| People v Fernandez |
| 2011 NY Slip Op 06299 [87 AD3d 474] |
| August 18, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Appellant, v BonellyFernandez, Respondent. |
—[*1] Raymond J. Aab, New York, for respondent.
Order, Supreme Court, New York County (Charles H. Solomon, J.), entered on or about July20, 2010, which granted defendant's motion to suppress physical evidence and statements,unanimously affirmed.
On April 25, 2009, at about 11:00 p.m., Police Officers Diaz, Walters and Bektashaj were onpatrol in plain clothes in an unmarked car. While driving, Diaz's attention was drawn todefendant because, even though it was an unusually warm night, he was wearing a brownsweatshirt with the hood over his head, and he was crouching behind an SUV and looking at twomen.
Diaz saw that defendant was holding something near his waistband, and suspected it was agun. However, he could not see defendant's hand and did not see a weapon. Walters thought thatdefendant was holding something, inside the pocket of his sweatshirt, that may have been aweapon. However, when asked why defendant's particular hand position suggested a weapon,Walters said he did not know. Bektashaj thought that defendant was holding something in thepocket of his sweatshirt.
Based on these observations, the officers exited the car to investigate. With their shieldsdisplayed, Diaz and Bektashaj approached defendant from the front, and Walters approachedfrom behind. When Diaz made eye contact, defendant turned away towards Walters and"basically walked into [him]."
Walters testified that he stopped defendant, whose hands were in the pocket of his sweatshirt,and asked him if he had any weapons on him. Defendant, who, Walters acknowledged, was notfree to leave, said no, and Walters patted down the area where he saw defendant's hands. He felta hard object and lifted up defendant's sweatshirt and removed a gun that was tucked intodefendant's waistband. According to Bektashaj, who had not heard Walters ask defendant anyquestions, Walters reached for the gun as soon as he stopped defendant.
On this record, the officers, at most, had a common-law right to inquire based on a "foundedsuspicion that criminal activity [was] afoot" (see People v De Bour, 40 NY2d 210, 223[1976]), i.e., to ask defendant whether he had any weapons on him (see People v Ward, 22 AD3d 368[2005], lv denied 6 NY3d 782 [2006]). They also had a right to ask him to remove hishands from his pockets as a precautionary measure (see Matter of Anthony S., 181 AD2d682 [1992], lv [*2]denied 80 NY2d 753 [1992]).
However, they did not have the reasonable suspicion that defendant had committed, wascommitting or was about to commit a crime that was required to justify forcibly stopping anddetaining him (see De Bour, 40 NY2d at 223). And they did not have the additionalreasonable suspicion that defendant was armed and dangerous that was required to justifyfrisking him (see People v Batista, 88 NY2d 650, 654 [1996]). The officers were onroutine patrol and were not responding to a report of a crime. Walters testified that at the time heapproached defendant, defendant was not breaking the law, and he did not see what was indefendant's sweatshirt pocket. Nor is there any testimony that defendant made any suspicious orthreatening gestures towards the officers.
The fact that defendant's hand was near his waistband or in his sweatshirt pocket, absent anyindication of a weapon, such as the visible outline of a gun, did not create a reasonable suspicionthat defendant had committed or was about to commit a crime (see People v Sierra, 83NY2d 928, 930 [1994]; People vRiddick, 70 AD3d 1421, 1422-1423 [2010], lv denied 14 NY3d 844 [2010];People v Santiago, 64 AD2d 355, 361 [1978]). Nor does the fact that defendant was locatedin an alleged high crime area supply that requisite reasonable suspicion, in the absence of "otherobjective indicia of criminality" (see People v Powell, 246 AD2d 366, 369-370 [1998],appeal dismissed 92 NY2d 886 [1998]). Concur—Andrias, J.P., Sweeny, Renwick,Freedman and Manzanet-Daniels, JJ.