People v Brock

[*1] People v Brock 2017 NY Slip Op 51784(U) Decided on December 20, 2017 Supreme Court, Monroe County Schiano Jr., J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 20, 2017
Supreme Court, Monroe County

The People of the State of New York,

against

David Lamar Brock, Defendant.



2017/0807



For the People:

Cassie Kocher, Esq.

Assistant District Attorney

SANDRA DOORLEY, ESQ.

Monroe County District Attorney

47 S. Fitzhugh Street

Rochester, New York 14614For the Defendant:

Julie Cianca, Esq.

Assistant Public Defender

TIMOTHY P. DONAHER, ESQ.

Monroe County Public Defender

10 N. Fitzhugh Street

Rochester, New York 14614
Charles A. Schiano Jr., J.

Defendant, David Lamar Brock, is charged by the above-referenced Indictment with one count of Criminal Possession of a Weapon in the Second Degree, in violation of Section 265.03(3) of the Penal Law. The defendant moved the Court for an order suppressing tangible evidence and statements. The court granted a Mapp/Huntley hearing. The combined hearing was held on November 15, 2017. The People presented the testimony of Officers Paul Helfer and Daniel Rizzo of the Rochester Police Department ("RPD"). The defense did not present witnesses. The court did not make findings of fact and conclusions of law at the close of the proceedings.

The Court has reviewed the hearing transcript and evidence admitted. After due consideration of the evidence and law, the Court makes the following findings of fact and conclusions of law based upon the credible evidence received during the hearing.

Findings of Fact

Having observed the witnesses and considered the exhibits in evidence, the credible testimony at the hearing established the following. On August 30, 2017 at 8:49 p.m., Officer Daniel Rizzo, a 5 year police veteran was on patrol in a marked RPD vehicle heading east bound on Avenue A in the City of Rochester, New York, approaching the intersection of Roth Street. That intersection was well known to officer Rizzo as an open-air illegal drug market and frequent location of violence. Officer Rizzo testified it was dark, but there were street lights in the area.

As he turned south onto Roth Street, he observed a vehicle parked on Roth Street near the southwest corner of Avenue A and Roth Street. He observed two females and two to three males standing outside the drivers' side, or east side of the vehicle. He also observed David Lamar Brock, identified as the defendant, a person well known to Officer Rizzo from approximately twenty previous face to face encounters. Officer Rizzo testified that he'd seen defendant daily at this intersection. In those encounters, Officer Rizzo never found marijuana on defendant, cannot remember locating anything illegal on him, and never arrested him. Officer Rizzo's encounters with defendant prior to August 30, 2017 consisted of asking defendant questions.

As Officer Rizzo slowed his car approximately 20 feet behind the southbound facing parked vehicle, he observed defendant reach into the vehicle, appear to grab something and put it in his pants area and quickly take a few steps away from the vehicle in a south bound direction. Defendant then changed direction and began to run in a northwest direction through a vacant lot. He observed defendant make a throwing motion with his left arm when he started running, but did not see anything thrown. As defendant ran he appeared to be attempting to take something out of his pockets. Officer Rizzo did not actually see anything in defendant's hands at any time.

Officer Rizzo described events as he rounded the corner from Avenue A onto Roth Street as occurring very quickly. At some point after defendant began to run, Officer Rizzo exited his vehicle and ran after defendant, yelling "just stop, stop" and "taser, taser, taser." Defendant stopped running and Officer Rizzo apprehended defendant and asked "what did you drop." Defendant stated he ran because he had "weed" on him. Officer Rizzo searched defendant and found three bags of marijuana in a front pants pocket. Some minutes later, another officer located a handgun in the area. There was no testimony as to the location where the gun was found or the model type.

