| People v Perez |
| 2016 NY Slip Op 05730 [142 AD3d 410] |
| August 4, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Rafael Perez, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Steven J. Miraglia ofcounsel), for appellant.
Rafael Perez, appellant pro se.
Darcel D. Clark, District Attorney, Bronx (Shera Knight of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered November29, 2006, convicting defendant, after a jury trial, of robbery in the first degree andviolation of probation, and sentencing him, on the robbery conviction, as a second felonyoffender, to a term of 15 years, and on the violation of probation, to a concurrent term offive years, affirmed. Judgment, Supreme Court, Bronx County (John N. Byrne, J.),rendered March 7, 2005, convicting defendant, upon his plea of guilty, of assault in thesecond degree, and sentencing him to a term of six months, concurrent with five years'probation, modified, on the law, to the extent of vacating the sentence and remanding fora youthful offender determination, and otherwise affirmed.
Defendant was apprehended by police officers who were investigating a pattern ofrobberies inside a New York City Housing Authority (NYCHA) building by performinga "vertical patrol." The police had made prior arrests for narcotics and trespass at thebuilding, and considered it a high-crime area. The officers were in plain clothes, withtheir shields displayed around their necks. As part of the investigation, the officers wereknocking on residents' doors and conducting interviews.
While the officers were on the seventh floor, the elevator door opened. Severalindividuals exited the elevator, followed by defendant, who was wearing a black T-shirtover a yellowish-tan hooded sweatshirt with the hood up. Defendant took one step out ofthe elevator, but, apparently upon noticing the officers, went back into the elevator.When one of the officers said to him, "Can you hold the door, police, hold the door,"defendant "kept pressing" the elevator button to close the door. The door closed and theelevator went up. According to the officer, defendant's behavior, coupled with the factthat the building entertained heavy narcotics traffic, motivated him and his colleagues togo up the stairs to verify that defendant belonged in the building. When the elevator didnot stop on the eighth floor, the officers walked to the ninth floor and saw defendant inthe hallway. One of the officers approached defendant, again identified himself as apolice officer, and asked him if he lived in the building. Defendant did not respond, andturned and faced the wall with his head down and his hood up. Upon approachingdefendant, the officer observed a bulge in the sleeve covering defendant's right arm,which defendant was holding stiffly "straight down" from his body with his hands hiddenunder his sleeves. He again asked defendant if he lived in the building, and againdefendant did not respond. The officer then asked defendant if he had any weapons, and,when defendant remained silent, he directed him to show his hands. When defendantrefused to comply, the officer repeated his direction "several times," but defendant wouldnot cooperate. Concerned for his safety, the officer grabbed defendant's wrist area, wherehe felt a metal object. He then raised [*2]defendant's arm,pulled back his sweater, and observed the silver tip of a machete. Defendant was orderedto drop the machete, and again refused to comply. The officers removed the two-footmachete from his sleeve. Defendant was arrested, and $175 was recovered fromhim.
Around the same time, a police sergeant received a radio transmission describing arobbery that had occurred earlier that evening near the building where defendant hadbeen arrested. The sergeant was informed that the complainant reported that he wasrobbed at the point of a machete by two males, one with a red jacket and the other with ablack shirt over a yellow mustard hooded sweatshirt. While canvassing for suspects, thesergeant received a phone call from the officer who had arrested defendant in which theofficer reported the arrest and defendant's possession of a machete. Upon hearing thedescription of defendant's clothing, which matched the description of the robberysuspect, the sergeant instructed the arresting officer to hold defendant at the scene untilhe arrived. He then picked up the complainant and transported him to outside thebuilding where defendant had been arrested and was being held in the lobby. Fromwithin a police vehicle, and not having been informed that a machete was recovered ortold that the person he would view matched the description he gave to police, thecomplainant, upon seeing the handcuffed defendant through the window of the buildinglobby, immediately identified defendant as the person who had robbed him.
Defendant, still handcuffed, was then placed in a police van and met by anotherofficer, who asked him how he was doing. Defendant replied by saying that he knew hewas "going up north" and that he would "tell you what you want" if he was given asandwich. The officer transported defendant to the precinct, placed him in the debriefingroom, and instructed two officers to get defendant a sandwich. When they returned withthe sandwich 15 to 20 minutes later, the officer gave it to defendant. Immediately,defendant stated that "[t]he other guy [you are] looking for" was in his apartment. Theofficer never questioned defendant and did not advise him of his Mirandarights.
