In re Jakwon R.

• Decision Date: 02 October 2013
• Citation: 2013 N.Y. Slip Op. 06368,973 N.Y.S.2d 228,110 A.D.3d 723
• Parties: In the Matter of JAKWON R. (Anonymous), respondent; Presentment Agency, appellant.
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 723

973 N.Y.S.2d 228

2013 N.Y. Slip Op. 06368

In the Matter of JAKWON R. (Anonymous), respondent; Presentment Agency, appellant.

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

Oct. 2, 2013.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Susan Paulson of counsel), for appellant.

Etta Ibok, Brooklyn, N.Y., for respondent.

DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, SANDRA L. SGROI, and SYLVIA O. HINDS–RADIX, JJ.

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the Presentment Agency appeals from (1) an order of the Family Court, Kings County (Toussaint, J.), dated March 26, 2012, which, after a hearing, granted that branch of Jakwon R.'s omnibus motion which was to suppress a BB gun recovered from his backpack, and (2) an order of the same court dated March 27, 2012, which dismissed the petition.

ORDERED that the orders are reversed, on the law, without costs or disbursements, that branch of Jakwon R.'s omnibus motion which was to suppress the BB gun is denied, the petition is reinstated, and the matter is remitted to the Family Court, Kings County, for further proceedings consistent herewith.

“[I]n [the] difficult area of street encounters between private citizens and law enforcement officers ... the events must be viewed and considered as a whole, remembering that reasonableness is the key principle when undertaking the task of balancing the competing interests presented” ( People v. Chestnut, 51 N.Y.2d 14, 23, 431 N.Y.S.2d 485, 409 N.E.2d 958,cert. denied449 U.S. 1018, 101 S.Ct. 582, 66 L.Ed.2d 479;see People v. Carmona–Caviedes, 200 A.D.2d 627, 628–629, 606 N.Y.S.2d 731;People v. Tratch, 104 A.D.2d 503, 504, 479 N.Y.S.2d 250). “A determination of reasonableness turns upon the facts of each case” ( People v. Batista, 88 N.Y.2d 650, 653, 649 N.Y.S.2d 356, 672 N.E.2d 581;see People v. Chestnut, 51 N.Y.2d at 22, 431 N.Y.S.2d 485, 409 N.E.2d 958).

“At a suppression hearing, the Presentment Agency bears the burden of establishing the legality of police conduct in the first instance” (Matter of Robert D., 69 A.D.3d 714, 716, 892 N.Y.S.2d 523;see People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709;People v. James, 72 A.D.3d 844, 844, 898 N.Y.S.2d 635;People v. Thomas, 291 A.D.2d 462, 463, 738 N.Y.S.2d 357). The respondent, however, bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him or her ( see People v. Berrios, 28 N.Y.2d at 367, 321 N.Y.S.2d 884, 270 N.E.2d 709;People v. Spann, 82 A.D.3d 1013, 1014, 918 N.Y.S.2d 588;People v. Thomas, 291 A.D.2d at 463, 738 N.Y.S.2d 357).

