| Matter of Jakwon R. |
| 2013 NY Slip Op 06368 [110 AD3d 723] |
| October 2, 2013 |
| Appellate Division, Second Department |
| In the Matter of Jakwon R., a Person Alleged to be aJuvenile Delinquent, Respondent. Presentment Agency,Appellant. |
—[*1] Etta Ibok, Brooklyn, N.Y., for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, thePresentment Agency appeals from (1) an order of the Family Court, Kings County(Toussaint, J.), dated March 26, 2012, which, after a hearing, granted that branch ofJakwon R.'s omnibus motion which was to suppress a BB gun recovered from hisbackpack, and (2) an order of the same court dated March 27, 2012, which dismissed thepetition.
Ordered that the orders are reversed, on the law, without costs or disbursements, thatbranch of Jakwon R.'s omnibus motion which was to suppress the BB gun is denied, thepetition is reinstated, and the matter is remitted to the Family Court, Kings County, forfurther proceedings consistent herewith.
"[I]n [the] difficult area of street encounters between private citizens and lawenforcement officers . . . the events must be viewed and considered as awhole, remembering that reasonableness is the key principle when undertaking the taskof balancing the competing interests presented" (People v Chestnut, 51 NY2d 14,23 [1980], cert denied 449 US 1018 [1980]; see People vCarmona-Caviedes, 200 AD2d 627, 628-629 [1994]; People v Tratch, 104AD2d 503, 504 [1984]). "A determination of reasonableness turns upon the facts of eachcase" (People v Batista, 88 NY2d 650, 653 [1996]; see People vChestnut, 51 NY2d at 22).
"At a suppression hearing, the Presentment Agency bears the burden of establishingthe legality of police conduct in the first instance" (Matter of Robert D., 69 AD3d 714, 716 [2010]; seePeople v Berrios, 28 NY2d 361, 367 [1971]; People v James, 72 AD3d 844, 844 [2010]; People vThomas, 291 AD2d 462, 463 [2002]). The respondent, however, bears the ultimateburden of proving, by a preponderance of the credible evidence, that the evidence shouldnot be used against him or her (see People v Berrios, 28 NY2d at 367; People v Spann, 82 AD3d1013, 1014 [2011]; People v Thomas, 291 AD2d at 463).[*2]
At the suppression hearing in this case, thePresentment Agency established that the police had reasonable suspicion that therespondent and his two companions were the individuals described in a radio run as theperpetrators of a robbery which occurred approximately 10 minutes prior to the stop ofthe respondent and his companions (see generally People v Martinez, 80 NY2d444, 447 [1992]; People v De Bour, 40 NY2d 210, 223 [1976]; People v Shuler, 98 AD3d695, 696 [2012]; People vDavenport, 92 AD3d 689, 690 [2012]). The police were justified in stoppingand detaining the respondent and the two other individuals based on the similaritiesbetween them and the individuals described over the radio, including the number ofindividuals and what they were wearing, the close proximity of the three to the site of thecrime and their presence at a location toward which the perpetrators were reported tohave been traveling, and the short passage of time between the crime and observation ofthe three individuals (see Peoplev Palmer, 84 AD3d 1414, 1414 [2011]; People v James, 72 AD3d at844-845; People v Hines,46 AD3d 912, 913 [2007]; People v Private, 259 AD2d 504, 504 [1999]).Further, based on the radio report they received, the police officers had reasonablesuspicion that one of the three individuals was carrying a firearm, which had just beenused in committing the robbery. Under these circumstances, the police were permitted to"conduct a frisk or take other protective measures" (People v Shuler, 98 AD3d at696; see Terry v Ohio, 392 US 1, 29-30 [1968]). Contrary to the respondent'scontention, the police were not limited to a pat down of the his person, but were justified,"on grounds of safety and precaution," in examining the respondent's backpack, a"personal item[ ] capable of concealing a weapon within the suspect's grabbable reach"(People v Brooks, 65 NY2d 1021, 1023 [1985]; see People v Davis, 64NY2d 1143 [1985]; People v Moore, 32 NY2d 67 [1973], cert denied414 US 1011 [1973]; People v Shackleford, 57 AD3d 578, 579 [2008];People v Tratch, 104 AD2d at 504). As the respondent failed to prove, by apreponderance of the credible evidence, that the evidence should not be used against him(see generally People v Berrios, 28 NY2d at 367; People v Spann, 82AD3d at 1014; People v Thomas, 291 AD2d at 463), the Family Court erred ingranting that branch of the respondent's omnibus motion which was to suppress the BBgun.
Under the circumstances of this case, since suppression is being denied, the petitionmust be reinstated and the matter remitted to the Family Court, Kings County, for furtherproceedings. Angiolillo, J.P., Dickerson and Sgroi, JJ., concur.
Hinds-Radix, J., dissents, and votes to affirm the orders appealed from, with thefollowing memorandum: At the suppression hearing, Police Officer Gregory Marquarttestified that on January 9, 2011, at approximately 5:20 p.m., he received a radiotransmission reporting that a robbery occurred at a specified address and describing thealleged perpetrators. Officer Marquart testified that he received only one radiotransmission relaying the description. He testified that the perpetrators were described asthree male blacks, one wearing tan pants, a black jacket, and gray hoodie, one wearingblue jeans and a light-colored hoodie, and one wearing blue jeans, a blue hoodie, andblack hat. Upon listening to a tape of the radio transmission, he noted that the males weredescribed as at least 20 to 21 years old.
