People v. Bailey

• Citation: 82 N.Y.S.3d 514,164 A.D.3d 815
• Decision Date: 22 August 2018
• Docket Number: Ind. No. 968/13,2015–06262
• Parties: The PEOPLE, etc., respondent, v. Sean M. BAILEY, appellant.
• Court: New York Supreme Court — Appellate Division

164 A.D.3d 815

82 N.Y.S.3d 514

The PEOPLE, etc., respondent,

v.Sean M. BAILEY, appellant.

2015–06262

Ind. No. 968/13

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

Argued—May 4, 2018

August 22, 2018

Paul Skip Laisure, New York, N.Y. (Michael Arthus of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott, and Danielle O'Boyle of counsel), for respondent.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gregory Lasak, J.), rendered June 25, 2015, convicting him of criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree, and menacing in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Richard Buchter, J.), of those branches of the defendant's omnibus motion which were to suppress physical evidence, identification testimony, and statements made to law enforcement officials.

ORDERED that the judgment is reversed, on the law, those branches of the defendant's omnibus motion which were to suppress physical evidence, identification testimony, and statements made to law enforcement officials are granted, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent with CPL 160.50.

The defendant was charged with criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree, and menacing in the second degree based on allegations that on November 1, 2012, he knowingly possessed a loaded pistol outside of his home or place of business, and displayed that pistol to the complainant during an argument at a gas station. The defendant moved to, inter alia, suppress the firearm recovered from him at the time of his arrest, identification testimony, and his statements to law enforcement officials.

At a suppression hearing, the People elicited testimony from Police Sergeant Daquan Bendele and Police Officer Kenneth Travitt that they responded to the gas station after receiving a report about "a man with a gun" in a white BMW, along with a description of the man as "a male black wearing a gray hoodie, approximately six feet, two inches [tall]," and the license plate number of the BMW. Sergeant Bendele and Officer Travitt both acknowledged that there was no information provided about the identity of the individual who reported the man with a gun. When they responded to the gas station, Sergeant Bendele and Officer Travitt observed a white BMW pulling out of the gas station, and pulled over the vehicle. Sergeant Bendele testified that he and Officer Travitt approached the vehicle with guns drawn. Officer Travitt approached on the driver's side, while Sergeant Bendele approached on the passenger side, where the defendant was seated. Sergeant Bendele acknowledged that he could not see initially what the defendant was wearing or ascertain the defendant's height. Sergeant Bendele further testified that as he approached the vehicle and ordered the occupants to get out, he observed the defendant "reaching under the seat," and told the defendant to put his hands out the window, which was already open. Sergeant Bendele stated that the defendant eventually complied with his demand, and upon his instruction, the defendant opened the passenger door and walked to the back of the vehicle, where Sergeant Bendele frisked him. Sergeant Bendele found a firearm in the defendant's boot, and the defendant was handcuffed. Officer Travitt testified that after the defendant was handcuffed, the individual who had reported a man with a gun approached to identify himself as "the caller," and then identified the defendant as "the guy who pulled the gun on me." Officer Travitt further testified that after the defendant was placed in the backseat of the police vehicle, the defendant stated that he "wasn't going to fight it" and that he had "messed up." At the close of the hearing, the Supreme Court denied those branches of the defendant's omnibus motion which were to suppress the firearm, identification testimony, and his statements to law enforcement officials.

Following a jury trial, the defendant was convicted of criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree, and menacing in the second degree.

On appeal, the defendant argues, inter alia, that the Supreme Court erred in denying those branches of his omnibus motion which were to suppress the firearm, identification testimony, and his statements to law enforcement officials, on the ground that the police lacked reasonable suspicion to stop the vehicle based solely on an anonymous tip about "a man with a gun."

"It is fundamental that in order to stop a vehicle the police must have a reasonable suspicion, based on objective evidence, that the occupants were involved in a felony or misdemeanor" ( People v. Figueroa, 38 A.D.3d 796, 797, 833 N.Y.S.2d 528 [internal quotation marks omitted]; see People v. Coleman, 183 A.D.2d 840, 841, 584 N.Y.S.2d 89 ; see also People v. Harrison, 57 N.Y.2d 470, 476, 457 N.Y.S.2d 199, 443 N.E.2d 447 ). "Reasonable suspicion has been defined as ‘that quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand’ " ( People v. Bowers, 148 A.D.3d 1042, 1043, 50 N.Y.S.3d 138, quoting People v. Martinez, 80 N.Y.2d 444, 448, 591 N.Y.S.2d 823, 606 N.E.2d 951 [internal quotation marks omitted] ). "[W]here an anonymous phone tip giving a general description and location of a ‘man with a gun’ is the sole predicate, it will generate only a belief that criminal activity is afoot," and "will not of itself constitute reasonable suspicion thereby warranting a stop and frisk of anyone who happens to fit that description" ( People v. Stewart, 41 N.Y.2d 65, 69, 390 N.Y.S.2d 870, 359 N.E.2d 379 [internal quotation marks omitted] ). "Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her [or his] allegations turn out to be fabricated, ‘an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity’ " ( Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254, quoting Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 [citation omitted] ). However, "there are situations in which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop’ " ( Florida v. J.L., 529 U.S. at 270, 120 S.Ct. 1375, quoting Alabama v. White, 496 U.S. at 327, 110 S.Ct. 2412 ). Further, reasonable suspicion "requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person" ( Florida v. J.L., 529 U.S. at 272, 120...