Supreme Court denied defendant's motion to suppress. With regard to the stop andsearch of defendant, the court found that "all of the police actions were justified fromtheir inception." The court concluded that defendant caused the officers to becomesuspicious when he stepped back into the elevator after observing them with their shieldsdisplayed and failed to comply with the direction to hold the elevator door. This, thecourt held, gave the officers the necessary predicate to follow defendant to the ninth floorand ask him if he lived in the building. The court further concluded that the arrestingofficer had a legitimate concern for his safety and a credible reason to believe defendanthad a weapon, based on defendant's refusal to answer his questions, the manner in whichhe was holding his arm, and the bulge under his sleeve. The court found that oncedefendant refused to comply with the officer's direction to show his hands, the officerwas justified in taking the added step of pulling back defendant's sleeve, which revealedthe presence of the machete.
The court ruled that the showup was not suggestive because the sergeant whobrought the complainant to the building where defendant was arrested did not reveal tothe complainant that defendant possessed a machete and that defendant matched thecomplainant's description of his assailant to police. It noted that the complainant'simmediate identification of defendant, without any prompting, indicated that theidentification was not tainted by suggestiveness and was not the fruit of any unlawfulpolice conduct. Regarding defendant's statements, the court held that while the Peopleconceded custody, defendant was not interrogated and that his statements werecompletely spontaneous.
Defendant argues on appeal that his arrest was wrongful because the entire series ofevents that precipitated it was based on a misperception of behavior that was notinherently suspicious and that was consistent with his right to be left alone. The Peoplemaintain that the police officers had the right to question defendant based on his merepresence in the building, since it was a NYCHA building that was rife with trespassingand other illegal activity. In any event, the People contend that defendant's retreat into theelevator was sufficient to, at the very least, trigger their right to inquire, and that theactions by defendant that followed justified the officers' decisions to grab his arm andarrest him after discovering the machete.
In determining whether a police encounter with a member of the public is justified,we [*3]must consider all of the attendant circumstances(see People v Benjamin, 51 NY2d 267, 271 [1980]; People v Stephens, 47 AD3d586, 588-589 [1st Dept 2008], lv denied 10 NY3d 940 [2008]). Here, onesuch circumstance was the fact that the building was owned by NYCHA and that theofficers had a duty to keep it free of trespassers (see People v Williams, 16 AD3d 151 [1st Dept 2005],lv denied 5 NY3d 771 [2005]). It is unclear from People v Barksdale (26 NY3d139 [2015]), recently decided by the Court of Appeals, whether defendant's merepresence in the building gave rise to a level one inquiry under People v De Bour(40 NY2d 210 [1976]), since Barksdale specifically dealt with a private buildingregistered in the trespass affidavit program. However, the officers did not testify thatdefendant's mere presence in the building caused them to suspect that he did not belongthere; rather, it was that fact combined with his effort to prevent them from getting intothe elevator with him. Even if the officers did not have an objective credible reason toquestion defendant based only on Barksdale, the building's trespass history,together with defendant's apparently panicked attempt to avoid contact with them upontheir attempt to enter the elevator, gave the officers the right to inquire of defendant.
It is not insignificant that defendant actively evaded the officers' efforts to get intothe elevator with him. Indeed, that is what distinguishes this case from People v Johnson (109 AD3d449 [1st Dept 2013], appeal dismissed 23 NY3d 1001 [2014]). InJohnson, this Court reversed the denial of suppression of a gun recovered fromthe defendant. The sole predicate for the initial encounter there was, according to theofficers in that case, the reputation of the building as "drug-prone" and the defendant'saction of, while descending a staircase immediately upon seeing the officers in the lobby,freezing and jerking back (109 AD3d at 449). Notably, the defendant in Johnsondid not attempt to retreat from the officers (id.). Here, to the contrary, defendantnot only retreated back into the elevator after initially stepping out of it, but also tried tobar the officers from following him into the elevator.
Further, in Johnson, there was no mention of a history of trespass in thebuilding, whereas the officer who initially encountered defendant testified that he hadmade trespass arrests before in the subject building. While, again, the building may nothave been a trespass affidavit building like the building in Barksdale (which,notably, was decided after Johnson), it is at the very least relevant that theofficers were on alert for people who did not belong in the building (see People vHolmes, 81 NY2d 1056, 1058 [1993] ["Flight, combined with other specificcircumstances indicating that the suspect may be engaged in criminal activity, couldprovide the predicate necessary to justify pursuit"]). Similarly distinguishable is Matter of Michael F. (84 AD3d468 [1st Dept 2011]), on which defendant relies, since the stop in that case did nottake place in a building with a history of trespassers. Considering, again as we must, thetotality of the circumstances (see People v Benjamin, 51 NY2d at 271), we findthat the police had an objective, credible reason under De Bour to followdefendant to the ninth floor and ask him if he lived in the building.
