| People v Jones |
| 2018 NY Slip Op 06114 [164 AD3d 1363] |
| September 19, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Lindy Jones, Appellant. |
Paul Skip Laisure, New York, NY (A. Alexander Donn of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Hannah X. Collins of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (John B.Latella, J.), rendered December 10, 2015, convicting him of criminal possession of a weapon inthe second degree (two counts), criminal possession of a weapon in the third degree, and resistingarrest, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial,after a hearing (Deborah Stevens Modica, J.), of those branches of the defendant's omnibusmotion which were to suppress physical evidence and his statement to law enforcementofficials.
Ordered that the judgment is reversed, on the law, those branches of the defendant's omnibusmotion which were to suppress physical evidence and his statement to law enforcement officialsare granted, the indictment is dismissed, and the matter is remitted to the Supreme Court, QueensCounty, for further proceedings consistent with CPL 160.50.
By indictment, the defendant was charged with criminal possession of a weapon in thesecond degree (two counts), criminal possession of a weapon in the third degree, and resistingarrest. Following a hearing, the Supreme Court denied those branches of the defendant's omnibusmotion which were to suppress physical evidence and his statement to law enforcement officials.The defendant, as part of a negotiated disposition, entered a plea of guilty to the counts chargedin the indictment. The court rendered a judgment of conviction, and the defendant appeals.
On appeal, the defendant challenges the suppression determination. We agree with thedefendant that the Supreme Court should have granted those branches of the defendant's omnibusmotion which were to suppress physical evidence and his statement to law enforcementofficials.
Initially, to the extent the People contend that the defendant's challenge to the police conductis unpreserved for appellate review, the People's contention is without merit. While defensecounsel made no argument at the suppression hearing, the defendant, through counsel, hadmoved, inter alia, to suppress the physical evidence and his statement to law enforcementofficials, arguing, among other things, that the police unlawfully seized his person and propertyand that his custodial statement was tainted. The Supreme Court denied those branches of hisomnibus motion. [*2]Accordingly, the defendant's contentions inthis regard are preserved for appellate review (see CPL 470.05 [2]).
Turning to the merits, in People v De Bour (40 NY2d 210 [1976]), the Court ofAppeals "set forth a graduated four-level test for evaluating street encounters initiated by thepolice: level one permits a police officer to request information from an individual and merelyrequires that the request be supported by an objective, credible reason, not necessarily indicativeof criminality; level two, the common-law right of inquiry, permits a somewhat greater intrusionand requires a founded suspicion that criminal activity is afoot; level three authorizes an officerto forcibly stop and detain an individual, and requires a reasonable suspicion that the particularindividual was involved in a felony or misdemeanor; level four, arrest, requires probable cause tobelieve that the person to be arrested has committed a crime" (People v Moore, 6 NY3d 496,498-499 [2006]; see People v De Bour, 40 NY2d at 223). "The Court's purpose in DeBour was to provide clear guidance for police officers seeking to act lawfully in what may befast-moving street encounters and a cohesive framework for courts reviewing the propriety ofpolice conduct in these situations" (People v Moore, 6 NY3d at 499).
Although "the police may observe a defendant 'provided that they do so unobtrusively and donot limit defendant's freedom of movement by so doing' " (People v Foster, 302AD2d 403, 404 [2003], quoting People v Howard, 50 NY2d 583, 592 [1980]), "[p]olicepursuit of an individual 'significantly impede[s]' the person's freedom of movement and thusmust be justified by reasonable suspicion that a crime has been, is being, or is about to becommitted" (People v Holmes, 81 NY2d 1056, 1057-1058 [1993], quoting People vMartinez, 80 NY2d 444, 447 [1992]).
