Opinion
3039-2018
07-02-2019
PEOPLE of the State of New York, v. James YARBOROUGH, Defendant.
For the People: Grace Brainard, Esq., Kelly Maloney, Esq., Kings County District Attorney's Office For Defendant: Alyssa Briody, Esq., Debbie Silberman, Esq.
For the People: Grace Brainard, Esq., Kelly Maloney, Esq., Kings County District Attorney's Office
For Defendant: Alyssa Briody, Esq., Debbie Silberman, Esq.
Joanne D. Quinones, J.
The defendant is charged with Criminal Possession of a Weapon in the Second Degree and other related charges stemming from an incident that allegedly occurred on April 19, 2019. He now moves to suppress a videotaped statement and a firearm recovered at the scene as fruits of an unlawful seizure. This court conducted a combined Dunaway/Mapp/Huntley hearing on May 6 through May 9, 2019. Four witnesses were presented at the hearing, all of whom testified on behalf of the People. On May 9, 2019, after both sides rested, the court heard oral arguments.
I make the following findings of fact and conclusions of law:
FINDINGS OF FACT
Officer Anthony Bomparola has been with the New York City Police Department (NYPD) for approximately five years (Hearing Transcript [Tr] at 13). On April 19, 2018 at approximately 7:00 pm, he received a ShotSpotter notification on his department phone of shots fired at Bedford Avenue and Herkimer Street (Tr at 14-15). Officer Bomparola stated he also received a radio run of multiple 911 calls indicating that shots were fired from Bedford and Herkimer Street and a description of "multiple blacks wearing all black. they had a firearm, they were shooting and now they're heading towards Nostrand Avenue on Herkimer Street" (Tr at 17). Officer Bomparola responded to Nostrand Avenue and Herkimer Street and arrived approximately 30 to 40 seconds after receiving the radio run (Tr at 18).
When asked whether the radio run specifically described a black man wearing all black holding a gun, and not multiple black men, the officer acknowledged there was a radio run that referred to a black man holding a gun (Tr at 60). It was his recollection, however, that prior to stopping the defendant at 7:15 pm, he had received a radio run describing multiple black males wearing all black shooting a firearm heading toward Nostrand and Herkimer (Tr at 75-76).
Officer Bomparola responded to the location and was sitting on the corner of Nostrand and Herkimer Street waiting (Tr at 22), when he observed three black men, wearing all black, walking quickly towards the intersection of Nostrand Avenue and Herkimer Street (Tr at 21). He exited his vehicle and approached them (Tr at 21-22). He observed one of the three individuals, Quashawn Massey, fall back from the other two and change direction as the officer approached (Tr at 31, Tr at 51-52). At approximately 7:15 pm (Tr at 75), Officer Bomparola yelled "police stop" and grabbed the other two individuals, identified as Kareem Scott and the defendant James Yarborough, by placing his left hand on one and his right hand on the other (Tr at 22, 31). The defendant and Mr. Scott started to push and run through him (Tr at 22), so he "let go of Scott" and "latch[ed]" onto the defendant (Tr at 32). The officer observed that the defendant had a black and white shopping bag and a black jacket (Tr at 31). The defendant "dragged" the officer through the intersection of Nostrand and Herkimer where they both fell to the ground (Tr at 32). The defendant then broke the officer's grip and ran on Herkimer Street towards New York Avenue (Tr at 33). Officer Bomparola "looked back" and observed that his police radio and the bag and jacket the defendant were carrying were left in the street (Tr at 33). Officer Bomparola chased after the defendant, pulled his firearm on him while chasing behind him and ordered him to stop (Tr at 100-101). Officer Bomparola could not recall if he yelled out that he was going to shoot the defendant if the defendant did not stop running (Tr at 101). The defendant stopped running and was placed under arrest (Tr at 100-101). As Officer Bomparola began searching the defendant, the defendant stated that he "just had marihuana" (Tr at 33-34). A quantity of marihuana was recovered from the defendant's person (Tr at 33-34) .
