The People, Appellant,v.Robert L. Ingram, Respondent.

Brief

N.Y.Dec 10, 2014

STATE OF NEW YORK SUPREME COURT To Be Argued By DAVID A. HERATY Requested Time: 10 Minutes APPELLATE DIVISION : FOURTH DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Appellant V ROBERT INGRAM, Defendant-Respondent / Indictment No. 00668-2012 Appellate Division Docket No. KA 13-00437 DONNA A. MILLING DAVID A. HERATY BRIEF FOR APPELLANT FRANK A. SEDITA, III District Attorney Erie County Attorney for Appellant 25 Delaware Avenue Buffalo, New York 14202 Telephone: (716)858-2424 Assistant District Attorneys of Counsel _1 TABLE OF CONTENTS Page Table of Citations ± Question Presented 1 Preliminary Statement 2 Statement of Facts 3 Point. The pursuit and seizure of defendant were justified by reasonable suspicion, and were therefore lawful 7 Conclusion. The order of the lower court suppressing the evidence should be reversed, and the case remitted for further proceedings 16 TABLE OF CITAIONS Page CASES Adams v Washington, 407 U.S. 143 (1972) . . . 14 People v Bachiller, 93 AD3d 1196 (4th Dept 2012) lv dismissed 19 NY3d 861 8, 10 People v Benjamin, 51 NY2d 267 (1980) . . . . 10 People v Cady, 103 AD3d 1155 (4th Dept 2013) 10 People v Dwyer, 73 AD3d 1467 (4th Dept 2010) lv denied 15 NY3d 861 8 People v Madera, 189 AD2d 462 (1st Dept 1993) affirmed 81 NY2d 1022 15 People v McKinley, 101 AD3d 1747 (4th Dept 2012) 11 People v Moore, 6 NY3d 496 (2006) (Smith, J., dissenting) 15 People v Pines, 281 AD2d 311 (1st Dept 2001) affirmed 99 NY2d 525 11 People v Riddick, 70 AD3d 1421 (4th Dept 2010) lv denied 14 NY3d 844 10 People v Sierra, 83 NY2d 928 (1994) 8 ± People v Tyrell, 248 AD2d 747 (3rd Dept 1998) lv denied 92 NY2d 907 14 STATUTES Penal Law § 240.50(3) (a) 14 Penal Law § 265.03(3) . . 2 ii STATE OF NEW YORK SUPREME COURT APPELLATE DIVISION : FOURTH DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Appellant V ROBERT INGRAM, Defendant -Respondent Indictment No. 00668-2012 Appellate Division Docket No. 13-00347 BRIEF FOR APPELLANT QUESTION PRESENTED pursuit and seizure of defendant by reasonable suspicion, and lawful? the court below: no. Were the justified therefore Answer of 1 PRELIMINARY STATEMENT This is an appeal from an order of suppression entered on November 30, 2012 in Erie County Supreme Court (Buscaglia, J.). Under Indictment No. 00668-2012, defendant was charged with criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) . Following a hearing, the court granted defendant’s motion to suppress the firearm, as well as his admissions to the police, as fruit of unlawful police conduct. The People filed a timely Notice of Appeal. The People have been represented throughout the proceedings by the District Attorney of Erie County. Defendant is represented on this appeal by David C. Schopp, Esq., of The Legal Aid Bureau of Buffalo, Inc. 2 STATEMENT OF FACTS On March 25, 2012, Officer Kelvin Sharpe received information regarding criminal activity on Montana Street in the City of Buffalo (R 144- 145; numbers in parentheses preceded by “R” refer to pages of the record on appeal) . The information came from an individual whom Sharpe had just placed under arrest, and the informant claimed that two guns were stashed behind the property at 118 Montana Street (Id., at 145) . The informant also told Sharpe that the possessors of the guns would sometimes hang out in front of the house, although they would not keep the weapons on them (Id.). These facts were known to the informant because he was one of the people who would sometimes hang out in front of the property, and he claimed to have last seen the weapons the night before (Id., at 145-146) At about 4:40 p.m. that same day, Sharpe drove out to Montana Street to investigate the tip 3 with his partner, Officer John Beyer, to whom he had relayed the information (R 70-71) . Beyer described