People v Patterson

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[*1] People v Patterson 2008 NY Slip Op 51671(U) [20 Misc 3d 1130(A)] Decided on July 30, 2008 Supreme Court, Erie County Boller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through August 13, 2008; it will not be published in the printed Official Reports.

Decided on July 30, 2008
Supreme Court, Erie County

The People of the State of New York

against

James Patterson a/k/a James Paterson, Defendant



02180-2007



Frank J. Clark, ESQ.

Erie County District Attorney

BY: Brian D. Langenfeld Esq.

Assistant District Attorney

for the PEOPLE

Anthony D. Abbarno, Esq.

for the Defendant

M. William Boller, J.

The defendant is charged by this indictment with Assault on a Police Officer in violation of PL §120.08.By motion dated March 26, 2008, the defendant seeks dismissal of the indictment claiming that the detention of the defendant was unlawful pursuant to People v DeBour 40 NY2d 210.

On May 8, 2008, a hearing was conducted where police officers Michelle Pettys and David Krzemien of the Niagara Frontier Transportation Authority testified.

The credible testimony at the hearing revealed that on August 27, 2007, Officers Krzemien and Pettys recieved a call of passengers drinking on a Metro rail train. The call stated that the train was being held by the conductor at the Amherst Street Station until police arrive.

When the officers arrived Officer Pettys went onto the train. Officer Krzemien stayed outside the train on the platform. Officer Pettys was met inside the train by the conductor, who pointed out to Officer Pettys the individuals who had been drinking on the train. Officer Pettys informed Officer Krzemien that the conductor had pointed out who had been drinking on the train. Such behavior would be a petty offense in violation of a Buffalo city ordinance. Officer Krzemien heard Officer Pettys ask the individuals to exit the train. Officer Krzemien observed five people exit the train, [*2]four of whom stayed on the platform. The defendant, exiting first, began to walk up the stairs to leave the Amherst station. Officer Krzemien stated to the defendant, "stop we need to talk to you, you need to stop." Officer Krzemien stated this to the defendant two or three times. The defendant did not stop, muttered a vulgarity, and stated "I don't need to stop and talk to you". When the defendant responded to Officer Krzemien, he was part way up the staircase. Officer Krzemien then went and grabbed the defendant's shirt. Defendant turned and his shirt ripped. Officer Krzemien then grabbed the defendant by his arm. Defendant turned and began to move toward Officer Krzemien whereupon a struggle ensued. Defendant was eventually subdued and handcuffed to the railing. While handcuffed, the defendant did kick Officer Krzemien in the shoulder area.

At no time prior to Officer Krzemien grabbing the defendant did either he or Officer Pettys intend to arrest the defendant. Officer Krzemien merely wanted to question the defendant about the allegation of drinking on the train.

Pursuant to CPL §140.10(1)(a) a police officer may make a warrrantless arrest of a person when he has reasonable cause to believe that an offense has been committed in his presence.Drinking in a public place is a petty offense in violation of a city ordinance. In this case, the offense was not committed in Officer Krzemien's presence nor did Officer Krzemien have any reasonable cause to believe that the offense was committed in his presence. Therefore, Officer Krzemien had no lawful basis to arrest the defendant.

As the defendant was leaving the train and walking up the stairs, Officer Krzemien could have approached the defendant and requested information regarding the allegation that individuals were drinking on the train. People v. DeBour, supra.

As there was no indication that criminality was afoot, since the alleged behavior of drinking in a public place was complete, Officer Krzemien was not justified in intruding upon defendant's privacy to a greater degree when seeking explanatory information regarding defendant's drinking on the train. People v. DeBour, supra.

Since the officer had no basis to physically detain the defendant, the defendant had no duty to stop or respond to Officer Krzemien. In fact, the defendant has the right to walk or run away from the officer People v. Howard, 50 NY2d 583, People v. Grunwald, 29 AD3d 33. The fact that defendant responded to Officer Krzemien with a vulgarity did not elevate the situation to one which would allow Officer Krzemien to detain the defendant. People v. Burns, 91 Misc 2d 1080.

In either of the first two levels of inquiry as set forth in DeBour, the officer may interefere with the defendant to the extent necessary to gain explanatory information but short of a forcible seizure. The police may only forcibly detain a person when the officer has reasonable suspicion that the person has committed, is committing, or is about to commit, a felony or misdemeanor People v. Debour. supra. By the facts and circumstances of this case, Officer Krzemien had no reasonable suspicion that defendant had or was committing a felony or misdemeanor.The detention of the defendant was not in the performance of a lawful duty.

A finding that the police acted illegally in seizing the defendant will negate an essential element of Assault on a Police Officer, i.e., that the defendant intended to prevent a police officer from performing a lawful duty. People v.Voliton, 83 NY2d 192, at 195.

Since the offense charged in this indictment requires that the officer be in the act of performing a lawful duty, which Officer Krzemien was not, the charge of Assault on a Police Officer [*3]cannot be sustained and, as such, the indictment against the defendant is dismissed.

SO ORDERED.

___________________________________

HONORABLE M. WILLIAM BOLLER

ACTING SUPREME COURT JUSTICE

DATED:JULY 30, 2008

BUFFALO, NEW YORK