People v. Swain

• Decision Date: 03 January 2019
• Docket Number: 108472
• Parties: The PEOPLE of the State of New York, Respondent, v. Anthony SWAIN, Appellant.
• Court: New York Supreme Court — Appellate Division

168 A.D.3d 1130
90 N.Y.S.3d 403

The PEOPLE of the State of New York, Respondent,
v.
Anthony SWAIN, Appellant.

108472

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

Calendar Date: November 15, 2018
Decided and Entered: January 3, 2019

David M. Abbatoy, Rochester, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Susan Rider–Ulacco of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Lynch, J.

168 A.D.3d 1130

Shortly after midnight on January 1, 2015, William Michalko, an officer with the West Elmira Police Department, responded to the scene of a shooting outside of a bar on the north side of the City of Elmira, Chemung County. By the time he arrived, the assailants had fled. After assisting at

90 N.Y.S.3d 405

the bar, Michalko was dispatched to the vicinity of Hudson and Harmon Streets on the City's south side for a report of shots fired. When he arrived at that location, Michalko observed defendant, who he described as about 6 feet tall and wearing a gray hoodie, running across a yard and then walking in Michalko's direction. He observed defendant walk between two vehicles and heard a sound, which he described as a "thud." Michalko asked defendant

168 A.D.3d 1131

to stop and identify himself and then patted him down for weapons. Finding none, defendant was released.

Meanwhile, Richard Matthews, a deputy with the Chemung County Sheriff's Department, also responded to the shots fired call, stopping at a nearby home around 2:00 a.m., where a group dispersed upon his arrival. In response, Matthews issued a radio description of one of the individuals who fled over a fence as a black male, approximately 6 feet tall and wearing gray clothing. Hearing this dispatch, and believing that the description matched defendant, Michalko returned to the Hudson/Harmon intersection and observed defendant approaching as well. When Michalko activated his headlights, defendant turned and walked away. Michalko pursued and stopped defendant in an alleyway off of Harmon Street. Matthews arrived within minutes and indicated that defendant "could have been the subject" who fled from him. At that point, Michalko placed defendant in handcuffs and secured him in the patrol car so that he and Matthews could check the area between the parked cars. In doing so, Michalko found a handgun near the back tire of one of the vehicles.

Defendant was transported to the Elmira Police Department, where he was interviewed by Investigator Zachary Stewart. After waiving his Miranda rights, defendant admitted that he and his brother had been at the bar, but he denied being involved in the shooting. Defendant then told Stewart, "I didn't do it, but I did it," which he went on to explain meant that "he was not going to tell on anyone else and this was going to be pinned on him anyway[ ]."

In February 2015, defendant was indicted on charges of attempted murder in the second degree, criminal use of a firearm in the first degree, criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree and assault in the second degree. After County Court denied defendant's motion to suppress the weapon, his statement and a witness's identification of him, defendant pleaded guilty to attempted murder in the second degree in satisfaction of all charges and was sentenced to a prison term of 15 years, with five years of postrelease supervision. Defendant appeals.

Defendant maintains that he was illegally detained under the four-level test outlined in People v. De Bour , 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976) while the police searched for and found the handgun. We agree. Michalko's conduct in placing defendant in handcuffs and locking him in the back seat of the patrol car constituted, at least, a forcible detention, which required

168 A.D.3d 1132

Michalko to have a reasonable suspicion that defendant was involved in a felony or misdemeanor (see People v. Moore , 6 N.Y.3d 496, 498–499, 814 N.Y.S.2d 567, 847 N.E.2d 1141 [2006] ; People v. Tucker , 141 A.D.3d 748, 750, 34 N.Y.S.3d 744 [2016] ). At this point, there was no information tying defendant to the shooting incident at the bar, and the record provides no detail as to the source of the nonspecific shots fired report. Although defendant arguably matched the description of the...