In re Y.N., Docket No. D-26819-19

CourtNew York County Court
Writing for the CourtPeter Passidomo, J.
Citation73 Misc.3d 1223 (A),155 N.Y.S.3d 305 (Table)
Decision Date12 November 2021
Docket NumberDocket No. D-26819-19
Parties In the MATTERS OF Y.N., a Person alleged to be a Juvenile Delinquent, Respondent.

73 Misc.3d 1223 (A)
155 N.Y.S.3d 305 (Table)

In the MATTERS OF Y.N., a Person alleged to be a Juvenile Delinquent, Respondent.

Docket No. D-26819-19

Family Court, New York, Bronx County.

Decided on November 12, 2021

Joanna Kusio, Esq. for the Presentment Agency

Heather Squatriglia, Esq. for the Respondent

Peter Passidomo, J.

Respondent made various motions to suppress evidence and the Court granted a combined Mapp/Payton/Huntley/Dunaway hearing. On September 9, 2021, the Presentment Agency withdrew its intent to introduce any statements purportedly made by Respondent on its direct case, thus rendering the Huntley hearing moot. Thus, the Court proceeded with a combined Mapp/Payton/Dunaway hearing. The hearing1 was held on September 9, 2021; September 21, 2021; September 22, 2021; September 24, 2021; October 7, 2021; and October 8, 2021. At the hearing, the Court heard extensive testimony from New York City Police Detective Christopher McGrisken, New York City Law Department Investigator Amina Williams, and Respondnet's Mother, G.B. The Court also accepted the following exhibits into evidence:

Presentment Agency's Exhibit 1: surveillance video

Presentment Agency's Exhibit 2: body-worn camera footage of Detective Christopher McGrisken

Presentment Agency's Exhibit 3: photo depicting the vicinity of Prospect Avenue in the Bronx

Presentment Agency's Exhibit 4: body-worn camera footage of Police Officer Joel Ayala

Presentment Agency's Exhibit 5: body-worn camera footage of Sergeant James Lundy

Respondent's Exhibit A: video of incident

Respondent's Exhibit B: video of gate

Respondent's Exhibit C: photo of the front of Respondent's house

Respondent's Exhibit D: photo of the front gate in front of Respondent's house, as depicted from inside the gate

Respondent's Exhibit E: photo of the front gate in front of Respondent's house, as depicted from outside the gate

Respondent's Exhibit F: photo of office schedule

At the end of the hearing, parties gave oral summations and the Court adjourned for its decision. Below, the testimony is summarized in pertinent part, and the Court's decision and reasoning are as outlined.

Testimony of Detective Christopher McGrisken

Detective Christopher McGrisken has been employed with the New York City Police Department for over ten years; he is currently assigned as an investigator in the Gun Violence Suppression Division, where he's been for a little less than a year. Detective McGrisken has participated in approximately 200 arrests, including those of juveniles. Approximately 70 of those arrests have involved a firearm.

On July 20, 2019, he was working as an officer in the Anti-Crime Unit, where he had been assigned for approximately six years. He was working with Sergeant Lundy, Officer Ayala, and Officer Rivera. As an officer in this unit, he was deployed to patrol high crime areas, with a focus on "violent street crimes, robberies, burglaries, and weapons possession." The Anti-Crime Unit does not necessarily respond to radio runs as their arrests are based on their observations of people on the street. Although Detective McGrisken was frequently partnered with Sergeant Lundy, he did not work with Officers Ayala or Rivera as frequently. This was the first time he was with these three officers on patrol.

At approximately 1:35 a.m., Detective McGrisken and his partners were in the vicinity of an intersection at Prospect Avenue in the Bronx, due to an uptick in crime. This area is within the confines of the 42nd Precinct, in an area where Detective McGrisken testified to frequently being deployed to patrol. They were driving in an unmarked vehicle with the windows open. Officer Ayala was driving, Detective McGrisken was in the front passenger seat, Officer Rivera and Sergeant Lundy were sitting in the back of the vehicle. They were in plainclothes; Detective McGrisken was wearing his ballistics vest as his outermost garment of clothing, but his shield and identification card were not displayed. He was wearing a body-worn camera which he had turned on. While they were on patrol, Detective McGrisken observed a group of five to six males on the street corner, including Respondent. There was an odor of marijuana2 in the air. Officer Ayala stopped the vehicle in the crosswalk and Detective McGrisken began to engage with the group.

