| People v Jones |
| 2019 NY Slip Op 05940 [174 AD3d 1532] |
| July 31, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Adrian Jones, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Kimberly J. Czapranski of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Darienn P. Balin of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered June 29, 2016. The judgment convicted defendant, upon his plea of guilty, of attemptedcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,the plea is vacated, that part of the omnibus motion seeking to suppress physical evidence isgranted, the indictment is dismissed, and the matter is remitted to Supreme Court, OnondagaCounty, for proceedings pursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofattempted criminal possession of a weapon in the second degree (Penal Law§§ 110.00, 265.03 [3]), defendant contends that Supreme Court erred inrefusing to suppress the handgun that he discarded while being pursued by the police. Weagree.
The evidence at the suppression hearing established that a police officer in a marked patrolvehicle responded after midnight to a 911 call reporting shots fired near an apartment complex inthe City of Syracuse. Upon his arrival in the area, the officer received a radio dispatch reportingthat the suspect was among a group of eight men on a certain street; no further description of thesuspect beyond his race was provided. The officer acknowledged that the apartment complex waslarge with hundreds of residents and that it was not unusual for black males to be walking aroundthat area after midnight. As the officer drove toward the street identified in the dispatch, he saw aman later identified as defendant and a second man, both of whom were black, walking out frombehind an apartment building. The officer did not see anything in the hands of either man. Themen immediately turned around and ran away when they saw the officer in his patrol vehicle.The officer then relayed a description of the men over the police radio, exited his vehicle, andpursued the men on foot. After initially losing sight of the men, the officer regained sight of thesecond man, who was then pursued and apprehended by other police officers. At that point, theofficer stopped running, then looked to his right and saw defendant emerging from behind abuilding approximately 30 yards away. The officer noticed that defendant had a handgun and asweatshirt in his hand, at which point the officer pointed his own gun at defendant, informed himthat he was under arrest, and ordered him to drop the handgun. Defendant then threw thehandgun and sweatshirt into a trash can and fled, and the officer gave chase. After another policeofficer joined the officer in the chase, the officer returned to the trash can and secured thediscarded handgun. Defendant was arrested by other police officers.
It is well established that, "[i]n evaluating police conduct, the court must determine whetherthe action taken was justified in its inception and at every subsequent stage of the encounter"(People v Nicodemus, 247 AD2d 833, 835 [4th Dept 1998], lv denied 92 NY2d858 [1998]; see People v De Bour, 40 NY2d 210, 222-223 [1976]). "[T]he police maypursue a fleeing defendant if they have a reasonable suspicion that defendant has committed or isabout to commit a crime" (People v Martinez, 80 NY2d 444, 446 [1992]). "[A]defendant's flight in response to an approach by the police, combined with other specificcircumstances indicating that the [defendant] may be engaged in criminal activity, may give riseto reasonable suspicion" (People v Sierra, 83 NY2d 928, 929 [1994]; see People vHolmes, 81 NY2d 1056, 1058 [1993]). "Flight alone, however, or even in conjunction withequivocal circumstances that might justify a police request for information . . . , isinsufficient to justify pursuit because an individual has a right 'to be let alone' and refuse torespond to police inquiry" (Holmes, 81 NY2d at 1058).
Here, as the People correctly concede, the officer's action of pursuing defendant in responseto his flight was not justified at its inception inasmuch as there were no specific circumstancesindicating that defendant may have been engaged in criminal activity so as to give rise toreasonable suspicion (see People vNunez, 111 AD3d 854, 856 [2d Dept 2013]; see generally Holmes, 81 NY2d at1058). Although the officer observed defendant walking in the general vicinity of the reportedgun shots, that observation does not provide the "requisite reasonable suspicion, in the absence of'other objective indicia of criminality' " that would justify pursuit, and no such evidencewas presented at the suppression hearing (People v Riddick, 70 AD3d 1421, 1423 [4th Dept 2010], lvdenied 14 NY3d 844 [2010]; seePeople v Cady, 103 AD3d 1155, 1156 [4th Dept 2013]). In the absence of otheridentifying information, the fact that defendant may have matched the vague, generic descriptionof the suspect as a black male, which could have applied to any number of individuals in the areaof the large apartment complex with hundreds of residents, did not sufficiently indicate thatdefendant may have been engaged in criminal activity (see Nunez, 111 AD3d at 856; People v Beckett, 88 AD3d 898,900 [2d Dept 2011]). Thus, the pursuit of defendant was unlawful.
We agree with defendant that, contrary to the court's determination and the People'scontention, the record does not establish that he abandoned the handgun. "It is well establishedthat property seized as a result of an unlawful pursuit must be suppressed, unless that propertywas abandoned" (People v Mueses,132 AD3d 1257, 1258 [4th Dept 2015]; see People v Howard, 50 NY2d 583, 592[1980], cert denied 449 US 1023 [1980]). "Property which has in fact been abandoned isoutside the protection of the constitutional provisions . . . There is a presumptionagainst the waiver of constitutional rights . . . [and, thus,] [t]he proof supportingabandonment should 'reasonably beget the exclusive inference of . . . throwingaway' " (Howard, 50 NY2d at 592-593). "The test to be applied is whetherdefendant's action . . . was spontaneous and precipitated by the illegality or whetherit was a calculated act not provoked by the unlawful police activity and thus attenuated from it"(People v Wilkerson, 64 NY2d 749, 750 [1984]).
The court determined that defendant's act of discarding the handgun was a calculated act notprovoked by the unlawful pursuit and was thus attenuated from it. That was error. Contrary to thecourt's determination, there is no basis on this record to conclude that the unlawful pursuit hadstopped at the time that defendant discarded the handgun. Rather, the evidence establishes thatthere was an ongoing, continuous pursuit of defendant and the second man that began after theofficer exited his vehicle. Although the officer stopped running when other police officerspursued and apprehended the second man, the officer then looked to his right and regained sightof defendant, who was emerging—and still moving with haste—from behind anearby building. Between the time that the officer began the pursuit and the time that he sawdefendant with a handgun—during which period the officer lost sight of the two men,regained sight of the second man, pursued him, and stopped when other police officersencountered him—only one minute had elapsed (see Mueses, 132 AD3d at1257-1258). Moreover, the evidence establishes that the other police officers continued thepursuit based on the officer's report over the police radio. We thus conclude that defendant's actof discarding the handgun was "spontaneous and precipitated by the unlawful pursuit by thepolice" and, therefore, the handgun should have been suppressed (Mueses, 132 AD3d at1258; see Nunez, 111 AD3d at 856; People v Pirillo, 78 AD3d 1424, 1426 [3d Dept 2010]).
In light of our determination that the court erred in refusing to suppress the handgun obtainedas a result of the unlawful pursuit, defendant's guilty plea must be vacated (see Cady, 103AD3d at 1157). Moreover, inasmuch as our determination results in the suppression of allevidence in support of the crime charged, the indictment must be dismissed (see id.). Wetherefore remit the matter to Supreme Court for proceedings pursuant to CPL 470.45.Present—Whalen, P.J., Peradotto, Carni, Lindley and Curran, JJ.