| People v Riddick |
| 2010 NY Slip Op 01231 [70 AD3d 1421] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Malcolm T.Riddick, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), renderedAugust 17, 2006. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a weapon in the second degree and criminal possession of a weapon in the thirddegree (two counts).
It is hereby ordered that the judgment so appealed from is reversed on the law, the plea isvacated, those parts of the motion seeking to suppress tangible property and statements aregranted, the indictment is dismissed, and the matter is remitted to Monroe County Court forproceedings pursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [former (2)])and two counts of criminal possession of a weapon in the third degree (§ 265.02 [3],[former (4)]), defendant contends that County Court erred in refusing to suppress the handgunthat he discarded while being pursued by the police and his subsequent statements to the policebecause the police lacked reasonable suspicion to justify the pursuit. We agree.
At the suppression hearing, the People presented evidence that, on December 22, 2005, Cityof Rochester (City) police officers and federal law enforcement agents were patrolling variousareas of the City known for gang activity as part of a law and order detail in an attempt to reducegun violence and crime. The officers were traveling in an unmarked cargo van, which wasfollowed by an unmarked SUV, but they were each wearing a vest with police markings on thefront and back. Shortly after midnight, the officers observed defendant and two other menstanding on a street corner in an area that, according to the police, was known for recent armedrobberies and violent gang activity. The driver of the van pulled up just past the threeindividuals, rolled down his window, and told them to leave the area. According to one of thepassengers in the van, defendant reached for his waistband and walked away from hiscompanions. At some point thereafter, defendant began to run. The police pursued defendant onfoot and discovered a discarded handgun during their subsequent search of the path taken bydefendant.[*2]
As an initial matter, we conclude that the police had anobjective credible reason to approach the three men on the street corner and to requestinformation in light of the late hour, the cold weather, the absence of other pedestrian orautomobile traffic, and the presence of the men in a high crime area (see generally People v McCoy, 46AD3d 1348 [2007], lv denied 10 NY3d 813 [2008]). Thus, we conclude that thepolice encounter was lawful at its inception (see People v De Bour, 40 NY2d 210, 220[1976]).
With respect to the subsequent pursuit, it is well settled that "the police may pursue a fleeingdefendant if they have a reasonable suspicion that defendant has committed or is about tocommit a crime" (People v Martinez, 80 NY2d 444, 446 [1992]). Flight alone "isinsufficient to justify pursuit because an individual has a right 'to be let alone' and refuse torespond to police inquiry" (People v Holmes, 81 NY2d 1056, 1058 [1993]; seePeople v Ross, 251 AD2d 1020, 1021 [1998], lv denied 92 NY2d 882 [1998]).However, " 'a defendant's flight in response to an approach by the police, combined withother specific circumstances indicating that the suspect may be engaged in criminal activity,may give rise to reasonable suspicion, the necessary predicate for police pursuit' " (People v Martinez, 59 AD3d1071, 1072 [2009], lv denied 12 NY3d 856 [2009] [emphasis added], quotingPeople v Sierra, 83 NY2d 928, 929 [1994]; see People v Davis, 48 AD3d 1120, 1121-1122 [2008], lvdenied 10 NY3d 957 [2008]).
It is further well settled that actions that are "at all times innocuous and readily susceptible ofan innocent interpretation . . . may not generate a founded suspicion of criminality"(People v Powell, 246 AD2d 366, 369 [1998], appeal dismissed 92 NY2d 886[1998]; see De Bour, 40 NY2d at 216). Here, the fact that defendant reached for hiswaistband, absent any indication of a weapon such as the visible outline of a gun or the audibleclick of the magazine of a weapon, does not establish the requisite reasonable suspicion thatdefendant had committed or was about to commit a crime (see Sierra, 83 NY2d at930; Powell, 246 AD2d at 369; People v Howard, 147 AD2d 177, 178-181[1989], appeal dismissed 74 NY2d 943 [1989]; cf. People v Forbes, 283 AD2d92, 93-94 [2001], lv denied 97 NY2d 681 [2001]). The mere fact that defendant waslocated in an alleged high crime area does not supply that requisite reasonable suspicion, in theabsence of "other objective indicia of criminality" (Powell, 246 AD2d at 370; seePeople v Cornelius, 113 AD2d 666, 670 [1986]), and no such evidence was presented at thesuppression hearing. Thus, although the police had a valid basis for the initial encounter, weconclude that "there was nothing that made permissible any greater level of intrusion"(People v Howard, 50 NY2d 583, 590 [1980], cert denied 449 US 1023 [1980]).
