| People v Savage |
| 2016 NY Slip Op 02184 [137 AD3d 1637] |
| March 25, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDamone Savage, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve 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 (Russell P. Buscaglia,A.J.), rendered November 12, 2013. The judgment convicted defendant, upon his plea ofguilty, 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, the motion to suppress physical evidence and supplementalmotion to suppress statements are granted, the indictment is dismissed, and the matter isremitted 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 refusing to suppress physicalevidence, i.e., a handgun, and his subsequent oral statements to the police because thepolice lacked an objective, credible reason to justify their initial approach and request forinformation. We agree.
The testimony at the suppression hearing established that at approximately 6:30 p.m.on January 18, 2013, a Buffalo police officer and his partner were conducting a trafficstop in the parking lot of a gas station when they observed defendant and two other menwalking down the sidewalk on the other side of the street in a "higher crime area."According to the officer, defendant was "staring" at him and his partner or at theirmarked patrol vehicle. Upon concluding the traffic stop, the officers crossed the street intheir vehicle in order to drive alongside the men, the officer asked, "what's up, guys?"from the rolled-down passenger window, and defendant then put his head down andstarted walking away at a faster pace. The officer thereafter observed defendant drop agun holster to the ground and, after exiting the vehicle and picking up the holster, theofficer saw defendant discard a handgun into nearby bushes. The officer's partnerpositioned the patrol vehicle to cut off defendant's path of travel, and defendant waseventually apprehended.
In evaluating police conduct, a court "must determine whether the action taken wasjustified in its inception and at every subsequent stage of the encounter" (People vNicodemus, 247 AD2d 833, 835 [1998], lv denied 92 NY2d 858 [1998];see People v De Bour, 40 NY2d 210, 222-223 [1976]). At the first level of apolice-civilian encounter, i.e., a request for information, a police officer may approach anindividual "when there is some objective credible reason for that interference notnecessarily indicative of criminality" (De Bour, 40 NY2d at 223), and "[t]herequest may 'involve[ ] basic, nonthreatening questions regarding, for instance, identity,address or destination' " (People v Garcia, 20 NY3d 317, 322 [2012], quotingPeople v Hollman, 79 NY2d 181, 185 [1992]). Although the first level "sets a lowbar for an initial encounter" (People v Barksdale, 26 NY3d 139, 143 [2015]), the Courtof Appeals has nevertheless observed that, "[i]n determining the legality of an encounterunder De Bour and Hollman, it has been crucial whether a nexus to[defendant's] conduct existed, that is, whether the police were aware of or observedconduct [*2]which provided a particularized reason torequest information. The fact that an encounter occurred in a high crime vicinity, withoutmore, has not passed De Bour and Hollman scrutiny" (People vMcIntosh, 96 NY2d 521, 526-527 [2001]).
Here, we conclude that the officers engaged in a level one approach and request forinformation when they concluded the traffic stop after observing defendant and the othermen walking down the sidewalk, crossed the street in their marked patrol vehicle in orderto drive alongside the men, and asked them the basic, nonthreatening question, "what'sup, guys?" (see People vHoward, 129 AD3d 1654, 1654 [2015]; People v Johnston, 103 AD3d 1202, 1203 [2013], lvdenied 21 NY3d 912 [2013]; People v Carr, 103 AD3d 1194, 1194 [2013]). Contrary tothe People's contention, it cannot be said, under such circumstances, that the officers'approach and inquiry was merely a "friendly greeting" that did not constitute a requestfor information (cf. People v Thornton, 238 AD2d 33, 35 [1998]).
We agree with defendant that the officers' conduct was not justified from itsinception. We conclude that merely staring at or otherwise looking in the direction ofpolice officers or a patrol vehicle in a high crime area while continuing to proceed onone's way, absent any indicia of nervousness, evasive behavior, or other movements inresponse to seeing the police, i.e., "attendant circumstances . . . sufficient toarouse the officers' interest" (De Bour, 40 NY2d at 220), is insufficient to providethe police with the requisite "objective, credible reason, not necessarily indicative ofcriminality" to justify a level one encounter (Hollman, 79 NY2d at 184; seeDe Bour, 40 NY2d at 223; cf. e.g. Matter of Demitrus B., 89 AD3d 1421, 1421-1422[2011]; Matter of Steven McC., 304 AD2d 68, 72-73 [2003], lv denied100 NY2d 511 [2003]; People v Randolph, 278 AD2d 52, 52 [2000], lvdenied 96 NY2d 762 [2001]). Here, beyond the fact that defendant had stared at thepolice in a "higher crime area" while continuing to walk down the sidewalk, the officerstestified to no further observations of defendant or the other men that drew their attention(cf. People v White, 117AD3d 425, 425 [2014], lv denied 23 NY3d 1044 [2014]; People v Sims, 106 AD3d1473, 1473 [2013], appeal dismissed 22 NY3d 992 [2013]; Johnston,103 AD3d at 1203; Randolph, 278 AD2d at 52) and, to the extent that the courtfound that defendant displayed any nervous or evasive behavior upon initially seeing theofficers, we conclude that such a finding is unsupported by the record. We agree withdefendant that the officers lacked other attendant circumstances to arouse their interestinasmuch as the encounter occurred at 6:30 in the evening rather than late at night andthere was automobile traffic in the area at that time (cf. De Bour, 40 NY2d at220; People v Riddick, 70AD3d 1421, 1422 [2010], lv denied 14 NY3d 844 [2010]). The suppressionhearing testimony further established that the officers were not responding to a dispatchwith a description of a suspect in the area matching defendant's appearance (cf.Howard, 129 AD3d at 1654; People v Burnett, 126 AD3d 1491, 1491-1492 [2015]). Wethus conclude that the officers lacked an objective, credible reason for the level oneapproach and request for information (see People v Laviscount, 116 AD3d 976, 978-979 [2014],lv denied 24 NY3d 962 [2014]; People v Larmond, 106 AD3d 934, 934 [2013], lvdenied 21 NY3d 1043 [2013]; Matter of Michael F., 84 AD3d 468, 468 [2011]). Thus, thecourt erred in refusing to suppress the handgun and defendant's subsequent oralstatements to police.
In light of our determination that the court should have granted defendant's motionseeking to suppress physical evidence and his supplemental motion seeking to suppresshis oral statements to police, defendant's guilty plea must be vacated (seeRiddick, 70 AD3d at 1424). Further, inasmuch as our determination results in thesuppression of all evidence in support of the crime charged, the indictment must bedismissed (see People vHightower, 136 AD3d 1396, 1397 [2016]). We therefore remit the matter toSupreme Court for proceedings pursuant to CPL 470.45. Present—Whalen, P.J.,Centra, Peradotto, Carni and Scudder, JJ.