| Matter of Dominique W. |
| 2011 NY Slip Op 04384 [84 AD3d 657] |
| May 26, 2011 |
| Appellate Division, First Department |
| In the Matter of Dominique W., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), forpresentment agency.
Order of disposition, Family Court, Bronx County (Robert R. Reed, J., at suppression andfact-finding hearings; Nancy M. Bannon, J., at disposition), entered on or about February 1,2010, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination thathe had committed acts which, if committed by an adult, would constitute the crime of possessionof an imitation firearm, in violation of Administrative Code of the City of New York §10-131 (g), and placed him on probation for a period of 12 months, affirmed, without costs.
The court properly denied appellant's suppression motion. The police officers responded to aradio run based on an anonymous tip that a male black approximately 16 years of age waspointing a BB gun into the air. According to the radio run, the subject was sitting on a parkbench, had a black bag, and was wearing a white T-shirt, black shorts and white sneakers. Fromapproximately one block away, the officers went to the location and saw approximately sixyoung men, including appellant, in the park. Appellant, who was sitting on a bench, was the onlyone who matched the description. The officers asked appellant if he had a gun. Appellant statedthat he had a BB gun in his bag, and showed it to the officers. The radio run, coupled with thedescription of the suspect that matched defendant's appearance, gave the police a foundedsuspicion that criminal activity was afoot (see People v De Bour, 40 NY2d 210, 223[1976]). Therefore, the police acted within their common-law right to seek explanatoryinformation while stopping short of making a forcible seizure when they asked appellant if hehad a gun. A different conclusion is not warranted by the slight discrepancy in the description ofappellant's clothing (see e.g. People v Smalls, 292 AD2d 213 [2002], lv denied98 NY2d 681 [2002]). In reaching its conclusion, the hearing court credited the policeofficers' testimony and rejected that of appellant. We find no basis for disturbing the court'scredibility determinations inasmuch as they are supported by the record (see People vProchilo, 41 NY2d 759 [1977]). We therefore disagree with the dissent's premise that therewas an unlawful seizure since that premise seems to be based upon testimony that the court didnot credit. People v Moore (6 NY3d496 [2006]), a case cited by the dissent, is distinguishable because it involved a gunpointstop that "unquestionably constituted a seizure of [the suspect's] person" before any inquiryoccurred (id. [*2]at 499). We also distinguish Matter of Jahad R. (12 AD3d 154[2004]) and Matter of Koleaf J. (285 AD2d 418 [2001]), cases cited by the dissent,because those cases involved anonymous tips that led to seizures, as opposed to the exercise ofthe police officers' common-law right to inquire upon a founded suspicion that criminal activitywas afoot (see People v De Bour, 40 NY2d at 223). Moreover, the anonymous tip in thiscase was corroborated by the police officers' observation of appellant's clothing, the black bag inhis possession, and the fact that he was seated on a bench as described in the radio run(compare Matter of Jahad R., 12 AD3d at 155). Concur—Sweeny, J.P.,Moskowitz, DeGrasse and Richter, JJ.
Freedman, J., dissents in a memorandum as follows: I respectfully dissent, and would grantappellant's motion to suppress the BB gun that formed the basis of his adjudication for violatingAdministrative Code of City of NY § 10-131 (g). The facts here are that two policeofficers received a radio run based on an anonymous tip describing a black male of about 16years of age sitting on a park bench near 2741 Schley holding a BB gun, and then putting it into aduffel bag. It is not clear whether the caller said black duffel bag or just duffel bag. The callerfurther stated that the suspect was wearing a white shirt, black shorts, and sneakers. Twoplainclothes officers shortly thereafter approached appellant, who was with six or seven others.They did not see a gun.
