Opinion
No. 2009BX074750.
2013-06-3
The PEOPLE of the State of New York, v. Dwayne BLACK, Defendant.
Robert T. Johnson, District Attorney, Bronx County, by Alissa Kempler, Esq., Assistant District Attorney, for People. John Vang, Esq., Bronx Defenders, for Defendant.
Robert T. Johnson, District Attorney, Bronx County, by Alissa Kempler, Esq., Assistant District Attorney, for People. John Vang, Esq., Bronx Defenders, for Defendant.
JOHN H. WILSON, J.
By Prosecutor's Information dated January 7, 2010, Defendant is charged with one count of Attempted Criminal Possession of a Weapon in the Fourth Degree (PL Sec. 110/265.01), a Class B Misdemeanor; and one count each of Resisting Arrest (PL Sec. 205.30), and Possession of Pistol Ammunition (AC 10–131(i)(3)), both Class A misdemeanors.
Defendant was initially charged with 2 counts of Criminal Possession of a Weapon in the Second Degree (PL Sec. 265.03), a Class C Felony, however, those charges were dismissed by the Grand Jury.
By order of the Court, dated May 24, 2010, a hearing was held before this Court in this matter on March 1, 2013 and March 7, 2013, pursuant to People v. Dunaway, 442 U.S. 200, 99 S Ct 2248, 60 L Ed2d 824 (1979), and Mapp v. Ohio, 367 U.S. 643, 81 S Ct 1684, 6 L Ed2d 1081 (1961).
At the hearing, the People offered the testimony of two witnesses; Police Officer Alan Avella, and Police Officer Miguel Sanchez. The Defense offered no witnesses or evidence at the hearing.
Based upon the testimonial evidence offered by the People at the hearing, in its oral decision given at the conclusion of the hearing, this Court found both Officers to have been credible witnesses. See, Minutes dated March 7, 2013, p 46. However, the Court also found that the police lacked probable cause for the arrest of the Defendant, and suppressed the evidence recovered. See, Minutes dated March 7, 2013, p 50.
The People now move to reargue this determination, pursuant to CPLR Sec. 2221. In considering the People's motion, the Court has reviewed the minutes of the hearing, the Court file, the People's Motion to Reargue dated March 22, 2013, and Defendant's Affirmation in Opposition and Memorandum of Law dated May 3, 2013.
For the reasons stated below, the motion to reargue is denied. The Court reaffirms its suppression of the evidence seized by the Police in this matter.
STATEMENT OF THE FACTS
The Court makes the following specific findings of fact:
Officer Alan Avella testified that he is assigned to the 44 Precinct. See, Minutes dated March 1, 2013, p 5. He has been a member of the New York City Police Department for nine years, and has made “thousands” of arrests in his career. See, Minutes dated March 1, 2013, p 6–7. At the time of this Defendant's arrest, Officer Avella had made approximately 20 or 30 arrests for gun possession. See, Minutes dated March 1, 2013, p 7–8.
On November 22, 2009, the officer was assigned to the Anti–Crime Unit, was dressed in plain clothes and using an unmarked vehicle. He was working with Police Officer Miguel Sanchez, and another officer. See, Minutes dated March 1, 2013, p 8. Officer Sanchez was the driver, Officer Avella was the front seat passenger. See, Minutes dated March 1, 2013, p 11. Officer Avella testified that “we were literally in front of the precinct when we heard gunfire.” See, Minutes dated March 1, 2013, p 12.
Traveling in the direction they believed the gun fire to have occurred, at the intersection of West 170th Street and EL Grant Highway, Bronx, New York, the officers observed the Defendant and “the two gentlemen he was with were walking eastbound on West 170th Street, literally crossing in front of the vehicle that I was in. At that point the vehicle came to a complete stop. When (Defendant) and his associates noticed who we were, their sense of direction and demeanor went from a steady course to basically bumping into each other.” See, Minutes dated March 1, 2013, p 13.
After the unmarked vehicle came to a stop, Officer Avella testified that he “exited from the front seat ... I said to them, Police, guys, hold up. A couple of quick questions. We're trying to investigate the gunfire that I heard a few moments prior.' “ See, Minutes dated March 1, 2013, p 15
The officer then testified that “the two gentlemen that (Defendant) was with ... walked a few steps back to myself ... (Defendant)broke off from the group and continued walking down West 170th Street.”
