| People v Williams |
| 2021 NY Slip Op 00983 [191 AD3d 1495] |
| February 11, 2021 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Joshua Williams, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Douglas A. Randall, J.), renderedSeptember 13, 2016. The judgment convicted defendant, upon a plea of guilty, of attemptedcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is reversed on the law, the plea isvacated, that part of defendant's omnibus motion seeking to suppress physical evidence andstatements is granted, the indictment is dismissed, and the matter is remitted to Monroe CountyCourt 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 County Court erred in refusingto suppress physical evidence obtained following a vehicle and traffic stop, as well as statementshe thereafter made to officers. We agree.
Officers on patrol stopped the vehicle in which defendant was a passenger after observingthat the driver was not wearing a seatbelt. Defendant was the backseat passenger and, as officerswere investigating the validity of the occupants' licenses, defendant appeared nervous and turnedhis body toward his waistband, blocking the officers' view of his hands. When asked to removehis hands from the waistband area of his pants, defendant complied, stating that he was lookingfor a bottle cap upon which to chew. Once it was discovered that none of the occupants had avalid driver's license, the officers asked the occupants to exit the vehicle. At that point, defendant"bladed away" from the officers while "reach[ing] for his waistband."
As one of the officers prepared to conduct a pat frisk, defendant "pulled away and ran."While he was running, defendant had his hands in front of him, "huddled in." Officers thereafterpursued defendant and took him into custody. Ultimately, a weapon was found in a yard in whichdefendant had fallen during the pursuit. Although defendant denied possession of the gun, heinformed officers that he knew it was going to be tested and stated that, "if it [came] back with abody on it or it's dirty," then they would "have to sit down and talk again." At the suppressionhearing, the officers candidly admitted that they never saw a bulge or any other indication of anobject in defendant's waistband and that they never saw defendant actually touch his waistband.The court refused to suppress the physical evidence and the statements, and defendant thereafterpleaded guilty.
We agree with defendant that his waiver of the right to appeal is not valid and thus does notpreclude our review of his challenge to the suppression ruling (cf. People v Kates, 162 AD3d1627, 1628 [4th Dept 2018], lv denied 32 NY3d 1065 [2018], deniedreconsideration 32 NY3d 1173 [2019]; People v Adames, 158 AD3d 1289, 1289 [4th Dept 2018], lvdenied 31 NY3d 1077 [2018];People v Joubert, 158 AD3d 1314, 1315 [4th Dept 2018], lv denied 31 NY3d1014[*2][2018]). In our view, the "purported waiver of the rightto appeal is not enforceable inasmuch as the totality of the circumstances fails to reveal thatdefendant 'understood the nature of the appellate rights being waived' " (People v Youngs, 183 AD3d 1228,1228 [4th Dept 2020], lv denied 35 NY3d 1050 [2020], quoting People v Thomas, 34 NY3d 545,559 [2019], cert denied 589 US &mdash, 140 S Ct 2634 [2020]). Here, "[t]he writtenwaiver of the right to appeal signed by defendant and the verbal waiver colloquy conducted by[the court] together improperly characterized the waiver as 'an absolute bar to the taking of adirect appeal and the loss of attendant rights to counsel and poor person relief' " (People v McMillian, 185 AD3d1420, 1421 [4th Dept 2020], lv denied 35 NY3d 1096 [2020], quotingThomas, 34 NY3d at 565). We note that the better practice is for the court to use theModel Colloquy, which "neatly synthesizes . . . the governing principles"(Thomas, 34 NY3d at 567, citing NY Model Colloquies, Waiver of Right to Appeal, http://www.nycourts.gov/judges/cji/8-Colloquies/Waiver%20of%20Right%20to%20Appeal.pdf).
With respect to the merits of the suppression motion, we conclude that the officers lacked therequisite reasonable suspicion to pursue defendant. "[T]he police may pursue a fleeing defendantif they have a reasonable suspicion that defendant has committed or is about to commit a crime. . . Flight alone is insufficient to justify pursuit because an individual has a right tobe let alone and refuse to respond to police inquiry . . . However, a defendant's flightin response to an approach by the police, combined with other specific circumstances indicatingthat the suspect may be engaged in criminal activity, may give rise to reasonable suspicion, thenecessary predicate for police pursuit" (People v Riddick, 70 AD3d 1421, 1422 [4th Dept 2010], lvdenied 14 NY3d 844 [2010] [internal quotation marks and emphasis omitted]; see People v Rainey, 110 AD3d1464, 1465 [4th Dept 2013]; see generally People v Sierra, 83 NY2d 928, 929[1994]). In contrast, "actions that are 'at all times innocuous and readily susceptible of aninnocent interpretation . . . may not generate a founded suspicion ofcriminality' " (Riddick, 70 AD3d at 1422; see People v Holmes, 81 NY2d1056, 1058 [1993]).
