People v. Jones

• Decision Date: 31 July 2019
• Docket Number: KA 16–01256,713
• Citation: 105 N.Y.S.3d 252,174 A.D.3d 1532
• Parties: The PEOPLE of the State of New York, Respondent, v. Adrian JONES, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 1532

105 N.Y.S.3d 252

The PEOPLE of the State of New York, Respondent,

v.Adrian JONES, Defendant–Appellant.

713

KA 16–01256

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

Entered: July 31, 2019

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KIMBERLY J. CZAPRANSKI OF COUNSEL), FOR DEFENDANT–APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., PERADOTTO, CARNI, LINDLEY, AND CURRAN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated, that part of the omnibus motion seeking to suppress physical evidence is granted, the indictment is dismissed, and the matter is remitted to Supreme Court, Onondaga County, for proceedings pursuant to CPL 470.45.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted criminal possession of a weapon in the second degree ( Penal Law §§ 110.00, 265.03[3] ), defendant contends that Supreme Court erred in refusing to suppress the handgun that he discarded while being pursued by the police. We agree.

The evidence at the suppression hearing established that a police officer in a marked patrol vehicle responded after midnight to a 911 call reporting shots fired near an apartment complex in the City of Syracuse. Upon his arrival in the area, the officer received a radio dispatch reporting that the suspect was among a group of eight men on a certain street; no further description of the suspect beyond his race was provided. The officer acknowledged that the apartment complex was large with hundreds of residents and that it was not unusual for black males to be walking around that area after midnight. As the officer drove toward the street identified in the dispatch, he saw a man later identified as defendant and a second man, both of whom were black, walking out from behind an apartment building. The officer did not see anything in the hands of either man. The men immediately turned around and ran away when they saw the officer in his patrol vehicle. The officer then relayed a description of the men over the police radio, exited his vehicle, and pursued the men on foot. After initially losing sight of the men, the officer regained sight of the second man, who was then pursued and apprehended by other police officers. At that point, the officer stopped running, then looked to his right and saw defendant emerging from behind a building approximately 30 yards away. The officer noticed that defendant had a handgun and a sweatshirt in his hand, at which point the officer pointed his own gun at defendant, informed him that he was under arrest, and ordered him to drop the handgun. Defendant then threw the handgun and sweatshirt into a trash can and fled, and the officer gave chase. After another police officer joined the officer in the chase, the officer returned to the trash can and secured the discarded handgun. Defendant was arrested by other police officers.

It is well established that, "[i]n evaluating police conduct, the court must determine whether the action taken was justified in its inception and at every subsequent stage of the encounter" ( People v. Nicodemus, 247 A.D.2d 833, 835, 669 N.Y.S.2d 98 [4th Dept. 1998], lv. denied 92 N.Y.2d 858, 677 N.Y.S.2d 88, 699 N.E.2d 448 [1998] ; see People v. De Bour, 40 N.Y.2d 210, 222–223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ). "[T]he police may pursue a fleeing defendant if they have a reasonable suspicion that defendant has committed or is about to commit a crime" ( People v. Martinez, 80 N.Y.2d 444, 446, 591 N.Y.S.2d 823, 606 N.E.2d 951 [1992] ). "[A] defendant's flight in response to an approach by the police, combined with other specific circumstances indicating that the [defendant] may be engaged in criminal activity, may give rise to reasonable suspicion" ( People v. Sierra, 83 N.Y.2d 928, 929, 615 N.Y.S.2d 310, 638 N.E.2d 955 [1994] ; see People v. Holmes, 81 N.Y.2d 1056, 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396 [1993] ). "Flight alone, however, or even in conjunction with equivocal circumstances that might justify a police request for information ..., is insufficient to justify pursuit because an individual has a right ‘to be let alone’ and refuse to respond to police inquiry" ( Holmes, 81 N.Y.2d at 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396 ).

Here, as the People correctly concede, the officer's action of pursuing defendant in response to his flight was not justified at its inception inasmuch as there were no specific circumstances indicating that defendant may have been engaged in criminal activity so as to give rise to reasonable suspicion (see People v. Nunez, 111 A.D.3d 854, 856, 975 N.Y.S.2d 125 [2d Dept. 2013] ; see generally Holmes, 81 N.Y.2d at 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396 ). Although the officer observed defendant walking in the general vicinity of the reported gun shots, that observation does not provide the "requisite reasonable suspicion, in the absence of ‘other objective indicia of criminality’ " that would justify pursuit, and no such evidence was presented at the suppression hearing ( People v. Riddick, 70 A.D.3d 1421, 1423, 894 N.Y.S.2d 260 [4th Dept. 2010], lv. denied 14 N.Y.3d 844, 901 N.Y.S.2d 150, 927 N.E.2d 571 [2010] ; see People v. Cady, 103 A.D.3d 1155, 1156, 959 N.Y.S.2d 321 [4th Dept. 2013] ). In the absence of other identifying information, the fact that defendant may have matched the vague, generic description of the suspect as a black male, which could have applied to any number of individuals in the area of the large apartment complex with hundreds of residents, did not sufficiently indicate that defendant may have been engaged in criminal activity (see Nunez, 111 A.D.3d at 856, 975 N.Y.S.2d 125 ; People v. Beckett, 88 A.D.3d 898, 900, 931 N.Y.S.2d 126 [2d Dept. 2011] ). Thus, the pursuit of defendant was unlawful.

We agree with defendant that, contrary to the court's determination and the People's contention, the record does not establish that he...