While conducting what the officer described as a “field investigation” into the source of the gunfire, Officer Avella testified that he was “trying to see where Officer Sanchez is because (that officer was) still in the car. I saw the car rolling down the hill pretty much next to where (Defendant) was walking. As I looked up over the individual I had stopped, (Defendant) would look over his shoulder several times ... and his pace began to pick up.” See, Minutes dated March 1, 2013, p 17–18.
Officer Avella testified that next he “heard the vehicle, the rear tires spin as if Officer Sanchez stepped on the gas pedal. The car accelerated, took off, and I heard the rear tires spin on the concrete making the screeching sound. As I looked up, at this point, (Defendant) was still traveling east bound on West 170. Now he's running with his right arm, it was tucked over like his waistband area as he's running down the hill.” See, Minutes dated March 1, 2013, p 19.
Officer Avella testified that he “assumed that Officer Sanchez had seen something or had some sort of interaction with (Defendant) that he's now pursuing him. (Defendant) is now running, holding his waistband, and Officer Sanchez is obviously accelerating the vehicle, trying to stop him.” See, Minutes dated March 1, 2013, p 19.
After joining the chase, Officer Avella observed Defendant turn “onto Cromwell Avenue ... as I come around the corner, I saw (Defendant) was struggling with his jacket and his waistband and observed the firearm in the air doing almost like a boomerang ... I saw the firearm in the air high and that's when I was able to grab (Defendant). It was a brief struggle.” See, Minutes dated March 1, 2013, p 22–23.
The People's next witness, Police Officer Miguel Sanchez, also assigned to the 44 Precinct, has been employed with the NYPD for approximately “eight and a half years.” See, Minutes dated March 7, 2013, p 7. Prior to the date of this Defendant's arrest, he had participated in “about 200” arrests, including “about 20” arrests for guns. See, Minutes dated March 7, 2013, p 8. On November 22, 2009, he was working with Officer Avella and another officer “in plainclothes ... in an unmarked RMP.” He remembered being the driver of the vehicle. See, Minutes dated March 7, 2013, p 9.
Officer Sanchez testified that he “pulled up in front of the station house ... the 44 Precinct. As I was exiting the vehicle along with my partners, I heard shots fired ... I went back into the vehicle, and I drove to Edward L. Grant.” See, Minutes dated March 7, 2013, p 10. The officer stated that “as I approached the corner of West 170th Street and Edward L. Grant, I observed three individuals walking eastbound on West 170th Street.” See, Minutes dated March 7, 2013, p 11. He remembered starting “a slow roll on the vehicle. The individuals, they separated. Two individuals began to walk south on EL Grant, and one individual continued eastbound on West 170th Street.” See, Minutes dated March 7, 2013, p 12. He also recalled that “upon sight of my vehicle, (the three individuals) came, not to a full stop, but to kind of a slow down. A look of disbelief ... kind of surprised” crossed their faces. See, Minutes dated March 7, 2013, p 13.
Officer Sanchez testified that “my two partners came out first. They IDed themselves as police officers, and approached the two individuals that had changed their course south.” See, Minutes dated March 7, 2013, p14. At that point, Officer Sanchez observed “the suspect ... walking in front of the vehicle. Now his pace went from a slow walk to a faster walk, and looking over his shoulder while adjusting the right side of his jacket.” See, Minutes dated March 7, 2013, p 14.
The officer indicated that “at that particular time, I identified myself. I actually had my shield in my hand ... I told him, police, stop ... he picked up his pace.” See, Minutes dated March 7, 2013, p 15. Officer Sanchez then repeated “I identified myself as a police officer, asked him to stop. He looked over his shoulder, adjusted his waistband.” See, Minutes dated March 7, 2013, p 15. Raising his voice, the officer “told him to stop, police, and at that point, he began to run.” See, Minutes dated March 7, 2013, p 16.
Officer Sanchez described the Defendant as “grabbing” his waist. He indicated that the gesture “was not a normal typical finger roll when you fix your clothing. It was more of a grasp of an object in the side of his jacket.” The Court then asked the officer if he knew what the object was “at that time.” The officer answered, “Not at all, your Honor.” See, Minutes dated March 7, 2013, p 17.
