| People v Crawford |
| 2011 NY Slip Op 07692 [89 AD3d 422] |
| November 1, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Denzel Crawford, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (David E. A. Crowley of counsel), forrespondent.
Judgment, Supreme Court, New York County (Charles J. Tejada, J., at suppression hearing;Michael J. Obus, J., at plea and sentencing), rendered October 16, 2008, convicting defendant,upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, andsentencing him to a term of two years, with two years' postrelease supervision, unanimouslyreversed, on the law, defendant's motion to suppress granted, the judgment of conviction vacated,and the indictment dismissed.
At the suppression hearing, a police officer testified that he and his two partners werepatrolling in an unmarked car at night, when they observed defendant, who was walking on thestreet, adjust something in his right pants pocket by cupping his hand over the outside of thepocket and pulling upward. Defendant repeated this movement three or four times. The officerfurther testified that the object in defendant's pocket created a bulge and looked heavy.
The officers pulled their car up next to defendant, identified themselves as the police, andasked if they could talk to him. Defendant complied and approached the car, with both hands inhis pants pockets. When one officer asked defendant to take his hands out of his pockets, heobeyed and produced identification. During this exchange, the testifying officer observed thebulge in defendant's pocket more closely; it appeared to be made by a hard, five- orsix-inch-long, oblong-shaped object, which the officer could not identify.
The officer who was driving asked defendant where he was headed, and defendant repliedthat he had come from the subway and was walking towards an apartment building. The officerthen told defendant to back away from the car door, and after defendant complied, the officeropened the door and stepped out. Defendant then fled. Two of the officers chased defendant onfoot at a distance of no more than 10 feet, while the third drove the car to cut defendant off.While pursuing defendant, the testifying officer saw him throw a gun onto the street. Shortlythereafter, the officers apprehended defendant and retrieved the weapon.
The officers lacked valid grounds for seizing defendant. In evaluating the propriety of apolice intrusion, we must consider whether it was justified at its inception and whether it wasreasonably related in scope to the circumstances leading to the encounter (People v DeBour, 40 NY2d 210, 215 [1976]; People v Cantor, 36 NY2d 106, 111 [1975]). InDe Bour, the Court of [*2]Appeals set forth a four-leveltest for evaluating street encounters that the police initiate. The first three levels are relevant:level one permits a police officer to request information from an individual and merely requiresthat the request be made for an objective, credible reason, which need not be an indication ofcriminality; level two—the common-law right of inquiry—permits a somewhatgreater intrusion, short of a forcible seizure, and requires a founded suspicion that criminalactivity is afoot; and level three, authorizing an officer to forcibly stop and detain an individual,requires a reasonable suspicion that the individual was involved in a crime (40 NY2d at 223;see also People v Hollman, 79 NY2d 181, 184-185 [1992]).
Here, based on the object in defendant's pocket, the officers may have had an objective,credible reason to request information from defendant (see De Bour, 40 NY2d at 223)and to ask him to remove his hands from his pockets as a precautionary measure (see Matterof Anthony S., 181 AD2d 682, 682-683 [1992], lv denied 80 NY2d 753 [1992]). Butthe officers were not justified in forcibly seizing defendant by chasing after and apprehendinghim. Defendant's flight, when accompanied by nothing more than the presence of an object in hispocket that was unidentifiable even at close range, did not raise a reasonable suspicion that hehad a gun or otherwise was involved in a crime (see People v Holmes, 81 NY2d 1056,1057-1058 [1993]; People v Prochilo, 41 NY2d 759, 763 [1977]; People v Reyes, 69 AD3d 523,525-526 [2010], appeal dismissed 15 NY3d 863 [2010]).
Because defendant threw away the gun while the officers were in hot pursuit, the physicalevidence was tainted by the improper police action and should have been suppressed (seePeople v Holmes, 181 AD2d 27, 31-32 [1992], affd 81 NY2d 1056 [1993]). Contraryto the People's argument, defendant did not make a conscious and independent decision toabandon the gun, but instead discarded it in direct response to the pursuit (see People v Pirillo, 78 AD3d1424, 1426 [2010]). Concur—Tom, J.P., Catterson, Renwick, Freedman andManzanet-Daniels, JJ.