| People v Wallace |
| 2020 NY Slip Op 01796 [181 AD3d 1214] |
| March 13, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Ricky P. Wallace, Appellant. |
Mark D. Funk, Conflict Defender, Rochester (Kathleen P. Reardon of counsel), fordefendant-appellant.
Ricky P. Wallace, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Lisa Gray of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Thomas R. Morse, A.J.),rendered December 15, 2015. The judgment convicted defendant upon a jury verdict ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, those parts of the omnibus motion seeking to suppress physical evidence andstatements are granted, the indictment is dismissed, and the matter is remitted to MonroeCounty Court for proceedings pursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofcriminal possession of a weapon in the second degree (Penal Law § 265.03[3]), defendant contends in his main and pro se supplemental briefs that County Court(Dinolfo, J.) erred in refusing to suppress the physical evidence seized from him and hissubsequent statements to the police. We agree.
The evidence at the suppression hearing establishes that the arresting officer was onroutine patrol in what he described as a high-crime area known to be an "open air drugmarket," where there had also been numerous burglaries and robberies. That officer hadbeen a member of the police force for only a few months, and he was under thesupervision of a training officer. The arresting officer testified that he observeddefendant walking on a sidewalk shortly after midnight on a chilly night, withtemperatures near 40 degrees, and that defendant was wearing a mask that covered thelower part of his face. The officer had not received any reports of recent crimes in thearea, was not responding to any call, and did not observe defendant engage in any illegalactivity. The officer pulled his patrol vehicle in front of defendant's path of travel, exitedthe patrol vehicle along with the training officer, approached defendant, and askeddefendant why he was wearing a mask. Defendant replied that he was walking his dog,and the unchallenged evidence at the hearing establishes that he was indeed walking adog. The arresting officer testified that the training officer asked defendant what was in abag, which defendant was apparently holding, and defendant replied that it was "weed."The arresting officer then frisked defendant and recovered a firearm. Defendantthereafter made admissions regarding that weapon.
In People v De Bour (40 NY2d 210, 223 [1976]), the Court of Appealsprovided a "graduated four-level test for evaluating street encounters initiated by thepolice" (People v Moore, 6NY3d 496, 498 [2006]). Under De Bour, insofar as relevant here, "level onepermits a police officer to request information from an individual and merely requiresthat the request be supported by an objective, credible reason, not necessarily indicativeof criminality; level two, the common-law right of inquiry, permits a somewhat greaterintrusion and requires a founded suspicion that criminal activity is afoot; level threeauthorizes an officer to forcibly stop and detain an individual, and requires a reasonablesuspicion that the particular individual was involved in a felony or misdemeanor"(Moore, 6 NY3d at 498-499). Here, defendant contends that the officers lackedthe requisite reasonable suspicion of criminal activity for a De Bour level threeencounter or the founded suspicion required for a level two encounter.
In determining whether an officer had the requisite basis to support the level ofintrusion that occurred, the suppression court must consider the totality of circumstances(see generally People vMercado, 120 AD3d 441, 442 [1st Dept 2014], affd 25 NY3d 936[2015]). In addition, the court must determine " 'whether the officer's action wasjustified at its inception' " (People v William II, 98 NY2d 93, 98 [2002])and, because " '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' " (People vPerez, 31 NY3d 964, 966 [2018]), whether any subsequent escalation of theintrusion by the officer is supported by the requisite level of suspicion (see e.g. People v Pettiford, 173AD3d 1716, 1716-1717 [4th Dept 2019], lv denied 34 NY3d 936 [2019];see generally People v Nicodemus, 247 AD2d 833, 835 [4th Dept 1998], lvdenied 92 NY2d 858 [1998]). Here, assuming, arguendo, that the arresting officerhad the requisite "objective, credible reason, not necessarily indicative of criminality" tosupport his approach and his initial question to defendant regarding defendant's facemask (Moore, 6 NY3d at 498), we conclude "the People failed to meet theirburden of establishing the legality of the police conduct" that occurred thereafter (People v Carr, 103 AD3d1194, 1195 [4th Dept 2013]; see generally People v Wise, 46 NY2d 321,329 [1978]; People v Baldwin, 25 NY2d 66, 70-71 [1969]).
The evidence at the hearing establishes that, after the arresting officer askeddefendant why he was wearing the mask, the training officer asked defendant what wasin the bag defendant was holding. There is no evidence regarding why the trainingofficer did so. The evidence at the hearing further establishes that the arresting officer,who was the People's only witness at the hearing, did not see the bag before the trainingofficer asked what was in it. Because the training officer engaged in a level twointrusion, i.e., "a more pointed inquiry into [defendant's] activities" (People v Doll, 98 AD3d356, 367 [4th Dept 2012], affd 21 NY3d 665 [2013], rearg denied 22NY3d 1053 [2014], cert denied 572 US 1022 [2014]), by asking "invasivequestion[s] focusing on the possible criminality of the subject" (People v Hightower, 136AD3d 1396, 1397 [4th Dept 2016] [internal quotation marks omitted]; seePeople v Hollman, 79 NY2d 181, 191-192 [1992]), the People were required todemonstrate that the training officer had "a founded suspicion that criminal activity [was]afoot" (Moore, 6 NY3d at 498).
The People's reliance on the training officer's trial testimony that he asked defendantif he had any weapons and that defendant said that he did not is misplaced. "It is wellsettled that 'evidence subsequently admitted [at] trial cannot be used to support [orundermine] the determination of the suppression court denying [a] motion to suppress. . . ; the propriety of the denial must be judged on the evidence before thesuppression court' " (People v Lane, 106 AD3d 1478, 1479 [4th Dept 2013],lv denied 21 NY3d 1043 [2013], quoting People v Gonzalez, 55 NY2d720, 721-722 [1981], rearg denied 55 NY2d 1038 [1982], cert denied 456US 1010 [1982]; see People v Carmona, 82 NY2d 603, 610 n 2 [1993]). Basedon the evidence at the suppression hearing, the People failed to meet their burden ofestablishing that the training officer had the requisite founded suspicion (seeCarr, 103 AD3d at 1195). Thus, we conclude that the training officer's inquiry andthe subsequent frisk of defendant by the arresting officer was not a proper escalation ofthe level one encounter.
We further conclude that the frisk of defendant and seizure of the gun was notjustified "as having been in the interests of the officer['s] safety, since there was notestimony that the [arresting] officer[ ] believed defendant to be carrying a weapon. . . , and the People presented no other evidence establishing that the[arresting] officer had reason to fear for his safety" (People v Roberts, 158 AD3d 1141, 1143 [4th Dept 2018][internal quotation marks omitted]; cf. People v Fletcher, 130 AD3d 1063, 1065 [2d Dept2015], affd 27 NY3d 1177 [2016]; People v Fagan, 98 AD3d 1270, 1271 [4th Dept 2012],lv denied 20 NY3d 1061 [2013], cert denied 571 US 907 [2013]). Wetherefore reverse the judgment, grant those parts of defendant's omnibus motion seekingto suppress the physical evidence seized and his subsequent statements, and dismiss theindictment.
In light of our determination, defendant's remaining contentions in his main and prose supplemental briefs are academic. Present—Smith, J.P., Centra, Lindley, Curranand DeJoseph, JJ.