The officer further indicated that “it appeared to be a heavy object of substantial size in his waist.” and that he had “the suspicion of a possible weapon.” See, Minutes dated March 7, 2013, p 18. However, in an effort to clarify the officer's testimony the Court asked the officer whether or not he knew what the object was that Defendant was “grabbing for.” The Officer stated again that he did not know the identity of the object. See, Minutes dated March 7, 2013, p 24.
Officer Sanchez testified to the chase of the Defendant down Cromwell Avenue, and his observations of Defendant's actions; “He reaches over to the right pocket of the jacket ... he tucked (sic) up one time, and whatever the object was at that moment, it seemed that it got caught inside his pocket ... the second tug, I observed the black object come out, and in one action went up in the air.” See, Minutes dated March 7, 2013, p 19.
The officer testified to hearing “metal land” and saw the Defendant “tackled by other officers that were coming in foot pursuit.” See, Minutes dated March 7, 2013, p 20.
LEGAL ANALYSIS
Based upon these substantially uncontroverted facts, the Court makes the following findings;
The Court reiterates its finding, given at the conclusion of the hearing; both Officers were credible witnesses. See, Minutes dated March 7, 2013, p 46.However, while the credibility of the testimony of the People's witnesses is not in dispute, the legality of their actions is subject to question.
The People assert that Officers Avella and Sanchez had “a founded suspicion of criminal activity after hearing gunshots emanate from the area moments before.” Further, “Defendant's and his companions visceral reactions of surprise and alarm immediately after noticing the officers, combined with observing Defendant hold a bulge in his waist while looking nervously back at the officers, confirmed the officers' founded suspicion.” See, People's Motion to Reargue dated March 22, 2013, p 7. However, this view of the events which led to Defendant's arrest ignores several crucial facts.
There was no evidence adduced at the hearing to link the Defendant and his companions to the gunshots heard by the officers moments before they encountered these individuals. Both Officer Avella and Officer Sanchez indicated that they were stopped in front of the 44 Precinct when they heard gun fire. See, Minutes dated March 1, 2013, p 12; Minutes dated March 7, 2013, p 10. After driving to the location of EL Grant Highway and West 170th Street, they observed Defendant and two other individuals walking eastbound on W 170th Street. See, Minutes dated March 1, 2013, p 13; Minutes dated March 7, 2013, p 11. The three appeared confused and surprised at seeing the officers. See, Minutes dated March 1, 2013, p 13;Minutes dated March 7, 2013, p 13.
On this basis, at best, the gunfire, coupled with the reactions of the Defendants to their observation of the officers, gave Officer Sanchez an objective credible reason to approach and “inquir(e) as to (Defendant's) identity ... the attendant circumstances were sufficient to arouse the officers' interest” in the Defendant. See, People v. DeBour, 40 N.Y.2d 210, 220, 386 N.Y.S.2d 375 (1976). Under this level of inquiry, Officer Sanchez was permitted to ask the defendant whether he knew anything about the gun shots.
The People posit that the sound of gun fire, and the reactions of the Defendant and the other two individuals raises the level of inquiry to a founded suspicion of criminal activity. However, the evidence gathered at the hearing failed to establish any link between the gun fire and the Defendant.
The People cite a series of cases to establish the connection between the defendant and the suspected criminal activity. However, their reliance upon many of these cases is misplaced.
In People v. Leung, 68 N.Y.2d 734,735, 506 N.Y.S.2d 320 (1986), the officer observed the defendant with “another man in conversation and saw defendant pass his companion a three-by five-inch brown envelope which appeared to resemble three dollar bags' used in drug transactions.” Upon the approach of the officers, that defendant ran away. The Court of Appeals found that “when coupled with defendant's immediate flight upon the officer's approach, the passing of the manila envelope in this narcotics prone neighborhood establishes the necessary reasonable suspicion that defendant had committed, or was about to commit a crime.” 68 N.Y.2d at 736.
In the instant case, when Defendant was first observed by Officers Avella and Sanchez, he was not involved in any suspicious activity. He was simply crossing the street.
In People v. Blackwell, 206 A.D.2d 300, 614 N.Y.S.2d 527 (1st Dept, 1994), that defendant was observed running out of a building after the officers heard “a volley of gun shots coming from somewhere in front of them.” That defendant then looked in the direction of the officers, stopped short, and ran in another direction. These actions are more likely to support a belief that criminal activity is afoot than were the actions attributed to this Defendant.