Conclusions of Law

"[I]n evaluating the legality of police conduct, [a court] must determine whether the action taken was justified in its inception and at every subsequent stage of the encounter" (People v Howard, 129 AD3d 1654 [4th Dept 2015] [quotations omitted], lv denied 27 NY3d 999 [2016]; People v De Bour, 40 NY2d 210, 215 [1976]). "The law is well settled that any inquiry into the propriety of police conduct must weigh the degree of intrusion entailed against the precipitating and attending circumstances out of which the encounter arose" (People v Stephens, 47 AD3d 586, 588-589 [1st Dept 2008][internal citations omitted], lv denied 10 NY3d 940).

The Court of Appeals has set forth a framework of "four levels of police-citizen encounters and the attendant, escalating measures of suspicion necessary to justify each" (People v Garcia, 20 NY3d 317, 322 [2012]; People v De Bour, 40 NY2d 210; People v Hollman, 79 NY2d 181 [1992]). "If a police officer seeks simply to request information from an individual, that request must be supported by an objective, credible reason, not necessarily indicative of criminality [level one]. The common-law right of inquiry, a wholly separate level of contact, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion [level two]. Where a police officer has reasonable suspicion that a particular person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person [level 3]. Finally, where the officer has probable cause to believe that a person has committed a crime, an arrest is authorized [level four]" (People v McIntosh, 96 NY2d 521, 525 [2001] [internal quotations omitted][emphasis supplied]).

It is well established that flight from the police alone does not justify pursuit by police, but such flight, "combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, may give rise to reasonable suspicion, the necessary predicate for police pursuit" (People v Jones, ___ AD3d ___ [4th Dept 2017][internal citations and quotations omitted], 2017 NY App Div LEXIS 7967 November 9, 2017). Such was the case in People v Gaydon (126 AD3d 1518 [4th Dept 2015], aff 28 NY3d 1035 [2016]). In Gaydon, the court found the police had a founded suspicion that criminal activity was afoot where the defendant matched the general description provided in an anonymous 911 tip of men displaying hand guns. Further, the police arrived less than two minutes after the dispatch and sited defendants within a block of the location described by the caller (id., at 1518). Under those circumstances, "[d]efendant's flight upon seeing the officer exit his vehicle provided the officer with the requisite reasonable suspicion of criminal activity to warrant his pursuit" (id.).

Similarly, in People v Johnson, Rochester police stopped defendant's bicycle for a violation the Vehicle and Traffic Law (138 AD3d 1454 [4th Dept 2016]). "[A]s defendant fled the scene, the officer observed him remove an object from his waistband and move his hands in a way the led the officer to conclude theat defendant was attempting to chamber a round of ammunition into a semiautomatic handgun, providing the officer with reasonable suspicion to detain defendant" (id., at 1454-1455).

Here, however, there were no circumstances indicating defendant may be engaged in criminal activity (People v Sierra, 83 NY2d 928 [1994]). In this case, defendant reached into a car, appeared to put something in his pants area, and then fled. The officer testified defendant also made a throwing motion with his left arm, but it was not clear from the testimony whether this motion was made before, after or simultaneous to when the police gave chase. The court does not credit the testimonial description that defendant "bladed" his body given defendant's changes in direction and the speed of events with a running subject.

These circumstances do not indicate defendant may have been engaged in criminal activity. In People v Robinson, heard in conjunction with People v Sierra, defendant exited a livery cab and "grabbed at his waistband and then fled" (People v Sierra, 83 NY2d 928, 930 [1994]). The Court of Appeals found that these "facts [ ] [*2]provided (the police) with no information regarding criminal activity" (People v Sierra, 83 NY2d at 930).

