People v. Harris

Lynn W.L. Fahey, New York, N.Y. (Patricia Pazner and A. Alexander Donn of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Anastasia Spanakos, and Josette Simmons–McGhee of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and L. PRISCILLA HALL, JJ.

Opinion Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.), rendered August 8, 2012, convicting him of criminal possession of a weapon in the second ORDERED that the judgment is reversed, on the law, those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials are granted, the indictment is dismissed, the order dated February 29, 2012, is modified accordingly, and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

On September 3, 2011, at approximately 10:40 p.m., two police officers were patrolling in an area with a high incidence of burglaries. According to Police Officer Castillo, who testified at a suppression hearing, as his partner drove the police vehicle, he saw the defendant standing on the sidewalk smoking a cigarette, in front of a gate to a house. As the officers' marked vehicle approached, the defendant looked in their direction and then entered the property through the gate, walking on the driveway while still smoking a cigarette. Because the house was dark and the grass was uncut, Officer Castillo believed the house was abandoned. After the officers stopped at the house and exited their vehicle, Officer Castillo observed the defendant, who noticed them exit and turned his back to them, make a motion as if shoving something in his front waistband. The officers entered the driveway, and the defendant turned to face them, with the cigarette still in his hand. As Officer Castillo got closer, he observed a bulge in the defendant's “mid-waist area” where his shirt was “ruffled,” and “there seemed to be a hard object sticking out.” Without conducting any meaningful inquiry, Officer Castillo immediately conducted a pat-down search of the the bulge, which felt like the butt of a gun, and then recovered a gun and arrested the defendant.

Prior to trial, the defendant moved, inter alia, to suppress the gun and his subsequent statements to law enforcement officials. The Supreme Court denied the motion.

In People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562, the Court of Appeals established a “graduated four-level test for evaluating street encounters initiated by the police” (People v. Moore, 6 N.Y.3d 496, 498, 814 N.Y.S.2d 567, 847 N.E.2d 1141 ). The first level permits a police officer to request information from an individual, and merely requires that the request be supported by an objective credible reason, not necessarily indicative of criminality (see id.; People v. De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ). The second level, known as the “common-law right of inquiry,” requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion short of a forcible seizure (People v. Moore, 6 N.Y.3d at 498, 814 N.Y.S.2d 567, 847 N.E.2d 1141 ; People v. De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ). The third level permits a seizure, meaning that a police officer may forcibly stop and detain an individual, based upon a reasonable suspicion that an individual is committing, has committed, or is about to commit, a crime (see People v. Moore, 6 N.Y.3d at 498–499, 814 N.Y.S.2d 567, 847 N.E.2d 1141 ; People v. De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ). Finally, the fourth level authorizes an arrest based on probable cause to believe that a person has committed a felony or misdemeanor (see People v. Moore, 6 N.Y.3d at 499, 814 N.Y.S.2d 567, 847 N.E.2d 1141 ; People v. De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ).

Here, those branches of the defendant's omnibus motion which were to suppress the gun and his statements should have been granted. Assuming that Officer Castillo was justified in conducting motion which were to suppress the physical evidence and his subsequent statements to law enforcement officials. Since, in the absence of the suppressed evidence, there is insufficient evidence to prove the defendant's guilt, the indictment must be dismissed (see People v. Carmichael, 92 A.D.3d 687, 688, 938 N.Y.S.2d 197 ).

In light of our determination, we need not reach the defendant's remaining contentions.