| People v Laviscount |
| 2014 NY Slip Op 02798 [116 AD3d 976] |
| April 23, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Shamari L. Laviscount, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Blumenfeld, J.), rendered January 5, 2011, convicting him of criminal possession of aweapon in the second degree, upon a jury verdict, and imposing sentence. The appealbrings upon for review the denial, after a hearing (Aloise, J.), of that branch of thedefendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is reversed, on the law, that branch of the defendant'somnibus motion which was to suppress physical evidence is granted, the indictment isdismissed, and the matter is remitted to the Supreme Court, Queens County, for furtherproceedings consistent with CPL 160.50.
According to the testimony of Police Officer Michael Ranolde, at 2:45 a.m. onNovember 7, 2008, the defendant was sitting in his car, which was parked legally, with afemale passenger. Noticing the defendant's car, Ranolde drove his unmarked police cartoward the defendant's car. As Ranolde was maneuvering his car to stop parallel to thedefendant's vehicle, he saw the defendant move something from the dashboard and throwit below him. Ranolde and his partner then exited their vehicle and approached thedefendant's car. Ranolde questioned the defendant, and while speaking to Ranolde, thedefendant removed the gloves he was wearing and tossed them behind him. Ranoldeused a flashlight to look into the car and did not notice anything illegal in the car.
Ranolde then asked the defendant and his passenger to step out of the car. Both wereled to the back of the defendant's car, where Ranolde's partner watched them as Ranoldewent to the police car to check the defendant's identification. When the defendant'spassenger exited the car, she carried a black purse on her shoulder. After checking thedefendant's identification, Ranolde returned to the back of the defendant's car, where heand his partner continued to question the defendant and his passenger. At one point,Ranolde looked at the purse using his flashlight and noticed the handle of a handgun.Ranolde grabbed the purse, confirmed that there was a gun inside it, and ordered thedefendant and his passenger not to move. Upon seeing the gun, the defendant exclaimedthat the gun was not his and ran away. He was apprehended nearby by another officer.[*2]
A subsequent search of the defendant's carresulted in the seizure of a glove, a ski mask, and sunglasses. In addition, the gun and abullet were recovered from the purse. Prior to trial, the defendant moved, inter alia, tosuppress the physical evidence, and the motion was denied. We reverse and dismiss theindictment.
In People v De Bour (40 NY2d 210 [1976]), the Court of Appealsestablished a graduated four-level test for evaluating the propriety of police encounterswhen a police officer is acting in a law enforcement capacity (see People v Moore, 6 NY3d496, 498-499 [2006]). The first level permits a police officer to request informationfrom an individual, and merely requires that the request be supported by an objectivecredible reason, not necessarily indicative of criminality (see People v De Bour,40 NY2d at 223; People v Moore, 6 NY3d at 498). The second level, known asthe "common-law right of inquiry," requires a founded suspicion that criminal activity isafoot, and permits a somewhat greater intrusion (see People v Moore, 6 NY3d at498-499). The third level under De Bour permits a seizure, meaning that a policeofficer may forcibly stop and detain an individual. Such a seizure, however, is notpermitted unless there is a "reasonable suspicion" that an individual is committing, hascommitted, or is about to commit a crime (see People v De Bour, 40 NY2d at223; see also People v Moore, 6 NY3d at 499). Finally, the fourth level underDe Bour authorizes an arrest based on probable cause to believe that a person hascommitted a crime (see People v De Bour, 40 NY2d at 223; see also People vMoore, 6 NY3d at 499).
"Reasonable suspicion is the quantum of knowledge sufficient to induce anordinarily prudent and cautious [person] under the circumstances to believe criminalactivity is at hand" (People v Cantor, 36 NY2d 106, 112-113 [1975]). "To justifysuch an intrusion, the police officer must indicate specific and articulable facts which,along with any logical deductions, reasonably prompted that intrusion" (id. at113). The defendant's later conduct "cannot validate an encounter that was not justified atits inception" (People v Moore, 6 NY3d at 498).
Here, that branch of the defendant's omnibus motion which was to suppress thephysical evidence seized should have been granted, as Ranolde lacked an objective,credible reason for approaching the defendant's car and shining his flashlight into the car(see People v McIntosh, 96 NY2d 521, 525 [2001]; People v Ocasio, 85NY2d 982, 984 [1995]; Peoplev Miles, 82 AD3d 1010, 1010 [2011]). At the hearing, Ranolde failed toarticulate any reason for approaching the defendant's car other than that the car wasparked in the early morning in an area where cars usually were not parked, and that thedefendant may have moved something from the dashboard and thrown it on the floor ofhis car. Neither reason was a sufficient basis for the officers to have approached thedefendant's vehicle and requested information (see People v Miles, 82 AD3d at1011; People v Concepcion, 216 AD2d 141, 142 [1995]; People vVoliton, 190 AD2d 764, 766 [1993], affd 83 NY2d 192 [1994]).
In any event, Ranolde's testimony did not support a finding that he had a reasonablesuspicion that the defendant was committing, had committed, or was about to commit acrime (see People v De Bour, 40 NY2d at 223; see also People vSobotker, 43 NY2d 559, 563 [1978]). Indeed, there was nothing to indicate that thedefendant had violated any Vehicle and Traffic Law provision (see People vVoliton, 190 AD2d at 766). Additionally, Ranolde admitted that, after he initiatedhis inquiry, he looked into the defendant's car using a flashlight and noticed nothingillegal or out of the ordinary. The defendant's removal of something from the dashboardand his wearing of gloves were innocuous, and not indicative of criminality (see People v Dean, 73 AD3d801, 803 [2010]; People vLayou, 71 AD3d 1382 [2010]). Accordingly, the hearing court should havegranted that branch of the defendant's omnibus motion which was to suppress thephysical evidence (see People v Dean, 73 AD3d at 803). Without that evidence,there could not be sufficient evidence to prove the defendant's guilt, and the indictmentmust, therefore, be dismissed (see People v Miranda-Hernandez, 106 AD3d 838 [2013];People v Carmichael, 92AD3d 687 [2012]).
In light of our determination, we need not address the defendant's remainingcontentions. Dickerson, J.P., Hall, Roman and Cohen, JJ., concur.