According to the officers, they "went to the guy that matched the description with the whiteshirt" and "had a black bag." Officer Franco testified, "I approached [appellant] and I asked himif he had a BB gun on him. He said yes and handed it over to me . . . from out of hisbag." Appellant testified that four officers approached him and the others and asked "who has aBB gun" and then said, "Open your bags, everyone open their bags." The others opened theirbags, but he did not, and Officer Franco then took his bag, opened it, and removed the BB gun.He also stated that after the others had opened their bags, he "told Officer Franco that [the other]kids had nothing to do with this situation." Appellant, aged 14, was arrested immediately afterthe officers obtained the gun. By this time there were other police officers present, includingOfficer Ortiz, who prepared the arrest report. The arrest report stated that appellant was wearing"shorts-black," "sandals-black," "T-shirt or Tank Top-Gray," and "headgear-unk unknown color."There was no indication that appellant changed his shoes or his shirt between the time of thearrest and the time the arrest report was prepared. The report also indicated that there had been afrisk.
The hearing court believed the officers' testimony, and did not credit appellant's testimonyconcerning the arrest. For purposes of review, I will credit the court's findings. The issue iswhether, under the standards set forth in People v De Bour (40 NY2d 210 [1976]) andreiterated in People v Hollman (79 NY2d 181 [1992]), the People have established asufficient basis for a level two or three inquiry. According to De Bour andHollman, there are four levels of police intrusion, each of which is justified by a differentdegree of suspicion. The first, "[t]he minimal intrusion of approaching to request information," orlevel one inquiry, is authorized where "there is some objective credible reason for thatinterference not necessarily indicative of [*3]criminality" (DeBour, 40 NY2d at 223). Requesting information concerning identity, address, purpose ordestination falls into this category. Here, the radio run, although anonymous and notcorroborated, was sufficient for the officers to approach appellant, who was in the vicinity of thealleged sighting, and request information.
Level two, defined as "the common-law right to inquire, is activated by a founded suspicionthat criminal activity is afoot" (id.). Level three, a forcible stop and detention, isauthorized where a police officer "entertains a reasonable suspicion that a particular person hascommitted, is committing or is about to commit a felony or misdemeanor" (id.).
At that point, an officer may detain and frisk the person if the officer reasonably suspects thathe is in danger of physical injury because the person is armed. Approaching a teenager seated ona bench in the company of other teens and pointedly asking if he has a BB gun on him could be alevel two inquiry, but under the circumstances here, it was a pointed and threatening inquiry;thus, it comes closer to a level three detention. Appellant testified that the officers approachedthe group and demanded that they open bags, and seized an unopened bag; this intrusion clearlyconstitutes a level three stop, which is justified only where the officer has a reasonable suspicionto believe that the suspect has committed, is committing, or is about to commit a crime or isarmed. Two police officers asking a seated individual if he has a gun on him, i.e., if he iscommitting a crime, is more than a common-law inquiry, although it might not be a full-fledgedlevel three detention.
The facts of this case are insufficient to justify the detention that occurred here. The officershad received an anonymous tip that a 16-year-old had a BB gun that he put into a bag. Thedescription of the alleged perpetrator included black shorts, a white top, and white sneakers.Appellant was 14 years old, and was wearing a gray shirt or tank top and black sandals. He wasalso wearing headgear, not mentioned by the caller. Finally, he had a black book bag, not a duffelbag. Only the black shorts, and possibly the bag, fit the description that the officers received fromthe radio run. No one came forward to identify the "suspect" during the time that the officerswere present, and no follow-up calls were received. Thus, the officers had neither reasonablesuspicion that criminal activity was afoot nor reasonable suspicion that a particular person,appellant, was about to commit a felony or misdemeanor. In People v Moore (6 NY3d 496 [2006]), the Court of Appealsdetermined that an anonymous tip about an individual wearing a red shirt and grey hat was aninsufficient basis for a detention. Similarly, in Matter of Jahad R. (12 AD3d 154 [2004]), and Matter of KoleafJ. (285 AD2d 418 [2001]), this Court rejected anonymous phone calls with generaldescriptions of young people allegedly handling guns as a sufficient basis for level threedetentions. Based on the foregoing, I find that there was insufficient justification for thedetention that occurred here, and would grant the suppression motion.