People v. Clermont

• Decision Date: 04 November 2015
• Citation: 133 A.D.3d 612,20 N.Y.S.3d 85
• Parties: The PEOPLE, etc., respondent, v. Jocelyn CLERMONT, appellant.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 612

20 N.Y.S.3d 85

The PEOPLE, etc., respondent,

v.Jocelyn CLERMONT, appellant.

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

Nov. 4, 2015.

Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John Castellano, Johnnette Traill, and Christopher J. Blira–Koessler of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, COLLEEN D. DUFFY, and BETSY BARROS, JJ.

Appeal by the defendant from an amended judgment of the Supreme Court, Queens County (Aloise, J.), rendered May 15, 2014, upon remittitur from the Court of Appeals (22 N.Y.3d 931, 977 N.Y.S.2d 704, 999 N.E.2d 1149 ), which 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 amended judgment is reversed, on the law, 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, Queens County, for further proceedings consistent with CPL 160.50.

On October 15, 2006, at 9:15 p.m., Detective John Lunt and Officer Michael Duffy were on routine patrol in an unmarked vehicle in a neighborhood of Jamaica, Queens, known for gang activity. Detective Lunt had worked for the New York City Police Department for approximately 10 years, and had worked with the Queens Gang Squad for approximately 6 years. Detective Lunt observed the defendant and another man walking down the street. After observing the defendant make "constant adjustments" to the right side of his waistband, the police officers stopped and exited their vehicle. Detective Lunt displayed his shield and identified himself as a police officer. The defendant ran in the opposite direction and Detective Lunt chased after him. During the pursuit, the defendant took a firearm from the right side of his waistband and threw it onto the ground. The defendant was apprehended soon thereafter.

Following a suppression hearing, the Supreme Court denied that branch of the defendant's omnibus motion which was to suppress the firearm. After a jury trial, the defendant was convicted of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree (two counts).

"On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance" (People v. Hernandez, 40 A.D.3d 777, 778, 836 N.Y.S.2d 219 ; see People v. Berrios, 28 N.Y.2d 361, 367–368, 321 N.Y.S.2d 884, 270 N.E.2d 709. In People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 ) the Court of Appeals established a graduated four-level test for evaluating the propriety of police encounters when a police officer is acting in a law enforcement capacity (see People v. Moore, 6 N.Y.3d 496, 498–499, 814 N.Y.S.2d 567, 847 N.E.2d 1141 ). The first level permits a police officer to request information from an individual, and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality (see id. at 498, 814 N.Y.S.2d 567, 847 N.E.2d 1141 ; People v. De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ). The second level, known as the common-law right of inquiry, requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion (see People v. Moore, 6 N.Y.3d at 498–499, 814 N.Y.S.2d 567, 847 N.E.2d 1141 ). The third level permits a police officer to forcibly stop and detain an individual. Such a detention, however, is not permitted unless there is a reasonable suspicion that an individual is committing, has committed, or is about to commit a crime (see People v. De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; see also People v. Moore, 6 N.Y.3d at 499, 814 N.Y.S.2d 567, 847 N.E.2d 1141 ). The fourth level authorizes an arrest based on probable cause to believe that a person has committed a crime (see People v. De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; see also People v. Moore, 6 N.Y.3d at 499, 814 N.Y.S.2d 567, 847 N.E.2d 1141 ; People v. Hollman, 79 N.Y.2d 181, 184–185, 581 N.Y.S.2d 619, 590 N.E.2d 204 ).

In order to justify police pursuit, the officers must have "reasonable suspicion that a crime has been, is being, or is about to be committed" ( People v. Holmes, 81 N.Y.2d 1056, 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396 ). 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. Martinez, 80 N.Y.2d 444, 448, 591 N.Y.S.2d 823, 606 N.E.2d 951 [internal quotation marks and brackets omitted] ). A suspect's "[f]light alone ... even [his or her flight] in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit" (People v. Holmes, 81 N.Y.2d at 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396 [citations omitted]; see People v. Sierra, 83 N.Y.2d 928, 929, 615 N.Y.S.2d 310, 638 N.E.2d 955 ; People v. Carmichael, 92 A.D.3d 687, 688, 938 N.Y.S.2d 197 ). However, flight, "combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit" (People v. Holmes, 81 N.Y.2d at 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396 ; see People v. Sierra, 83 N.Y.2d at 929–930, 615 N.Y.S.2d 310, 638 N.E.2d 955 ; see also People v. Martinez, 80 N.Y.2d at 447, 591 N.Y.S.2d 823, 606 N.E.2d 951 ).

Here, Detective Lunt's experience with gang activity, his awareness that he was in an area known for gang activity, and his observation that the defendant made "constant adjustments" to the right side of his waistband, did not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion that was necessary to lawfully pursue the defendant, even when coupled with the defendant's flight from the police (see People v. Haynes, 115 A.D.3d 676, 676–677, 981 N.Y.S.2d...