People v. Durham, 1491/2011.

• Decision Date: 23 February 2012
• Docket Number: No. 1491/2011.,1491/2011.
• Parties: PEOPLE of the State of New York v. Hassan DURHAM.
• Court: New York Supreme Court

950 N.Y.S.2d 610

PEOPLE of the State of New York
v.
Hassan DURHAM.

No. 1491/2011.

Supreme Court, Kings County, New York.

Feb. 23, 2012.

Emily S. Kane, Esq., The Legal Aid Society, for the Defendant.

Lindsay Zuflacht, Esq., Asst. District Attorney, for the People.

GUY J. MANGANO JR., J.

The defendant is charged with Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03) and Criminal Possession of the Weapon in the Fourth Degree (Penal Law § 265.01). A Dunaway/Mapp/Huntley hearing was ordered and held. The People called one witness: New York City Police Officer Michael Burbridge.

FINDINGS OF FACT

This Court finds the People's witness to be credible.

In the early morning hours of February 19, 2011, Police Officer Michael Burbridge and his partner, Officer Grandstaff, were on anti-crime patrol in an unmarked police vehicle within the confines of the 79th Precinct. At approximately 1:15 am, the duo observed a large group of youths exiting a party near the corner of Atlantic and Franklin Avenues, Brooklyn. The officers were patrolling this particular area after receiving intelligence earlier of some possible teenaged gang activity. One of the youths had raised their attention when Officer Burbridge overheard him speaking with others, asking them, “where is it, yo, where is it,” as he contemporaneously looked on the ground and under vehicles parked in the area. The individual repeated this behavior and stopped only after the officers exited from their vehicle. No further action was taken against this individual at that time.

The officers resumed their patrol, and at approximately 1:58 am, the unmarked vehicle was in the southbound lane of Franklin Avenue near the corner of Breevort Place, Brooklyn, when the officers again observed the same individual who had apparently been searching for something on the ground shortly before. During this second encounter, the individual began to yell toward another person down the street, “the police, the police.” Officer Grandstaff exited the vehicle to approach this individual, while Officer Burbridge remained in the driver's side training his eyes on the other person, defendant herein, who was approximately 70 feet away. In apparent reaction to being warned of police presence, defendant jumped over a fence which invited Officer Burbridge to drive the vehicle closer to investigate. Clandestinely positioning the police vehicle in a well lit area between two parked cars, approximately twenty feet from where defendant was standing, Officer Burbridge observed him remove a “black L-shaped object that you grip on the side and it comes down like an L, upside-down L,” from his waistband and place it into a row of garbage cans.

Believing the object to be a handgun, Officer Burbridge immediately exited his vehicle and informed defendant to “come here, police, come here, police.” The officer grabbed defendant and restrained him while at the same time using a point-to-point radio to request assistance. Within one minute, Police Officer Brennan arrived at the scene and was instructed by Officer Burbridge to recover the firearm from the garbage cans. Officer Brennan recovered a loaded black 9mm Smith and Wesson handgun, and defendant was placed under arrest.

On the way to the 79th Precinct, defendant stated to Officer Burbridge, “can you just take me home or call my mom. I live right up the block.”

Defendant challenges the constitutionality of the warrantless arrest as well as the admissibility of the recovered firearm and statement made on the way to the precinct.

CONCLUSIONS OF LAW DUNAWAY and MAPP ISSUES

In enforcing the constitutionally protected right to be left alone, the level of permissible intrusion by law enforcement officers during street encounters with private citizens is governed by the four-tier analysis as set forth in People v. De Bour (40 N.Y.2d 210). The lowest level of intrusion in approaching an individual to request information is permitted where there exists some objective credible reason for the interference not necessarily indicative of criminality ( see id.; see also People v. Hollman, 79 N.Y.2d 181;People v. Wells, 226 A.D.2d 406). The next level of intrusion, the common law right to inquire, is...