The count charging the defendant with Unlawful Possession of Marihuana was dismissed and the People are not seeking to introduce the marihuana at trial (Tr at 3).
On the date of the incident, Officer Bomparola was equipped with a body camera (Tr at 78). The NYPD Patrol Guide specifies that body cameras must be activated during any arrest or vehicle stop, when a potential crime is in progress, where there's been a ShotSpotter activation or for any incident involving a weapon (Tr at 80-81). Despite this departmental procedure, Officer Bomparola did not activate his body camera until he was in the process of handcuffing the defendant at approximately 7:17 pm (Tr at 103, 107-8).
Officer Bomparola's testimony that prior to his stop of the defendant he had received a description of multiple male blacks wearing all black carrying a firearm is belied by the Sprint report, which was admitted into evidence without objection as Defense Exhibit A1. The Sprint report reflects multiple 911 calls, but only one was made prior to the time that the defendant was stopped at 7:15 pm. At approximately 19:14:18 (7:14:18 pm), there was a description of a male black wearing black clothing with a gun in his hand running towards Nostrand. The remaining radio transmissions were as follows: 19:17:24 "lady saw people pull out guns"; 19:17:52 "MC sts he saw about 15 males walking towards Nostrand Avenue"; 19:18:37 "perp grp 50 men black men wrg blk walkiung [sic] down street"; and 19:29:34 "MC sts in regards to shots being heard — 1 group of people ran on Bedford on Herkimer towards Atlantic — 2 group towards Nostand [sic] on Herkimer." Contrary to the officer's testimony, at no point prior to his stop of the defendant was there a radio transmission describing multiple black males wearing all black shooting a firearm heading toward Nostrand and Herkimer.
The officer's testimony is further called into question by video surveillance depicting the intersection of Nostrand Avenue and Herkimer Street, admitted into evidence as People's Exhibit 7 and Defense Exhibit B. In addition to the three individuals identified as Mr. Massey, Mr. Scott and the defendant, the video surveillance shows several other individuals wearing all black walking in the same direction as the defendant (Tr at 90-91, 92; Peo Exh 7; Def Exh B). Officer Bomparola claimed that he approached Mr. Massey, Mr. Scott and the defendant, and not the other individuals, because they matched the description, they were traveling in the direction mentioned over the radio, and "their behavior" (Tr at 123). When asked to explain what he meant by their behavior, the officer responded "they are walking differently than other people around them. They're walking at a quick pace towards the intersection and then one starts to slow down his pace" (Tr at 124). He further stated that "all three of them are moving away from where the shots came from that also draws my attention more towards them" (Tr at 125).
While at the scene, Officer Bomparola never saw the contents of the bag the defendant was observed carrying (Tr at 128). Later, at the precinct, Officer Bomparola observed a silver, semi-automatic, .45 caliber firearm, in the bag (Tr at 43), but could not state whether the contents of the bag at the precinct were the same as the contents of the bag at the scene (Tr at 46).
Officer Michael Temperino has been with the NYPD for approximately 10 ½ years (Tr at 180). On April 19, 2018 at approximately 7:10 pm, he received a ShotSpotter notification and a radio run of shots fired at Herkimer Street and Nostrand Avenue (Tr at 184). He responded to the location and observed three black males wearing all black, two holding their pockets, "walking with a sense of urgency" (Tr at 190). The three males were identified as Quashawn Massey, Kareem Scott and the defendant (Tr at 191).
