Matter of Emmanuel O.

• Decision Date: 19 September 2006
• Docket Number: 2004-06411.
• Citation: 2006 NY Slip Op 06583,32 A.D.3d 948,821 N.Y.S.2d 255
• Parties: In the Matter of EMMANUEL O., a Person Alleged to be a Juvenile Delinquent, Appellant.
• Court: New York Supreme Court — Appellate Division

32 A.D.3d 948

821 N.Y.S.2d 255

2006 NY Slip Op 06583

In the Matter of EMMANUEL O., a Person Alleged to be a Juvenile Delinquent, Appellant.

2004-06411.

Appellate Division of the Supreme Court of the State of New York, Second Department.

September 19, 2006.

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Kings County (Weinstein, J.), dated July 14, 2004, which, upon a fact-finding order of the same court dated February 26, 2004, finding that the appellant committed acts which, if committed by an adult, would have constituted the crimes of criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the seventh degree, and after a dispositional hearing, adjudged him to be a juvenile delinquent and placed him on probation for a period of two years. The appeal brings up for review the denial, after a hearing, of that branch of the appellant's omnibus motion which was to suppress physical evidence.

Ordered that the order of disposition is reversed, on the law, without costs or disbursements, the fact-finding order is vacated, that branch of the appellant's omnibus motion which was to suppress physical evidence is granted, the petition is denied, and the proceeding is dismissed.

The evidence adduced at the suppression hearing revealed that on December 21, 2003, at approximately 1:40 A.M., Police Officer Santiago Frances and his partner, while in plain clothes, approached the appellant and his two friends in the vestibule of a residential building located at 340 Miller Avenue in Brooklyn. Officer Frances' reasons for approaching the youths were that the building was located in a high crime area and that he had received information, from an unnamed source, that a "party" was being held at that location. As the officers were approaching, the appellant and his friends were engaged in conversation and did not appear to be doing anything illegal. Before identifying himself as a police officer, Frances asked the youths whether they lived in the building, to which one of the appellant's friends replied "no," and explained, upon further inquiry, that they were waiting for a friend. During this time, the appellant said nothing. Officer Frances then asked the youths for identification. At that point, the appellant opened the inner door of the building and ran inside. Frances immediately gave chase, yelling, "Police, stop, police, stop." During the pursuit, the appellant allegedly dropped what turned out to be a loaded and operable firearm. Upon the appellant's subsequent arrest, crack cocaine was recovered on his person.

Because police pursuit of an individual significantly impedes the person's freedom of movement, it must be justified by a reasonable suspicion that a crime has been, is being, or is about to be committed (see People v Holmes, 81 NY2d 1056, 1057-1058 [1993]; People v Martinez, 80 NY2d 444, 447 [1992]). Assuming, without deciding, that the police officers here had an objective, credible reason to initiate an encounter with the appellant and his friends (cf. People v McIntosh, 96 NY2d 521 [2001]; People v Terracciano, 135 AD2d 849 [1987]), the appellant's subsequent actions of opening the inner door of the vestibule and running inside the building were insufficient, under the circumstances of this case, to give rise to a reasonable suspicion that he was engaged in criminal activity (see People v Brogdon, 8 AD3d 290 [2004]; see also People v Holmes, supra; People v Howard, 50 NY2d 583 [1980], cert denied 449 US 1023 [1980]; compare People v Pines, 99 NY2d 525 [2002]; Matter of Steven McC., 304 AD2d 68 [2003]). Therefore, Officer Frances had no lawful basis to pursue the appellant and command him to stop, and the evidence recovered as a result of the unlawful pursuit should have been suppressed.

Crane, J.P., Ritter and Fisher, JJ., concur.

Rivera, J.(dissenting and voting to affirm the order of disposition with the following memorandum in which Dillon, J., concurs).

The issue presented in this case is whether the Family Court properly denied that branch of the appellant's motion which was to suppress physical evidence. In my opinion, the Family Court's determination was proper. Thus, I would affirm the order of disposition.

At the suppression hearing, Police Officer Frances testified that, on December 21, 2003 at approximately 1:40 A.M., he and two other officers were in the vicinity of the subject public housing development located in Brooklyn. This was a "high crime area" that had been designated a "target zone" within the precinct because of numerous shootings and narcotics sales that had taken place there in the past. Frances received information that a "party" was being held at this location.

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