| People v Abdul-Mateen |
| 2015 NY Slip Op 02489 [126 AD3d 986] |
| March 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ramadan Abdul-Mateen, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Mark W. Vorkink of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, ThomasM. Ross, and Arieh Schulman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(McKay, J.), rendered November 16, 2011, convicting him of criminal possession of aweapon in the second degree, upon a jury verdict, and bail jumping in the second degree,upon his plea of guilty, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Firetog, J.), of that branch of the defendant's omnibus motionwhich was to suppress physical evidence.
Ordered that the judgment is affirmed.
Police Officer Jonas Schwizer gave the following testimony at a suppression hearing.On the evening of June 30, 2008, he responded to a radio dispatch. The dispatchindicated that there was a black male wearing a white T-shirt and black pants who wascarrying a firearm at a certain location in Brooklyn. Shortly thereafter, Schwizer arrivedat that location and observed four individuals, three of whom matched the descriptiongiven in the radio dispatch. Schwizer exited his vehicle, approached the four men, andasked them to show their hands. Two of the individuals who matched the description,and one who did not, put their hands up. The fourth individual, identified as thedefendant, turned away from Schwizer with his hands at his waist area. The defendantdid not comply with Schwizer's request to show his hands and Schwizer could not seethem. Schwizer approached the defendant from behind, reached around and grabbed thedefendant's hands, and then felt the handle of a firearm. The defendant immediately ran,causing a .45 semiautomatic firearm to dislodge and fall to the ground. The defendantwas subsequently apprehended.
At the conclusion of the suppression hearing, the Supreme Court denied that branchof the defendant's omnibus motion which was to suppress the firearm.
"On a motion to suppress physical evidence, the People bear the burden of goingforward to establish the legality of police conduct in the first instance" (People v Hernandez, 40 AD3d777, 778 [2007]; see People v Berrios, 28 NY2d 361, 367-368 [1971]). InPeople v De Bour (40 NY2d 210 [1976]), the Court of Appeals established agraduated four-level test for evaluating the propriety of police encounters when a policeofficer is acting in a law enforcement capacity (see People v Moore, 6 NY3d 496, 498-499 [2006]). Thefirst level permits a police officer to request information from an [*2]individual, and merely requires that the request besupported by an objective, credible reason, not necessarily indicative of criminality(see People v Moore, 6 NY3d at 498; People v De Bour, 40 NY2d at223). The second level, known as the common-law right of inquiry, requires a foundedsuspicion that criminal activity is afoot, and permits a somewhat greater intrusion (seePeople v Moore, 6 NY3d at 498-499). The third level permits a police officer toforcibly stop and detain an individual. Such a detention, however, is not permitted unlessthere is 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). The fourth level authorizes an arrest based onprobable cause to believe that a person has committed a crime (see People v DeBour, 40 NY2d at 223; see also People v Moore, 6 NY3d at 499). Adefendant's later conduct "cannot validate an encounter that was not justified at itsinception" (People v Moore, 6 NY3d at 498).
"Encounters between citizens and the police in public places are of an endless varietywith no two being precisely alike" (People v Finlayson, 76 AD2d 670, 676[1980]). Here, Schwizer properly exercised his common-law right of inquiry when heinitially encountered the defendant, as the defendant matched the general description of aman with a gun at the subject location (see People v Moore, 6 NY3d at 498;People v Spencer, 84 NY2d 749, 753 [1995]; People v Hollman, 79NY2d 181, 184 [1992]; People v Stewart, 41 NY2d 65, 69 [1976]; People v Larmond, 106 AD3d934 [2013]; People v Smith, 207 AD2d 759 [1994]; cf. Florida vJ.L., 529 US 266 [2000]).
At this stage in the encounter, absent reasonable suspicion of criminal activity,Schwizer could not forcibly detain the defendant (see People v May, 81 NY2d725 [1992]). However, during his common-law right of inquiry, Schwizer was permittedto ask the defendant to show or raise his hands as a self-protective measure (seePeople v Herold, 282 AD2d 1, 8 [2001]; People v Oppedisano, 176 AD2d667, 668 [1991]; see also Peoplev Fernandez, 87 AD3d 474, 475 [2011]; People v Hill, 72 AD3d 702 [2010]; Matter of AnthonyS., 181 AD2d 682, 682-683 [1992]).
