People v. J.V.
| Decision Date | 15 July 2022 |
| Citation | 2022 NY Slip Op 50803 (U) |
| Parties | People of the State of New York v. J.V., Defendant. |
| Court | New York Supreme Court |
Unpublished Opinion
For the People: Stephanie Pak, Esq., Assistant District Attorney Michael O'Rourke, Esq., Assistant District Attorney
Attorney for Defendant: Peter Guadagnino, Esq.
The defendant is charged with Criminal Possession of a Weapon in the Second Degree, in violation of Penal Law section 265.03 (1) (b), and other related charges. The defendant now moves to suppress evidence, namely a firearm and two statements.
On June 7, 2022, this court conducted a combined Mapp/Huntley/Dunaway hearing. At the outset of the hearing, the People "conceded Huntley" as to the videotaped statement, but sought to litigate its voluntariness for use on cross-examination should the defendant elect to testify at trial (tr at 2-3).
The sole witness presented at the hearing was Special Agent Adam Shultz of the Alcohol, Tobacco, Firearms and Explosives (ATF), who testified on behalf of the People. At the conclusion of the testimony, both sides were permitted to submit closing arguments in writing, which the court has reviewed and considered.
The court makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
Agent Shultz has been employed as a Special Agent by ATF for more than seven years, handling long and short-term investigations into firearm trafficking, violent crimes, and anything to do with arsenals or explosives (tr at 6). Prior to his employment with ATF, Agent Shultz spent four years as a Federal Air Marshall and nine years as a police officer, five with the New York City Police Department and four with the Arlington County Police Department (tr at 7-8). At each of these positions, Agent Shultz received firearms training (tr at 6-8). Over the course of his law enforcement career, he has participated in approximately 200-300 arrests involving the recovery of a firearm (tr at 8).
Agent Shultz testified credibly that on August 21, 2018, he was working as part of a Joint Firearms Task Force conducting a long-term investigation of an individual named M.O. (tr at 8-10). M.O. had been involved in five transactions involving the sale of firearms to an undercover officer (tr at 11, 33).
On August 21, 2018, Agent Shultz and the Task Force were conducting surveillance on Woodbine Street in Kings County to effect an arrest of M.O. (tr at 10). Agent Shultz had been informed by an undercover officer that earlier that morning M.O. sold the undercover officer a firearm inside that location (tr at 13).
At approximately 4:40 p.m., Agent Shultz received radio communication that M.O. and another individual were exiting the location (tr at 12). Agent Shultz, who was in a vehicle half a block away, observed M.O. and the second individual who he identified as the defendant herein, leave the location and walk towards Central Avenue where they met with two other individuals (tr at 13, 15, 36). The agent and other members of the Task Force approached in their vehicle, identified themselves and arrested M.O., at which point the defendant took off running towards Woodbine Street (tr at 16, 37). The agent chased after the defendant with his gun drawn (tr at 18, 38). Prior to the defendant fleeing, the agent had not noticed anything about the defendant (tr at 37). As the defendant fled, the agent testified that he observed him "holding his left hand on his left pocket trying to control a large object that was bouncing back and forth as he was running" (tr at 17).
About half a block later, the defendant surrendered (tr at 18 37-38). In response to the agent's question about whether the defendant had anything that could hurt the agent or his partner, the defendant stated that he had a firearm in his pocket (tr at 19, 38). The firearm was recovered and the defendant was placed in handcuffs (tr at 20). The agent acknowledged that the defendant was not a subject or suspect in the Task Force's investigation and that the agent had no knowledge or evidence that the defendant had participated in any weapons transactions or other criminal activity (tr at 35-37).
After his apprehension, the defendant was transported to the 83rd Precinct (tr at 21). At the precinct, the defendant was taken to an interview room for debriefing (tr at 22). Present in the interview room were Agent Shultz, Detective Pina, and the defendant (tr at 23). The defendant was read his Miranda rights from a printed copy (tr at 23). When asked whether he would like to speak to the agent and detective, the defendant responded, "hell no" (tr at 48). Nevertheless, Agent Shultz and Detective Pina continued to speak to and question the defendant (tr at 23 48-50). The debriefing of the defendant was recorded on video (tr at 24). A DVD recording of the debriefing was admitted into evidence without objection as People's Exhibit 3 (tr at 25).
