People v. Ross

• Decision Date: 10 June 1998
• Parties: , 1998 N.Y. Slip Op. 5718 PEOPLE of the State of New York, Respondent, v. Shane ROSS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 526

674 N.Y.S.2d 526

251 A.D.2d 1020, 1998 N.Y. Slip Op. 5718

PEOPLE of the State of New York, Respondent, v. Shane ROSS, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

June 10, 1998.

Edward J. Nowak by Stephanie Batcheller, Rochester, for Appellant.

Howard R. Relin by Wendy Lehmann, Rochester, for Respondent.

Before DENMAN, P.J., and GREEN, PIGOTT, BALIO and BOEHM, JJ.

MEMORANDUM:

County Court erred in denying defendant's motion to suppress tangible evidence seized by police during a street encounter. The events leading to the seizure began with a 911 report from an identified citizen of a suspected drug transaction at the corner of Kondolf and Whitney Streets in the City of Rochester. In that report, the suspected drug dealer was described as a black male in his twenties, wearing black pants, a black windbreaker with a hood and a white t-shirt, and having a shaved head. Two officers responded to the report within minutes and observed a group of men standing at the corner. They did not approach defendant initially and observed that he was wearing blue jeans, a beige sweater and a black army fatigue jacket without a hood. In addition, defendant was riding a bicycle and his head was not shaved. The police continued to circle the block looking for someone who did match the description. When they failed to locate a person matching the description, the officers turned their suspicion toward defendant, the only black male they observed in the vicinity. When the police stopped their vehicle and approached him, defendant dropped his bicycle and ran. The police pursued defendant. During the chase, defendant dropped his jacket, which contained a gun and marihuana.

The citizen informant provided the police with information sufficient to support a reasonable suspicion that a crime had occurred at the corner of Kondolf and Whitney Streets. Because of the lack of correspondence between defendant's appearance and the description of the suspected drug dealer transmitted to the officers, however, the officers had no basis for concluding that the reported crime had been committed by defendant (see, People v. Buffardi, 92 A.D.2d 899, 901, 459 N.Y.S.2d 893). Defendant's flight did not supply the necessary predicate to justify the officers' pursuit. "Flight alone, * * * or even in conjunction with equivocal circumstances that might justify a police request for information (see, People v. Hollman, 79 N.Y.2d 181, 190, 581 N.Y.S.2d 619, 590 N.E.2d 204; People v. De Bour, 40 N.Y.2d 210, 218-220, 386 N.Y.S.2d 375, 352 N.E.2d 562), is insufficient to justify pursuit because an individual has a right 'to be let alone' and refuse to respond to police inquiry (see, People v. May, 81 N.Y.2d 725, 727-728, 593 N.Y.S.2d 760, 609 N.E.2d 113)" (People v....