| People v Burnett |
| 2015 NY Slip Op 02613 [126 AD3d 1491] |
| March 27, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDaniel J. Burnett, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang,J.), rendered May 23, 2013. The judgment convicted defendant, upon his plea of guilty,of criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, the plea is vacated, those parts of the omnibus motion seeking to suppressphysical evidence and statements are granted, the indictment is dismissed, and the matteris remitted to Supreme Court, Erie County, for proceedings pursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofcriminal possession of a weapon in the second degree (Penal Law § 265.03[3]), defendant contends that Supreme Court erred in denying his motion to suppressphysical evidence, i.e., a handgun, and his subsequent oral statements to the policebecause the police lacked reasonable suspicion to justify the search of his person. Weagree.
According to the evidence presented at the suppression hearing, two police officerson routine patrol in the City of Buffalo received a 911 dispatch at approximately 5:45p.m. that an unidentified caller reported that a man wearing blue jeans and a blue hoodiehad displayed a gun to a woman on Brinkman Street. About 10 minutes later, the officersobserved a man dressed in blue jeans and a blue hoodie walking down a street that is alittle over a mile away from the Brinkman Street address. According to one of theofficers, the man, later identified as defendant, was "staring" at their marked policevehicle. The officers drove up next to defendant and requested identification. Defendantretrieved his identification from the pocket of his jeans and handed it to the officers. Theofficers returned defendant's identification, and he began to walk away. The policefollowed defendant in the patrol vehicle and again pulled up next to him. Defendant's lefthand was in the left pocket of his pants. One of the officers exited the patrol car, grabbeddefendant's left hand inside of his jeans pocket, and felt what he believed to be ahandgun. After several unsuccessful attempts to retrieve the object from defendant'spocket, defendant yelled "the gun's in my pajama pants." Defendant was wearing pajamapants underneath his jeans. The officer removed the gun from the pocket of defendant'spajama pants and placed him under arrest.
It is well established that, in evaluating the legality of police conduct, we "mustdetermine whether the action taken was justified in its inception and at every subsequentstage of the encounter" (People v Nicodemus, 247 AD2d 833, 835 [1998], lvdenied 92 NY2d 858 [1998], citing People v De Bour, 40 NY2d 210, 215[1976]). In De Bour, the Court of Appeals "set forth a graduated four-level testfor evaluating street encounters initiated by the police: level one permits a police officerto request information from an individual and merely requires that the request besupported by an objective, credible reason, not necessarily indicative of criminality; leveltwo, the common-law right of inquiry, permits a somewhat greater intrusion and requiresa founded suspicion that [*2]criminal activity is afoot;level three authorizes an officer to forcibly stop and detain an individual, and requires areasonable suspicion that the particular individual was involved in a felony ormisdemeanor; [and] level four, arrest, requires probable cause to believe that the personto be arrested has committed a crime" (People v Moore, 6 NY3d 496, 498-499 [2006]).
Here, contrary to defendant's contention, we conclude that the information providedin the 911 dispatch coupled with the officers' observations provided the police with "anobjective, credible reason for initially approaching defendant and requesting informationfrom him" (People v Hill, 302 AD2d 958, 959 [2003], lv denied 100NY2d 539 [2003]; see People vCrisler, 81 AD3d 1308, 1309 [2011], lv denied 17 NY3d 793 [2011]).The officers pulled up next to defendant and, without exiting the vehicle, asked to seedefendant's identification and asked defendant where he was going and where he wascoming from, which was a permissible level one intrusion (see People vMcIntosh, 96 NY2d 521, 525 [2001]; People v Hollman, 79 NY2d 181, 185[1992]; People v Rodriguez,82 AD3d 1614, 1615 [2011], lv denied 17 NY3d 800 [2011]).
