People v. Benbow
| Decision Date | 14 April 2021 |
| Docket Number | 2018–09276,Ind. No. 1849/15 |
| Citation | 145 N.Y.S.3d 584,193 A.D.3d 869 |
| Parties | The PEOPLE, etc., respondent, v. James BENBOW, appellant. |
| Court | New York Supreme Court — Appellate Division |
Paul Skip Laisure, New York, N.Y. (Rebecca J. Gannon of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Sullivan & Cromwell LLP [David Salter and Christopher Weldon ] of counsel), for respondent.
LEONARD B. AUSTIN, J.P., COLLEEN D. DUFFY, ANGELA G. IANNACCI, PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Bruce M. Balter, J.), rendered May 24, 2018, 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, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is reversed, on the law, the defendant's plea of guilty is vacated, that branch of the defendant's omnibus motion which was to suppress physical evidence is granted, the indictment is dismissed, and the matter is remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.
At a suppression hearing, a police officer testified that he was driving in a vehicle with two other officers when a sergeant requested that they follow the sergeant's vehicle to a specified location for a "gun run." There were two other officers in the vehicle with the sergeant. Approximately five minutes after the testifying officer's vehicle and the sergeant's vehicle arrived at the subject location, one of the occupants of the sergeant's vehicle made a radio call to the testifying officer's vehicle and provided a description of two individuals of interest who were leaving a club at the subject location. The description included one individual who was wearing a black jacket and black jeans, and who "supposedly had a firearm on him," and another individual who was shorter and carrying a bag. The testifying officer then observed two individuals, one taller and one shorter, and one of whom was carrying a bag, exit the club and start walking. The officer identified the individual who was not carrying the bag as the defendant.
The officer testified that the sergeant's vehicle followed the defendant and the other individual as they walked, and the testifying officer's vehicle followed the sergeant's vehicle. According to the testifying officer, the sergeant's vehicle pulled in front of the defendant and the other individual and stopped. Two officers and the sergeant exited the vehicle, approached the defendant and his companion, and identified themselves as police officers. The testifying officer and the two other officers who were in the testifying officer's vehicle exited their vehicle and approached the defendant and his companion from behind. The individual with the defendant "instantly stopped" and "put his hands up." According to the testifying officer, the defendant took "a few steps back," turned around, and ran in the direction of the testifying officer. As he was running, the defendant pulled a gun from his waist. The defendant was shot by the police, and the gun that the defendant was holding fell out of his hands and was subsequently recovered by the police.
The Supreme Court denied that branch of the defendant's omnibus motion which was to suppress the gun, finding that the police had "probable cause to stop the defendant and to place him under arrest." Thereafter, the defendant pleaded guilty to criminal possession of a firearm in full satisfaction of the indictment. The defendant appeals.
On a motion by a defendant to suppress physical evidence, "the People have the burden of going forward to show the legality of the police conduct in the first instance" ( People v. Whitehurst, 25 N.Y.2d 389, 391, 306 N.Y.S.2d 673, 254 N.E.2d 905 [emphasis omitted]). The defendant bears the ultimate burden of proving that the evidence should not be used against him or her (see People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709 ). Further, the credibility determinations of a hearing court following a suppression hearing are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record (see People v. Faulk, 185 A.D.3d 953, 954, 128 N.Y.S.3d 43 ). ( People v. Karagoz, 143 A.D.3d 912, 913–914, 39 N.Y.S.3d 217 [internal quotation marks omitted]; see People v. De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ).
"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 ). "[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...
To continue reading
Request your trial