Opinion
2004SU051477.
Decided April 19, 2005.
Alia Fisco, Assistant District Attorney, for plaintiff.
Marie Garelle, Esq., Legal Aid Society of Suffolk County, for defendant.
The defendant is charged with resisting arrest and disorderly conduct in violation of sections 205.30 and 240.20 of the New York State Penal Law. A combined probable cause/Huntley hearing was held February 23, 2005.
Police Officer Joseph Scariello of the Suffolk County Police Department, Shield Number 5313 testified as to the events of October 8, 2004 which led to the defendant being arrested. Officer Scariello stated that he and his partner were assigned to the gang unit and were patrolling an area in Wyandanch along Long Island Avenue. They were in an unmarked car and in plain clothes. The defendant was observed by the officer as the defendant passed in front of their vehicle. The defendant looked back and forth at the police officers and while doing so protected or shielded his waist band from the officers' view. The defendant's hands were in his jacket pockets. Officer Scariello testified that it was his opinion that the defendant may have been protecting his piece (gun). The officers then pulled the vehicle next to the defendant and identified themselves as police officers. Upon exiting the vehicle, with shields displayed, Officer Scariello asked the defendant to remove his hands from his pocket. The defendant refused to do. The officers attempted to forcibly remove the defendant's hands wherein the defendant became verbally abusive and physically combative and resisting the officers' actions in removing his hands from the defendant's jacket. The defendant backed away from the officers while yelling "Come on, you fucking faggots. I'll take you on one by one. You ain't nothing but bitches." The officer testified that until the defendant pulled away and became abusive he had not observed any criminal conduct on the defendant's part.
Based on the credible testimony and evidence heard at the hearing, the Court finds that the request by the police to see the hands of the defendant after observing what they deemed to be furtive acts is the type of minimal intrusion that need be supported only by some objective credible reason; see People v. DeBour, 40 NY2d 210, 386 N.Y.S. 375 (1976); People v. Moyaho, 12 AD3d 692, 786, N.Y.S. 2d 84 (2nd Dept. 2004); App. Denied 2005 NY Lexis 371 (NY Jan. 27, 2005); People v. Walton, 2004 NY Slip op 50944U 4 Misc 3d 1018A. The actions of the defendant in glancing back and forth at the undercover officers while at the same time shielding his body from the officers view, with his hands in his jacket pockets, gave the officers an objective credible reason to approach the defendant. The officers assigned to a gang unit patrolling an area known for gang activity requested to see defendant's hands fearing he may be armed. A request such as this is minimally intrusive as it insures the officers' safety and does not require a suspicion of criminal activity (see People v. Oeller, 191 AD2d 355, 595 N.Y.S. 2d 192 (1993) Affd. 82 NY2d 774, 604 N.Y.S. 2d 537 (1993); Matter of Anthony S., 181 AD2d 682, 682-683, 581 N.Y.S. 2d 212 (1992), lv denied, 80 NY2d 753, 587 N.Y.S. 2d 905 (1992); People v. Winchester, 14 AD3d, 939, 790 N.Y.S. 2d 238 (3rd Dept. 2005). Hence, the defendant's refusal to removing his hands from his pockets, his suspicious conduct and being in a high crime area provided the officers with the common law right of inquiry; ( People v. Winchester, supra,: People v. Alvarez, 308 AD2d 184, 764 N.Y.S. 2d 42, (1st Dept. 2003), lv denied 3 NY3d. 657, 782 N.Y.S. 2d 699 (2004).
It is clear that the defendant's statements were not the result of custodial questioning but rather the outcry of the defendant which constituted the res-geste of the disorderly conduct which in turn lead to the resisting arrest charge. As such, the defendant's suppression motion is denied in all respects.