| People v Beckett |
| 2011 NY Slip Op 07438 [88 AD3d 898] |
| October 18, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Leonard Beckett, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Cristin N. Connell ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Kase, J.),rendered November 15, 2010, as amended November 23, 2010, convicting him of robbery in thefirst degree (two counts), robbery in the second degree (two counts), assault in the second degree(four counts), assault in the third degree (two counts), criminal possession of a weapon in thethird degree, and resisting arrest, upon his plea of guilty, and imposing sentence. The appealbrings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions, of thesuppression of physical evidence, identification testimony, and his statement to law enforcementofficials.
Ordered that the judgment is reversed, on the law, the plea is vacated, suppression of thephysical evidence, identification testimony, and the defendant's statement to law enforcementofficials is granted, and the matter is remitted to the County Court, Nassau County, for furtherproceedings on the indictment.
As developed at a combined Huntley/Dunaway/Mapp hearing (see Mapp vOhio, 367 US 643 [1961]; People v Huntley, 15 NY2d 72 [1965]), on February 6,2010, at or around 7:50 p.m., a police officer of the Village of Freeport Police Department wasworking in plain clothes and responded to a radio call about a robbery at a liquor store inFreeport. The description of the suspect was a "male black with a black jacket." The officer, whowas driving an unmarked Crown Victoria patrol car, responded to the call and was traveling onSouthside Avenue when, at approximately "7:54, 7:55" p.m., he observed the defendant, "a maleblack with a black jacket and a red and white, like a high school jacket, walking eastbound onSouthside Avenue." The officer observed the defendant walking "at a fairly fast pace." When theofficer slowed down his vehicle, the defendant looked at the vehicle, and began to runsouthbound through the backyards of Southside Avenue. The officer pursued the defendant,identifying himself as a police officer during the pursuit, and ultimately detained the defendant.Subsequently, three victims of the robbery appeared at the scene, identified the defendant as therobber, and the defendant was placed under arrest. Subsequent to his arrest, physical evidencewas recovered from the defendant and he provided a statement admitting his guilt to lawenforcement officials.
At the conclusion of the hearing, the County Court found that the police conduct was [*2]reasonably responsive to the situation presented, and deniedsuppression of the physical evidence, identification testimony, and the defendant's statement tolaw enforcement officials. We reverse.
"The police may lawfully pursue an individual if they have reasonable suspicion that he orshe has committed or is about to commit a crime" (People v Brogdon, 8 AD3d 290, 292 [2004]; see People vHolmes, 81 NY2d 1056, 1057-1058 [1993]). Flight plus "other specific circumstancesindicating that the suspect may be engaged in criminal activity" can provide reasonable suspicion(People v Sierra, 83 NY2d 928, 929 [1994]). "However, flight alone or in conjunctionwith equivocal circumstances that might permit a request for information is insufficient to justifypursuit" (People v Brogdon, 8 AD3d at 292; see People v Holmes, 81 NY2d at1058; People v Howard, 50 NY2d 583, 592 [1980], cert denied 449 US 1023[1980]).
Here, the People failed to establish the distance between the location of the defendant whenhe was first observed by the officer and the location of the robbery. As such, the People failed toestablish spatial proximity between the crime and the location of the defendant. Furthermore, theevidence presented at the hearing was insufficient to establish that the defendant knew that theofficer was a police officer at the time he started to flee, as the officer was in plain clothes andwas driving an unmarked Crown Victoria patrol car (see People v Riddick, 70 AD3d 1421, 1423-1424 [2010]). Indeed,at the hearing, the officer acknowledged that he did not identify himself as a police officer untilhe was in the midst of pursuing the defendant.
Moreover, there were no specific circumstances indicating that the defendant might beengaged in criminal activity. Therefore, the defendant's flight did not justify the officer's pursuit(see People v Brogdon, 8 AD3d at 292; People v Holmes, 81 NY2d at 1058).That the defendant matched an extremely vague description of the suspect, which contained noinformation regarding the suspect's height or weight, and did not indicate that the suspect waswearing a red and white jacket, was not sufficiently indicative of criminal activity (see Peoplev Waters, 259 AD2d 642 [1999]). In the radio call received by the officer, the suspect wasdescribed as a "male black with a black jacket," but the defendant was observed wearing a redand white jacket over a black jacket. In addition, the radio call did not indicate the direction thesuspect was traveling, and the testimony at the hearing did not establish exactly when the robberyoccurred. Thus, on this record, there are no circumstances that, when combined with thedefendant's flight, would constitute reasonable suspicion sufficient to justify the officer's pursuit(see People v Smalls, 83 AD3d1103, 1104-1105 [2011]; Matter ofEmmanuel O., 32 AD3d 948, 949-950 [2006]; People v Brogdon, 8 AD3d at292).
As a result, the pursuit of the defendant and his seizure were unlawful. Consequently, thephysical evidence, identification testimony, and the defendant's statement to law enforcementofficials should have been suppressed as "fruit of the poisonous tree" (Wong Sun v UnitedStates, 371 US 471, 488 [1963] [internal quotation marks omitted]; see People v Day, 8 AD3d 495,496 [2004]).
Accordingly, we reverse the judgment, vacate the plea, and remit the matter to the CountyCourt, Nassau County, for further proceedings on the indictment. Angiolillo, J.P., Balkin, Halland Cohen, JJ., concur.