The Fourth Department reached a like conclusion in a similar case. In People v Cady, 103 AD3d 1155 (4th Dept 2013), two officers were patrolling in the area of Avenue D and Hudson Street in the City of Rochester, engaging people who might have information regarding the shooting of a police officer a few blocks from that location. The defendant in Cady was not a suspect in the shooting (id., at 1155). "Two uniformed officers approached defendant and attempted to speak with him, whereupon defendant said, "What, we can't go to the store?" Defendant had been walking toward a store that was open for business at that time. Before the officers were able answer defendant's question, defendant turned his back on them, made a gesture with his arms toward his waistband, and began running. The police pursued defendant on foot and observed him discard a handgun from his pocket as he was being tackled by a fellow officer" (People v Cady, 103 AD3d at 1155-56). The Fourth Department concluded that "the fact that defendant reached for his waistband, absent any indication of a weapon such as the visible outline of a gun or the audible click of the magazine of a weapon, does not establish the requisite reasonable suspicion that defendant had committed or was about to commit a crime" and reversed the suppression court and granted defendant's motion to suppress the gun (People v Cady, 103 AD3d at 1155-1056).

In this case, Officer Rizzo could say only that defendant "grabbed something" from a parked vehicle, appeared to put it in his pants area, and made a "throwing motion" at some point. He did not see a gun or other contraband, or that defendant otherwise appeared to have a gun e.g., a bulge or heavy object in a coat, or make hand motions indicating the chambering of a round, or hear an audible click of a magazine, or provide any other indication that defendant may have had a gun or been involved in a criminal activity. At best, defendant's presence and actions in a high crime area provided an articulable reason for approaching defendant and asking his identify and reason for being in the area (See People v Reddick, 265 AD2d 855 [4th Dept 1999][defendant's presence on a street corner for extended period of time in a drug-prone area provided an articulable reason for police to approach defendant]). Officer Rizzo's description of defendant attempting take something out of his pockets, to the extent such could be considered furtive behavior, are also not indicative of criminal activity and occurred only after pursuit began.

Officer Rizzo testified that defendant was a person known to him and that he had spoken to defendant at least twenty times in the past and had seen him in the area almost daily. However, Officer Rizzo did not testify that he was aware of any criminal history on part of defendant or that he had confiscated any contraband from defendant in the past. In any event, "a stop based on no more than that a suspect has previously been arrested . . . is premature and unlawful and cannot be justified by subsequently acquired information resulting from the stop" (People v Brown, 115 AD3d 38, 39-40 [1st Dept 2014][citing People v Johnson, 64 NY2d 617, 619,(1984)], aff 25 NY3d 973 [*3][2015]).[FN1]

The court notes that the People admitted Officer Rizzo's body worn camera footage into evidence as People's Exhibit #1. In a circumstance not seen yet seen by this court, there was apparently no video recorded by the body worn camera, but audio only. Officer Rizzo implied in testimony that the camera malfunctioned and said he thought he was recording video. The resulting audio portion is not helpful to illuminate defendant's actions. The factual record does not support that police had reasonable suspicion to pursue defendant. Accordingly, the pursuit of defendant was unlawful and the hand gun found by police must be suppressed (People v Sierra, 83 NY2d 928).

Because the police officer's pursuit of defendant was unlawful and the handgun seized by the police is suppressed, the statements made by defendant to the police following the unlawful seizure are also suppressed as fruit of the poisonous tree (People v Cady, 103 AD3d at 1157 [citing People v Riddick, 70 AD3d 1421, 1424 [4th Dept 2010]; lv denied 14 NY3d 1444).

ORDERED that the motion to suppress tangible evidence and statements is granted.

The above constitutes the Decision and Order of the Court.

Dated:December 20, 2017.

Rochester, New York

HONORABLE CHARLES A. SCHIANO, JR.

Supreme Court Justice Footnotes

Footnote 1:Because there was no testimony of a knowledge of criminal history, the court does not have occasion to consider Justice Pigott's argument in dissent in People v Brown, 25 NY3d 973, 978 (2015) based on People v Johnson, 64 NY2d 617 (1984)(holding that knowledge of criminal history by itself does not amount to reasonable suspicion, and stating in dicta that it might have reached a different conclusion had defendant been fleeing the scene), that "the combination of the officers' particular knowledge of each defendants' criminal history coupled with defendants' flight from an area where defendants were known to fraternize, while looking over their shoulders, was sufficient to provide the officers with reasonable suspicion".