We further agree with defendant that the evidence presented at the suppression hearing wasinsufficient to establish that defendant knew that the individuals who approached him in theunmarked vehicles were police officers. We note at the outset that, contrary to the dissent, weconclude that defendant preserved his contention for our review. Defendant moved, inter alia, tosuppress tangible property and his statements to the police on the ground that he was subjected toan unlawful stop and arrest, and thus his contention with respect to the legality of the policeconduct is preserved for our review (see People v De Bour, 40 NY2d 210, 214 [1976])."The mere emphasis of one prong of attack over another or a shift in theory on appeal[ ] will notconstitute a failure to preserve" (id. at 215). Furthermore, although the dissent concludesthat the record is not sufficiently developed to enable us to review the merits of defendant'scontention on appeal, we note that at a suppression hearing the People have the initial burden ofestablishing the legality of the police conduct (see People v Wise, 46 NY2d 321, 329[1978]; People v Baldwin, 25 NY2d 66, 70-71 [1969]).
Turning to the merits of defendant's contention, we conclude that, although the officers werewearing vests with police markings, no evidence was presented to establish that the markingswere visible when the driver of the van pulled up just past the three individuals and rolled downhis window. Indeed, according to the evidence presented, it was dark outside and the driver ofthe van was seated [*3]therein when he addressed the individuals.Notably, the driver of the van, who was in the best position to testify concerning the visibility ofthe police markings on his clothing and whether defendant appeared to recognize him as a policeofficer, did not testify at the suppression hearing. The testimony of a passenger in the van thatthe individuals "learned we were the police" when the driver rolled down his window is merespeculation and thus is insufficient to establish that the driver was indentifiable as a policeofficer at that time. In the absence of any evidence indicating that the police officers were clearlyidentifiable as such (cf. Martinez, 80 NY2d at 446; People v Brewer, 28 AD3d 265 [2006], lv denied 7 NY3d753 [2006]; People v Hernandez, 3AD3d 325 [2004], lv denied 2 NY3d 741 [2004]), or that defendant recognized theofficers as such (cf. People v Pines, 281 AD2d 311, 311-312 [2001], affd 99NY2d 525 [2002]; People v Byrd, 304 AD2d 490 [2003], lv denied 100 NY2d579 [2003]; People v Brown, 277 AD2d 107, 108 [2000], lv denied 96 NY2d756 [2001]), it cannot be said that the officers were justified in pursuing defendant based on hisalleged "flight" from the police (cf. Martinez, 59 AD3d at 1072).
Inasmuch as the police officers' pursuit of defendant was unlawful, the handgun seized bythe police should have been suppressed (see People v Brogdon, 8 AD3d 290, 292 [2004]), and thestatements made by defendant to the police following the unlawful seizure also should have beensuppressed as fruit of the poisonous tree (see People v Christianson, 57 AD3d 1385, 1388 [2008]). In lightof our conclusion that the court should have granted those parts of defendant's omnibus motionseeking to suppress tangible property obtained as a result of the illegal pursuit and defendant'ssubsequent statements to the police, defendant's guilty plea must be vacated (see People v Stock, 57 AD3d1424 [2008]). Further, because our conclusion results in the suppression of all evidence insupport of the crimes charged, the indictment must be dismissed (see id.). We thereforeremit the matter to County Court for proceedings pursuant to CPL 470.45.
All concur except Centra, J.P., and Fahey, J., who dissent and vote to affirm in the followingmemorandum.
