People v Hicks

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[*1] People v Hicks 2022 NY Slip Op 50764(U) Decided on August 17, 2022 Supreme Court, Queens County Mullen, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through August 18, 2022; it will not be published in the printed Official Reports.

Decided on August 17, 2022
Supreme Court, Queens County

The People of the State of New York


Barkim Hicks, Defendant.

Ind. No. 70852/2022

For the People
Melinda Katz, District Attorney, Queens County
(Joanna Matuza, Esq., Of Counsel)

For the Defendant
The Legal Aid Society
(Donna Marie Lewis, Esq., Of Counsel) Cassandra M. Mullen, J.

A Mapp/Dunaway hearing was held before this Court on August 10, 2022. The People called one witness at the hearing, Sergeant Terrance Lloyd, whose testimony the Court finds to be credible. This decision summarizes the testimony below, as the Court's findings of fact, and constitutes the Court's conclusions of law.

Findings of Fact

At approximately 12:50 p.m. on March 16, 2022, Sergeant Terrance Lloyd, a Public Safety Sergeant with the 114th Precinct, was on patrol with two other officers near the Woodside Houses, a New York City Housing Authority complex, in Woodside, Queens. Sergeant Lloyd, whose responsibilities included searching for individuals who have open warrants, was driving in an unmarked police vehicle on a road that cut through the development. At that time, Sergeant Lloyd observed three or four individuals near a bench about forty to sixty feet away. He recognized one [*2]of the individuals, defendant Barkim Hicks, as the subject of two bench warrants that he had received and reviewed prior to March 16. The bench warrants were issued by Queens County Criminal Court (on February 28, 2022) and New York County Criminal Court (on March 10, 2022) in connection with two pending criminal proceedings. Each contained a photograph of defendant and identifying physical characteristics, including height, weight, age, and race.

After he and defendant made eye contact, Sergeant Lloyd began to drive faster towards him. In response, defendant turned around and began running towards a building in the complex. The two officers exited the vehicle and began pursuing defendant on foot, while Sergeant Lloyd parked the vehicle. Defendant entered the building lobby and the door locked behind him. The police officers observed him initially head towards the building's public elevator and then run into a nearby stairwell. An individual in the lobby opened the door for the officers after approximately twenty seconds and Sergeant Lloyd ordered them to do a vertical sweep of the building. They went to the roof and searched the hallways of every floor until they returned to the lobby, but they were unable to locate defendant. In the meantime, Sergeant Lloyd went to a location in the complex that housed the security camera feeds for all of the buildings in the development. Upon reviewing footage from the building in question, Sergeant Lloyd observed that defendant had placed a handgun inside the elevator before he ran into the stairwell. The police, after searching the elevator, recovered a handgun from the shaft.

Defendant turned himself into the 114th Precinct Detective Squad several days later.

Conclusions of Law

A. Legality of the Police Pursuit of Defendant

When a defendant moves to suppress physical evidence, the People "have the burden of going forward to show the legality of the police conduct in the first instance." People v Knight, 205 AD3d 928, 929 [2d Dept 2022]. Once the People establish the legality of the police conduct "by credible evidence," the defendant then bears the ultimate burden of "establishing that the arrest was not based on probable cause or that the police conduct was otherwise illegal." People v Julien, 201 AD3d 948, 949 [2d Dept 2022], lv denied 38 NY3d 951 [2022]. In order to show that a defendant's arrest is lawful, generally the People must establish the existence of a validly issued warrant or probable cause to arrest him. People v Dortch, 186 AD3d 1114, 1115 [4th Dept 2020]; People v Blanford, 179 AD3d 1388, 1390-91 [3d Dept 2020], lv denied 35 NY3d 968 [2020]; People v Boone, 269 AD2d 459, 459 [2d Dept 2000].

However, police pursuit of an individual, as opposed to arrest, need only be based on "reasonable suspicion that a crime has been, is being, or is about to be committed." People v Furrs, 149 AD3d 1098, 1099 [2d Dept 2017]. Factors to be considered include: "the substance and reliability of the report that brought the officers to the scene, the nature of the crime that the police are investigating, the suspect's behavior and the shape, size, and location of any bulges in the suspect's clothing." People v Rhames, 196 AD3d 510, 512 [2d Dept 2021]. While a suspect's flight alone is insufficient to create the requisite level of suspicion, flight, "combined with other specific circumstances indicating that the suspect may be engaged in criminal activity," can provide the basis for a lawful pursuit. People v Carmichael, 92 AD3d 687, 688 [2d Dept 2012]; People v Leonard, 170 NYS3d 796 [4th Dept 2022]; People v Haynes, 115 AD3d 676 [2d Dept 2014].