People v. Mitchell, 223 A.D.2d 729, 637 N.Y.S.2d 450 (2d Dept, 1996) is equally inapplicable. There, the officer arrived as shots were being fired, observed “men in blue uniforms go behind a van,” heard someone yell “Police, don't move, drop the guns,” and then observed “the defendant and another man exited the van and began to walk away.” These facts establish a nexus between that defendant, and the suspected criminal activity, which is lacking under the facts presented here.
In this case, after hearing gun shots in the area, and seeing the Defendant and two other individuals look surprised to see the police, Officer Sanchez had no more than an objective credible reason to question the Defendant. Without any nexus between the shots fired, and the Defendant, the surprised look on the face of the Defendant and the two other individuals does not provide a connection sufficient to raise the level of intrusion. The two events are too attenuated, one from the other. Therefore, the Officer's inquiry does not begin with a founded suspicion of criminal activity on the part of the Defendant, but begins with the lesser standard of objective credible reason.
At this primary level of inquiry, a defendant has the right to refuse to cooperate, and can walk, or even run away. “Police pursuit of an individual significantly impede(s)' the person's freedom of movement and thus must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed.” See, People v. Holmes, 81 N.Y.2d 1056, 1057–1058, 601 N.Y.S.2d 459 (1993) (citation omitted) (emphasis added); People v.. Hollman, 79 N.Y.2d 181, 190, 581 N.Y.S.2d 619 (1992).
Here, the Defendant refused to cooperate with the officer's investigation, and sought to walk, and then run away without answering questions. “While the police may have had an objective credible reason to approach defendant to request information ... those circumstances, taken together with defendant's flight, could not justify the significantly greater intrusion of police pursuit.” See, Holmes, 81 N.Y.2d at 1058.
The People also assert that Officer Sanchez' had a founded suspicion of criminality once the Defendant was observed to “hold a bulge in his waist,” and therefore had the authority to chase the Defendant at this point. See, People's Motion to Reargue dated March 22, 2013, p 7. However, this argument is based on testimony Officer Sanchez did not give. At no time did Officer Sanchez describe the object as a “bulge,” and in fact, when asked to describe what he saw, Officer Sanchez repeatedly stated that he did not know the identity of the object.
Officer Sanchez described the Defendant as “adjusting” and then “grabbing” his waist after the officer attempted to stop the Defendant. He indicated that the gesture “was not a normal typical finger roll when you fix your clothing. It was more of a grasp of an object in the side of his jacket.” However, the officer testified twice that he did not know what the object was that Defendant was “grabbing for.” See, Minutes dated March 7, 2013, p 17, 24.
The officer did indicate that what he observed “appeared to be a heavy object of substantial size in his waist.” See, Minutes dated March 7, 2013, p 18. He never testified to any description of the object. Though he testified to having “the suspicion of a possible weapon” (See, Minutes dated March 7, 2013, p 18), there are no facts to support his belief that the object was a weapon. Thus, as noted in the Court's oral decision, Officer Sanchez “may have had his suspicions, but he doesn't have any reasonable basis for the suspicion other than a hunch, and as we all know, a hunch is not sufficient.” See, Minutes, March 7, 2013, p 50. See, also, People v. Cantor, 36 N.Y.2d 106, 113, 365 N.Y.S.2d 509 (1975) (“vague or unparticularized hunches will not suffice”); People v.. Taveras, 155 A.D.2d 131, 135, 553 N.Y.S.2d 305 (1st Dept, 1990) (“An officer's conduct, based upon a vague or unparticularized hunch does not meet this standard”).
Officer Avella also testified to seeing nothing more than the Defendant “running with his right arm ... tucked over like his waistband area as he's running down the hill.” See, Minutes dated March 1, 2013, p 19. This observation was made after Officer Sanchez had begun his pursuit of the Defendant. Yet, it must be emphasized that at this point, all Officer Sanchez had seen was the Defendant “adjusting the right side of his jacket.” See, Minutes dated March 7, 2013, p 14.
At this stage of the Officer's investigation, “the notion that behavior which is susceptible of innocent as well as culpable interpretation” applies to the facts of this case. See, DeBour, 40 N.Y.2d at 216. Defendant could have been “adjusting” any object in the pocket of his jacket, from a cell phone to any other “heavy object of substantial size.”