The police action that followed was also proper. Defendant's refusal to respond to theofficer's repeated inquiries, first into whether he lived in the building and next whetherhe was armed, and the direction to show his hands, was, while perhaps not determinative,still a significant factor escalating the encounter beyond the level one intrusion warrantedby the earlier behavior (seePeople v Fabian, 56 AD3d 334 [1st Dept 2008], lv denied 12 NY3d 783[2009]). Moreover, the officer testified that he was concerned for his safety, which wasjustifiable based on the bulge he observed in defendant's sleeve, the awkward manner inwhich he was holding his arm, and his recalcitrance upon being asked if he had a weaponand directed to display his hands (see People v Chin, 192 AD2d 413 [1st Dept1993], lv denied 81 NY2d 1071 [1993]). The situation encountered by the policein this case differs significantly from cases cited by defendant, such as People v Crawford (89 AD3d422 [1st Dept 2011]) and People v Powell (246 AD2d 366 [1st Dept 1998],appeal dismissed 92 NY2d 886 [1998]), insofar as those cases involveddefendants whom the police initially stopped having no reason to believe that criminalactivity was afoot and whom the police searched with no justification for thinking thatthe defendant was carrying a weapon. Considering the totality of the circumstances, wereject defendant's challenge to the specific manner in which the officer searched him forthe presence of a weapon.
[*4] We take abroader view than the dissent, one authorized by People v De Bour, whichrecognized "that police-citizen encounters are dynamic situations during which thedegree of belief possessed at the point of inception may blossom by virtue of responsesor other matters which authorize and indeed require additional action as the scenariounfolds" (40 NY2d at 225). Here, defendant's active escape from the presence of thepolice, coupled with his utter refusal to face the officers or answer their questions,including whether he was armed, created a situation that was "fraught with tension"(id. at 226) and thus justified the police intrusion. Our view is also more broadthan the dissent's with respect to whether the officers were authorized in searchingdefendant for a weapon. The dissent takes too narrow a view when it focuses only on theofficers' inability to definitively ascribe the bulge in defendant's sleeve to the presence ofa weapon. The focus should be on all of the attendant circumstances, including themanner in which defendant was holding his arm and his refusal to state whether he wasarmed or to show his hands when asked.
The showup, in close geographic and temporal proximity to the robbery, wasappropriate and was not rendered unduly suggestive by the fact that defendant washandcuffed and flanked by officers (see People v Gilford, 16 NY3d 864, 868 [2011]; People v Gatling, 38 AD3d239 [1st Dept 2007], lv denied 9 NY3d 865 [2007]). Further, the recordsupports the court's determination that defendant's statements were spontaneous and notthe product of interrogation (see People v Lynes, 49 NY2d 286 [1980]). Theobjections to the prosecutor's remarks fell within the broad leeway afforded prosecutorsto address defense arguments on summation (see People v Galloway, 54 NY2d396 [1981]). In any event, any error was harmless in light of the overwhelming evidenceof guilt (see People v Crimmins, 36 NY2d 230 [1975]).