Officer Temperino claims he saw a white plastic shopping bag between the defendant and Mr. Scott, but "couldn't make out exactly who had it" because he was "focused on Massey" (Tr at 199). According to Officer Temperino, he approached the three men, identified himself as a police officer, and then observed Mr. Massey walk away from the other two, pull a black firearm out from his right pocket, and throw it underneath the vehicle in front of him (Tr at 193). Officer Temperino recovered and safeguarded the firearm and together, with his partner, apprehended Mr. Massey (Tr at 194). The next time Officer Temperino saw the shopping bag was when Officer Hanafi handed it to the transporting officer (Tr at 199-200). The video surveillance shows an unknown motorist moving the plastic shopping bag, the defendant's jacket, and Officer Bomparola's police radio from the middle of the street to where Kareem Scott was apprehended (see People's Exh 7; Defense Exh B, C). When Officer Temperino arrived at the precinct, he was informed by Officer Hanafi that there was a black and silver item inside the bag (Tr at 201). Officer Temperino then observed a firearm inside the shopping bag and subsequently vouchered it (Tr at 201).
At the hearing, Officer Temperino admitted that he could not make out who was carrying the shopping bag at the scene. Yet prior to the defendant's arraignment, Officer Temperino told an Assistant District Attorney (ADA) from the Early Case Assessment Bureau (ECAB) that he observed Kareem Scott holding the plastic bag (Tr at 235) and signed a complaint attesting to that fact (Tr at 238). When cross-examined regarding this inconsistency, the officer claimed his statement to the ECAB assistant was "an error," "a guess" (Tr at 236-237). It was an error that was not corrected until just before the Grand Jury presentation when Officer Temperino reviewed the video surveillance which showed that Mr. Scott was not holding the bag (Tr at 203-204, 207, 236).
It appears that this was not the first time that Officer Temperino changed his testimony after being confronted with video footage. On the date of the defendant's arrest, Officer Temperino was equipped with a body camera which he did not activate, as required by departmental procedure, until after he apprehended Mr. Massey (Tr at 229). Initially the officer claimed that he activated his body camera when he exited his vehicle, but after being confronted with his body camera footage, he conceded that he did not activate his body camera until after Mr. Massey had been apprehended. When questioned about whether a statement he is heard to make on his body camera — "I thought I was going to have to shoot that m- - - -f- - - - -" — refers to Quashawn Massey, the officer responds, "The individual that pulled out a firearm on me. I was scared for my life, so yes" (Def Exh D; Tr at 245). The officer's claim that Mr. Massey pulled a firearm on him is contradicted by the video surveillance which shows Mr. Massey removing the gun from his person and throwing it under a vehicle without pointing it or "pulling it out" on anyone.
Officer Temperino's body camera footage starts at timestamp 19:16:04 (7:16:04 pm).
As stated by Officer Temperino, he was not watching the defendant because he was "in the situation with Massey" (Tr at 199). As such, Officer Temperino's testimony is not relevant in the court's determination of whether the police conduct with respect to the defendant was lawful. Even assuming that Officer Temperino's observations were relevant to the issue at hand, his testimony was rife with inconsistencies and misstatements and cannot be credited.
Officer Lena Hanafi testified credibly that on April 19, 2018 at approximately 7:10 pm, she received notification of a shot spotter activation (Tr at 138). She could not recall the location of the ShotSpotter notification, but recalled responding to Nostrand Avenue and Herkimer Street (Tr at 139, 141). When she arrived, she observed approximately five or six other officers on the scene, one of whom was on the ground holding an individual, later identified as Kareem Scott (Tr at 142-143). Within five feet of Kareem Scott, there was a black jacket and a black and white plastic bag (Tr at 144). Officer Hanafi "didn't observe specifically what was in the bag," she "just looked in it quick" and saw "something silver" and "something black" (Tr at 144-145). She then picked up the bag and handed the bag and the jacket to the transporting officer, who was right next to Officer Temperino (Tr at 144-145).