At a suppression hearing, the People have the initial burden of going forward to show, by credible evidence, the lawfulness of the police conduct (People v Berrios, 28 N.Y.2d 361, 367 [1971]; People v Hernandez, 40 A.D.3d 777 778 [2d Dept 2007]; People v Thomas, 291 A.D.2d 462 463 [2d Dept 2002]). In evaluating the police action, the court must determine whether it was justified at its inception and reasonably related in scope to the circumstances at the time (People v DeBour, 40 N.Y.2d 210, 215 [1976]). If the People satisfy their initial burden, the defendant "bears the ultimate burden of proving that the evidence should not be used against him" (Berrios, 28 N.Y.2d at 367).
In People v DeBour (40 N.Y.2d at 222-223) the Court of Appeals set forth a four-level analysis to evaluate street encounters with the police. The first level permits an officer to approach an individual to request information so long as the request is supported by "some objective credible reason for that interference not necessarily indicative of criminality" (id. at 223). The second level allows an officer to further inquire and "interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure" (id.). At the third level, officers may forcibly stop and detain an individual upon reasonable suspicion that the person has committed, is committing, or is about to commit a felony or misdemeanor. The fourth level permits officers to arrest a person upon probable cause that the person has committed a crime. Each progressive level authorizes a greater police intrusion and therefore requires escalating suspicion by the officer (People v Hollman, 79 N.Y.2d 181, 185 [1992]).
The testimony before this court establishes that Agent Shultz approached the intersection of Woodbine Street and Central Avenue to effect the arrest of M.O., the target of a long-term investigation who had allegedly engaged in the sale of a firearm to an undercover officer earlier that morning. Agent Shultz and other members of the Task Force exited their vehicle, identified themselves, and arrested M.O., at which point the defendant took off running back towards Woodbine Street. The agent immediately chased after the defendant at gunpoint.
Because "police pursuit of an individual 'significantly impedes' the person's freedom of movement," it is equivalent to a level three encounter under DeBour which must be accompanied by reasonable suspicion that a crime is being committed, has been committed, or is about to be committed (People v Holmes, 81 N.Y.2d 1056, 1057-1058 [1993], quoting People v Martinez, 80 N.Y.2d 444, 447 [1992]; see also People v Furrs, 149 A.D.3d 1098, 1099 [2d Dept 2017]). Reasonable suspicion is defined as "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand" (People v Cantor, 36 N.Y.2d 106, 112-113 [1975]). It requires "specific and articulable facts" which support the intrusion (id. at 113).
In examining police pursuit cases, the Court of Appeals has held that "flight, combined with specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit" (Holmes, 81 N.Y.2d at 1058). "Flight alone, however, or in conjunction with equivocal circumstances that might justify a police request for information is insufficient to justify pursuit" (id.; see also People v Howard, 50 N.Y.2d 583, 592 [1980]). In People v Holmes, the Court found that police observations of a defendant standing with a group of men in a "known narcotics location" with an unidentified bulge in his jacket pocket, subsequently separating from the group and walking away when the patrol car approached, and then running from the police did not give rise to reasonable suspicion justifying pursuit of the defendant (81 N.Y.2d at 1058).
The Second Department has also consistently reversed trial courts and granted motions to suppress where the circumstances and information available to the police fail to establish the reasonable suspicion required to justify police pursuit. In People v Clermont, the Second Department found that the detective's experience and observation of the defendant making "constant adjustments" to his waistband while walking down the street with a man in a location "known for gang activity," even when coupled with the defendant's flight, "did not constitute specific circumstances indicative of criminal activity" which would support a finding of reasonable suspicion (133 A.D.3d 612, 614 [2d Dept 2015]). Similarly, in People v Furrs, the Second Department found police observations of the defendant exiting a slow-moving vehicle while holding his waistband insufficient to establish...
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