The People concede, as they must, that defendant is entitled to vacatur of hissentence for the earlier assault conviction and to a resentencing that considers whether hequalifies for youthful offender status (People v Rudolph, 21 NY3d 497 [2013]). Nevertheless,defendant is not entitled to vacatur of the sentence for the robbery conviction. It is truethat, for a prior conviction to serve as a predicate violent felony conviction, "[s]entenceupon such prior conviction must have been imposed before commission of the presentfelony" (Penal Law § 70.04 [1] [b] [ii]). However, we find that a remandfor an adjudication of youthful offender status is, for purposes of determining suchsequentiality, analogous to a remand for the imposition of postrelease supervision underPeople v Sparber (10 NY3d457 [2008]). A Sparber resentencing has been held not to upset sequentialityfor purposes of determining whether the conviction for which the remand was orderedcan serve as a predicate for multiple felony offender status (see People v Boyer, 22 NY3d15 [2013]; People vAcevedo, 17 NY3d 297 [2011]). To be sure, a remand for a youthful offenderdetermination differs somewhat from a Sparber remand since the former canresult in an actual change to the incarceration element of the sentence whereas as thelatter "does not permit the resentencing court to alter the defendant's prison term orotherwise change any aspect of his or her sentence" (Boyer, 22 NY3d at 24,citing People v Lingle, 16NY3d 621, 634-635 [2011]). However, as stated in Boyer, "Importantly, therule that the original sentence date controls for purposes of a conviction's qualification asa predicate felony conviction serves the public policy underlying the recidivist sentencingstatutes. As we have previously observed, those laws are meant to enhance sentences fordefendants who refuse to reform after receiving a valid conviction for a crime andhearing the court pronounce sentence (see People v Morse, 62 NY2d 205, 222[1984]). Under this rationale, a defendant who was sentenced for a prior conviction andthen commits a new crime plainly deserves enhanced punishment for the new crimebecause the defendant remains unchastened after the court's pronouncement of thesentence for the prior conviction, and the defendant's heightened culpability cannot bemitigated in any way by a subsequent Sparber resentencing. Under thosecircumstances, it would make no sense to set the date of sentence for the defendant's[*5]prior conviction to the date of the Sparberresentencing and thereby prevent the court from enhancing the defendant's sentence forthe current crime" (22 NY3d at 26).
We see no reason why the same public policy behind Boyer does not apply inthe context of remands for youthful offender determinations. Of course, to the extentthat, upon remand, the court determines that defendant should receive youthful offenderstatus on the earlier conviction, defendant will be entitled to challenge the sentence onthe later conviction by moving pursuant to CPL 440.20.
We have considered and rejected defendant's remaining claims and including thoseset forth in his pro se supplemental briefs. Concur—Mazzarelli, J.P., Sweeny andKahn, JJ.
Manzanet-Daniels and Gische, JJ., dissent in a memorandum by Gische, J., asfollows: I respectfully dissent, because I believe that from the inception of his encounterwith the police, defendant's conduct was consistent with his constitutional right to avoidcontact with the police. In addition, the subsequent observation by the police of anotherwise undefined bulge under defendant's sleeve did not furnish the officers with therequisite reasonable suspicion or a basis for believing that the person subjected to theintrusion was armed and potentially dangerous. Under these circumstances, the policedetention and frisk of defendant by grabbing his wrists, pulling up his sleeves, andremoving a weapon from his body was not justified.
In evaluating the propriety of police conduct, the analysis is confined only to theinformation known to the officers at the time of the encounter (People v Cruz, 129 AD3d119, 121 [1st Dept 2015]; People v Coles, 48 AD2d 345, 347 [1st Dept1975]). Facts that come to light through the subsequent unraveling of events, or that arelater established at trial, do not bear upon whether the initial stop was conducted in aconstitutionally permissible manner.
The testimony at the suppression hearing revealed that on the evening of October 12,2005, three police officers were performing vertical patrols inside a NYCHA building inthe Castle Hill Housing Development. The officers were dressed in plain clothes, butdisplayed their shields around their necks. Castle Hill Housing was known to be ahigh-crime area.
While on the seventh floor, the officers saw the elevator door open and severalpeople exit, followed by defendant, who was wearing a black T-shirt over amustard-yellow hoodie with the hood covering his head. Defendant took one step out ofthe elevator, but upon seeing the officers he "went back into the elevator." OfficerRodriguez thereupon asked him, "Can you hold the door, police, hold the door?"According to Officer Rodriguez, defendant "kept pressing the elevator button to close thedoor." The elevator doors closed, and the cab ascended. Officer Rodriguez testified thatbecause there had been a lot of narcotics traffic in the building, the officers wanted toascertain whether defendant lived in the building. The officers climbed the stairs andencountered defendant standing in the ninth-floor hallway. When Officer Rodriguezapproached defendant, he identified himself as a police officer and asked defendant if helived in the building. Defendant did not respond, and turned to face the wall with hishead down looking towards the ground. Officer Rodriguez again asked defendant if helived in the building, and again defendant did not answer. Officer Rodriguez then noticeda bulge underneath the sleeve of defendant's right arm. Defendant's hands were hiddeninside the sleeves of his sweatshirt, and he was holding them stiffly and in a "straightdown" position. When Officer Rodriguez asked defendant if he had any weapons,defendant did not respond. Officer Rodriguez instructed defendant to show him hishands, and repeated the request several times. With defendant continuing to ignore hisrequests, Officer Rodriguez testified that he became concerned for his [*6]safety, causing him to grab defendant's wrist, at whichpoint he felt a metal blade. Officer Rodriguez then rolled up defendant's sleeve andobserved the silver tip of a machete, and ordered defendant to drop it. When defendantdid not do as directed, Officer Rodriguez physically removed a machete from insidedefendant's sleeve. Defendant was then placed under arrest.
