People v. Thorne
| Decision Date | 07 June 2022 |
| Docket Number | Case No. 2017-1546,Ind. No. 3353/14,15335 |
| Citation | 2022 NY Slip Op 03696 |
| Parties | The People of the State of New York, Respondent, v. Floyd Thorne, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Janet E. Sabel, The Legal Aid Society, New York (Ronald Zapata of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Brent E. Yarnell and David M. Cohn of counsel), for respondent.
MANZANET-DANIELS, J.P.
Defendant appeals from the judgment of the Supreme Court, New York County (Bruce Allen, J. at hearing and plea; Maxwell Wiley J. at sentencing), rendered March 3, 2016, convicting him upon his guilty plea, of attempted robbery in the first degree, and sentencing him to a term of 3½ years.
The arresting officers lacked the requisite reasonable suspicion when they conducted a level three stop of defendant, whose description matched that of a robbery suspect only in that he was a black male in the vicinity. We accordingly reverse and dismiss the indictment.
Defendant pleaded guilty to attempted robbery in the first degree after the suppression court denied his motion to suppress evidence following a forcible police stop. A radio run, entered into evidence at the suppression hearing, described the robbery suspect as a black male with a firearm on the corner of 81st Street and Third Avenue. The complainant was said to be in a Starbucks on 81st Street and Second Avenue. Later on, while police were canvassing the area, an officer asked the complainant if she could describe the suspect's clothing and she stated that she didn't know what he was wearing. She described the suspect as a black male taller than she perhaps five feet, eight inches. A few minutes later, an officer is heard on the recording describing the suspect as a black male with a baseball hat. Shortly after, an officer asked which way the suspect was traveling, and was informed that he was heading west on 81st Street. A little later, an officer asked whether the suspect had a goatee and was told "unknown." There was one mention of "dark clothing" at 10:06, with the context being inaudible in the transmission. Police stopped defendant at 86th Street and Lexington Avenue.
At the suppression hearing, Officer Seto testified that he and his partner received a radio dispatch at 1:46 a.m. of a 10-10 (that is, a flight in progress). According to Officer Seto the complainant, whom they met at the Starbucks, described the suspect as a black male wearing all black clothing with a hat, and heading north; Officer Seto put the description over the radio. During this discussion, the complainant stated that she was uncertain whether the suspect had displayed a firearm.
The arresting officers Delgado and Metaxas testified that they received a 10-10 of a five foot, eight inch tall black male with a firearm wearing a baseball cap and dark clothing in the vicinity of East 81st Street and Third Avenue. They then observed defendant, who was wearing black pants, a light gray T-shirt, black sneakers, and a black backpack, proceeding north on Third Avenue and 84th Street. He was not wearing a baseball cap or other hat. The officers, who were following defendant in their vehicle at a very slow speed, radioed for a more specific description of the clothing worn by the suspect and to ask whether the suspect had a goatee, as defendant did. Officer Delgado testified that defendant was walking "fast and suspicious" and was "trying to hide his face" by looking into shop windows. Delgado further testified that defendant started talking to another pedestrian and "made a point" of changing his direction of travel. However, defendant crossed the street in front of the police vehicle while the officers were observing him and walked directly toward the officers as he approached the subway entrance-hardly the behavior of someone seeking to avoid contact with the police.
The officers exited their vehicle at Lexington and 86th Street and asked defendant whether they could talk for a minute. Defendant asked why they were stopping him, and Metaxas told him to put his hands against the wall. The officers grabbed defendant's arms, forced him to the ground, and placed him in handcuffs. As noted, defendant was wearing a light gray T-shirt, and he had a goatee and tattoos on his arm, neither of which was mentioned in the radio transmission. What is more, defendant was six feet, one inch, and five feet, eight inches as the complainant had described. It was only after being wrestled to the ground that the officers purported to see the outline of a gun. During a showup shortly thereafter, the complainant was unable to identify defendant as the perpetrator.
