People v. Mundy

• Decision Date: 28 April 2015
• Docket Number: No. 2314/2014.,2314/2014.
• Citation: 16 N.Y.S.3d 793 (Table)
• Parties: The PEOPLE of the State of New York, v. Audley MUNDY, Defendant.
• Court: New York Supreme Court

16 N.Y.S.3d 793 (Table)

The PEOPLE of the State of New York
v.
Audley MUNDY, Defendant.

No. 2314/2014.

Supreme Court, Bronx County, New York.

April 28, 2015.

Opinion

RALPH A. FABRIZIO, J.

In the wee small hours of a Bronx summer morning, the stillness of a residential neighborhood was pierced by the blast of a gunshot. A neighborhood resident saw three men standing on a street, and watched as one them held a greyish/silver gun and fired it. He did not get a good look at any of their faces. The witness flagged down police officers who responded to his 911 call. The only physical description he could provide was that all the men were black, and one wore a white t-shirt. He also said the men just rounded the corner of a certain street and were still walking together. As the officers drove in the direction described, they saw three black men walking in the middle of the street, one wearing a white t-shirt. The officers pulled up next to the men; one officer told them to stop. Two did, but defendant ran off, and two police officers gave chase. Defendant pulled out a firearm when he found himself standing face to face with one of the pursuing police officers. The firearm fell to the ground, and the officer placed his own leg over it as defendant tried to retrieve it.

Defendant moved to suppress the gun. The motion court ordered a combined Mapp/Huntley/Dunaway hearing. Following the hearing, this Court credits the testimony of the two police witnesses in their entirety. The motion to suppress the gun, as well as a custodial statement defendant made following his arrest, is denied.

FINDINGS OF FACT

Police Officer William Roettger, a nineteen-year veteran of the New York City Police Department, was working the midnight tour at the 47th Precinct on July 13, 2014. At about 5:10 a.m., just as the officer was finishing his meal break at the precinct, he received a radio run. The 911 caller reported that a gun had been fired on 225th Street between Laconia and Paulding Avenues. The officer and his partner, who were in uniform, jumped into a marked police van and drove immediately to the location noted in the radio run, which was only about five blocks from the precinct. When they arrived, a man gestured to the officers, and they went over to speak to him. The man said he had been the one who called 911. He told the officers he was sitting in his own car when he observed three men a few minutes earlier on 224th Street and Paulding Avenue. The men were all black. In terms of clothing, he could only say that one of them wore a white t-shirt. One of the three men pulled out a greyish/silver gun and fired it into the air. The officers asked the witness if he knew where the men he saw had gone. The witness told them that just before the police officers arrived, the three men “made a left onto 224th Street,” and were walking eastbound on that street. The officers asked the witness to get into the marked police van. He declined, telling them that he could not identify the person who fired the gun by face or any other means. The witness also told the police officers he lived on that block of East 224th Street.

Officer Roettger immediately drove his marked car in the direction described by the witness. This residential neighborhood has two and three story town houses, some with driveways. The officers drove south on Laconia Avenue, and then made a left turn onto East 224th Street, heading eastbound. No one else was out on those streets. As the officers turned onto East 224th Street, they saw three black men walking in the street. One of the men wore a white t-shirt. The men walked from the street onto a sidewalk. Officer Roettger, who was driving, pulled up next to the men and stopped the van. His partner jumped out of the van, and ordered the men to stop. Two of the men complied., but defendant immediately ran eastbound on 224th Street. Officer Roettger's partner chased defendant, and Officer Roettger joined the pursuit.

Defendant ran on the sidewalk until he reached the residence located at 1276 East 224th Street. Defendant turned and ran up the driveway and into the backyard. Officer Roettger called for back-up on his police radio, providing details about the chase and the address of the house. He told the dispatcher he and his partner were in pursuit of a subject who possibly had a gun. Officer Roettger drew his own weapon as he ran up the driveway. His partner, who was already in the backyard, shouted that defendant was “jumping over the fence.” Officer Roettger saw bushes moving, and turned around to go back to the front of the house, “just in case [defendant] doubles back.” As Officer Roettger reached the sidewalk at the front of the house, defendant sprinted from the backyard down the driveway and was “running straight at” the officer. Defendant “bladed his body,” turning away from the officer for a moment, while simultaneously reaching for his waistband. Defendant made the same type of motion with his own hand that the officer would make if he were reaching to draw his own gun. The officer pointed his own weapon at defendant, shouting, “Don't do it. Don't do it. Stop. Don't do it. I'll blast you.” Defendant continued running toward the officer after drawing the gun.

A car was parked in the driveway and there was a gate separating it from the sidewalk. Defendant tried to run between the officer, the car, and the gate. Defendant bounced off the car and he and Officer Roettger fell back against a fence. Defendant lost his balance, and the silver/grey gun fell to the ground. Officer Roettger shouted to his partner, “Gun,” and jumped onto defendant. Defendant reached out to grab the gun. The officer thrust his right leg over the gun, grabbed defendant's right arm, and managed to place defendant in handcuffs. The arrest time was 5:22 a.m., about twelve...