| People v Sims |
| 2013 NY Slip Op 03209 [106 AD3d 1473] |
| May 3, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v QuentinA. Sims, Respondent. |
—[*1] The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of counsel), fordefendant-respondent.
Appeal from an order of the Erie County Court (Michael F. Pietruszka, J.), datedJune 5, 2012. The order granted those parts of the omnibus motion of defendant seekingto suppress certain physical evidence and oral statements.
It is hereby ordered that the order so appealed from is reversed on the law, thoseparts of the omnibus motion seeking to suppress statements and physical evidence aredenied, and the matter is remitted to Erie County Court for further proceedings on theindictment.
Memorandum: The People appeal from an order that granted those parts ofdefendant's omnibus motion seeking to suppress physical evidence, i.e., a handgun, anddefendant's oral statements to the police. We agree with the People that County Courterred in granting those parts of defendant's motion. The arresting officer did not violatedefendant's rights when he approached him and asked for identification. According to thetestimony presented by the People at the suppression hearing, the arresting officer and hispartner were driving down the street in their marked patrol vehicle when defendantemerged from an alleyway riding a bicycle. The arresting officer testified that defendantcontinued to stare at him as defendant rode alongside the patrol vehicle for about 10 to15 feet. Defendant was staring at the arresting officer when he "rode the bicycle into aporch" of a residence and "fell." Defendant then "ran up on the porch." At that point, thearresting officer was justified in asking defendant if he lived at the residence and, whendefendant replied that he did not, in asking defendant for identification. Indeed, "[t]hetestimony at the suppression hearing establishes that the police officer[ ] had anobjective, credible reason for initially approaching defendant and requesting informationfrom him" (People v Hill, 302 AD2d 958, 959 [2003], lv denied 100NY2d 539 [2003]; see People vBracy, 91 AD3d 1296, 1297 [2012]; see generally People v Hollman, 79NY2d 181, 190-192 [1992]).
We further conclude that the evidence presented at the suppression hearingestablishes that the arresting officer had reasonable suspicion to believe that defendantposed a threat to his safety at the time he grabbed defendant's hand. According to theofficer's testimony, defendant placed his hand in his pocket at least three times in spite ofthe arresting officer's requests that he not do so. Moreover, defendant placed his hand inhis pocket even though he had previously told the arresting officer that he did not haveany identification. According to the testimony of the [*2]arresting officer's partner, the officers were located in anarea that was the "most violent project in the City of Buffalo" and was known for "gunsand drugs." Based on that evidence, we conclude that the arresting officer's action ingrabbing defendant's hand on the outside of his pants pocket as defendant reached insidethe pocket was a "constitutionally justified intrusion designed to protect the safety of theofficer[ ]" (People v Robinson, 278 AD2d 808, 809 [2000], lv denied 96NY2d 787 [2001]; see Bracy, 91 AD3d at 1297-1298). The arresting officer "hada reasonable basis for fearing for his safety and was not required to 'await the glint ofsteel' " (People v Stokes, 262 AD2d 975, 976 [1999], lv denied 93 NY2d1028 [1999], quoting People v Benjamin, 51 NY2d 267, 271 [1980]).
Given that the arresting officer, upon grabbing defendant's hand, touched an objectthrough defendant's pocket that he believed to be a small handgun, "the officer did notact unlawfully in reaching into the pocket and removing the object" (Bracy, 91AD3d at 1298; see People vDavenport, 9 AD3d 316, 316 [2004], lv denied 3 NY3d 705 [2004]).Finally, because the arresting officer's conduct was lawful, defendant's oral statements tothe police are not subject to suppression as fruit of the poisonous tree (see generally People v Carter,39 AD3d 1226, 1226-1227 [2007], lv denied 9 NY3d 863 [2007]).
All concur except Fahey and Sconiers, JJ., who dissent and vote to affirm in thefollowing memorandum.
Fahey and Sconiers, JJ. (dissenting). We respectfully dissent because we concludethat County Court properly granted defendant's motion to suppress physical evidence andhis oral statements to the police. We agree with the majority that the police had alegitimate reason to request information from defendant (see People v De Bour,40 NY2d 210, 220 [1976]). Nevertheless, the court properly determined that the policelacked the necessary justification to escalate the encounter to a level three pat down ofdefendant. Pursuant to De Bour, "level three authorizes an officer to forcibly stopand detain an individual, and requires a reasonable suspicion that the particularindividual was involved in a felony or misdemeanor" (People v Moore, 6 NY3d496, 498-499 [2006]). Here, there was no proof that defendant had committed acrime. Moreover, there had been no radio call or other report of a crime in the vicinitypreceding this encounter. Defendant had merely stared at police officers while riding hisbicycle, whereupon he rode the bicycle into the steps of a porch, fell off the bicycle,jumped up, and ran up the steps. When asked for identification, defendant responded thathe had none. Also, defendant placed his hand in his pocket at least three times, contraryto a police officer's requests that he not do so. "It is . . . well settled thatactions that are 'at all times innocuous and readily susceptible of an innocentinterpretation . . . may not generate a founded suspicion of criminality' " (People v Riddick, 70 AD3d1421, 1422 [2010], lv denied 14 NY3d 844 [2010]; see People vPowell, 246 AD2d 366, 369 [1998], appeal dismissed 92 NY2d 886 [1998]).Here, the fact that defendant put his hand in his pocket, "absent any indication of aweapon such as the visible outline of a gun or the audible click of the magazine of aweapon, does not establish the requisite reasonable suspicion that defendant hadcommitted or was about to commit a crime" (Riddick, 70 AD3d at 1422-1423).In addition, the fact "that this may have been a high-crime area . . . couldnot itself validate the search since no other objective indicia of criminality existed tosupply the requisite reasonable suspicion for the forcible stop and frisk" (Powell,246 AD2d at 369-370; see Riddick, 70 AD3d at 1423). Importantly, this Courthas consistently held that "[g]reat deference is afforded the findings of the suppressioncourt" (People v Davis, 48AD3d 1120, 1122 [2008], lv denied 10 NY3d 957 [2008], citing Peoplev Prochilo, 41 NY2d 759, 761 [1977]; see e.g. People v Peay, 77 AD3d 1309, 1310 [2010], lvdenied 15 NY3d 955 [2010]; People v Williams, 202 AD2d 976, 976[1994], lv denied 83 NY2d 916 [1994]) and, affording appropriate deference tothe findings of the suppression court, we conclude that an affirmance is warranted.Present—Scudder, P.J., Fahey, Sconiers, Valentino and Martoche, JJ.