Detective Salah Bayoumi has been with the NYPD for approximately six and a half years and is currently assigned to the 79th Precinct Detective Squad (Tr at 150). He testified credibly that on April 19, 2018 he was notified of an arrest of an individual with a firearm and was assigned to conduct a firearm enhancement investigation (Tr at 151). On April 20, 2018, at approximately 1:15 am, he interviewed the defendant inside the precinct's interrogation room (Tr at 154). Officer Temperino was also present for the interview (Tr at 155). A videotape of the interview was admitted into evidence as People's Exhibit 6. The videotape shows the defendant, who was not cuffed, and both officers seated at a table. At the beginning of the interview, Detective Bayoumi read the defendant his Miranda warnings. After each Miranda warning the defendant was asked whether he understood and the defendant verbally responded that he did. The defendant then agreed to speak to the officers. No threats or promises were made to the defendant in exchange for his statement (Tr at 157-158).
CONCLUSIONS OF LAW
At a Dunaway hearing, the People have the initial burden of going forward to show, by credible evidence, the lawfulness of the police conduct ( People v. Moses , 32 AD3d 866 [2nd Dept 2006] ; see also People v. Wise , 46 NY2d 321 [1978] ; People v. Whitehurst , 25 NY2d 389, 391 [1969] ). In evaluating the police action, the court must determine whether it was justified at its inception and whether it was reasonably related in scope to the circumstances at the time ( People v. De Bour , 40 NY2d 210, 222 [1976] ). Of course, as the precipitating and attendant circumstances increase in weight and competence, higher levels of police intrusion are justified ( id. at 223 ).
"A police officer is entitled, and in fact is duty bound, to take action on a radio call" ( People v. Perez , 224 AD2d 313 [1st Dept 1996] ). Here, the police received a ShotSpotter notification and a radio run of shots fired at Bedford Avenue and Herkimer Street and responded to that location. According to Officer Bomparola he had received a description of the perpetrators as multiple male blacks, wearing all black, shooting with a firearm, headed towards Nostrand Avenue on Herkimer Street (Tr at 17, 75) as well as a description of a male black, wearing black clothing, holding a gun, running towards Nostrand Avenue (Tr at 76). As set forth in the facts section above, contrary to Officer Bomparola's testimony, only the description of the one male black appears to have been transmitted prior to the officer's approach of Mr. Massey, Mr. Scott and the defendant.
Courts have routinely held that information provided by an anonymous 911 caller, if sufficiently corroborated, can provide police with reasonable suspicion (see Florida v. JL , 529 US 266, 270 [2000], citing Alabama v. White , 496 US 325, 327 [1990] ; see also People v. Argyris , 24 NY3d 1138, 1140 [2014] ). To support the reasonable suspicion required, the anonymous tip must "be reliable in its assertion of illegality, not just in its tendency to identify a determinate person" ( JL , 529 US at 272 ). Thus, the issue this court must determine is whether the information provided by the 911 caller "exhibit[ed] sufficient indicia of reliability to provide reasonable suspicion" for the defendant's seizure ( id. at 270, quoting White , 496 US at 327 ).
In JL , supra , the Supreme Court considered the reliability of an anonymous 911 call that reported a male black, standing in a bus stop, wearing a plaid shirt, carrying a gun. When the police arrived at the location, they observed the defendant matching the description. Other than the 911 call, there was nothing about the defendant's behavior to suspect any wrongdoing. One of the officers approached the defendant, frisked him, and recovered a firearm from his pocket. The Supreme Court found that the tip lacked indicia of reliability and suppressed the gun. In its rationale, the Court distinguished the reliability of an accurate description from the reliability of an "assertion of illegality" ( JL , 529 US at 272 ).
While the description provided by the tip partially matched the defendant, it is the reliability of the assertion of criminal activity that must be established for an anonymous tip to supply the reasonable suspicion required for a seizure (id. ). The tip herein did not show that "the tipster ha[d] knowledge of concealed criminal activity" (id. ). The gun at issue was recovered from a shopping bag that the defendant was carrying. The bag itself was never described in any of the radio runs. There was no testimony that the police observed a bulge or the outline of a gun in the bag or on the defendant's person or anything else that would corroborate the tip. At the time of the defendant's seizure, the police observed nothing more than a black man, wearing all black, walking down the street in a hurried pace with two other black men.