While remaining in the front passenger seat, Detective McGrisken identified himself as a police officer and asked the group what they were doing. Detective McGrisken found the group "friendly"; they responded they were "hanging out, smoking, and drinking." The way the patrol car was pulled over required Detective McGrisken to speak to the group, who were situated on his right side. The group was approximately six to ten feet away. As he was speaking with them, Detective McGrisken was scanning the group, focusing on their hands, waistband areas, and pockets to see if anyone could potentially have a concealed weapon that could hurt him or his fellow officers.

The group was facing Detective McGrisken, with Respondent standing off towards the edge and back of the group. Detective McGrisken could see the front of Respondent and did not have anything obstructing his view. Although it was nighttime, the area was residential and lit by streetlights. It is a busy street with traffic traveling in both directions. Respondent was wearing a white t-shirt, which was untucked, and jeans. Detective McGrisken described Respondent as not necessarily overweight, but nonetheless a "big kid."

Detective McGrisken observed Respondent had an "L-shaped object," what he further described as "the outline of what [he] believed to be the butt of a firearm" in Respondent's left side waistband area, "bulging above [Respondent's] beltline." Respondent then "bladed his body," turning away from the officers and walking away. Respondent, who initially had his hands by his side, tucked his hands in front of him with his hands curled in the area between his hip and where a belt buckle would be. Detective McGrisken observed Respondent "repeatedly putting his left-hand over that area" where the Detective believed to have observed the outline of a firearm. Based on all of Detective McGrisken's observations, he believed Respondent was in possession of a firearm. This caused Detective McGrisken to fear for his own safety and the safety of those in the area.

As Respondent walked away, Detective McGrisken exited the police vehicle, identified himself as a police officer, and asked Respondent to stop, saying he wanted to talk to Respondent. Detective McGrisken did not alert the other officers as to what he intended to do next. Respondent did not stop, and instead "said some profanities" and continued walking away from the Detective and went through the nearby gate surrounding the white house on the corner. At this point, Respondent was alone. As he walked away, Respondent consistently kept his left hand "going to the front of his body."

Respondent entered through the gate. He did not use a key, enter a code, or need to ring a bell to proceed through the gate. There were no signs indicating that the area was private property or that trespassers were not permitted. Respondent proceeded to go up the steps towards the front door of the house. Detective McGrisken picked up his pace to ensure Respondent did not enter the house. When Respondent got to the top of the steps, but before entering through the door, Detective McGrisken stopped Respondent by grabbing Respondent's right wrist, pulling him down the steps, and placing him against the fencing that surrounded the house.

Soon thereafter, Officer Ayala, Officer Rivera, and Sergeant Lundy came over to where the detective and Respondent were against the fence. Detective McGrisken admitted he had not informed his fellow officers why he was detaining Respondent. Respondent was screaming profanities, grabbing the metal posts of the fence, and twisting his body. At one point Respondent threatened to swing at the officers. Detective McGrisken and Officer Ayala moved towards Respondent's right side, Officer Rivera went to Respondent's left side, and Sergeant Lundy began to try to handle the crowd that was beginning to gather behind them.

Detective McGrisken was focused on Respondent's hands, which were still holding onto the fence posts. As his partners assisted in holding Respondent's hands, Detective McGrisken, who was standing behind and to the right side of Respondent, ran his left hand across Respondent's left waistband area, conducting a brief frisk, which did not result in anything being found. He did not frisk Respondent's legs for safety reasons, as Respondent was yelling and pushing off the fence. At this point, Detective McGrisken admitted, "I second guessed myself. I second guessed myself in the observations I made because I know what I had saw. And, yeah, I second guessed myself."

At this point, Respondent was still yelling profanities and screaming, and a crowd was starting to build. On cross-examination, Detective McGrisken stated that at a certain point after he had frisked Respondent, he tried to have Respondent let go of the gate in order to bring him back to the precinct to write him a summons for disorderly conduct. He stated that the basis for this was because Respondent was screaming and yelling, while a crowd was gathering, which created an unsafe environment. Sergeant Lundy was engaged with the surrounding crowd, trying to get them to back up to...

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