| People v Clermont |
| 2015 NY Slip Op 07989 [133 AD3d 612] |
| November 4, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jocelyn Clermont, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John Castellano,Johnnette Traill, and Christopher J. Blira-Koessler of counsel), for respondent.
Appeal by the defendant from an amended judgment of the Supreme Court, QueensCounty (Aloise, J.), rendered May 15, 2014, upon remittitur from the Court of Appeals(22 NY3d 931 [2013]), which brings up for review the denial, after a hearing, of thatbranch of the defendant's omnibus motion which was to suppress physical evidence.
Ordered that the amended judgment is reversed, on the law, that branch of thedefendant's omnibus motion which was to suppress physical evidence is granted, theindictment is dismissed, and the matter is remitted to the Supreme Court, Queens County,for further proceedings consistent with CPL 160.50.
On October 15, 2006, at 9:15 p.m., Detective John Lunt and Officer Michael Duffywere on routine patrol in an unmarked vehicle in a neighborhood of Jamaica, Queens,known for gang activity. Detective Lunt had worked for the New York City PoliceDepartment for approximately 10 years, and had worked with the Queens Gang Squadfor approximately six years. Detective Lunt observed the defendant and another manwalking down the street. After observing the defendant make "constant adjustments" tothe right side of his waistband, the police officers stopped and exited their vehicle.Detective Lunt displayed his shield and identified himself as a police officer. Thedefendant ran in the opposite direction and Detective Lunt chased after him. During thepursuit, the defendant took a firearm from the right side of his waistband and threw itonto the ground. The defendant was apprehended soon thereafter.
Following a suppression hearing, the Supreme Court denied that branch of thedefendant's omnibus motion which was to suppress the firearm. After a jury trial, thedefendant was convicted of criminal possession of a weapon in the second degree andcriminal possession of a weapon in the third degree (two counts).
"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, [*2]6 NY3d 496, 498-499 [2006]). The first level permits apolice officer to request information from an individual, and merely requires that therequest be supported by an objective, credible reason, not necessarily indicative ofcriminality (see id. at 498; People v De Bour, 40 NY2d at 223). Thesecond level, known as the common-law right of inquiry, requires a founded suspicionthat criminal activity is afoot, and permits a somewhat greater intrusion (see People vMoore, 6 NY3d at 498-499). The third level permits a police officer to forcibly stopand detain an individual. Such a detention, however, is not permitted unless there is areasonable suspicion that an individual is committing, has committed, or is about tocommit a crime (see People v De Bour, 40 NY2d at 223; see also People vMoore, 6 NY3d at 499). The fourth level authorizes an arrest based on probablecause to believe that a person has committed a crime (see People v De Bour, 40NY2d at 223; see also People v Moore, 6 NY3d at 499; People vHollman, 79 NY2d 181, 184-185 [1992]).
In order to justify police pursuit, the officers must have "reasonable suspicion that acrime has been, is being, or is about to be committed" (People v Holmes, 81NY2d 1056, 1058 [1993]). Reasonable suspicion has been defined as "that quantum ofknowledge sufficient to induce an ordinarily prudent and cautious person under thecircumstances to believe criminal activity is at hand" (People v Martinez, 80NY2d 444, 448 [1992] [internal quotation marks and brackets omitted]). A suspect's"[f]light alone . . . even [his or her flight] in conjunction with equivocalcircumstances that might justify a police request for information, is insufficient to justifypursuit" (People v Holmes, 81 NY2d at 1058 [citations omitted]; see People vSierra, 83 NY2d 928, 929 [1994]; People v Carmichael, 92 AD3d 687, 688 [2012]).However, flight, "combined with other specific circumstances indicating that the suspectmay be engaged in criminal activity, could provide the predicate necessary to justifypursuit" (People v Holmes, 81 NY2d at 1058; see People v Sierra, 83NY2d at 929-930; see also People v Martinez, 80 NY2d at 447).
Here, Detective Lunt's experience with gang activity, his awareness that he was in anarea known for gang activity, and his observation that the defendant made "constantadjustments" to the right side of his waistband, did not constitute specific circumstancesindicative of criminal activity so as to establish the reasonable suspicion that wasnecessary to lawfully pursue the defendant, even when coupled with the defendant'sflight from the police (seePeople v Haynes, 115 AD3d 676, 676-677 [2014]; People v Carmichael, 92 AD3d687 [2012]; see also Peoplev Cady, 103 AD3d 1155 [2013]; People v Stevenson, 7 AD3d 820, 821 [2004]; see generally Matter of ShakirJ., 119 AD3d 792, 795 [2014]). Detective Lunt's observations were readilysusceptible of an explanation that could be indicative either of innocence or guilt. ThePeople failed to adduce testimony showing, for example, that the officers observed thedefendant in possession of what appeared to be a gun or that the defendant's conduct inadjusting his waistband was indicative of gun possession (cf. People v Pines, 99NY2d 525 [2002]; People vFletcher, 130 AD3d 1063, 1064 [2015]; People v Stephenson, 89 AD3d 872, 872-873 [2011]; People v Henderson, 85 AD3d663 [2011]). At most, the police had only a common-law right to inquire under thesecond level of DeBour. The defendant had a right to refuse to respond to thepolice inquiry (see People v Stevenson, 7 AD3d at 821), and his flight when theofficers approached him did not, under the circumstances of this case, create a reasonablesuspicion of criminal activity (see People v May, 81 NY2d 725, 728 [1992];cf. People v Martinez, 80 NY2d at 448).
As the police officers lacked reasonable suspicion to pursue the defendant, thepursuit was unlawful, and the defendant's disposal of the weapon during the pursuit wasprecipitated by the illegality and was not attenuated from it (see People v Haynes,115 AD3d at 677; People vCarmichael, 92 AD3d 687 [2012]). Thus, the Supreme Court should havegranted that branch of the defendant's omnibus motion which was to suppress thefirearm. Without that evidence, there could not be sufficient evidence to prove thedefendant's guilt of criminal possession of a weapon in the second degree and criminalpossession of a weapon in the third degree. Therefore, the indictment must be dismissed(see People v Carmichael, 92 AD3d at 688). Mastro, J.P., Leventhal, Duffy andBarros, JJ., concur.