Similarly, in People v. Brown , 2019 NY Slip OP 03305, *2 (1st Dept 2019), the police received an anonymous tip that "a black man in a bodega wearing a black coat with a fur hood had a gun and drugs in his pocket". When the police arrived a minute later, they observed the defendant matching the description but did not observe an outline of a gun in his pocket, nor any furtive or suspicious behavior. Although the tip identified a person, it did not identify an "assertion of illegality" and therefore did not authorize the subsequent stop of the defendant (id. , quoting JL , 529 US at 272 ). Thus, the subsequent actions by the police in preventing the defendant from leaving the store, their frisk of the defendant, and recovery of a firearm were unlawful (Brown , 2019 NY Slip Op at 3-4).
Because the information provided by the anonymous 911 callers was not sufficiently corroborated, the police did not have the requisite reasonable suspicion to forcibly detain the defendant. Where the police receive a general anonymous radio run describing the perpetrators of a crime, as occurred here, they only have a common-law right of inquiry to speak with individuals matching the description ( People v. Moore , 6 NY3d 496, 500 [2006] ; People v. Rainey , 228 AD2d 285 [1st Dept 1996] ). The defendant, Mr. Scott and Mr. Massey matched the description of male blacks wearing all black. As such, the police were authorized to ask questions and to follow them in an attempt to engage them, but not to seize them ( Moore , 6 NY3d at 500 ).
The evidence before this court establishes that Officer Bomparola did not ask any questions, but rather yelled "police stop" and immediately grabbed the defendant. This restriction on the defendant's movements undeniably constituted a seizure as contemplated by the Fourth Amendment ( People v. Cantor , 36 NY2d 106, 111 [1975] ["Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment"]; People v. Vaughan , 187 AD2d 685, 686 [2nd Dept 1992] [person is "seized" when police officer grabs his arm and conducts a pat-down frisk] ). Such a seizure requires, at a minimum, that the police have reasonable suspicion to believe that the defendant was involved in the commission of a felony or misdemeanor (see People v. Figueroa , 38 AD3d 796, 797 [2nd Dept 2007] ).
It is well-established that the police may forcibly stop a person when they have reasonable suspicion that the person has committed or is about to commit a crime (see De Bour , 40 NY2d at 223 ; People v. Wilson , 264 AD2d 862 [2nd Dept 1999] ). A reasonable suspicion must be based upon "specific and articulable facts" and rational inferences drawn from those facts that would reasonably warrant the intrusion ( People v. Hicks , 68 NY2d 234, 238 [1986] ). In determining whether an officer has reasonable suspicion, "the emphasis should not be narrowly focused on any single factor, but on an evaluation of the totality of the circumstances, which takes into account the realities of everyday life unfolding before a trained officer" ( People v. Stephens , 47 AD3d 586 [1st Dept 2008], quoting People v. Graham , 211 AD2d 55, 58 [1st Dept 1995] ).
Here, Officer Bomparola saw nothing more than three black men wearing black walking down the street. They were not acting suspiciously, nor were they observed committing any crime. There was nothing about their behavior that made them stand out from any other individual walking along that street. And, as shown by the video surveillance submitted into evidence, they were not the only individuals fitting the description. At approximately 19:15:37, when the defendant is first seen on the video, he is wearing a sweatshirt with a large penny on the back and there are approximately four individuals wearing all black on the opposite sidewalk as well as another individual wearing all black walking immediately in front of the defendant and Kareem Scott, all walking in the same direction as the defendant (see Def Exh B). Additionally, several seconds later, a larger group of individuals wearing all black appear on the video, also walking in the same direction as the defendant (see id. ). Notwithstanding that all of these individuals matched the information provided regarding description and direction traveled, the police did not approach or attempt to question anyone other than the defendant, Mr. Scott and Mr. Massey.