Here, the People have established that a valid warrant was issued for defendant's arrest and that the police pursuit of defendant was lawful. The People introduced into evidence two bench warrants authorizing the arrest of defendant in connection with outstanding court proceedings in New York County Criminal Court and Queens County Criminal Court. There is no dispute that the [*3]bench warrants "complied with the governing statutory provisions" and were "facially valid," which, by itself, mandates the conclusion that the police were "authorized to arrest defendant." People v Lowman, 173 AD3d 1734, 1735 [4th Dept 2019]; see also CPL § 530.70. In addition, the bench warrants contained photographs of defendant, as well as details about his appearance, including his height, weight, age, race, and hair color. Sergeant Lloyd testified that he had received these two bench warrants and recognized defendant from the photographs and physical descriptions contained in the two bench warrants. These circumstances, combined with defendant's flight upon making eye contact with Sergeant Lloyd, authorized the police to arrest defendant and certainly created, at the very least, "a reasonable suspicion sufficient to justify [their] pursuit" of him. People v Cox, 210 AD2d 497, 498 [2d Dept 1994]; see also People v Smith, 170 NYS3d 767 [4th Dept 2022]. Accordingly, the Court finds that the police pursuit of defendant was entirely lawful.

B. Suppression of Physical Evidence

Generally, a defendant seeking the suppression of physical evidence "must establish standing by demonstrating a legitimate expectation of privacy in the place or item searched." People v Kluge, 180 AD3d 705, 707 [2d Dept 2020]. The Court of Appeals has instructed that "[a] legitimate expectation of privacy exists where defendant has manifested an expectation of privacy that society recognizes as reasonable." People v Ramirez-Portoreal, 88 NY2d 99, 108 [1996]; People v Bell, 9 AD3d 492 [2d Dept 2004]. However, a piece of physical evidence is not subject to suppression where the People show that defendant has "abandoned it." People v Rice, 204 AD3d 834, 837 [2d Dept 2022]; Ramirez-Portoreal, 88 NY2d at 110. A defendant abandons property by "voluntarily relinquish[ing] possession in a calculated decision in response to police conduct" (People v Whitfield, 186 AD3d 1414, 1415 [2d Dept 2020], lv denied 36 NY3d 977 [2020]) rather than as a spontaneous reaction to coercion or unlawful police activity. Ramirez-Portoreal, 88 NY2d at 110; Rice, 204 AD3d at 837; People v Bilal, 170 AD3d 83, 92 [1st Dept 2019]. An important factor to consider is whether the defendant "had time enough to reflect and formulate a strategy for ridding himself of the incriminating evidence." People v Boodle, 47 NY2d 398, 404 [1979]; Bilal, 170 AD3d at 92; People v Mora, 259 AD2d 562 [2d Dept 1999]. Thus, a defendant "relinquishe[s] any expectation of privacy" if he purposefully leaves an item "unattended in a publicly accessible area." People v Oliver, 39 AD3d 880, 881 [2d Dept 2007]; People v Milan, 145 AD3d 588 [1st Dept 2016], lv denied 29 NY3d 1034 [2017]; People v Grier, 159 AD2d 515, 516 [2d Dept 1990] ["the defendant had no reasonable expectation of privacy in the hallway of a public housing building"].

Initially, the Court finds that defendant did not have a legitimate expectation of privacy in the building elevator or the elevator shaft since the elevator was a public area and readily accessible to anyone in the building. See Milan, 145 AD3d at 588; Grier, 159 AD3d at 515. Next, even assuming that defendant had a legitimate expectation of privacy in the elevator, the Court finds that defendant deliberately abandoned the handgun. Here, as detailed above, the police lawfully pursued defendant in order to arrest him under the bench warrant. Defendant ran into a building and, as part of a calculated strategy to rid himself of incriminating evidence, placed the gun in the elevator before running into the stairwell. These actions were not "precipitated by any illegal police conduct" (People v McCurbin, 188 AD3d 1098, 1100 [2d Dept 2020], lv denied 36 NY3d 1098 [2021]) and constituted "independent act[s] involving a calculated risk that [the handgun] would be retrieved." People v Gregory, 163 AD3d 847, 848 [2d Dept 2018], affd 33 NY3d 1017 [2019]. For these reasons, the Court declines to suppress the handgun recovered in this case.

Accordingly, defendant's motion to suppress physical evidence is denied.

This constitutes the decision and order of the Court.

The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.

August 17, 2022

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