Summary
sliding down on back seat of taxi and covering face with hands did not create reasonable suspicion of criminal activity
Summary of this case from People v. ThomasOpinion
June 13, 1991
Appeal from the Family Court, New York County (Michael Gage, J.).
At about 11:30 P.M., shortly after the arresting officers received a radio run that there had been a robbery of a taxicab by five men approximately ten blocks away, they observed respondent and a companion in a taxicab. Although the location was purportedly an area which has a high incidence of such robberies, no unusual activity was exhibited, other than the fact that respondent, one of two passengers, looked at one of the officers and then slid down on the seat of the cab, covering his face with his hands. The cab was stopped, the respondent and the other passenger ordered to step out, and a firearm was discovered on the back seat.
The tape of the radio run concerning the robbery was destroyed before it could be disclosed. We disagree with the Family Court that the destruction of the tape justified precluding any testimony or evidence concerning the radio run. The tape's production would not have been required as the statement of a presentment agency witness pursuant to People v Rosario ( 9 N.Y.2d 286, cert denied 368 U.S. 866), because the sending officer's testimony was not required (People v Petralia, 62 N.Y.2d 47, cert denied 469 U.S. 852), and because there was no evidence that the arresting officers had made statements on the tape that related to the subject of their testimony (People v Butler, 33 A.D.2d 675, affd 28 N.Y.2d 499). Production was not required pursuant to Brady v Maryland ( 373 U.S. 83), on the ground that it was exculpatory, in that the tape would have indicated that the radio run had concerned Hispanics, while the juvenile is apparently a light-skinned Afro-American. It was not seriously disputed that the tape contained a reference to Hispanics, and thus the tape would not have controverted any of the evidence at the hearing.
Nonetheless, the record supports the Family Court's conclusion that no reasonable suspicion justified the stop of the cab. The radio run did not contain a specific description that was matched by the cab or its occupants (cf., People v Ochsner, 159 A.D.2d 435, lv denied 76 N.Y.2d 740). Neither the fact that the cab was in a high-crime area at night (see, People v Brown, 112 A.D.2d 945, amended 114 A.D.2d 417), nor did the allegedly furtive gestures of sliding down on the back seat of the cab and covering the face with hands create a reasonable suspicion of criminal activity (People v Rossetti, 148 A.D.2d 357).
Accordingly, the record supports the Family Court's decision to suppress the weapon.
Concur — Sullivan, J.P., Carro, Rosenberger, Asch and Kassal, JJ.