Here, at the pretrial hearing, a police officer testified that on April 23, 2014, at approximately1:50 a.m., he and his partner were on anti-crime patrol in plainclothes and in an unmarked policevehicle in Queens. A sergeant, wearing plainclothes, was in the police vehicle as well. They weredriving on a one-way street. The area was "fairly well-lit" with light from houses, an elementaryschool, and streetlights. The police vehicle was traveling slowly, approximately five miles perhour, and its headlights were on. The testifying officer, who was seated in the front passengerseat, saw the defendant walking on the sidewalk to the officer's right, approximately 25 feetahead, with the defendant's back to the officer. The defendant was walking in the direction awayfrom the officer, and the defendant's right hand was in his right jacket pocket. The officer"observed [the defendant] leaning over and he had somewhat of a slight bulge that appeared thathe was holding with his right hand in his pocket." The officer was not able to observe the shapeof any object in the defendant's pocket, and he could not tell what was in the defendant'spocket.
The unmarked police vehicle drove "right next to" the defendant, and the officer said,"police, can you stop for a second," or "police, hold on." The defendant "turned toward [theofficer], looked at [the officer], nodded his head, picked up his left hand, got on the cell phoneand picked up his pace and started walking faster." The defendant's right hand "was steady on theright hand pocket," and the defendant was still leaning over to his right side. He was notrunning.
The officer testified: "I exited the vehicle on foot. I walked onto the sidewalk. As I wasdirectly behind the defendant, once again I said police, stop. He didn't answer me. At whichpoint, as I got closer to the defendant picking up with his pace, I observed him holding the end ofa firearm sticking out from his jacket pocket." According to the officer, he had exited the vehicleto talk to the defendant. When the officer exited the vehicle, he had not seen the defendantcommit any suspicious activity; the officer wanted to talk to the defendant "[j]ust to talk to him,inquire his business as if—ask him what he was doing in the street, in front of the schoolat that time." The officer did not have any information about a crime having been committed atthat location, and the defendant did not fit the description of a person for whom the officer waslooking. After the officer saw the firearm, the officer "raced" toward the defendant and, assistedby his partner and his sergeant, was able to recover the firearm.
The police intrusion here was not justified. This encounter began as a level two intrusion,with the officer, while seated in the vehicle, stating "police" and asking the defendant to [*3]stop, then exiting his vehicle, walking onto the sidewalk, againstating "police" and asking the defendant to stop. Thereafter, the officer's pursuit of thedefendant, by getting "closer to the defendant picking up with his pace," constituted a level threeintrusion under De Bour, requiring a reasonable suspicion that the defendant wasinvolved in a felony or misdemeanor (see People v Holmes, 81 NY2d at 1057-1058).However, the circumstances, such as that the defendant had a nondescript bulge in his rightjacket pocket, was leaning to the right side, and walked away from the officer without complyingwith the officer's requests for him to stop, did not support a reasonable suspicion ofparticularized criminal action. After all, "a bulging jacket pocket is hardly indicative ofcriminality. As [the Court of Appeals has] recognized, a pocket bulge, unlike a waistband bulge,'could be caused by any number of innocuous objects' " (People v Holmes, 81NY2d at 1058, quoting People v De Bour, 40 NY2d at 221), and "an individual has aright 'to be let alone' and refuse to respond to police inquiry" (People v Holmes, 81 NY2dat 1058). Since this level three intrusion was not justified, it cannot be validated by the officer'ssubsequent observation of the firearm (see People v McIntosh, 96 NY2d 521, 527 [2001];People v De Bour, 40 NY2d at 215-216).
Moreover, under the circumstances of this case, the defendant's subsequent statement to lawenforcement officers must be suppressed as the product of the unlawful police conduct (see People v Perez, 88 AD3d 1016[2011]; see also Wong Sun v United States, 371 US 471, 485 [1963]).