The suppression court credited the officers' testimony without addressing the inconsistencies with the radio run recording. The court recognized that the description given by the complainant "did not fully match" defendant but noted that "a suspect could easily remove his outer top and hat." The court further noted that defendant was observed walking rapidly from the scene toward the nearest subway station and was keeping his face turned toward the windows of closed stores, evincing a consciousness of guilt. Thus, the court found, under the totality of the circumstances, that the officers had reasonable suspicion to forcibly stop and frisk defendant. The hearing court granted defendant's motion for leave to reargue but stated summarily that it was adhering to its previous decision. Following denial of the motion, defendant agreed to plead guilty to attempted first-degree robbery in exchange for a sentence of 3½ years and 5 years' postrelease supervision. Defendant also executed a written appeal waiver.
As an initial matter, we find defendant's waiver of the right to appeal to be invalid. The oral colloquy, even considered in light of the written waiver, did not demonstrate that defendant had a "full appreciation of the consequences" of the waiver (People v Thomas, 34 N.Y.3d 545, 560 [2019]). During the plea proceeding, the court stated, "In addition, as part of a plea bargain, you have agreed to sign the waiver of appeal; is that correct," to which defendant replied, "Yes." Beyond that, the court inquired only whether defendant was "prepared to execute the waiver now," and, after receiving an affirmative response from defense counsel, stated, "Go ahead." The court did not confirm that defendant understood the written waiver, that he had discussed the waiver with his counsel, or even that he had read it. Nor did the court ensure that defendant, who had never been a criminal defendant before, understood that the waiver of the right to appeal was separate and distinct from the trial rights that defendant automatically forfeited by pleading guilty (see e.g. People v Harris, 137 A.D.3d 514, 514 [1st Dept 2016], lv denied 27 N.Y.3d 1070 [2016] []).
As to the merits of the suppression issue, the police may conduct a level three "forcible stop and detention" only when they possess the requisite "reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor" (People v DeBour, 40 N.Y.2d 210, 223 [1976], citing Terry v Ohio, 392 U.S. 1 [1968]). Reasonable suspicion is the "quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand" (People v Cantor, 36 N.Y.2d 106, 112-113 [1975]). The suspicion "may not rest on equivocal or innocuous behavior that is susceptible of an innocent as well as a culpable interpretation" (People v Hinshaw, 35 N.Y.3d 427, 438 [2020] [internal quotation marks omitted]).
The officers did not have reasonable suspicion to conduct a level three forcible stop and detention by ordering defendant to put his hands against a wall, grabbing his arms, and forcing him to the ground. Defendant matched the description only in that he was a black male. [1] That a defendant matches a vague, general description, such as the one the complainant gave of the perpetrator, is insufficient to give rise to reasonable suspicion, particularly where, as here, key parts of the description do not match (see People v Bilal, 170 A.D.3d 83, 87-88 [1st Dept 2019], appeal dismissed 34 N.Y.3d 1085 [2020]; People v Polhill, 102 A.D.3d 988 [2d Dept 2013], lv granted 21 N.Y.3d 946 [2014], appeal dismissed 24 N.Y.3d 995 [2014] [complainant's description of two black males wearing "dark clothing" did not furnish reasonable suspicion]; People v Jones, 174 A.D.3d 1532 [4th Dept 2019], lv denied 34 N.Y.3d 982 [2019] []; People v Miller, 191 A.D.3d 111 [4th Dept 2020] [] [citation omitted]). This is true even when the suspect is the only black male in the vicinity (see People v Ross, 251 A.D.2d 1020, 1021 [4th Dept 1998], appeal denied 251 A.D.2d 1020 [1998]), which was not demonstrated to be the case here.
Moreover the radio run did not describe the suspect's clothing. But even if we credit the testimony of the officers that they relied on a dispatch description of a suspect wearing "dark clothing," such a description is still too...
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