Here, the officers stopped the vehicle for a traffic infraction as opposed to a call related to aparticular crime. Although defendant appeared to reach toward his waistband, he never touchedhis waistband and there was no other indication of a weapon, such as a bulge or the visibleoutline of a gun (see Riddick, 70 AD3d at 1422-1423). A suspect's action in grabbing athis or her waistband, standing alone, is insufficient to establish reasonable suspicion of a crime(see e.g. People v Elliott, 140 AD3d1752, 1752-1753 [4th Dept 2016];People v Clermont, 133 AD3d 612, 614 [2d Dept 2015], lv denied 27 NY3d1149 [2016]; People v Haynes, 115AD3d 676, 676-677 [2d Dept 2014]).
Defendant's nervousness, use of a bottle cap, and "blading" do not provide additional specificcircumstances indicating that defendant was engaged in criminal activity. There is no doubt thatdefendant engaged in furtive and suspicious activity and that his pattern of behavior, viewed as awhole, was suspicious, but there is nothing in this record to establish that the officers had areasonable suspicion of criminal conduct to justify the pursuit (see People v Gerard, 94 AD3d592, 592-593 [1st Dept 2012]; cf.People v Simmons, 133 AD3d 1275, 1276 [4th Dept 2015], lv denied 27 NY3d1006 [2016]).
We therefore conclude that the pursuit of defendant was unlawful and that the physicalevidence seized by the police and the statements made by defendant to the police following theunlawful seizure should have been suppressed. As a result, defendant's guilty plea must bevacated and the indictment dismissed, and we remit the matter to County Court for proceedingspursuant to CPL 470.45 (see Elliott, 140 AD3d at 1753; Riddick, 70 AD3d at1424).
All concur except Centra, J.P., and NeMoyer, J., who dissent and vote to affirm in thefollowing memorandum.
Centra, J.P., and NeMoyer, J. (dissenting). County Court found that the totality of thecircumstances supplied the reasonable suspicion necessary to justify the pursuit of the fleeingdefendant. The majority now rejects that finding and concludes that law enforcement lacked therequisite reasonable suspicion to pursue defendant. We cannot agree. We therefore respectfullydissent and vote to affirm.
The facts are largely undisputed. During a nighttime patrol of a high crime area in the City ofRochester, officers observed a vehicle being operated by an unbelted driver. The vehicle waspulled over; defendant was the backseat passenger. During the license checks, the officersobserved defendant for several minutes. In this period, one officer testified, defendant appeared"very nervous," repeatedly looked around the vehicle, moved his hands in the vicinity of his[*3]waistband, and ultimately "bladed" his body—i.e.,turned his body away from the officer such that defendant's hands could not be seen. When theofficer asked defendant what he was looking for, defendant picked up a plastic bottle cap, put itin his mouth, and said that he chews on plastic caps all the time. The officer, understandably,found this explanation to be suspicious.
Once the officers determined that neither the driver nor the passengers had valid licenses andthat the vehicle would therefore need to be towed, all three occupants were directed to exit thevehicle. When defendant exited the vehicle, the officer again observed defendant "blading" hisbody away from the officer and reaching toward his waistband. The officer testified that, basedon his training and experience, defendant's action indicated that he was concealing a gun. Nowconcerned for his safety and the safety of his colleagues, the officer reached over to defendant toconduct a pat frisk. At that point, however, defendant fled, and the officers pursued him.
We acknowledge that flight alone is insufficient to justify pursuit (see People v Riddick, 70 AD3d1421, 1422 [4th Dept 2010], lv denied 14 NY3d 844 [2010]). Grabbing a waistband,standing alone, is likewise insufficient to justify pursuit (see People v Elliott, 140 AD3d 1752, 1752-1753 [4th Dept 2016]).Nevertheless, flight is a proper consideration in conjunction with other attendant circumstances,including the suspect's suspicious behavior, the time of the stop, and the location of the stop(see People v Martinez, 80 NY2d 444, 448 [1992]). Indeed, in determining whether apursuit was justified by the requisite reasonable suspicion, the suppression court should not focusnarrowly on any single factor; rather, the court should evaluate the totality of the circumstancesand take into account the realities of everyday life unfolding before a trained officer (see People v Walker, 149 AD3d1537, 1538 [4th Dept 2017], lv denied 30 NY3d 954 [2017]; People v Bachiller, 93 AD3d 1196,1197 [4th Dept 2012], lv dismissed 19 NY3d 861 [2012]).
Here, defendant's suspicious and evasive actions during the routine traffic stop, coupled withhis nonsensical response about the bottle cap and his eventual flight, supplied the trained officerwith reasonable suspicion to justify the pursuit. Indeed, the officers would have neglected theirduty had they allowed defendant to flee unchallenged into the night, and suppression will serveonly to hamstring law enforcement's efforts to protect the law-abiding residents of our mostdangerous communities. Present—Centra, J.P., Lindley, NeMoyer, Troutman andBannister, JJ.