Here, even assuming, arguendo, that the officers possessed a level one right to approach defendant and his companion (cf. People v Mercado, 178 A.D.2d 986, 986 [4th Dept 1991], lv denied 79 N.Y.2d 951 [1992]), the officers nonetheless immediately "engaged in a level two intrusion, i.e., 'a more pointed inquiry into [the] activities [of defendant and his companion]'..., by asking 'invasive question[s] focusing on the possible criminality of the subject'" (People v Wallace, 181 A.D.3d 1214, 1216 [4th Dept 2020]; cf. People v Doll, 98 A.D.3d 356, 367 [4th Dept 2012], affd 21 N.Y.3d 665 [2013], rearg denied 22 N.Y.3d 1053 [2014], cert denied 572 U.S. 1022 [2014]). Notably, the officers did not see defendant or his companion drinking from whatever item was in the paper bag, and there were no other attendant circumstances indicative of criminal behavior that would warrant the more pointed inquiry at the outset (see Wallace, 181 A.D.3d at 1216; cf. People v Mack, 49 A.D.3d 1291, 1292 [4th Dept 2008], lv denied 10 N.Y.3d 866 [2008]).
"The next degree, the common-law right to inquire, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a [police officer] is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure" ( De Bour , 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ). Here, even assuming, arguendo, that the officers possessed a level one right to approach defendant and his companion (cf.People v. Mercado , 178 A.D.2d 986, 986, 579 N.Y.S.2d 260 [4th Dept. 1991], lv denied 79 N.Y.2d 951, 583 N.Y.S.2d 205, 592 N.E.2d 813 [1992] ), the officers nonetheless immediately "engaged in a level two intrusion, i.e., ‘a more pointed inquiry into [the] activities [of defendant and his companion]’ ..., by asking ‘invasive question[s] focusing on the possible criminality of the subject’ " ( People v. Wallace , 181 A.D.3d 1214, 1216, 120 N.Y.S.3d 525 [4th Dept. 2020] ; cf.People v. Doll , 98 A.D.3d 356, 367, 948 N.Y.S.2d 471 [4th Dept. 2012], affd 21 N.Y.3d 665, 975 N.Y.S.2d 721, 998 N.E.2d 384 [2013], rearg denied 22 N.Y.3d 1053, 981 N.Y.S.2d 359, 4 N.E.3d 371 [2014], cert denied 572 U.S. 1022, 134 S.Ct. 1552, 188 L.Ed.2d 568 [2014] ). Notably, the officers did not see defendant or his companion drinking from whatever item was in the paper bag, and there were no other attendant circumstances indicative of criminal behavior that would warrant the more pointed inquiry at the outset (seeWallace , 181 A.D.3d at 1216, 120 N.Y.S.3d 525 ; cf.People v. Mack , 49 A.D.3d 1291, 1292, 853 N.Y.S.2d 764 [4th Dept. 2008], lv denied 10 N.Y.3d 866, 860 N.Y.S.2d 492, 890 N.E.2d 255 [2008] ).
This, standing alone, did not provide an objective, credible reason for the officers to approach the defendant and request information (see id.; People v Holz, 184 A.D.3d 1156, 1157; People v Larmond, 106 A.D.3d 934; People v Miles, 82 A.D.3d 1010, 1010-1011). In any event, even assuming, arguendo, that the arresting officers had an objective, credible reason for approaching the defendant, they had no basis for immediately engaging the defendant in a pointed inquiry regarding the ownership and contents of the bag inside the store (see People v Hollman, 79 N.Y.2d 181, 193-194; People v Wright, 195 A.D.3d 1371; People v Wallace, 181 A.D.3d 1214, 1215-1216; see also People v Ocasio, 119 A.D.2d 21). In this regard, we find it relevant that the People adduced no evidence that the defendant was ever observed in possession of the bag, and the officer who testified at the hearing never asked anyone else in the store if the bag belonged to them.
This, standing alone, did not provide an objective, credible reason for the officers to approach the defendant and request information (see id. ; People v. Holz, 184 A.D.3d 1156, 1157, 123 N.Y.S.3d 864 ; People v. Larmond, 106 A.D.3d 934, 964 N.Y.S.2d 661 ; People v. Miles, 82 A.D.3d 1010, 1010–1011, 918 N.Y.S.2d 594 ). In any event, even assuming, arguendo, that the arresting officers had an objective, credible reason for approaching the defendant, they had no basis for immediately engaging the defendant in a pointed inquiry regarding the ownership and contents of the bag inside the store (seePeople v. Hollman, 79 N.Y.2d 181, 193–194, 581 N.Y.S.2d 619, 590 N.E.2d 204 ; People v. Wright, 195 A.D.3d 1371, 148 N.Y.S.3d 585 ; People v. Wallace, 181 A.D.3d 1214, 1215–1216, 120 N.Y.S.3d 525 ; see alsoPeople v. Ocasio, 119 A.D.2d 21, 505 N.Y.S.2d 127 ). In this regard, we find it relevant that the People adduced no evidence that the defendant was ever observed in possession of the bag, and the officer who testified at the hearing never asked anyone else in the store if the bag belonged to them.
