| People v Morris |
| 2013 NY Slip Op 02287 [105 AD3d 1075] |
| April 4, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vDonnie Morris, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered March 31, 2011, convicting defendant upon his plea of guilty of the crime ofattempted criminal possession of a weapon in the second degree.
In the summer of 2010, a detective with the City of Albany Police Departmentreceived a tip that was telephoned into the Community Response Unit from a concernedcitizen. The concerned citizen described suspicious behavior—with suggestions ofdrug activity—of a group of individuals congregating on the steps of 91 DanaAvenue in the City of Albany. When this concerned citizen called the detective again onSeptember 8, 2010 and indicated that the group had returned,[FN1]two police officers were dispatched to that location to gather basic information [*2]from the individuals. The officers arrived at the scene andobserved approximately eight people sitting on the steps. As the officers approached thegroup, one of them—later identified as defendant—abruptly stood up andattempted to enter the building, but could not gain entry because the door was apparentlylocked. One of the officers followed defendant up the steps, placed a hand on defendant'sshoulder and asked defendant why he was in a hurry. Defendant turned around, shovedthe officer, said that he was "past curfew" and, after a brief struggle, ran down the stepsand took off running down the street. The officers pursued defendant and, at one pointduring their chase, observed defendant reach into his waistband and throw something tothe ground. A subsequent canine search of the area resulted in the discovery of, amongother things, a handgun.
Defendant was later identified by the police as the individual from the steps who hadfled from them. He was arrested and subsequently charged by indictment with criminalpossession of a weapon in the second and third degrees. Defendant moved to suppressthe handgun arguing, among other things, that the conduct of the police constituted anunlawful seizure and went beyond the appropriate De Bour level of inquiry(see People v De Bour, 40 NY2d 210 [1976]). Following a hearing, CountyCourt denied defendant's motion, and defendant subsequently pleaded guilty to attemptedcriminal possession of a weapon in the second degree, in full satisfaction of theindictment. In accord with the plea agreement, defendant was sentenced as a secondfelony offender to a prison term of seven years, followed by five years of postreleasesupervision.[FN2]This appeal ensued.
We affirm. It is well settled that "police officers acting in their law enforcementcapacity may approach an individual and request basic information—such asidentification and destination—in a nonthreatening manner, provided they have anobjective credible reason to do so, not necessarily indicative of criminality" (People v Savage, 59 AD3d817, 819 [2009], lv denied 12 NY3d 920 [2009]; see People v Garcia, 20 NY3d317, 322 [2012]; People v Hollman, 79 NY2d 181, 184-185 [1992];People v De Bour, 40 NY2d at 223; People v Jordan, 9 AD3d 792, 794 [2004], lvdenied 3 NY3d 708 [2004]). Police may initiate a more intrusive form ofcontact—the common-law right to inquire—where there is a "foundedsuspicion that criminal activity is afoot" (People v De Bour, 40 NY2d at 223;see People v Hollman, 79 NY2d at 191; People v Oldacre, 53 AD3d 675, 676 [2008]). A level threeinquiry—a forcible stop and detention—is permitted upon a reasonablesuspicion that a particular person has committed a crime (see People v Hollman,79 NY2d at 185; People v De Bour, 40 NY2d at 223). To be sure, "[t]heseencounters can be 'dynamic situations during which the degree of belief possessed at thepoint of inception may blossom by virtue of responses or other matters which authorize. . . additional action as the scenario unfolds' " (People v Tillery, 60 AD3d1203, 1205 [2009], lv denied 12 NY3d 860 [2009], quoting People v DeBour, 40 NY2d at 225). Moreover, in evaluating the conduct of the police, weaccord great weight to the suppression court's factual findings that are supported by therecord (see People v Prochilo, 41 NY2d 759, 761 [1977]; People v Whalen, 101 AD3d1167, 1168 [2012]; Peoplev Merritt, 96 AD3d 1169, 1170 [2012], lv denied 19 NY3d 1027[2012]).
Here, the two police officers were directed to approach 91 Dana Avenue because atip [*3]had suggested that individuals at that locationmight be engaging in drug activity and a knife fight had taken place there earlier thatsame evening. The officers arrived at the location in a marked police vehicle with theirsirens off and walked up to the group, including defendant, in a non-threatening manner,without any intention of making an arrest. As defendant abruptly stood up and attemptedto enter the building, one officer walked up the steps behind defendant, placed a hand onhis shoulder and asked him why he was in a hurry. The evidence presented at the hearingsupports a finding that the officer neither threatened nor intimidated defendant when hemade his inquiry and, further, that when he touched defendant on the shoulder with hishand, the officer did not restrain defendant or seize him in any manner. In fact, theofficer described this contact as a "[t]ap" to "engage [defendant] in a conversation."Likewise, the officer testified that he had not purposely blocked defendant's movement inany way on the stairs, and the evidence supports a finding that the manner in which theofficers stood on the steps did not restrict defendant's liberty in any fashion.[FN3]
While defendant had a constitutional right to refuse to answer the inquiries of thepolice (see People v Howard, 50 NY2d 583, 592 [1980], cert denied 449US 1023 [1980]; People v Adams, 194 AD2d 102, 106 [1993]), he told theofficers that he was past his curfew. This information—which suggested thepossibility that defendant was a parole violator—coupled with the escalation ofdefendant's conduct, in which he became physical with at least one of the officers beforehe took off running down the street, escalated the De Bour level of inquiry andprovided, at the very least, "reasonable suspicion to justify a greater level of policeintrusion" and the pursuit of defendant (People v McKinley, 101 AD3d 1747, 1749 [2012]; seePeople v Sierra, 83 NY2d 928, 929 [1994]; People v Holmes, 96 AD3d 1421, 1422 [2012], lvdenied 19 NY3d 1026 [2012]). It was during this justified pursuit—and not asa result of any search of defendant—that the weapon was abandoned by defendantand ultimately recovered by the police (see People v Soscia, 96 AD3d 1081, 1081-1082 [2012],lv denied 19 NY3d 1105 [2012]; compare People v Crawford, 89 AD3d 422, 424 [2011])."As we perceive no impropriety in [the police officers'] initiation of the encounter withdefendant and conclude that the parameters of [De Bour] were never exceeded,[County] Court properly refused to suppress the fruits of their inquiry" (People vJordan, 9 AD3d at 795).
Defendant's remaining contentions have been considered and found to be meritless.
Rose, J.P., Spain and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: This call followed anearlier call that evening, in which the concerned citizen reported to the detective thatseveral members of the group had been engaged in a knife fight. Although patrol unitsfrom the police department had been dispatched at that time, there is no record evidencethat any individual had been stopped or asked for pedigree information.
Footnote 2: As part of his plea,defendant waived his right to appeal, but specifically retained the right to appeal thesuppression ruling.
Footnote 3: It was only afterdefendant turned around, stated that he was past curfew, shoved the officer and beganwrestling with him that the officer grabbed defendant so that he would not hurt anyone.At this point, the officer's restraint was appropriate in light of the elevated encounter.