Centra, J.P., and Fahey, J. (dissenting). We respectfully dissent and would affirm thejudgment. Initially, we conclude that defendant failed to preserve for our review his contentionthat the police did not have a legal basis to pursue him because he did not flee from individualswhom he knew to be police officers (see CPL 470.05 [2]). Defendant moved, inter alia,to suppress the handgun and his statements to the police "on the ground that such. . . evidence and statements are the unattenuated result of an unlawful arrest orseizure of the defendant's person." In his affirmation in support of the motion, defense counseldid not allege that defendant was unaware that he was fleeing from the police. Further, there isno indication based on defendant's cross-examination of the police officers at the suppressionhearing that defendant was contending that he was unaware that the individuals in the van thatapproached him were police officers. In addition, at the close of the suppression hearing,defendant submitted a memorandum of law in support of his motion but did not contend thereinthat there was insufficient evidence to demonstrate that he knew that he was fleeing from policeofficers. Based on the above, it cannot be said that defendant preserved his present contention forour review (see People v Turriago, 90 NY2d 77, 83-84 [1997], rearg denied 90NY2d 936 [1997]; People v Carter, 86 NY2d 721, 722 [1995], rearg denied 86NY2d 839 [1995]; People v Martin, 50 NY2d 1029, 1030-1031 [1980]; see alsoPeople v Johnson, 83 NY2d 831, 834 [1994]). The Court of Appeals' decision in Peoplev De Bour (40 NY2d 210 [1976]) does not compel a different result. Although in that casethe Court held that "[t]he mere emphasis of one prong of attack over another or a shift in theoryon appeal, will not constitute a failure to preserve" (id. at 215), there was sufficientevidence in De Bour to permit the Court to address the merits of the defendant'scontention on appeal (see id. at 214-215). Here, however, the record is not sufficientlydeveloped to enable us to review the merits of defendant's contention on appeal (see People vJones, 81 AD2d 22, 38-39 [1981]).
Nevertheless, inasmuch as the majority has reviewed the merits of defendant's contention,we [*4]do so as well, to the extent that the record allows. Wecannot agree with the majority that County Court erred in denying those parts of defendant'somnibus motion seeking to suppress tangible property and defendant's statements to the police.The record establishes that, shortly after midnight in late December 2005 police officerstraveling in an unmarked van approached defendant and two other men who were standing on astreet corner in an area known for recent armed robberies and violent gang activity. Thetemperature outside at the time was 15 degrees, and the officers were each dressed in a "battledress uniform," which consisted of an ammunition belt, handcuffs, flashlights and, mostimportantly, a dark vest with markings in large yellow letters on the front and back stating,"Police, ATF Agent." There was no other pedestrian or automobile traffic, and the officer whowas driving the van stopped that vehicle near the street corner in question and rolled down hiswindow to speak to the group. According to the officer who was seated behind the driver, theofficer driving the van was visible to defendant at that time. The officer driving the van spokewith the group for approximately five seconds before defendant reached for his waistband andbegan to walk away. At that point, an officer seated on the passenger's side of the van yelled toalert the other officers, including those following the van in an unmarked SUV, that defendantwas reaching for his waistband. The officers pursued defendant on foot and eventuallyapprehended him. One of the officers subsequently retraced the path of defendant by followinghis footprints in the snow and recovered a handgun in an alley.
"It is well settled that 'a defendant's flight in response to an approach by the police,combined with other specific circumstances indicating that the suspect may be engaged incriminal activity, may give rise to reasonable suspicion, the necessary predicate for policepursuit' " (People v Martinez, 59AD3d 1071, 1072 [2009], lv denied 12 NY3d 856 [2009], quoting People vSierra, 83 NY2d 928, 929 [1994]). First, contrary to the majority's conclusion, the recordestablishes that defendant knew that the men in the van were police officers and that he fled inresponse to their approach. The police officers testified at the suppression hearing that they werewearing vests identifying themselves as such when they approached defendant in the unmarkedvan. We conclude that the reasonable inferences to be drawn from their testimony support theconclusion that defendant was aware that they were police officers (see People vRandolph, 278 AD2d 52 [2000], lv denied 96 NY2d 762 [2001]).
Second, we disagree with the majority that the police were not justified in pursuingdefendant. In determining whether reasonable suspicion exists, " 'the emphasis should not benarrowly focused on . . . any . . . single factor, but on an evaluation ofthe totality of circumstances, which takes into account the realities of everyday life unfoldingbefore a trained officer' " (People vStephens, 47 AD3d 586, 589 [2008], lv denied 10 NY3d 940 [2008]). Here,defendant was standing outside late at night in the cold, in an area known for significant criminalactivity, and he reached for his waistband before fleeing. Based on those circumstances, andparticularly in light of the fact that "[i]t is quite apparent to an experienced police officer. . . that a handgun is often carried in the waistband" (People v Benjamin,51 NY2d 267, 271 [1980]; see People v Zeigler, 61 AD3d 1398 [2009]), we cannot agreewith the majority that the court erred in refusing to suppress the handgun and defendant'sstatements to the police (see People v Pines, 99 NY2d 525, 526-527 [2002]).Present—Centra, J.P., Fahey, Peradotto, Carni and Gorski, JJ.