Only after defendant was apprehended did Officer Rodriguez learn, through a phonecall to Sergeant Charles Hyland, that a robbery had been reported as having occurredearlier in the day, within close proximity to the Castle Hill Houses. The report indicatedthat the complainant had been robbed by two males, one wearing a red jacket and theother wearing a black shirt over a mustard-yellow hoodie sweatshirt and wielding amachete. Sergeant Hyland, upon learning from Officer Rodriguez that defendantmatched the description of the assailant, directed that defendant be held at the scene. Thecomplainant was then brought to the scene, and defendant was identified as one of hisassailants.
"The touchstone of any analysis of a governmental invasion of a citizen's personunder the Fourth Amendment and the constitutional analogue of New York State isreasonableness" (People v Batista, 88 NY2d 650, 653 [1996] [internal quotationmarks omitted]). Whether governmental action is reasonable will turn on the facts ofeach case and requires consideration of whether the police action at issue "was justifiedin its inception and whether . . . it was reasonably related in scope to thecircumstances which created the encounter" (People v Powell, 246 AD2d 366,368 [1st Dept 1998], appeal dismissed 92 NY2d 886 [1998]). The lawfulness ofpolice-initiated encounters with private citizens is governed by the graduated four-leveltest first outlined in People v De Bour (40 NY2d 210, 223 [1976]; see alsoPeople v Hollman, 79 NY2d 181 [1992]). The degree of restraint on an individual'sfreedom of movement must correlate with the necessary level of suspicion to warrant theintrusion. Under level one, a police officer may request information from a personprovided that the request is supported by an objectively credible reason that need not benecessarily indicative of criminality. A level two encounter, also known as thecommon-law right of inquiry, permits a more invasive line of questioning of a personwhen the officer has a founded suspicion that criminal activity is afoot. A level threeencounter allows the police to forcibly stop and detain a person if the officer has areasonable suspicion that the person has committed, is committing, or is about to commita crime. Finally, under a level four encounter, an arrest is authorized when the policehave probable cause to believe a person has committed a crime (De Bour, 40NY2d at 223).
Applying these oft-cited and well recognized principles, I believe that even if thepolice were justified at the inception of their contact with defendant in making areasonable inquiry, the nature of the interaction thereafter did not raise the level ofallowable intrusion to a level three. At level three, the facts supporting reasonablesuspicion would have been required before the police could have detained defendant.Moreover, since the police physically grabbed defendant's wrists, patted down his arm,rolled up his sleeves and removed the machete, a particularized reasonable belief thatdefendant was armed and dangerous would have been required (see People vRuss, 61 NY2d 693, 695 [1984]; People v Gonzalez, 295 AD2d 183, 184[1st Dept 2002]).
"[R]easonable suspicion [to justify a seizure] has been aptly defined as the quantumof knowledge sufficient to induce an ordinarily prudent and cautious man under thecircumstances to believe that criminal activity is at hand" (Matter of Jaquan M., 97 AD3d403, 406 [1st Dept 2012], appeal dismissed 19 NY3d 1041 [2012], quotingPeople v Sobotker, 43 NY2d 559, 564 [1978]). It is well settled that a privatecitizen has the constitutional right not to respond to police inquiries (Illinois vWardlow, 528 US 119, 125 [2000]; People v Major, 115 AD3d 1, 5 [1st Dept 2014]). "[W]hilethe police [have] the right to make the inquiry, defendant ha[s] a constitutional right notto respond" (People v Howard, 50 NY2d 583, 590 [1980], cert denied449 US 1023 [1980]). The Court of Appeals has described the right to be left aloneas the "distinguishing factor" between the lower levels of limited permissible policeintrusion that authorize investigatory questioning and the right to forcibly detain, whichrequires a reasonable and articulable basis to suspect involvement in criminal activity(see People v Major, 115 AD3d at 5; People v Moore, 6 NY3d 496, 500 [2006]).
