People v. Rhames

• Decision Date: 07 July 2021
• Docket Number: Ind. No. 2567/17,2020–01754
• Citation: 149 N.Y.S.3d 550,196 A.D.3d 510
• Parties: The PEOPLE, etc., respondent, v. Jayshawn RHAMES, appellant.
• Court: New York Supreme Court — Appellate Division

196 A.D.3d 510

149 N.Y.S.3d 550

The PEOPLE, etc., respondent,

v.Jayshawn RHAMES, appellant.

2020–01754

Ind. No. 2567/17

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

Argued—June 10, 2021

July 7, 2021

Paul Skip Laisure, New York, N.Y. (Leila Hull of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill, Joseph N. Ferdnezi, Josette Simmons McGhee, and Sharon Brodt of counsel), for respondent.

REINALDO E. RIVERA, J.P., SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Joseph A. Zayas, J.), rendered January 30, 2020, convicting him of criminal possession of a weapon in the second degree (two counts), upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (John Zoll, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is reversed, on the facts, the defendant's plea of guilty is vacated, that branch of the defendant's omnibus motion which was to suppress physical evidence is granted, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

According to testimony elicited at a suppression hearing, on July 7, 2017, at approximately 4:00 p.m., Police Officers Kimberly Washington and Joseph Montano were driving south in an unmarked vehicle on Tenth Street in Queens when they observed the defendant through a row of parked cars approximately 50 feet ahead walking south on the sidewalk to the right. They both allegedly observed something bulging or protruding out of the defendant's right waistband. Officer Montano pulled over ahead of the defendant, and Officer Washington, who was dressed in plainclothes, exited the vehicle and stepped onto the sidewalk ahead of the defendant. According to Officer Washington, the defendant locked eyes with her and fled. She "immediately start[ed] to run after" the defendant and attempted to grab him with her right hand. Shortly thereafter, the defendant dropped a gun at Officer Washington's feet. Officer Montano also observed the encounter, but according to him, Officer Washington attempted to grab the defendant before he fled and the defendant dropped the gun before Officer Washington gave chase. In any event, the defendant was eventually apprehended, and police recovered the gun, ammunition, and the defendant's DNA profile.

Following the suppression hearing, the Supreme Court denied that branch of the defendant's omnibus motion which was to suppress the gun, the ammunition, and the DNA evidence. The defendant ultimately pleaded guilty to two counts of criminal possession of a weapon in the second degree, without waiving his right to appeal.

" ‘On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance’ " ( People v. Oden, 150 A.D.3d 1269, 1270, 53 N.Y.S.3d 545, quoting People v. Hernandez, 40 A.D.3d 777, 778, 836 N.Y.S.2d 219 ). However, it is the defendant who "bears the ultimate burden of proving that the evidence should not be used against him" ( People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709 ; see People v. Casey, 149 A.D.3d 770, 771, 52 N.Y.S.3d 377 ).

In People v. De Bour , 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562, the Court of Appeals established a graduated four-level test for evaluating the propriety of police encounters when a police officer is acting in a law enforcement capacity (see People v. Moore, 6 N.Y.3d 496, 498–499, 814 N.Y.S.2d 567, 847 N.E.2d 1141 ). "[L]evel one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two, the common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot; level three authorizes an officer to forcibly stop and detain and individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor; level four, arrest, requires probable cause to believe that the person to be arrested has committed a crime" ( id. at 498–499, 814 N.Y.S.2d 567, 847 N.E.2d 1141 ; see People v. De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ).

"In order to justify police pursuit, the officers must have ‘reasonable suspicion that a crime has been, is being, or is about to be committed’ " ( People v. Clermont, 133 A.D.3d 612, 613, 20 N.Y.S.3d 85, quoting People v. Holmes, 81 N.Y.2d 1056, 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396 ). Reasonable suspicion is "that quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe criminal activity is at hand" ( People v. Martinez, 80 N.Y.2d 444, 448, 591 N.Y.S.2d 823, 606 N.E.2d 951 [internal quotation marks omitted]). Relevant factors "include, among others, the substance and reliability of the report that brought the officers to the scene, the nature of the crime that the police are investigating, the suspect's behavior and the shape, size, and location of any bulges in the suspect's clothing" ( People v. Shuler, 98 A.D.3d 695, 696, 949 N.Y.S.2d 758 ). "A suspect's ‘[f]light alone ... even [his or her] flight in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit’ " ( People v. Clermont, 133 A.D.3d at 614, 20 N.Y.S.3d 85, quoting People v. Holmes, 81 N.Y.2d at 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396 ). When "combined with other specific circumstances indicating that the suspect may be engaged in criminal activity," however, a suspect's flight may "provide the predicate necessary to justify pursuit" ( People v. Holmes, 81 N.Y.2d at 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396 ; see People v. Sierra, 83 N.Y.2d 928, 930, 615 N.Y.S.2d 310, 638 N.E.2d 955 ).

Here, although the Supreme Court credited both of the officers with respect to their interactions with the defendant, their versions of the incident conflicted with each other on key points and could not be simultaneously true. For example, while Officer Washington testified that she began to pursue the defendant immediately and before he dropped the gun, Officer Montano testified that the defendant dropped the gun before he began to flee. Officer Washington also testified that she tried to grab the defendant with her right hand during the chase, whereas Officer Montano testified that Officer Washington attempted to grab the defendant before he ran. It is not clear from either witnesses' testimony when, precisely, either officer identified themselves as police officers to the defendant.

"The credibility determinations of the hearing court are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record" ( People v. Parker, 180 A.D.3d 1072, 1072, 118 N.Y.S.3d 223 ; see People v. Black, 172 A.D.3d 895, 896, 100 N.Y.S.3d 77 ). " ‘The rule is that testimony which is incredible and unbelievable, that is, impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory, is to be disregarded as being without evidentiary value, even though it is not contradicted by other testimony or evidence introduced in the case’ " ( People v. Maiwandi, 170 A.D.3d 750, 751, 95 N.Y.S.3d 361, quoting People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500 [internal quotation marks omitted]; see 22 N.Y. Jur, Evidence § 649). "Furthermore, this Court has long made clear that it ‘will not hesitate to refuse to credit testimony which has all appearances of having been patently tailored to nullify...