| People v Harris |
| 2014 NY Slip Op 08351 [122 AD3d 942] |
| November 26, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ian M. Harris, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Patricia Pazner and A. Alexander Donn ofcounsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Anastasia Spanakos, and Josette Simmons-McGhee of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Griffin, J.), rendered August 8, 2012, convicting him of criminal possession of aweapon in the second degree (two counts), upon a jury verdict, and imposing sentence.The appeal brings up for review the denial, after a hearing, in an order of the same court(Paynter, J.), dated February 29, 2012, of those branches of the defendant's omnibusmotion which were to suppress physical evidence and his statements to law enforcementofficials.
Ordered that the judgment is reversed, on the law, those branches of the defendant'somnibus motion which were to suppress physical evidence and his statements to lawenforcement officials are granted, the indictment is dismissed, the order dated February29, 2012, is modified accordingly, and the matter is remitted to the Supreme Court,Queens County, for the purpose of entering an order in its discretion pursuant to CPL160.50.
On September 3, 2011, at approximately 10:40 p.m., two police officers werepatrolling in an area with a high incidence of burglaries. According to Police OfficerCastillo, who testified at a suppression hearing, as his partner drove the police vehicle, hesaw the defendant standing on the sidewalk smoking a cigarette, in front of a gate to ahouse. As the officers' marked vehicle approached, the defendant looked in theirdirection and then entered the property through the gate, walking on the driveway whilestill smoking a cigarette. Because the house was dark and the grass was uncut, OfficerCastillo believed the house was abandoned. After the officers stopped at the house andexited their vehicle, Officer Castillo observed the defendant, who noticed them exit andturned his back to them, make a motion as if shoving something in his front waistband.The officers entered the driveway, and the defendant turned to face them, with thecigarette still in his hand. As Officer Castillo got closer, he observed a bulge in thedefendant's "mid-waist area" where his shirt was "ruffled," and "there seemed to be ahard object sticking out." Without conducting any meaningful inquiry, Officer Castilloimmediately conducted a pat-down search of the bulge, which felt like the butt of a gun,and then recovered a gun and arrested the defendant.
[*2] Prior to trial, the defendant moved, inter alia, tosuppress the gun and his subsequent statements to law enforcement officials. TheSupreme Court denied the motion.
In People v De Bour (40 NY2d 210 [1976]), the Court of Appealsestablished a "graduated four-level test for evaluating street encounters initiated by thepolice" (People v Moore, 6NY3d 496, 498 [2006]). The first level permits a police officer to requestinformation from an individual, and merely requires that the request be supported by anobjective credible reason, not necessarily indicative of criminality (see id.;People v De Bour, 40 NY2d at 223). The second level, known as the "common-lawright of inquiry," requires a founded suspicion that criminal activity is afoot, and permitsa somewhat greater intrusion short of a forcible seizure (People v Moore, 6 NY3dat 498; People v De Bour, 40 NY2d at 223). The third level permits a seizure,meaning that a police officer may forcibly stop and detain an individual, based upon areasonable suspicion that an individual is committing, has committed, or is about tocommit, a crime (see People v Moore, 6 NY3d at 498-499; People v DeBour, 40 NY2d at 223). Finally, the fourth level authorizes an arrest based onprobable cause to believe that a person has committed a felony or misdemeanor (seePeople v Moore, 6 NY3d at 499; People v De Bour, 40 NY2d at 223).
Here, those branches of the defendant's omnibus motion which were to suppress thegun and his statements should have been granted. Assuming that Officer Castillo wasjustified in conducting a common-law inquiry, he lacked reasonable suspicion to believethat the defendant posed a threat to his safety when he conducted a pat-down search ofthe bulge in his waistband (cf. People v Benjamin, 51 NY2d 267, 271 [1980]; People v Correa, 77 AD3d555 [2010]). The police were not responding to a report of a crime involving aweapon and, at most, suspected the defendant of being involved in the burglary of anabandoned house (cf. People vDavenport, 92 AD3d 689, 690-691 [2012]). In addition, "[a]n unidentifiablebulge which is 'readily susceptible of an innocent as well as a guilty explanation' is notsufficient to justify a pat-down search" (People v Kennebrew, 106 AD3d 1107, 1109 [2013],quoting People v Stevenson,7 AD3d 820, 820 [2004]; see People v Moore, 176 AD2d 297, 299 [1991]).The waistband bulge as described by Officer Castillo only permitted him to ask thedefendant if he was carrying a weapon based on a founded suspicion that criminality wasafoot (see People v Garcia,20 NY3d 317, 324 [2012]; People v Stevenson, 7 AD3d at 820-821).Moreover, Officer Castillo did not testify that the defendant, upon turning to face theofficers, reached for or had his hand on the bulge, or made any threatening or menacinggesture (cf. People v Benjamin, 51 NY2d at 271; People v Samuels, 50NY2d 1035, 1037 [1980]; People v Davis, 106 AD3d 144, 151 [2013]; People vDavenport, 92 AD3d at 690-691; People v Wyatt, 14 AD3d 441, 441-442 [2005]; People v Moyaho, 12 AD3d692, 693-694 [2004]). Under the totality of the circumstances, Officer Castillo wasnot justified in searching the defendant's waistband bulge as a minimally intrusiveself-protective measure. Accordingly, the hearing court should have granted thosebranches of the defendant's omnibus motion which were to suppress the physicalevidence and his subsequent statements to law enforcement officials. Since, in theabsence of the suppressed evidence, there is insufficient evidence to prove thedefendant's guilt, the indictment must be dismissed (see People v Carmichael, 92 AD3d 687, 688 [2012]).
In light of our determination, we need not reach the defendant's remainingcontentions. Dillon, J.P., Dickerson, Leventhal and Hall, JJ., concur.