At bar, defendant's conduct in retreating into the elevator to go to another floor, hisphysically turning away from the police when they found him, and his refusal to respondto [*7]police commands or questions during this processall constitute permissible avoidance behavior. We do not agree with the majority thatthese facts justify a conclusion of "flight" or "active escape." In People v Johnson (109 AD3d449 [1st Dept 2013], appeal dismissed 23 NY3d 1001 [2014]), this Courtheld that a person's desire to avoid contact with the police is not an objectively crediblereason for making a level one inquiry. We also held that the fact that the avoidancebehavior occurs in a high-crime neighborhood, including where trespassing and drugactivity occur, does not elevate police avoidance conduct into a level one inquiry(id. at 450; Matter ofMichael F., 84 AD3d 468 [1st Dept 2011]). A fortiori, conduct that does notsupport a level one encounter cannot support the level three encounter that occurred inthis case.
Even if the recent Court of Appeals decision in People v Barksdale (26 NY3d 139 [2015]) in any waylimited our holding in Johnson, the result would still be the same in this case. InBarksdale, the Court of Appeals held that in a private building voluntarilyparticipating in a police protection program, and otherwise restricted by signage and alock, a level one encounter was supported by the "coupling of defendant's presence in thesubject building with the private and protected nature of that location" (id. at143-144). In Barksdale, it was the defendant's answers to police inquiry thatprovided the probable cause necessary for arrest, and the weapon recovered was onlyincident to and after that arrest. At bar, even assuming that under Barksdale,defendant's conduct may have been sufficient to support a level one inquiry, thenonresponsive conduct by defendant did not raise the level of permitted police intrusionto level three. In fact, given that defendant actually lived in the building, if he hadtruthfully answered the police, questioning would have presumably stopped. If adefendant's resistance to answering the police could in itself be relied upon to justify thefrisk, then the right to inquire "would be tantamount to the right to seize, and therewould, in fact, be no right 'to be let alone.' That is not, nor should it be, the law"(People v Holmes, 81 NY2d 1056, 1058 [1993], affg 181 AD2d 27 [1stDept 1992]). This is so because the De Bour/Hollman framework requiresescalating measures of suspicion as necessary to justify each graduated level of intrusion(People v Garcia, 20 NY3d317, 322 [2012]). We agree with the majority that encounters between privatecitizens and police are dynamic, but the dynamics of every encounter do not necessarilyescalate every encounter to the point of an authorized stop and frisk.
The further observation of an otherwise unidentifiable bulge on defendant's arm didnot give the officers reason to believe that defendant had committed a crime or that hewas in possession of a weapon justifying a frisk (People v Crawford, 89 AD3d 422 [1st Dept 2011]). Even atclose range, the shape of the bulge was not readily discernable to the officers and "boreno obvious hallmarks of a weapon" (Matter of Jaquan M., 97 AD3d at 408; see People v Fernandez, 87AD3d 474 [1st Dept 2011]). Without any further indication that defendant wasarmed and posed a threat to the safety of others, such as seeing "the outline of a gun," theseizure was not authorized (People v Blackman, 61 AD2d 916, 916 [1st Dept1978]). The officer's stated concern that defendant had a weapon was not supported byany corroborative observations, such as sudden movements or threatening gestures(see People v Benjamin, 51 NY2d 267, 271 [1980]; People v Smith, 267AD2d 98 [1st Dept 1999], lv denied 95 NY2d 804 [2000]). The record is devoidof testimony that defendant moved or adjusted his arm where the bulge was observed, orthat he even moved at all. Officer Rodriguez's expressed fear for his own safety, withoutthe supporting objective information, does not justify a required finding of aparticularized reasonable suspicion (see People v Oquendo, 221 AD2d 223, 224[1st Dept 1995], appeal dismissed 88 NY2d 1004 [1996]).
There were no other additional objective indicia of criminality present to justify theofficer's actions in this case. From the moment the officers first saw defendant in theelevator up until the time of his arrest, the officers simply had no knowledge that therehad been a robbery in the area or that defendant matched the complainant's description ofone of his assailants. It was only after defendant had been arrested that Officer Rodriguezlearned for the first time, through a telephone conversation with Sergeant Hyland, aboutdefendant's potential involvement in the robbery (compare People v Joyce, 58 AD3d 476 [1st Dept 2009],lv denied 12 NY3d 818 [2009]; People v Santiago, 253 AD2d 673 [1stDept 1998], lv denied 92 NY2d 985 [1998]). Clearly, a different circumstanceregarding police intrusion would have been present had this information [*8]been known before defendant was actually arrested.
Accordingly, I would reverse the November 29, 2006 conviction of robbery in thefirst degree and grant defendant's motion to suppress physical evidence, the showupidentification and statements he made to the police, and remand this matter for a newtrial, preceded by an independent source hearing.