| People v Furrs |
| 2017 NY Slip Op 03192 [149 AD3d 1098] |
| April 26, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Davian Furrs, Appellant. |
Robert DiDio, Kew Gardens, NY (Danielle Muscatello of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Joseph N. Ferdenzi, and Josette Simmons of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Schwartz,J.), rendered August 17, 2015, convicting him of criminal possession of a weapon in the seconddegree and criminal possession of marijuana in the fifth degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing (Paynter, J.), ofthose branches of the defendant's omnibus motion which were to suppress physical evidence andhis statement to law enforcement officials.
Ordered that the judgment is reversed, on the law and the facts, those branches of thedefendant's omnibus motion which were to suppress physical evidence and his statement to lawenforcement officials are granted, the indictment is dismissed, and the matter is remitted to theSupreme Court, Queens County, for further proceedings consistent with CPL 160.50.
The evidence at the defendant's pretrial suppression hearing established that, on July 9, 2014,at approximately 10:55 p.m., Police Officer Timothy Rizzo, Police Officer James Gherardi, andSergeant Stephen Faber were on a routine patrol in an unmarked vehicle and in plainclothes in aneighborhood in Queens. The officers observed a vehicle fail to signal before making a right turnand roll through a stop sign. As the vehicle continued to move at approximately one or two milesper hour, the defendant exited the vehicle from a passenger door holding his waistband. OfficerGherardi, from the unmarked vehicle, yelled, "Police, stop." The defendant ran away from theofficers. Officer Gherardi and Sergeant Faber exited the police vehicle and chased the defendanton foot, and Officer Rizzo chased the defendant in the vehicle. In less than thirty seconds, OfficerRizzo pulled the police vehicle onto the sidewalk, blocking the defendant's path. Once blocked,the defendant took a gun from his waistband and threw it through the bars of a wrought-ironfence. Officer Rizzo exited the vehicle and told the defendant to put his hands up. The defendantraised his hands holding a bag of marijuana and a cell phone. The defendant stated that he "justha[d] weed." The police officers arrested the defendant and recovered the gun approximately twofeet away from where the defendant was stopped.
[*2] At the conclusion of the suppression hearing, the Supreme Court denied those branches ofthe defendant's omnibus motion which were to suppress the firearm, the marijuana, and thedefendant's statement regarding his possession of the marijuana. After a jury trial, the defendantwas convicted of criminal possession of a weapon in the second degree and criminal possessionof marijuana in the fifth degree. The defendant appeals.
"On a motion to suppress physical evidence, the People bear the burden of going forward toestablish the legality of police conduct in the first instance" (People v Clermont, 133 AD3d 612, 613 [2015] [internal quotationmarks omitted]; see People v Berrios, 28 NY2d 361, 367-368 [1971]; People v Hernandez, 40 AD3d777, 778 [2007]). "In order to justify police pursuit, the officers must have 'reasonablesuspicion that a crime has been, is being, or is about to be committed' " (People vClermont, 133 AD3d at 613, quoting People v Holmes, 81 NY2d 1056, 1058[1993]). "Police pursuit of an individual 'significantly impede[s]' the person's freedom ofmovement and thus must be justified by reasonable suspicion that a crime has been, is being, oris about to be committed" (People v Holmes, 81 NY2d at 1057-1058, quoting Peoplev Martinez, 80 NY2d 444, 447 [1992]). "A suspect's '[f]light alone . . . even [hisor her flight] in conjunction with equivocal circumstances that might justify a police request forinformation, is insufficient to justify pursuit' " (People v Clermont, 133 AD3d at614, quoting People v Holmes, 81 NY2d at 1058; see People v Sierra, 83 NY2d928, 929 [1994]; People vCarmichael, 92 AD3d 687, 688 [2012]). "However, flight, 'combined with other specificcircumstances indicating that the suspect may be engaged in criminal activity, could provide thepredicate necessary to justify pursuit' " (People v Clermont, 133 AD3d at 614,quoting People v Holmes, 81 NY2d at 1058; see People v Sierra, 83 NY2d at929-930; see also People v Martinez, 80 NY2d at 447).
Here, the police officers' observations that the defendant exited a slow moving vehicle andheld his waistband did not constitute specific circumstances indicative of criminal activity so asto establish the reasonable suspicion that was necessary to lawfully pursue the defendant, evenwhen coupled with the defendant's flight from the police (see People v Clermont, 133AD3d at 614; People v Cadle, 71AD3d 689, 689 [2010]; People v Grant, 164 AD2d 170, 173 [1990]; see also People v Carmichael, 92 AD3d687 [2012]). The People failed to adduce testimony showing, for example, that the policeofficers observed the defendant in possession of what appeared to be a gun or that the defendant'sconduct in adjusting his waistband was indicative of gun possession (see People vClermont, 133 AD3d at 614).
Since the police officers lacked reasonable suspicion to pursue the defendant, the pursuit wasunlawful, and the defendant's disposal of the gun during the pursuit was precipitated by theillegality and was not attenuated from it (see id.; People v Haynes, 115 AD3d 676, 677 [2014]; People v Carmichael, 92 AD3d687 [2012]). Therefore, that branch of the defendant's motion which was to suppress the gunshould have been granted. Additionally, the marijuana and the defendant's statement should havebeen suppressed as the direct products of the unlawful pursuit (see People v Brogdon, 8 AD3d290, 292 [2004]; People v Foster, 91 AD2d 1046, 1047 [1983]; see also WongSun v United States, 371 US 471, 488 [1963]).
Since the physical evidence and the defendant's statement should have been suppressed, therecould not be legally sufficient evidence to prove the defendant's guilt of criminal possession of aweapon in the second degree and criminal possession of marijuana in the fifth degree. Therefore,the indictment must be dismissed (see People v Clermont, 133 AD3d at 615; People v Carmichael, 92 AD3d687 [2012]). Dillon, J.P., Balkin, Austin and Connolly, JJ., concur.