Contrary to the further contention of defendant, we conclude that his failure toanswer the officers' questions about where he was going and where he was coming from,when added to the information acquired from the police dispatch and defendant'sheightened interest in the patrol car, created a "founded suspicion that criminality [was]afoot," justifying a level two intrusion (Hollman, 79 NY2d at 185; seeMoore, 6 NY3d at 500; People v Glover, 87 AD3d 1384, 1384 [2011], lvdenied 19 NY3d 960 [2012]; People v Robinson, 278 AD2d 808, 808-809[2000], lv denied 96 NY2d 787 [2001]). The common-law right of inquiry"authorized the police to ask questions of defendant—and to follow defendantwhile attempting to engage him—but not to seize him in order to do so"(Moore, 6 NY3d at 500 [emphasis added]). The police therefore acted lawfully infollowing defendant for the purpose of obtaining an answer to their valid questions abouthis whereabouts. The encounter, however, quickly escalated to a level three intrusionwhen one of the officers grabbed defendant's hand and patted the outside of his pantspocket. "[A] stop and frisk is a more obtrusive procedure than a mere request forinformation or a stop invoking the common-law right of inquiry, and as such normallymust be founded on a reasonable suspicion that the particular person has committed or isabout to commit a crime" (People v Benjamin, 51 NY2d 267, 270 [1980])." '[W]here no more than a common-law right to inquire exists, a frisk must bebased upon a reasonable suspicion that the officers are in physical danger and thatdefendant poses a threat to their safety' " (People v Stevenson, 273 AD2d826, 827 [2000]; see Robinson, 278 AD2d at 808; see generally People v Lopez,71 AD3d 1518, 1519 [2010], lv denied 15 NY3d 753 [2010]). Here, thePeople do not contend that the police had reasonable suspicion that defendant hadcommitted or was about to commit a crime at the time of the frisk, and we agree withdefendant that reasonable suspicion did not exist (see People v Holmes, 81 NY2d1056, 1057-1058 [1993]). Rather, the sole justification proffered for the officer's conductwas that he feared for his safety (see People v Salaman, 71 NY2d 869, 870[1988]). We thus must determine "whether a reasonably prudent [person] in thecircumstances would be warranted in the belief that his [or her] safety or that of otherswas in danger" (Terry v Ohio, 392 US 1, 27 [1968]). In making thatdetermination, we must give "due weight . . . , not to [the officer's] inchoateand unparticularized suspicion or 'hunch,' but to the specific reasonable inferences whichhe [or she] is entitled to draw from the facts in light of his [or her] experience"(id.; see People v Batista, 88 NY2d 650, 653-654 [1996]; People vRuss, 61 NY2d 693, 695 [1984]). The fact that defendant's hand was in his pocketdoes not, standing alone, "provid[e] a reasonable basis for suspecting that [defendant][was] armed and may [have been] dangerous" (Russ, 61 NY2d at 695; seePeople v Santiago, 64 AD2d 355, 361 [1978]; see also People v Gray, 154AD2d 301, 303 [1989]). A jeans pocket, unlike a waistband or even a jacket pocket, isnot "a common sanctuary for weapons" (People v Canady, 261 AD2d 631, 632[1999], lv dismissed 93 NY2d 967 [1999], reconsideration denied 93NY2d 1015 [1999]; see Holmes, 81 NY2d at 1058; De Bour, 40 NY2d at221). Moreover, unlike in other cases where we have sanctioned a frisk for weapons,there was no evidence in this case that defendant refused to comply with the officers'directives or that he made any furtive, suspicious, or threatening movements (see e.g. People v Carter, 109AD3d 1188, 1189 [2013], lv denied 22 NY3d 1087 [2014]; People v Fagan, 98 AD3d1270, 1271 [2012], lv denied 20 NY3d 1061 [2013], cert denied 571US &mdash, 134 S Ct 262 [2013]; Glover, 87 AD3d at 1384-1385; cf. People v Sims, 106 AD3d1473, 1474 [2013], appeal dismissed 22 NY3d 992 [2013]). Indeed, underthe circumstances of this case, the presence of defendant's hand in his left pants pocketwas particularly innocuous and " 'readily susceptible of an innocentinterpretation' " (Peoplev Riddick, 70 AD3d 1421, 1422 [2010], lv denied 14 NY3d 844 [2010];see People v Brannon, 16NY3d 596, 602 [2011]). Defendant retrieved his identification from his left pantspocket and returned it to that pocket after complying with the officers' request to produceidentification (cf. Sims, 106 [*3]AD3d at1473-1474).
We therefore conclude that, "[b]ecause the officer lacked reasonable suspicion thatdefendant was committing a crime and had no reasonable basis to suspect that he was indanger of physical injury, . . . the ensuing pat frisk of defendant wasunlawful" (People vMobley, 120 AD3d 916, 918 [2014]; see Stevenson, 273 AD2d at827; Canady, 261 AD2d at 632). We therefore reverse the judgment, vacate theplea, grant those parts of defendant's omnibus motion seeking to suppress the handgunseized from his person and his subsequent oral statements to the police, dismiss theindictment, and remit the matter to Supreme Court for proceedings pursuant to CPL470.45. Present—Smith, J.P., Peradotto, Lindley, Valentino and Whalen, JJ.