People v. Gerard

• Decision Date: 19 April 2012
• Citation: 942 N.Y.S.2d 112,94 A.D.3d 592,2012 N.Y. Slip Op. 02957
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael GERARD, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02957
94 A.D.3d 592
942 N.Y.S.2d 112

The PEOPLE of the State of New York, Respondent,
v.
Michael GERARD, Defendant–Appellant.

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

April 19, 2012.

[942 N.Y.S.2d 113]

Robert S. Dean, Center for Appellate Litigation, New York (Marisa K. Cabrera of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), for respondent.

ANDRIAS, J.P., SWEENY, MOSKOWITZ, FREEDMAN, MANZANET–DANIELS JJ.

[94 A.D.3d 592] Judgment, Supreme Court, New York County (Laura A. Ward, J. at suppression hearing; Juan M. Merchan, J. at plea and sentencing), rendered September 14, 2010, convicting defendant of criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to a term of eight years, unanimously reversed, on the law, defendant's suppression motion granted, and the indictment dismissed.

It was a permissible intrusion for the investigating officer to have approached defendant to ask him whether he was carrying a weapon and whether he was all right, based upon his founded suspicion that criminality was afoot, derived from (1) defendant's presence in a “drug-prone and gun-prone” location at approximately 2:45 a.m., (2) the weighted-down appearance of the left side of defendant's unzipped jacket; (3) defendant's change in course after he noticed the police officers, in which he made a hard left turn, quickened his pace and hugged the building line, with the weighted side of his coat very close to the wall; (4) defendant's act of blading his body towards the wall as the investigating officer neared, i.e. turning his shoulders so as to use the wall to shield his weighted-down pocket; (5) the bulge in defendant's weighted-down pocket; and (6) defendant speaking into a phone in a fast cadence ( see [94 A.D.3d 593] People v. Rodriguez, 207 A.D.2d 669, 616 N.Y.S.2d 31 [1994], lv. denied 84 N.Y.2d 939, 621 N.Y.S.2d 536, 645 N.E.2d 1236 [1994]; People v. Niles, 237 A.D.2d 537, 655 N.Y.S.2d 578 [1997], lv. denied 90 N.Y.2d 861, 661 N.Y.S.2d 188, 683 N.E.2d 1062 [1997] ). “Although each factor, standing alone, could be susceptible to an innocent interpretation, a view of the entire circumstances” gave the officer a founded suspicion that criminality was afoot, which invoked the common-law right to inquire ( see People v. Evans, 65 N.Y.2d 629, 491 N.Y.S.2d 153, 480 N.E.2d 742 [1985] ). However, the officer's level of...