According to Officer Bomparola, his stop of the defendant, Mr. Scott and Mr. Massey was based on more than just a description, it was based on "[his] experience" and "their behavior," which he described as "walking at a quick pace and one start[ing] to slow down his pace" (Tr at 123-124). In the absence of additional information or observations of suspicious conduct such as reaching for his waistband or actively fleeing from the police, the fact that the defendant was walking quickly away from the direction of the gunshots is insufficient to raise the level of police conduct from right of common law inquiry to right to forcibly stop and detain (see Moore , 6 NY3d at 500-501 ; People v. Major , 115 AD3d 1, 6 [1st Dept 2014] [prosecution's argument that the defendant walking away at a fast pace upon being approached by police provided the requisite reasonable suspicion found unpersuasive] ).
The People rely on People v. Curry , 213 AD2d 664 (2nd Dept 1995), People v. Rodney RQ , 2016 NY Slip Op 50183(U) (Crim Ct, Kings County 2016), and People v. Burrell , 156 Misc 2d 272 (Sup Ct, Kings County 1992) in support of their position that Officer Bomparola had reasonable suspicion to stop the defendant. These cases, however, are distinguishable from the instant matter.
In Curry , the police responded to shots fired and upon arriving on scene observed the defendant and a friend walking in the area. The police observed a bulge in the friend's waistband and subsequently recovered a handgun during a pat-down. Based upon those circumstances, the Court held that the police had a reasonable belief that the defendant may be armed with a weapon, putting their safety at risk, and upheld the officer conducting a protective frisk of the defendant that led to the recovery of a gun ( Curry , 213 AD2d at 664 ).
Similarly, in Rodney RQ , this court held that the police had reasonable suspicion to stop and detain the defendants for the purposes of a show up identification (Rodney RQ , 2016 NY Slip Op at 4). In that case the police received a radio run for a robbery in progress at a subway station. The information available to the police prior to stopping the defendants in Rodney RQ was that "there had been a robbery a short time ago at the Bay Parkway train station, three stops north of the 86th Street station, as well as the general direction in which the suspects had fled, the number of suspects, the race of the suspects, an age range of the suspects, approximate heights for some of the suspects, and clothing descriptions for some of the suspects" (id. ). The description of the perpetrators in Rodney RQ contained specific information including that one of the individuals was carrying a basketball and that another was wearing a silver T-shirt with yellow writing on the front. Here, there was nothing more than a general, vague description of a black male wearing all black. There was no mention of the black and white bag the defendant was purportedly carrying or of the large penny on the back of the jacket the defendant was wearing.
Finally, in Burrell , the police received a report of a gunpoint robbery of a milk driver. The driver provided a description of the perpetrators as two black men, that the one with the gun was wearing a black hooded sweatshirt, black pants, and was approximately 18 years old and the other was approximately 5'7?, wearing a baseball hat and a multicolored jogging suit. The driver also told the police that the perpetrators ran into a housing complex and provided the address. The police observed an individual matching the description and began to approach. As the officers approached and before they could say anything, the defendant ran and tossed a gun to the ground. There, as in Rodney RQ , the court held that the police had reasonable suspicion to detain the defendant for purposes of conducting a show up with the complainant based on the specific description provided by the complainant ( Burrell , 156 Misc 2d at 282 ).
In its decision, the court reasoned that even if the information provided to the police did not establish reasonable suspicion to stop the defendant but only authorized a common law right of inquiry, the sudden, unprovoked actions of the defendant fleeing and discarding the gun elevated the level of authorized police intrusion from a common law right of inquiry to a stop based on reasonable suspicion (id. ).