The defendant's failure to comply with Schwizer's request to show his hands, coupledwith the nature of the report, and the presence of the defendant's hands in his waist area,escalated the encounter and justified Schwizer's conduct in grabbing the defendant'shands as a self-protective measure (see People v Wyatt, 14 AD3d 441, 441-442 [2005]; seealso People v Abdul-Malik, 298 AD2d 595 [2002]; Barry Kamins, New York Search& Seizure § 2.03 [1] at 2-38, 2-39 [2014]). Once Schwizer felt thefirearm in the defendant's waist area, he was furnished with reasonable suspicion (seePeople v Hollman, 79 NY2d at 185; People v De Bour, 40 NY2d at 223; People v Davenport, 92 AD3d689, 690-691 [2012]).
Contrary to the position of our dissenting colleague, the testimony reflects thatSchwizer did not see the defendant's hands when the defendant turned his back with hishands at his waist area when the officer asked the defendant to show his hands. In thisregard, Schwizer initially testified he was unable to see the defendant's hands after thedefendant turned away, but he could see the defendant's hands once he grabbed thedefendant. Indeed, on cross-examination, Schwizer testified that, while the defendant'sback was toward him, he could not see the defendant's hands. The record establishes thatSchwizer's conduct was justified at its inception and reasonably related in scope andintensity to the circumstances of the encounter as it developed (see People v Moyaho, 12AD3d 692, 693 [2004]; People v Douglas, 309 AD2d 517 [2003]).Therefore, the Supreme Court properly denied that branch of the defendant's omnibusmotion which was to suppress the subject firearm.
The defendant contends that, during summation, the prosecutor improperly vouchedfor the credibility of witnesses, made inflammatory comments, and denigrated thedefense. These contentions are unpreserved for appellate review, as the defendant madeonly a general objection, failed to request curative instructions, and did not timely movefor a mistrial on these grounds (see CPL 470.05 [2]; People v Balls, 69NY2d 641, 642 [1986]; Peoplev Salnave, 41 AD3d 872, 874 [2007]). In any event, most of the challengedremarks were either fair comment on the evidence (see People v Ashwal, 39NY2d 105 [1976]) or responsive to arguments and theories presented in the defensesummation (see People v Galloway, 54 NY2d 396 [1981]). To the extent that anyof the challenged remarks were improper, any error in allowing them was harmless inlight of the overwhelming evidence of the defendant's guilt and since there was nosignificant probability that the error might have contributed to the defendant'sconvictions (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People vHill, 286 [*3]AD2d 777, 778 [2001]). Skelos, J.P.,Leventhal and Maltese, JJ., concur.
Hinds-Radix, J., dissents and votes to modify the judgment, on the law, vacate theconviction of criminal possession of a weapon in the second degree and the sentenceimposed thereon, grant that branch of the defendant's omnibus motion which was tosuppress physical evidence, and dismiss the count of the indictment charging thedefendant with criminal possession of a weapon in the second degree, with the followingmemorandum: According to the testimony adduced at the pretrial hearing regarding thatbranch of the defendant's omnibus motion which was to suppress physical evidence, onJune 30, 2008, at around 11 p.m., Police Officer Jonas Schwizer, in uniform, wasassigned to "cover patrol," driving a police sergeant, also in uniform, around a particularprecinct. At around 11:15 p.m., he responded to a radio transmission about "a man with afirearm," described as a black male wearing a white T-shirt and black pants in thevicinity of Hancock and Tompkins Avenues in Brooklyn. He claimed that, when hearrived at that location, he saw four men, three of whom met that general description.However, he acknowledged on cross-examination that he did not look at their pants.
Schwizer testified that, as soon as he stopped his marked radio patrol car, the men"started walking in the opposite direction." The police exited the vehicle, approached themen, and asked "to see their hands." Two of the men who were wearing white T-shirtsand the man not wearing a white T-shirt put their hands up, with their palms facingSchwizer. The defendant, who was wearing a white T-shirt, turned away with his handsat his waist.
Schwizer testified that, from a distance of four to five feet, he was unable to see thedefendant's hands. However, the prosecutor asked him: "at the time you went to get thedefendant's hands, were you able to see his hands?" He replied "Yes," and he furtheracknowledged that he did not see a gun in the defendant's hands.
Schwizer testified that he grabbed the defendant from behind, and felt the area of thedefendant's body around his waist from back to front. As he performed this maneuver, hewas unable to see the defendant's hands. At the front of the defendant's body, Schwizerfelt a hard object, which he ascertained was the handle of a firearm. The defendantmoved to his left, with Schwizer's hand caught in his T-shirt, causing the firearm to fallto the ground.
