Opinion
6429 6430
05-08-2018
IN RE MICHAEL H., a Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency
Dawne A. Mitchell, The Legal Aid Society, New York (Raymond E. Rogers of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Carolyn Walther of counsel), for presentment agency.
Dawne A. Mitchell, The Legal Aid Society, New York (Raymond E. Rogers of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Carolyn Walther of counsel), for presentment agency.
Richter, J.P., Gesmer, Oing, Singh, Moulton, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about March 15, 2017, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed an act that, if committed by an adult, would constitute the crime of possession or sale of a toy or imitation firearm, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court properly denied defendant's suppression motion. Initially, we find that the police had a founded suspicion of criminality warranting a common-law inquiry, based on an anonymous report describing an armed suspect. The minor discrepancies between the radioed description and appellant's appearance were satisfactorily explained (see Matter of Dominique W., 84 A.D.3d 657, 923 N.Y.S.2d 513 [1st Dept. 2011] ).
The initial encounter was not a seizure requiring reasonable suspicion, notwithstanding that it involved a direction to stop, where the police did not display weapons, physically restrain appellant or do anything else to convey a seizure (see People v. Reyes, 83 N.Y.2d 945, 615 N.Y.S.2d 316, 638 N.E.2d 961 [1994], cert denied 513 U.S. 991, 115 S.Ct. 492, 130 L.Ed.2d 403 [1994] ; People v. Bora, 83 N.Y.2d 531, 535–536, 611 N.Y.S.2d 796, 634 N.E.2d 168 [1994] ; Matter of Jamaal C., 19 A.D.3d 144, 797 N.Y.S.2d 13 [2005] ). Within the scope of their common-law inquiry, the police were entitled to ask appellant if he had a weapon (see People v. Ward, 22 A.D.3d 368, 802 N.Y.S.2d 166 [1st Dept. 2005], lv denied 6 N.Y.3d 782, 811 N.Y.S.2d 349, 844 N.E.2d 804 [2006] ), and his affirmative response provided probable cause for his arrest.
The totality of the hearing evidence supports a finding that exigent circumstances justified the warrantless search of appellant's backpack (see generally People v. Jimenez, 22 N.Y.3d 717, 985 N.Y.S.2d 456, 8 N.E.3d 831 [2014] ). Appellant's admission that he had an unspecified "gun" (only later determined to be an air pistol) gave the police a high level of certainty that the backpack contained a firearm (see Matter of Kenneth S., 121 A.D.3d 593, 594, 995 N.Y.S.2d 48 [2014], affd 27 N.Y.3d 926, 28 N.Y.S.3d 677, 48 N.E.3d 958 [2016] ). Furthermore, the bag was in appellant's grabbable area, and the police opened the bag almost simultaneously with handcuffing appellant (see People v. Smith 59 N.Y.2d 454, 458–459, 465 N.Y.S.2d 896, 452 N.E.2d 1224 [1983] ; People v. Velez, 154 A.D.3d 527, 63 N.Y.S.3d 36 [1st Dept. 2017], lv denied 30 N.Y.3d 1109, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2018] ).