People v. Brown

198 A.D.3d 803

156 N.Y.S.3d 276

The PEOPLE, etc., respondent,

v.Willie BROWN, appellant.

2017-09678

Ind. No. 9446/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—January 28, 2021

October 13, 2021

Patricia Pazner, New York, N.Y. (Paul Skip Laisure of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Andrew S. Ayala of counsel), for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthew D'Emic, J.), rendered July 6, 2017, convicting him of criminal possession of a firearm, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Guy J. Mangano, Jr., J.), of those branches of the defendant's omnibus motion which were to suppress physical evidence and certain statements he made to law enforcement officials.

ORDERED that the judgment is reversed, on the law, the defendant's plea of guilty is vacated, those branches of the defendant's omnibus motion which were to suppress physical evidence and certain statements he made to law enforcement officials are granted, and the matter is remitted to the Supreme Court, Kings County, for further proceedings on the indictment.

On November 18, 2015, at approximately 2:00 a.m., plainclothes police officers of the New York City Police Department, on patrol in Brooklyn in an unmarked vehicle, saw the defendant standing outside of a corner store smoking a cigarette. At the suppression hearing, one of the officers testified that as his vehicle was approaching a red traffic signal at the intersection, the defendant "tensed up" or "stiffened up" and, after making eye contact with the officer through the front windshield, the defendant's "eyes widened" and the defendant walked into the corner store. The officer continued to observe the defendant through the store's window, but did not have a full view of him. The officer saw the defendant do "a little pacing back and forth" and then come back outside. When the traffic signal turned green, the officer and his partner pulled over and exited their vehicle. The officer, who intended to find out why the defendant had gone into the store, gave the following account of what transpired next: "I got out the car, I walked around the car, and then I noticed—As I walked around the car, I noticed a plastic bag on the freezer in the deli, right at the doorway. So, when I walked around the car, I asked [the defendant], ‘Is that your bag?’ He goes, ‘Yes.’ I said, ‘What's in it?’ He goes, ‘Boots.’ And then I walked over to the bag."

According to the officer, there were other people inside the store, including people who worked there as well as customers. Without touching the bag, and without asking anyone inside the store whether the bag belonged to them, the officer "looked straight down" into the bag and saw the butt of a pistol sticking out of a pair of boots inside the bag.

On cross-examination, the officer added that when he and his partner exited their vehicle, the defendant "kind of approached" them, "came out talking," and "lifted his jacket." However, the officer could not recall what, if anything, the defendant said at that point because the defendant was speaking with the officer's partner. The officer observed that the defendant was unarmed.

After the gun was recovered, the defendant was placed under arrest and subsequently indicted on charges of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and criminal possession of a firearm. Upon the defendant's plea of guilty to criminal possession of a firearm, the Supreme Court imposed sentence. The defendant appeals.

On a motion to suppress, the People bear the burden of going forward to establish the legality of police conduct in the first instance (see People v. Harris, 192 A.D.3d 151, 157–158, 138 N.Y.S.3d 593 ). Once the People have met their initial burden, the defendant bears the ultimate burden of proving the illegality of the search and seizure (see People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709 ).

Where police acting in their law enforcement capacity initiate an encounter with private citizens, the propriety of the encounter must be assessed under the four-tiered analytical framework articulated in ( People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 ) (see People v. McIntosh, 96 N.Y.2d 521, 525, 730 N.Y.S.2d 265, 755 N.E.2d 329 ). Although police officers have fairly broad authority to approach an individual and pose basic, nonthreatening questions regarding, for instance, identity, address, or destination, they may not do so on mere whim or caprice—the request must be based on an articulable reason not necessarily related to criminality (see id. at 525, 730 N.Y.S.2d 265, 755 N.E.2d 329 ).

Here, the officer who testified at the suppression hearing failed to articulate any reason for approaching the defendant, other than that he appeared nervous and the officer wanted to "see why he went into the store." This, standing alone, did not provide an objective, credible reason for the officers to approach the defendant and request information (see id. ; People v. Holz, 184 A.D.3d 1156, 1157, 123 N.Y.S.3d 864 ; People v. Larmond, 106 A.D.3d 934, 964 N.Y.S.2d 661 ; People v. Miles, 82 A.D.3d 1010, 1010–1011, 918 N.Y.S.2d 594 ).

In any event, even assuming, arguendo, that the arresting officers had an objective, credible reason for approaching the defendant, they had no basis for immediately engaging the defendant in a pointed inquiry regarding the ownership and contents of the bag inside the store (see People v. Hollman, 79 N.Y.2d 181, 193–194, 581 N.Y.S.2d 619, 590 N.E.2d 204 ; People v. Wright, 195 A.D.3d 1371, 148 N.Y.S.3d 585 ; People v. Wallace, 181 A.D.3d 1214, 1215–1216, 120 N.Y.S.3d 525 ; see also People v. Ocasio, 119 A.D.2d 21, 505 N.Y.S.2d 127 ). In this regard, we find it relevant that the People adduced no evidence that the defendant was ever observed in possession of the bag, and the officer who testified at the hearing never asked anyone else in the store if the bag belonged to them. In fact, when pressed on cross-examination as to why the officer singled out the defendant for this particular inquiry, he answered, "Because from the movements that I told you earlier he made, when he tensed up, his eyes widened when he seen us when I looked at him." Moreover, during the suppression hearing, the officer did not testify that he drew any negative inference—as our dissenting colleague does—from the fact that the defendant lifted up his jacket. To the contrary, that motion allowed the officer to observe that the defendant was unarmed. Thus, the defendant's actions were too vague and too generic to support a level two inquiry.

Accordingly, the physical evidence seized and the statements made by the defendant should have been suppressed. In light of our determination, we need not address the parties’ remaining contentions.

CHAMBERS, HINDS–RADIX and BRATHWAITE NELSON, JJ., concur.

MASTRO, J.P., dissents, and votes to affirm the judgment, with the following memorandum, in which CHRISTOPHER, J., concurs:

Because my reading of precedents of the Court of Appeals and of our own Court leads me to conclude that the police conduct in this case was lawful under all of the attendant circumstances, I respectfully dissent and vote to affirm the judgment of conviction.

At a pretrial suppression hearing, the People presented uncontroverted testimony, the credibility of which the defendant does not challenge, establishing that on November 18, 2015, at approximately 2:00 a.m., plainclothes Police Officer Brian Feeley, a 10–year veteran of the New York City Police Department, and his partner were on patrol in an unmarked...