Officer Marquart's partner, Police Officer George Delgado, testified that he heard anumber of different descriptions over the radio, but could not recall how many. The firstdescription was of three male blacks, ages 18 to 23 years, one wearing tan pants, and theother carrying a black book bag and wearing a baseball cap. He recalled hearing a seconddescription "almost simultaneously," again noting that one of the males was wearing tanpants, and the other had a book bag and was wearing a hat.
The tape of the radio transmissions indicates that the description was of three maleblacks between 21 and 22 years old, but describes only two of them. The male with thegun was described as wearing tan pants, while the second male was described as wearinga light-colored jacket, with a navy blue cloth bag on his back, and possibly wearing acap. After canvassing the area for about 10 minutes, Officer Marquart observed threemale blacks about two blocks from the scene [*3]of therobbery, standing near a video store. According to Officer Marquart, one was wearingtan pants, a black jacket, and a light-colored hoodie, one was wearing blue jeans and alight-colored hoodie, and the third individual, later identified as the respondent, waswearing blue jeans, a green hoodie, and a black hat, and carried a black school backpack,and appeared to be 19 years old. In his arrest report, Officer Marquart noted that therespondent was wearing green, but failed to include other details, such was whether therespondent was in fact wearing a light-colored jacket or hoodie. Officer Marquartacknowledged that the respondent did not match the description of the man holding thegun.
According to Officer Delgado, the three men were "coming from the direction of theincident," and the respondent appeared to be between 18 and 23 years old. OfficerDelgado later testified that the respondent appeared to be between 16 and 20 years old.The respondent and his two companions were stopped because one was wearing tanpants and the respondent was carrying a dark book bag and was wearing a hat.
Officers Marquart and Delgado frisked the three males, because the complainant inthe robbery indicated that one of the perpetrators of the robbery was armed with afirearm. No weapons were found on their persons. However, when frisking therespondent, Officer Marquart took off his backpack, put it down on the ground, andheard a "clanking sound come out of the backpack." The officer asked the respondentwhat was in the backpack, and the respondent replied that his umbrella was inside. Theofficer did not believe that explanation, because "umbrellas don't make that sound,"opened the backpack, and found what he believed to be a 9 millimeter pistol, but whichwas, in actuality, a BB gun. The backpack also contained an umbrella, a bottle of soda,and a bag of chips.
The robbery complainant was brought to the scene for a showup. After the showup,the respondent's companions were not linked with any criminal activity.
At the conclusion of the hearing, the Family Court concluded that the respondent didnot match the description of either of the two assailants described in the radiotransmission, since he was not between the ages of 20 and 21 years, was not wearing tanpants, and was not wearing a light-colored jacket. The Family Court therefore determinedthat reasonable suspicion did not exist to detain the respondent, and granted that branchof the respondent's omnibus motion which was to suppress the BB gun, as its recovery bythe police "flowed from an impermissible stop of the respondent."
In order to forcibly stop an individual, the police must have "reasonable suspicionthat a particular person has committed, is committing or is about to commit a felony ormisdemeanor" (People v De Bour, 40 NY2d 210, 223 [1976]; see People vPines, 99 NY2d 525, 527 [2002]; People v Martinez, 80 NY2d 444, 447-448[1992]). A general description, without more, is insufficient to provide reasonablesuspicion (see People vHarvey, 70 AD3d 1454, 1455 [2010]). As noted by the Presentment Agency, aperson's conduct, taken in conjunction with a general description, may be sufficient toprovide reasonable suspicion (see People v McCrary, 71 AD3d 1049, 1050 [2010]; see also People v Palmer, 84AD3d 1414 [2011]).
In the instant case, the testimony of Officer Marquart as to the description in theradio transmission was embellished or tailored to comport with the actual appearance ofthe respondent and his companions and, thus, to meet constitutional objections (seePeople v Vincente, 63 NY2d 745 [1984]). The testimony of his partner, OfficerDelgado, that the three were stopped because they were male and black, one was wearingtan pants, and the respondent was carrying a bag and wearing a hat in winter, was moreaccurate. However, that general description, standing alone, was insufficient to providereasonable suspicion (seePeople v Polhill, 102 AD3d 988, 989 [2013]; People v Thomas, 300AD2d 416 [2002]). Further, it appears from the record that the respondent did not matchthe description of the man with the hat and bag, since he was not wearing a light-coloredjacket. Moreover, the respondent was younger than the individuals described in the radiotransmission, in that the respondent was only 15 years old.[*4]
In support of its claim that the police hadreasonable suspicion to stop the respondent and his companions, the Presentment Agencyrelies on People v McCrary (71 AD3d at 1050), where the police based the stopof the defendant on the fact that he matched a general description of the perpetrator, wasseen running from the scene of the crime, fled from the police, and hid under a bush. Inthe instant case, Officer Delgado claimed that the respondent and his companions were"coming from the direction of the incident." However, that testimony appears to be anembellishment, since Officer Marquart claimed that they were standing near a videostore, and, if the respondent and his companions were fleeing from the scene of therobbery several minutes after the robbery, they should have been more than two blocksaway. Therefore, the record supports the Family Court's conclusion that the respondentwas stopped solely based upon a description which did not match his actual appearance.
Since the Presentment Agency failed to meet its burden of coming forward in thefirst instance with evidence demonstrating the legality of the police conduct (seePeople v Wise, 46 NY2d 321, 329 [1978]; People v Hernandez, 40 AD3d 777, 778-779 [2007]), theFamily Court properly granted that branch of the defendant's omnibus motion which wasto suppress the BB gun. Accordingly, I dissent and vote to affirm the orders appealedfrom.