Without the evidence that should have been suppressed, the physical evidence and thedefendant's statement, there would not be legally sufficient evidence to prove the defendant'sguilt of criminal possession of a weapon in the second and third degrees. Additionally, in light ofthe unlawful police conduct that preceded the arrest, there would not have been an authorizedarrest, an authorized arrest being an element of the crime of resisting arrest (see People v Kevin W., 91 AD3d676, 678 [2012], affd 22 NY3d 287 [2013]). Thus, in this particular case, theindictment must be dismissed (seePeople v Kevin W., 91 AD3d 676 [2012]).
In view of our determination, we need not address the defendant's remaining contentions.Leventhal, J.P., Austin and Duffy, JJ., concur.
Barros, J., concurs, and votes to reverse the judgment, on the law, grant those branches of thedefendant's omnibus motion which were to suppress physical evidence and his statement to lawenforcement officials, and dismiss the indictment, with the following memorandum: While Iagree with the De Bour analysis set forth in the majority opinion (see People v DeBour, 40 NY2d 210 [1976]), I would not reach that issue since, in my view, the People failedto meet their burden of going forward to establish the legality of police conduct in the firstinstance because the police officer's testimony was incredible as a matter of law and patentlytailored to nullify constitutional objections (see People v Berrios, 28 NY2d 361, 367-368[1971]; People v Clermont, 133AD3d 612, 613 [2015]; People vHernandez, 40 AD3d 777, 778 [2007]).
"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, 133AD3d at 613 [internal quotation marks omitted]; see People v Berrios, 28 NY2d at367-368; People v Hernandez, 40 AD3d at 778). " 'Implicit in this concept is thatthe testimony offered by the People in first presenting their case must be credible' " (People v Fletcher, 130 AD3d1063, 1064 [2015], affd 27 NY3d 1177 [2016], quoting People v Quinones,61 AD2d 765, 766 [1978]; see People v Berrios, 28 NY2d at 367). "A hearing court'sdetermination as to witness credibility is accorded great weight on appeal, as it saw and heard thewitnesses, and its determination will not be disturbed unless clearly unsupported by theevidence" (People v Fletcher, 130 AD3d at 1064; see People v Wheeler, 2 NY3d370, 374 [2004]; People v Prochilo, 41 NY2d 759, 761 [1977]). However, "[w]here atestifying officer claims to have seen that which common sense dictates could not have beenseen, courts have repeatedly deemed this testimony patently tailored to meet constitutionalobjections" (People v Spann, 82AD3d 1013, 1014 [2011] [internal quotation marks omitted]). " 'The rule is thattestimony which is incredible and unbelievable, that is, impossible of belief because it ismanifestly untrue, physically impossible, [*4]contrary toexperience, or self-contradictory, is to be disregarded as being without evidentiary value, eventhough it is not contradicted by other testimony or evidence introduced in the case' "(People v Garafolo, 44 AD2d 86, 88 [1974], quoting 22 NY Jur, Evidence§ 649; see People vJoyner, 126 AD3d 1002, 1007 [2015]).
"Once the People establish the legality of the police conduct by credible evidence, thedefendant bears the burden of establishing that the arrest was not based on probable cause or thatthe police conduct was otherwise illegal" (People v Fletcher, 130 AD3d at 1064; seePeople v Spann, 82 AD3d at 1014).
Here, the officer's testimony that he was able to observe a "slight bulge" in the right pocket ofthe defendant's jacket at 1:50 a.m., while seated in a vehicle and from a distance of 25 feet awayfrom the defendant's back, was incredible as a matter of law, and has all appearances of havingbeen patently tailored to nullify constitutional objections. Therefore, in my view, the Peoplefailed to meet their burden of establishing the legality of the police conduct in the first instance(see People v Clermont, 133 AD3d at 613; see also People v Berrios, 28 NY2d at367-368; People v Hernandez, 40 AD3d at 778), and that branch of the defendant'somnibus motion which was to suppress the gun should have been granted on that ground.
Even if I were to defer to the Supreme Court's determination to credit the officer's testimony,I would agree with the majority's opinion in its entirety.