| People v Wallace |
| 2011 NY Slip Op 08287 [89 AD3d 559] |
| November 17, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Appellant, v DevonWallace, Respondent. |
—[*1] Steven Banks, The Legal Aid Society, New York (Sheilah Fernandez of counsel), forrespondent.
Order, Supreme Court, New York County (Thomas A. Farber, J.), entered on or aboutSeptember 15, 2009, which granted defendant's motion to suppress physical evidence,unanimously reversed, on the law, and the motion denied.
On the morning of March 18, 2007, the operator of a stopped J train in the Gates Avenuestation in Brooklyn was approached by a man on the platform he described as of "Indian"appearance. The man, who spoke quickly and appeared to be nervous, told the operator, who hadalmost 20 years of experience, that a black man in the first car of the train had a gun in a brownbag and was displaying it to people. The operator, while continuing the train run, used his radioto contact the police, but did not know whether his report had been heard.
Moments later, the man approached the station agent working in the toll booth at the GatesAvenue station and advised her that there was a man on the train wearing a brown shearlingjacket who had a brown bag with a gun in it. The agent immediately hit the button on theEmergency Booth Communication System, causing a report to be sent to the police. PoliceOfficer Isaac Garcia received a radio run about a "male black with a brown jacket, brown bag,with a firearm" located on the J train approaching the Essex Street station in Manhattan.
As the J train entered the Essex Street station, the operator stopped it and told a police officerthat this was the train on which the armed man was riding. The officer, one of six present at thetime, told the operator to pull up to the end of the station. Once the train stopped, the police,knowing that the man with a gun was in the first car, proceeded to remove two black males withbrown jackets and put them against the wall. Officer Garcia then walked back into the train withhis weapon drawn and, as he entered, he saw defendant standing in front of a group of mostlyAsian females trying to get into the crowd. Garcia and defendant made eye contact and Garciaraised and pointed his weapon at defendant. Garcia told defendant to get off the train, and asupervisor grabbed defendant and put him against the wall. Defendant did not obey theinstructions, and Garcia unclipped a bag hanging from defendant's chest. The police found aloaded firearm in the bag.
After hearing testimony to the foregoing effect, Supreme Court granted defendant's motion tosuppress the gun based on a finding that the police lacked reasonable suspicion to stop [*2]defendant. We reverse.
Upon receiving a report of a man with a gun in the first car of the J train, the police wereduty-bound to take action (People v Benjamin, 51 NY2d 267, 270 [1980]). Even ananonymous telephone tip giving only a general description and the location of an individual witha gun permits a common-law inquiry by the police (see People v Bora, 191 AD2d 384,385 [1993], affd 83 NY2d 531 [1994]; People v Gaines, 159 AD2d 175, 177[1990]). However, "when the information provided by the tip is considered in conjunction withthe attendant circumstances and exigencies, . . . more intrusive police action may bejustified" (Bora, 191 AD2d at 385).
We agree with Supreme Court and defendant that the information furnished to the stationagent did not, by itself, create reasonable suspicion. Nonetheless, and contrary to defendant'scontention, Florida v J.L. (529 US 266 [2000]) is distinguishable in that, here, theinformant imparted the information in a face-to-face encounter, thereby enhancing his reliability(see People v Appice, 1 AD3d244 [2003], lv denied 1 NY3d 594 [2004]).
Nor does the fact that the information was imparted to a station agent or conductor mean thatthe informant should be regarded as anonymous within the meaning of Florida v J.L. AsSupreme Court observed: "Station agents and train conductors are the natural point of contact forsomeone reporting an emergency situation in a subway car. And it seems likely that both trainconductors and station agents are as able as police officers to make the kind of reliabilityassessment necessary to transmit this type of information to command central. Moreover, while itis possible to imagine any number of reasons why someone might make a false report to 911 orto a police officer to get someone in trouble, it is less likely that a live civilian—even ifunidentified—would make this type of [false] report to a subway motorman or stationagent."
In any event, the circumstances supported police action more intrusive than a merecommon-law inquiry. The encounter occurred, not on the street, but within the confines of asubway car, where defendant was trying to push his way into a group of people. This attempt,akin to an attempt to flee, by a person who met the description given to the police, elevated thesituation to one of reasonable suspicion (see People v Brown, 216 AD2d 3 [1995]).Moreover, the potential danger to both the innocent bystanders and the police officer in theconfined subway car was obvious.
Accordingly, we conclude that the police did not act unreasonably in removing defendantfrom the train for a pat down, considering the information imparted by the informant in aface-to-face meeting, the obvious concern the officer had for his own safety and that of thesurrounding [*3]passengers, and defendant's attempt to push intothe surrounding passengers after he made eye contact with the officer. It follows that the motionto suppress should have been denied. Concur—Friedman, J.P., Sweeny, DeGrasse,Abdus-Salaam and RomÁn, JJ.