| People v Rodriguez |
| 2011 NY Slip Op 02176 [82 AD3d 1614] |
| March 25, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Appellant, v Emmanuel Rodriguez, Respondent. |
—[*1] Kevin J. Bauer, Albany, for defendant-respondent.
Appeal from an order of the Erie County Court (Michael F. Pietruszka, J.), dated March 23,2010. The order granted the suppression motion of defendant.
It is hereby ordered that the order so appealed from is unanimously reversed on the law, thatpart of the motion to suppress evidence is denied, and the matter is remitted to Erie County Courtfor further proceedings on the indictment.
Memorandum: The People appeal from an order granting that part of defendant's omnibusmotion to suppress evidence, i.e., a weapon and an oral statement made by defendant to a policeofficer. We reverse. The testimony at the suppression hearing established that an off-duty policeofficer was engaged in part-time employment, providing security at a bar in the City of Buffalo,when he was notified about a fight inside the bar. The off-duty officer brought one of theindividuals involved in the fight outside and observed him walk to a vehicle. The off-duty officerheard the individual speak to another individual in Spanish about "a pistol" and "a gun."According to the testimony of the off-duty officer, upon hearing the conversation about a pistoland a gun, he used his cellular telephone to call an on-duty police officer, and he told the officerabout the conversation. The officer who received the call, however, testified that theoff-duty officer simply told him about a disturbance at the bar and did not mention a pistol or agun.
When two police officers responded to the call, the off-duty officer motioned to a nearbyvehicle. Two individuals were inside the vehicle, and defendant was attempting to enter the rearpassenger seat. One of the officers testified that he approached defendant to "see what was goingon." He asked defendant "just how's it going, you know, what are you up to, you got some ID,can I talk to you for a minute." Defendant responded by stating, "I have something in my pocket,but it's not mine." The officer observed what he described as an "oddly shaped" sock sticking outof defendant's right rear pocket. The officer testified that "it looked more like it might have beensome type of firearm." The officer pulled on the sock and it felt "like a handgun."
County Court concluded that the People failed to meet their burden of establishing that theofficer's reason for approaching defendant extended beyond mere curiosity and noted that [*2]defendant was not engaged in any criminal activity at the time ofthe approach. The court thus concluded that the officer detained defendant "without anyinformation concerning the situation he was there to investigate" and therefore suppressed theevidence seized from defendant and a statement thereafter made by him.
The parties agree that this case involves the four-tier common-law analysis of police-civilianencounters set forth by the Court of Appeals in People v De Bour (40 NY2d 210 [1976]).The parties further agree that the encounter between the police and defendant here was a levelone encounter, in which the police may lawfully approach an individual and inquire about basic,nonthreatening matters such as name, address and destination, as long as the police have "somearticulable reason" for the questioning (id. at 213; see People v Hollman, 79NY2d 181, 185 [1992]). Indeed, such "questions need be supported only by an objective crediblereason not necessarily indicative of criminality" (Hollman, 79 NY2d at 185). Weconclude that the People met their burden of establishing that the officer had an objectivecredible reason, i.e., information from an off-duty police officer concerning a disturbance,justifying the officer's request for basic non-threatening information from defendant (seePeople v Reyes, 83 NY2d 945, 946 [1994], cert denied 513 US 991 [1994]; People v Rush, 31 AD3d 1115[2006], lv denied 7 NY3d 870 [2006]). Thus, under the circumstances presented here, weconclude that the court erred in granting that part of defendant's omnibus motion seekingsuppression. Present—Smith, J.P., Peradotto, Lindley, Sconiers and Martoche, JJ.