In the instant matter, none of the officers observed a bulge or anything else indicating that the defendant, Kareem Scott, or Quashawn Massey were armed with a weapon. The record is also void of any testimony that the defendant ran away, increased his pace, changed direction or otherwise engaged in any sudden, unexplained behavior upon sight of the police. Rather, the evidence before this court shows that when Officer Bomparola exited his vehicle and started to approach, the defendant continued to walk directly towards the officer. Nor can it be argued that the actions of Quashawn Massey — changing his direction upon the approach of the police, reaching into his waistband, and discarding a firearm underneath a car — serve as the predicate for elevating the authorized level of intrusion as to this defendant. As stated by the First Department in People v. Thompson , 127 AD3d 658, 661 (1st Dept 2015), "The flight of one member of a group is hardly indicative of the collective guilt of the group. It is just as readily demonstrative of the innocence of those who remain at the scene. More importantly, it would be manifestly unfair to place an individual's right to be left alone in the hands of another person over whom he has no control, and who may not even be known to that person." Even prior to changing direction and crossing the street, Mr. Massey was walking several feet behind the defendant (see Def Exh B).Even if Mr. Massey and the defendant were known to one another, there is nothing before this court indicating that at the time he seized the defendant, Officer Bomparola saw or knew that Quashawn Massey possessed or dropped a firearm (cf. Curry , 213 AD2d at 664 [observation of bulge in waistband of defendant's companion which resulted in recovery of a handgun gave rise to a reasonable belief on the part of the officer that the defendant might also be armed thus justifying a frisk of defendant] ). The video surveillance in evidence reflects that at the same time that Mr. Massey discarded the gun, Officer Bomparola was grabbing the defendant and Mr. Scott (see Def Exh B). Moreover, the video depicts Officer Bomparola's face and body turned away from Mr. Massey's direction at the time that Mr. Massey discarded the gun.
The People's claim that the defendant fled from the police and thus raised the level of suspicion to allow for a forcible stop is equally unavailing. "Flight, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit" ( Holmes , 81 NY2d at 1058 ). Here, the defendant was walking in Officer Bomparola's direction when the officer grabbed him. It was at this point that the defendant began to run. Even if it could be said that the defendant's action could be interpreted as flight or fleeing from the police, the fact remains that at the time the officer physically seized the defendant, he lacked the requisite reasonable suspicion justifying such a stop. The Court of Appeals has made clear that "the objective evidence necessary to support a stop and seizure short of an arrest is reasonable suspicion" ( People v. Martinez , 80 NY2d 444, 448 [1992] ). The fact that the defendant matched the vague description provided to the police is insufficient to establish reasonable suspicion that he had committed, was committing or was about to commit a crime (see People v. Beckett , 88 AD3d 898, 898 [2nd Dept 2011] ["That the defendant matched an extremely vague description of the suspect, which contained no information regarding the suspect's height or weight, and did not indicate that the suspect was wearing a red and white jacket, was not sufficiently indicative of criminal activity"]; People v. Waters , 259 AD2d 642, 644 [2nd Dept 1999] [the innocuous conduct of the defendant coupled with the fact that he matched an extremely vague description of the perpetrator was insufficient to establish whether the defendant was involved in criminal activity] ). Under these circumstances, the "[d]efendant had a right to refuse to respond to a police inquiry and his flight when the officers approached could not, in and of itself, create a reasonable suspicion of criminal activity" (id. , citing People v. May , 81 NY2d 725 [1992] ; see also People v. Brogdon , 8 AD3d 290, 292 [2nd Dept 2004] [although the officer was allowed to approach the defendant to request information, when the defendant fled, the officer was not justified in pursuing the defendant because there were "no specific circumstances indicating that the defendant might be engaged in criminal activity"]; People v. Bilal , 96 NYS3d 1, 4 [1st Dept 2019] ["should a citizen run from an officer, such flight, where there is no indication of criminal activity, is an insufficient basis for pursuit by an officer"] ).
Here, the People have failed to meet their burden of establishing the lawfulness of the police conduct. Accordingly, the defendant's motion to suppress evidence, namely the firearm recovered from the shopping bag and his videotaped statement, as fruits of an unlawful arrest must be granted (see Wong Sun v. United States , 371 US 471 [1963] ).
This constitutes the Decision and Order of the Court.