before the officers had a chance to pose a single question, defendant turned and ran. This immediate flight raised the level of permissible police action to one supported by reasonable suspicion, and fully justified the police pursuit, which now constituted a seizure. See People v. Agramonte, 57 AD3d 333, 334 (1st Dept 2008); People v. Montilla, 268 AD2d 270 (1st Dept 2000). The officer reasonably decided to draw his weapon based on his common-sense belief that defendant was running because he was the person in the group who possessed the gun. When defendant reached for his waistband in a manner consistent with drawing a gun, reasonable suspicion that defendant was, indeed, the person in the small group who possessed the gun increased. Defendant's decision to pull the silver/grey gun out of his waistband in Officer Roettger's presence was not a response to illegal police conduct, as defendant alleges, but was purely voluntary. See e.g. People v. Jenkins, 209 AD2d 164 (1st Dept 1994). Once Officer Roettger saw the silver/grey firearm in defendant's hand, he had probable to arrest him. For this reason, the application to suppress the gun, is denied.
Defendant's removal of the gun, and its subsequent recovery from the ground, provides two other alternative reasons to deny the defendant's motion. If defendant's motive in drawing the weapon at that point was to voluntarily rid himself of evidence, such action would constitute abandonment. Thus, defendant lacks standing to succeed in his suppression motion. Id. However, the Court finds this was no mere abandonment. The scenario described in harrowing detail by Officer Roettger demonstrates that defendant's decision to remove the concealed gun was not only voluntary, but independently criminal. Defendant's furtive movements to conceal its removal by "blading" his body as he reached for the gun in his waistband, his continued approach toward the officer with the gun in hand, even in the face of the officer's anxious pleas for the defendant to stop and his threat to "blast" defendant, his holding the gun as he passed the officer and fell into the fence, and his attempt to retrieve it from the ground even after apprehension, all demonstrate something nefarious — an intent to use it against the officer. Thus, under these circumstances, even if the initial pursuit had been constitutionally impermissible, defendant's voluntary act of drawing his weapon when confronted, in a darkened driveway, by a lone police officer, was a voluntary illegal act sufficiently attenuated from any possible taint caused by the pursuit. See e.g. People v. Townes, 41 NY2d 97, 102 (1976); People v. Payne, 128 Ad2d 559, 560 (2nd Dept 1987); People v. Cameron, 209 Ad2d 159 (1st Dept 1994); People v. Vorhees, 229 Ad2d 553 (2nd Dept 1996); People v. Smith, 235 AD2d 639, 640 (3rd Dept 1997). For all these reasons as well, the motion to suppress the gun is denied.
As far as the statement is concerned, the evidence demonstrates that it was voluntarily obtained beyond a reasonable doubt. The defendant made the statement in custody after he was informed of and freely waived his Miranda rights. Accordingly, the motion to suppress the statement is denied as well.
This constitutes the Decision and Order of the Court.
Dated: April 28, 2015
______________________________
RALPH FABRIZIO