The cases cited by the People do not change this analysis. In People v. Benjamin, 51 N.Y.2d 267, 269, 434 N.Y.S.2d 144 (1980), the police had received a report “that there were men with guns at a specific street location.” When the officers approached, “the defendant ... stepped backwards toward the curb while simultaneously reaching beneath his jacket with both hands to the rear of his waistband.” Further, in People v. Pines, 99 N.Y.2d 525, 526, 752 N.Y.S.2d 266 (2002), the defendant “placed his right arm against the side of his bubble jacket bunching it up by reaching underneath with his hand in a cupping motion.”
These gestures are clearly threatening, and more consistent with the actions of an individual reaching for a weapon, then the actions of the Defendant described here.
The People also rely upon People v. Warren, 205 A.D.2d 368, 613 N.Y.S.2d 375 (1st Dept, 1994). There, defendant was observed “holding a jacket in his left hand and tugging at an object in his waistband with his right hand.” After observing the officers, the defendant “draped his jacket over his right shoulder ... concealing his hands and the right side of his body.” The officer approached the defendant, and asked him to show his hands. “Only after the third request did defendant do so.” Under these circumstances, the First Department ruled that “it would be unrealistic to require the officer to assume the risk that defendant's conduct was innocuous or innocent.” 205 A.D.2d at 369.
In this case, neither Officer Avella, nor Officer Sanchez ever testified to any fear for their safety during their observations of the Defendant and his actions.
The result is the same even in cases where the police have a stronger basis to believe that the object carried by a person could be a weapon. In People v. Crawford, 89 AD3d 422, 931 N.Y.S.2d 313 (1st Dept, 2011), the defendant was observed “walking on the street, adjusting something in his right pants pocket by cupping his hand over the outside of the pocket and pulling upward ... the object in defendant's pocket created a bulge and looked heavy.” The officer asked defendant to approach, and when he did, the officer could see that the bulge in the defendant's pocket “appeared to be made by a hard, five- or six-inch-long, oblong-shaped object, which the officer could not identify.” 89 AD3d at 423.
The First Department ruled that “based on the object in defendant's pocket, the officers may have had an objective credible reason to request information from defendant ... (b)ut the officers were not justified in forcibly seizing defendant by chasing after and apprehending him. Defendant's flight, when accompanied by nothing more than the presence of an object in his pocket that was unidentifiable even at close range, did not raise a reasonable suspicion that he had a gun or otherwise was involved in a crime.” 89 AD3d at 423 (citations omitted).
Thus, in Crawford, the Appellate Division ruled that the observation of a “hard, five- or six-inch-long, oblong-shaped object” that “created a bulge and looked heavy,” even after a defendant was observed “adjusting something in his right pants pocket by cupping his hand over the outside of the pocket and pulling upward” only gave the officers an objective credible reason to question that defendant.
Compare the facts of Crawford with the testimony adduced in this case, wherein Officer Sanchez states that he saw the Defendant “adjusting” and then “grabbing” what “appeared to be a heavy object of substantial size in his waist,” after the officer attempted to stop the Defendant to question him regarding gun shots heard in the general area where the defendant had been observed walking with two others. See, Minutes dated March 7, 2013, p 18.
These facts, coupled with the the officer's clear statements that he did not know what the object was, renders “defendant's behavior ... at best equivocal and readily capable of an innocent explanation.” See, People v. Grant, 164 A.D.2d 170, 173, 562 N.Y.S.2d 22 (1st Dept, 1990). Thus, “while the police may have had an objective credible reason to approach defendant to request information ... those circumstances, taken together with defendant's flight, could not justify the significantly greater intrusion of police pursuit.” See, Holmes, 81 N.Y.2d at 1058.
Therefore, “although the police had a valid basis for the initial encounter, there was nothing that made permissible any greater level of intrusion.' “ People v. Cady, 103 AD3d 1155, 1157, 959 N.Y.S.2d 321 (4th Dept, 2013), quoting Howard, 50 N.Y.2d at 590. This same principle was cited by this Court in its oral decision. See, Minutes, March 7, 2013, p 48.
In the absence of probable cause for the stop and seizure of the Defendant, the evidence collected by the police must be suppressed. See, Wong Sun v. United States, 371 U.S. 471, 488, 83 S Ct 407, 9 L Ed2d 441 (1963). The motion to reargue is denied.
All other arguments advanced by the People and Defendant have been reviewed and rejected by this Court as being without merit.
This shall constitute the opinion, decision, and order of the Court.