| People v Gerard |
| 2012 NY Slip Op 02957 [94 AD3d 592] |
| April 19, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Michael Gerard, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), forrespondent.
Judgment, Supreme Court, New York County (Laura A. Ward, J., at suppression hearing;Juan M. Merchan, J., at plea and sentencing), rendered September 14, 2010, convicting defendantof criminal possession of a weapon in the second degree, and sentencing him, as a second violentfelony offender, to a term of eight years, unanimously reversed, on the law, defendant'ssuppression motion granted, and the indictment dismissed.
It was a permissible intrusion for the investigating officer to have approached defendant toask him whether he was carrying a weapon and whether he was all right, based upon his foundedsuspicion that criminality was afoot, derived from (1) defendant's presence in a "drug-prone andgun-prone" location at approximately 2:45 a.m., (2) the weighted-down appearance of the leftside of defendant's unzipped jacket; (3) defendant's change in course after he noticed the policeofficers, in which he made a hard left turn, quickened his pace and hugged the building line, withthe weighted side of his coat very close to the wall; (4) defendant's act of blading his bodytowards the wall as the investigating officer neared, i.e., turning his shoulders so as to use thewall to shield his weighted-down pocket; (5) the bulge in defendant's weighted-down pocket; and(6) defendant speaking into a phone in a fast cadence (see People v Rodriguez, 207 AD2d669 [1994], lv denied 84 NY2d 939 [1994]; People v Niles, 237 AD2d 537[1997], lv denied 90 NY2d 861 [1997]). "Although each factor, standing alone, could besusceptible to an innocent interpretation, a view of the entire circumstances" gave the officer afounded suspicion that criminality was afoot, which invoked the common-law right to inquire(see People v Evans, 65 NY2d 629, 630 [1985]). However, the officer's level of suspicionwas not elevated to a reasonable suspicion that defendant was involved in a felony ormisdemeanor, as required for a stop and frisk, when defendant turned his left shoulder towardsthe officer, stated unresponsively that he did not have any drugs on him, continued to talk on hiscell phone, and attempted to block the officer's hand as the officer reached towards his pocket tofeel the pocket bulge (see People v Hollman, 79 NY2d 181, 185 [1992]; People vSamuels, 50 NY2d 1035, 1037 [1980], cert denied 449 US 984 [1980]; People vMadera, 189 AD2d 462, 467-468 [1993], affd 82 NY2d 775 [1993]). Defendant wasentitled to engage in an "immediate, spontaneous and proportionate" reaction to the seizure thatwas illegal because it was not based on reasonable suspicion (see [*2]People v Felton, 78 NY2d 1063, 1065 [1991] [internalquotation marks omitted]).
On appeal, the People argue that, even in the absence of reasonable suspicion, the officer'sact of reaching out to touch the bulge was permissible as a self-protective minimal intrusionwithin the scope of a common-law inquiry (see e.g. People v Chin, 192 AD2d 413[1993], lv denied 81 NY2d 1071 [1993]). This argument is unpreserved, because at thesuppression hearing the People contended only that the frisk was supported by reasonablesuspicion. Furthermore, the hearing court did not deny suppression on that ground, and since theissue was not determined adversely to defendant, we may not reach it on appeal (see CPL470.15 [1]; People v Concepcion,17 NY3d 192, 194-195 [2011];People v Santiago, 91 AD3d 438, 439 [2012]). Concur—Andrias, J.P., Sweeny,Moskowitz, Freedman and Manzanet-Daniels, JJ.