At the suppression hearing in this case, the Presentment Agency established that the police had reasonable suspicion that the respondent and his two companions were the individuals described in a radio run as the perpetrators of a robbery which occurred approximately 10 minutes prior to the stop of the respondent and his companions ( see generally People v. Martinez, 80 N.Y.2d 444, 447, 591 N.Y.S.2d 823, 606 N.E.2d 951;People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562;People v. Shuler, 98 A.D.3d 695, 696, 949 N.Y.S.2d 758;People v. Davenport, 92 A.D.3d 689, 690, 939 N.Y.S.2d 473). The police were justified in stopping and detaining the respondent and the two other individuals based on the similarities between them and the individuals described over the radio, including the number of individuals and what they were wearing, the close proximity of the three to the site of the crime and their presence at a location toward which the perpetrators were reported to have been traveling, and the short passage of time between the crime and observation of the three individuals ( see People v. Palmer, 84 A.D.3d 1414, 1414, 923 N.Y.S.2d 907;People v. James, 72 A.D.3d at 844–845, 898 N.Y.S.2d 635;People v. Hines, 46 A.D.3d 912, 913, 848 N.Y.S.2d 349;People v. Private, 259 A.D.2d 504, 504, 687 N.Y.S.2d 379). Further, based on the radio report they received, the police officers had reasonable suspicion that one of the three individuals was carrying a firearm, which had just been used in committing the robbery. Under these circumstances, the police were permitted to “conduct a frisk or take other protective measures” ( People v. Shuler, 98 A.D.3d at 696, 949 N.Y.S.2d 758;see Terry v. Ohio, 392 U.S. 1, 29–30, 88 S.Ct. 1868, 20 L.Ed.2d 889). Contrary to the respondent's contention, the police were not limited to a pat down of the his person, but were justified, “on grounds of safety and precaution,” in examining the respondent's backpack, a “personal item [ ] capable of concealing a weapon within the suspect's grabbable reach” ( People v. Brooks, 65 N.Y.2d 1021, 1023, 494 N.Y.S.2d 103, 484 N.E.2d 132;see People v. Davis, 64 N.Y.2d 1143, 490 N.Y.S.2d 725, 480 N.E.2d 339;People v. Moore, 32 N.Y.2d 67, 343 N.Y.S.2d 107, 295 N.E.2d 780,cert. denied414 U.S. 1011, 94 S.Ct. 376, 38 L.Ed.2d 249;People v. Shackleford, 57 A.D.3d 578, 579, 868 N.Y.S.2d 717;People v. Tratch, 104 A.D.2d at 504, 479 N.Y.S.2d 250). As the respondent failed to prove, by a preponderance of the credible evidence, that the evidence should not be used against him ( see generally People v. Berrios, 28 N.Y.2d at 367, 321 N.Y.S.2d 884, 270 N.E.2d 709;People v. Spann, 82 A.D.3d at 1014, 918 N.Y.S.2d 588;People v. Thomas, 291 A.D.2d at 463, 738 N.Y.S.2d 357), the Family Court erred in granting that branch of the respondent's omnibus motion which was to suppress the BB gun.

Under the circumstances of this case, since suppression is being denied, the petition must be reinstated and the matter remitted to the Family Court, Kings County, for further proceedings.

ANGIOLILLO, J.P., DICKERSON and SGROI, JJ., concur.

HINDS–RADIX, J., dissents, and votes to affirm the orders appealed from, with the following memorandum.

At the suppression hearing, Police Officer Gregory Marquart testified that on January 9, 2011, at approximately 5:20 p.m., he received a radio transmission reporting that a robbery occurred at a specified address and describing the alleged perpetrators. Officer Marquart testified that he received only one radio transmission relaying the description. He testified that the perpetrators were described as three male blacks, one wearing tan pants, a black jacket, and gray hoodie, one wearing blue jeans and a light-colored hoodie, and one wearing blue jeans, a blue hoodie, and black hat. Upon listening to a tape of the radio transmission, he noted that the males were described as at least 20 to 21 years old.

Officer Marquart's partner, Police Officer George Delgado, testified that he heard a number of different descriptions over the radio, but could not recall how many. The first description was of three male blacks, ages 18 to 23 years, one wearing tan pants, and the other carrying a black book bag and wearing a baseball cap. He recalled hearing a second description “almost simultaneously,” again noting that one of the males was wearing tan pants, and the other had a book bag and was wearing a hat.

The tape of the radio transmissions indicates that the description was of three male blacks between 21 and 22 years old, but describes only two of them. The male with the gun was described as wearing tan pants, while the second male was described as wearing a light-colored jacket, with a navy blue cloth bag on his back, and possibly wearing a cap. After canvassing the area for about 10 minutes, Officer Marquart observed three male blacks about two blocks from the scene of the robbery, standing near a video store. According to Officer Marquart, one was wearing tan pants, a black jacket, and a light-colored hoodie, one was wearing blue jeans and a light-colored hoodie, and the third individual, later identified as the respondent, was wearing blue jeans, a green hoodie, and a black hat, and carried a black school backpack, and appeared to be 19 years old. In his arrest report, Officer Marquart noted that the respondent was wearing green, but failed to include other details, such was whether the respondent was in fact wearing a light-colored jacket or hoodie. Officer Marquart acknowledged that the respondent did not match the description of the man holding the gun.

According to Officer Delgado, the three men were “coming from the direction of the incident,” and the respondent appeared to be between 18 and 23 years old. Officer Delgado...