People v. Esquilin

• Decision Date: 11 February 1997
• Parties: The PEOPLE of the State of New York, Respondent, v. Jose ESQUILIN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 567

653 N.Y.S.2d 567

236 A.D.2d 245

The PEOPLE of the State of New York, Respondent, v. Jose ESQUILIN, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Feb. 11, 1997.

William McGuire, for Respondent.

Florian Miedel, for Defendant-Appellant.

Before MILONAS, J.P., and ELLERIN, NARDELLI, WILLIAMS and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), rendered March 4, 1994, convicting defendant, after a jury trial, of robbery in the first degree, and two counts of robbery in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 4 1/2 to 9 years on the first-degree robbery conviction, and 3 to 6 years on both second-degree robbery convictions, unanimously affirmed.

Defendant's motion to suppress physical evidence and a showup identification was properly denied. The evidence at the suppression hearing established that, on August 31, 1993, at approximately 9:30 P.M., Sgt. Osborne and Police Officers Freer and Lilly were on anti-crime patrol in an unmarked police car, when they received a radio transmission of a robbery in progress at Ninth Street and Second Avenue. They traveled the few blocks to the location, behind a marked police car.

Osborne observed defendant and codefendant Jose Rivera on the corner of Ninth Street and Second Avenue, and saw them begin to walk east on Ninth Street, while repeatedly looking back over their shoulders at the marked police car. As the uniformed officers left their car, defendant and Rivera quickened their pace, continuing to look back over their shoulders at the police. Osborne and Lilly got out of their unmarked vehicle, and as Osborne began walking across the street, Lilly heard Rivera say to defendant "Come on man, let's go. The cops are here." Defendant and Rivera then began to run.

Osborne directed both men to stop, but they continued to flee, and with Lilly, he pursued them. Osborne made a radio transmission of the pursuit, giving both a description of the fleeing perpetrators, and their direction. They then apprehended defendant, recovering a can of mace nearby. Another officer caught Rivera and recovered a screwdriver from the ground near him. Other officers brought the complainant, who had been stabbed and sprayed with mace during the robbery, to the scene. He identified both defendant and Rivera as the robbers.

The suppression court denied the motion, finding that the radio report of a robbery in progress, in conjunction with the officers' observations at the scene, provided a founded suspicion of criminality, which upon defendant's and Rivera's flight, escalated to reasonable suspicion justifying the pursuit.

"[A] defendant's flight in response to an approach by the police, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, may give rise to reasonable suspicion, the necessary predicate for police pursuit" (People v. Sierra, 83 N.Y.2d 928, 929, 615 N.Y.S.2d 310, 638 N.E.2d 955; People v. Velasquez, 217 A.D.2d 510, 511, 630 N.Y.S.2d 303, lv. denied 87 N.Y.2d 852, 638 N.Y.S.2d 610, 661 N.E.2d 1393). Here, the radio report of a robbery in progress at the exact location only minutes before, defendant's and Rivera's retreat from, and preoccupation with, the uniformed police at the scene and Rivera's statement that they should leave because the "[t]he cops are here," rendered what otherwise might be interpreted as equivocal conduct manifestly more suspicious, and provided a founded suspicion of criminality ( People v. Salva, 228 A.D.2d 344, 645 N.Y.S.2d 3, lv. denied 89 N.Y.2d 867, 653 N.Y.S.2d 290, 675...