A vehicle stop is a level three intrusion under People v De Bour (40 NY2d 210 [1976]), i.e., a forcible seizure, not a level two intrusion under De Bour, which is the common-law right to inquire based on a "founded suspicion that criminal activity is afoot" (id. at 223; see Spencer, 84 NY2d at 752). Considering the "totality of the circumstances" here (People v Wallace, 181 AD3d 1214, 1215 [4th Dept 2020]), we conclude that the People failed to establish the legality of the police conduct (see generally People v Wise, 46 NY2d 321, 329 [1978]). As noted, the People established that the police stopped the vehicle less than two minutes after hearing the shots fired, the incident occurred in the early morning hours, the police did not see any pedestrian or vehicular traffic other than the subject vehicle after the shots were fired, and the vehicle was found in proximity to the location of the shots fired.
A vehicle stop is a level three intrusion under People v. De Bour , 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976), i.e., a forcible seizure, not a level two intrusion under De Bour , which is the common-law right to inquire based on a "founded suspicion that criminal activity is afoot" ( id. at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; seeSpencer , 84 N.Y.2d at 752, 622 N.Y.S.2d 483, 646 N.E.2d 785 ). Considering the "totality of the circumstances" here ( People v. Wallace , 181 A.D.3d 1214, 1215, 120 N.Y.S.3d 525 [4th Dept. 2020] ), we conclude that the People failed to establish the legality of the police conduct (see generallyPeople v. Wise , 46 N.Y.2d 321, 329, 413 N.Y.S.2d 334, 385 N.E.2d 1262 [1978] ). As noted, the People established that the police stopped the vehicle less than two minutes after hearing the shots fired, the incident occurred in the early morning hours, the police did not see any pedestrian or vehicular traffic other than the subject vehicle after the shots were fired, and the vehicle was found in proximity to the location of the shots fired.
"In evaluating police conduct, a court must determine whether the action taken was justified in its inception and at every subsequent stage of the encounter" ( People v. Savage , 137 A.D.3d 1637, 1638, 28 N.Y.S.3d 184 [4th Dept. 2016] [internal quotation marks omitted]; seePeople v. Nicodemus , 247 A.D.2d 833, 835, 669 N.Y.S.2d 98 [4th Dept. 1998], lv denied 92 N.Y.2d 858, 677 N.Y.S.2d 88, 699 N.E.2d 448 [1998] ; see generallyPeople v. De Bour , 40 N.Y.2d 210, 222-223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ). "In determining whether an officer had the requisite basis to support the level of intrusion that occurred, the suppression court must consider the totality of circumstances" ( People v. Wallace , 181 A.D.3d 1214, 1215, 120 N.Y.S.3d 525 [4th Dept. 2020] ). At the first level of a police-civilian encounter, i.e., a request for information, a police officer may approach an individual "when there is some objective credible reason for that interference not necessarily indicative of criminality" ( De Bour , 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ) and may engage in unobtrusive observation that does not limit the individual's freedom of movement (seePeople v. Howard , 50 N.Y.2d 583, 592, 430 N.Y.S.2d 578, 408 N.E.2d 908 [1980] ).
Thus, inasmuch as the People failed to meet their burden of showing the legality of the police conduct in arresting defendant in the first instance, we conclude that the court erred in refusing to suppress the physical evidence seized and defendant's subsequent statements. Because our determination results in the suppression of all evidence supporting the crime charged, the indictment must be dismissed (seeSearight , 162 A.D.3d at 1635, 79 N.Y.S.3d 445 ; Lee , 126 A.D.2d at 569-570, 511 N.Y.S.2d 27 ; see alsoPeople v. Wallace , 181 A.D.3d 1214, 1217, 120 N.Y.S.3d 525 [4th Dept. 2020] ).All concur except Nemoyer and Winslow, JJ., who dissent and vote to affirm in the following memorandum:
This, standing alone, did not provide an objective, credible reason for the officers to approach the defendant and request information (see id.; People v Holz, 184 A.D.3d 1156, 1157; People v Larmond, 106 A.D.3d 934; People v Miles, 82 A.D.3d 1010, 1010-1011). In any event, even assuming, arguendo, that the arresting officers had an objective, credible reason for approaching the defendant, they had no basis for immediately engaging the defendant in a pointed inquiry regarding the ownership and contents of the bag inside the store (see People v Hollman, 79 N.Y.2d 181, 193-194; People v Wright, 195 A.D.3d 1371; People v Wallace, 181 A.D.3d 1214, 1215-1216; see also People v Ocasio, 119 A.D.2d 21). In this regard, we find it relevant that the People adduced no evidence that the defendant was ever observed in possession of the bag, and the officer who testified at the hearing never asked anyone else in the store if the bag belonged to them.
This, standing alone, did not provide an objective, credible reason for the officers to approach the defendant and request information (see id.; People v Holz, 184 A.D.3d 1156, 1157; People v Larmond, 106 A.D.3d 934; People v Miles, 82 A.D.3d 1010, 1010-1011). In any event, even assuming, arguendo, that the arresting officers had an objective, credible reason for approaching the defendant, they had no basis for immediately engaging the defendant in a pointed inquiry regarding the ownership and contents of the bag inside the store (see People v Hollman, 79 N.Y.2d 181, 193-194; People v Wright, 195 A.D.3d 1371; People v Wallace, 181 A.D.3d 1214, 1215-1216; see also People v Ocasio, 119 A.D.2d 21). In this regard, we find it relevant that the People adduced no evidence that the defendant was ever observed in possession of the bag, and the officer who testified at the hearing never asked anyone else in the store if the bag belonged to them.