People v. Ocasio

• Decision Date: 07 June 1995
• Citation: 629 N.Y.S.2d 161,85 N.Y.2d 982
• Parties: , 652 N.E.2d 907 The PEOPLE of the State of New York, Respondent, v. Jose OCASIO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 161

629 N.Y.S.2d 161

85 N.Y.2d 982, 652 N.E.2d 907

The PEOPLE of the State of New York, Respondent, v. Jose OCASIO, Appellant.

Court of Appeals of New York.

June 7, 1995.

[85 N.Y.2d 983] [652 N.E.2d 908] Daniel Hsiung, and Philip L. Weinstein, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty., of New York County, New York City (Polly Greenberg and Robert M. Raciti, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed.

While on stakeout in front of a building where drug dealing was suspected, Officer Meehan believed that defendant and his codefendant, Joseph Torres, were "up to no good" when he saw the two men pull up in a car in front of the building, look up and down the street, enter the building briefly, and then drive away. Meehan broadcast a description of the two men to a backup team of officers. When defendant stopped at a red light, an officer walked to either side of the car and tapped on the window, asking for identification. Torres handed the officer a wallet containing a license and credit cards belonging to Seng Ong, depicted on the license to be an Asian man bearing no resemblance to Torres. Torres explained that he had "just got a wallet from somebody" and planned to sell its contents. He could not tell the officer from whom he had obtained the wallet. Both men agreed to be frisked for weapons and to come to the station house. In Torres' back pocket were checks bearing Seng's name. At the precinct, an officer reached Seng, who said that he had been robbed 10 minutes earlier at the building Meehan had under surveillance. Meehan, arriving at the precinct, identified defendant and Torres as the men he saw at the building. An inventory search of defendant's car revealed a weapon and the same amount of cash Seng said had been stolen from him.

We have previously held, as a matter of law, that interference with a moving vehicle is a seizure requiring, at a minimum, reasonable suspicion (People v. May, 81 N.Y.2d 725, 593 N.Y.S.2d 760, 609 N.E.2d 113), although approach of a parked car may be undertaken for an objective, credible reason (People v. Harrison, 57 N.Y.2d 470, 475-476, 457 N.Y.S.2d 199, 443 N.E.2d 447). Determination whether a seizure occurred here--where the car was neither parked nor moving--requires the fact finder to apply a settled standard: whether a reasonable person would have believed, under the circumstances, that the officer's conduct was a significant limitation on his or her freedom (see, People v. Bora, 83 N.Y.2d 531, 611 N.Y.S.2d 796, 634 N.E.2d 168). That involves consideration of all the facts--for example, was there a chase; were lights, sirens or a loudspeaker used; was the officer's gun drawn, was the individual prevented from moving; how many verbal commands were given; what was the content and tone of the commands; how many officers were involved; where did the encounter take place (id. ).

Enough was shown here to create a fact question as to whether a seizure occurred, and the trial court considered the appropriate factors. Defendant's progress was halted by a stoplight, not the police. The officers approached on foot, displayed badges and asked for identification. No sirens or lights were used to interfere with defendant's transit; no gun was displayed; and defendant was at no time prevented from departing. Defendant consented to accompany the officers to the precinct, and thus was not forcibly detained. While there may be instances in which approach of a car at a stoplight constitutes a seizure, the courts below, having considered the relevant factors, found no seizure. We cannot...