According to Schwizer, the defendant started to run, but after fleeing one third of ablock, he complied with Schwizer's order to stop, and then he lay on the ground. Thedefendant was placed under arrest.
The Supreme Court denied that branch of the defendant's omnibus motion which wasto suppress physical evidence, concluding that an "anonymous tip" provided the policewith a sufficient basis to request information and authorized them to exercise thecommon-law right to inquire. The Supreme Court further concluded that the defendant'sconduct in failing to comply with the directive to put his hands up, keeping his hands atwaist level, and turning away from the officer, constituted furtive conduct giving rise to areasonable suspicion of criminal activity sufficient to seize the defendant, citing People v Alston (23 AD3d487 [2005]).
In People v Alston, the police actually heard gunshots and, responding to thescene, noted that the defendant and his companion were the only people on the street.The defendant in Alston failed to respond to questions, and placed his hand onhis waistband while engaging in a shoving motion. In the instant case, on the other hand,the police were acting pursuant an anonymous tip, no questions were asked, and thedefendant's hands were visible to the police officer, who saw he had nothing inthem.
As noted by the majority, "on a motion to suppress physical evidence, the Peoplebear [*4]the burden of going forward to establish thelegality of police conduct in the first instance" (see People v Berrios, 28 NY2d361, 367-368 [1971]; People vNichols, 117 AD3d 881 [2014]). The People failed to meet that burden.
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]; People v Hollman, 79 NY2d 181, 184-185 [1992]).The first level permits a police officer to request information from an individual, andmerely requires that the request be supported by an objective, credible reason, notnecessarily indicative of criminality (see People v Moore, 6 NY3d at 498;People v De Bour, 40 NY2d at 223). The second level, known as thecommon-law right of inquiry, requires a founded suspicion that criminal activity is afoot,and permits a somewhat greater intrusion short of a forcible seizure (see People vMoore, 6 NY3d at 498-499). The third level permits a police officer to forcibly stopand detain an individual, based upon a reasonable suspicion that the individual iscommitting, has committed, or is about to commit a crime (see id. at 499;People v De Bour, 40 NY2d at 223). The fourth level authorizes an arrest based onprobable cause to believe that a person has committed a crime (see People v DeBour, 40 NY2d at 223; see also People v Moore, 6 NY3d at 499).
The general rule is that an anonymous tip justifies exercise of the common-law rightof inquiry (see People v Moore, 6 NY3d at 498; People v Stewart, 41NY2d 65, 69 [1976]; Florida v J.L., 529 US 266, 269-272 [2000]). The Peopleclaim that the police "had the common-law right to inquire because defendant matchedthe description of the man with the gun"—a description which was general andmatched several people in the same location. However, since Schwizer did not look atthe men's pants, it cannot be said that he ascertained that they matched the generaldescription before exercising the common-law right to inquire.
Further, the common-law right to inquire does not authorize an " 'intrusivestep' " amounting to a seizure (Matter of Shakir J., 119 AD3d 792, 795 [2014]; seePeople v Johnson, 54 NY2d 958, 959 [1981]; People v Fernandez, 87 AD3d 474, 475 [2011]; People v Heapps, 13 AD3d107 [2004]). In the instant case, the police asked no questions, and immediatelydirected the defendant and his companions to put up their hands. When the defendantfailed to comply with this specific directive, he was forcibly stopped and frisked.
The majority acknowledges that Schwizer was only furnished with reasonablesuspicion justifying a forcible stop after he grabbed the defendant and felt the firearm inthe defendant's waist area. Thus, the majority is sanctioning a fifth level of policeintrusion, somewhere between the common-law right of inquiry and the forcible stop, notjustified by the De Bour analysis. The intrusion was not minimal (cf. People v Wyatt, 14 AD3d441, 442 [2005]), but, rather, constituted a detention which required 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 v Moore,6 NY3d at 499; Matter of Shakir J., 119 AD3d at 795). However, the police didnot acquire a reasonable suspicion until they unlawfully frisked the defendant. The laterdiscovery of the gun "cannot validate an encounter that was not justified at its inception"(People v Moore, 6 NY3d at 498).
Since the People failed to satisfy their burden of going forward to establish thelegality of the police conduct in the first instance (see People v Whitehurst, 25NY2d 389, 391 [1969]), that branch of the defendant's omnibus motion which was tosuppress physical evidence should be granted, and the count of the indictment chargingthe defendant with criminal possession of a weapon in the second degree should bedismissed.