| Matter of Shakir J. |
| 2014 NY Slip Op 05336 [119 AD3d 792] |
| July 16, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 In the Matter of Shakir J., a Person Alleged to be aJuvenile Delinquent, Appellant. |
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Marcia Egger ofcounsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Scott Shorr of counsel;Brian Bienenfeld on the brief), for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, ShakirJ. appeals from an order of disposition of the Family Court, Kings County (McElrath, J.),dated April 10, 2013, which, upon an order of fact-finding of the same court datedJanuary 29, 2013, made upon his admission, finding that he had committed an act which,if committed by an adult, would have constituted the crime of criminal possession of aweapon in the second degree, adjudged him to be a juvenile delinquent, and placed himon probation for a period of 12 months. The appeal brings up for review the denial, aftera hearing, of the appellant's motion to suppress physical evidence.
Ordered that the appeal from so much of the order of disposition as placed theappellant on probation for a period of 12 months is dismissed as academic, without costsor disbursements, the motion to suppress physical evidence is granted, the fact-findingorder is vacated, the petition is denied, the proceeding is dismissed, and the matter isremitted to the Family Court, Kings County, for further proceedings in accordance withFamily Court Act § 375.1.
The appeal from so much of the order of disposition dated April 10, 2013, as placedthe appellant on probation for a period of 12 months has been rendered academic, as theperiod of probation has expired (see Matter of David H., 88 AD3d 710 [2011]; Matter of Vanna W., 45 AD3d855, 856 [2007]). However, because there may be collateral consequences resultingfrom the adjudication of delinquency, the appeal from so much of the order ofdisposition dated April 10, 2013, as adjudicated the appellant a juvenile delinquent, andwhich brings up for review the fact-finding order, has not been rendered academic(see Family Ct Act § 783; Matter of Dorothy D., 49 NY2d212 [1980]).
On September 17, 2012, at approximately 7:50 p.m., two police officers in anunmarked vehicle observed the appellant, a "young-looking kid" who was 12 years old atthe time, standing on the street in a high crime area, holding his waistband and lookingover his shoulder "in a panicked state," as if "looking for somebody." The officerssurmised that the appellant may have been fleeing from someone.
[*2] One of the officers asked the appellant what was goingon, and the appellant responded by removing his hands from his waistband, placing hishands at his side, and replying that he did not have anything. The officer responded withmore questions, to the effect of "[w]hat do you have, what are you holding in yourwaistband." The appellant's hands moved towards his waistband and back to his sides.The officer asked the appellant to pick up his shirt. The appellant lifted up the back of hisshirt, and refused to pull up the front of his shirt. The officer would not accept hisrefusal, and demanded that he lift the front of his shirt. The officer claimed that when theappellant complied with his demand, the officer saw the butt of a gun in the appellant'swaistband, got out of the car, drew his own firearm, and approached the appellant, whofled the scene with the officer in pursuit. During the course of the pursuit, the appellantabandoned a firearm in an area covered by wood chips and leaves.
The Family Court found that the police were justified in asking the appellant to pullup his shirt based upon a founded suspicion that criminal activity was afoot (seePeople v De Bour, 40 NY2d 210, 223 [1976]), and once the appellant raised thefront of his shirt, revealing the butt of a firearm, the police had reasonable suspicion thatthe appellant was committing or was about to commit a crime, justifying a forcible stopof the appellant. Accordingly, the motion to suppress physical evidence was denied.
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 short of a forcible seizure (see Peoplev Moore, 6 NY3d at 498-499). The third level under De Bour permits aseizure, meaning that a police officer may forcibly stop and detain an individual, basedupon a "reasonable suspicion" that an individual is committing, has committed, or isabout to commit a crime (see People v De Bour, 40 NY2d at 223; see alsoPeople v Moore, 6 NY3d at 499). Finally, the fourth level under De Bourauthorizes an arrest based on probable cause to believe that a person has committed acrime (see People v De Bour, 40 NY2d at 223; see also People v Moore,6 NY3d at 499).
The appellant acknowledges in his brief that the police had a founded suspicion thatcriminal activity was afoot. At issue here is whether the officers could ask the appellantto lift his shirt, even after he refused, and then pursue him as he fled the scene. Basedupon a founded suspicion that criminal activity is afoot, the subject may be asked toproduce identification (seePeople v Hill, 72 AD3d 702 [2010]), may be asked whether he has weapons,and may be asked to remove his hands from his pockets (see People v Fernandez, 87AD3d 474 [2011]). However, asking a person to open his or her coat is an "intrusivestep" which requires sufficient evidence of criminal activity to permit more than aninquiry by the police (see People v Johnson, 54 NY2d 958, 959 [1981]). Here,the police acknowledge they did not see an object until they took their "intrusive step" ofdemanding that the appellant lift up the front of his shirt after he refused to do so,whereupon a police officer pursued him with his gun drawn.
The appellant had the "right to be let alone" (People v Moore, 6 NY3d at500). The police may lawfully pursue an individual if they have a reasonable suspicionthat he or she has committed or is about to commit a crime (see People v Holmes,81 NY2d 1056, 1056-1058 [1993]). However, in this case, the police only acquired abasis to pursue the appellant after they took the intrusive step of demanding that he raisethe front of his shirt and saw the butt of a gun. Since the pursuit of the appellant wasunlawful, the gun which he abandoned in response to the pursuit should have beensuppressed (see People vBrogdon, 8 AD3d 290, 292 [2004]).
In view of the foregoing, the appellant's motion to suppress the gun should have beengranted, and the fact-finding order must be vacated, the petition denied, and theproceeding dismissed. Dillon, J.P., Hall, Miller and Hinds-Radix, JJ., concur.