the neighborhood around 118 Montana Street as a desolate, high crime area in which he had personally made numerous narcotics arrests and a few weapons arrests (Id., at 71-72) . Sharpe noted that the area was known for gun violence and had been the site of several recent murders (Id., at 143) When they pulled up to 118 Montana Street, Beyer and Sharpe observed two men crossing the street from the curb in front of the property CR 134, 149) . One of the men was Chris Pratt, who was known to the officers as a recent shooting victim, and the other was defendant (Id., at 73- 74) While Sharpe engaged Pratt in conversation about the shooting, defendant separated from Pratt and continued walking (Id., at 133-134). When defendant saw the police, his eyes bulged out, he looked down, and he quickened his pace as he began walking away from the scene (Id., at 75). 4 Wondering why defendant was walking away so fast, Beyer exited his patrol vehicle and asked defendant, “hey, what’s your name?” from about fifteen feet away (Id., at 75-76) Rather than responding to the question, defendant looked at Beyer, grabbed the right side of his jacket, and tried to pull something out of it (R 75-76) . Beyer yelled to him, “don’t do it” (Id., at 76) . Having been involved in numerous weapons arrests, Beyer knew that when an individual is aggressively trying to pull something out of his jacket and the object does not come out easily, it is usually a weapon (Id.) Defendant “stutter stepped” toward Beyer, and his walk turned into a run as he continued to pull the object in his jacket (Id., at 76-77) . At this point, Beyer pulled out his pistol, aimed it at defendant, and again warned him, “don’t do it” (Id.). Defendant continued to run away, with Beyer giving chase (Id., at 77). 5 The officers eventually chased defendant down, subdued him, and recovered a firearm from his right jacket pocket CR 79-80) . As he was being handcuffed, defendant said, “you got me, go ahead and take it,” and “okay, okay, take the gun, I’m good” (Id., at 80-81) He was later read his Miranda warnings and made further admissions, explaining that “he just wanted to get away to get rid of it,” and that he was holding the gun “for his boy, C.P.”, referring to Pratt (Id., at 83, 85). Defendant was subsequently charged with criminal possession of a weapon in the second degree. 6 POINT THE PURSUIT AND SEIZURE OF DEFENDANT WERE JUSTIFIED BY REASONABLE SUSPICION, AND WERE THEREFORE LAWFUL. The court below held that the officers’ initial observations did not create a founded suspicion that defendant was involved in criminal activity, meaning that Officer Beyer could not lawfully pursue defendant upon his flight. The court further held that defendant’s actions did not give rise to a reasonable suspicion that he was armed and dangerous, which meant that Beyer had no legal basis for a gunpoint detention. However, as Beyer acted reasonably in the face of the danger and suspicion that confronted him, the court’s suppression ruling should be reversed. Officer Beyer had reasonable suspicion to believe that defendant was armed and dangerous. The court below found that Officer Beyer was unjustified in drawing his service weapon on 7 defendant, applying the following legal principle: that reasonable suspicion cannot be established by a suspect simply grabbing, or reaching in the direction of, his pocket or waistband (People v Sierra, 83 NY2d 928, 930 [1994] ) . However, the court improperly applied the principle to this case, because defendant was aggressively reaching for an object in a manner suggesting that the object was a firearm. The police act reasonably and lawfully when they apprehend a suspect who makes such a maneuver, having “no knowledge as to what [he] is reaching for” (People v Dwyer, 73 AD3d 1467, 1468 [4th Dept 2010] , lv denied 15 NY3d 861) In People v Bachiller, 93 AD3d 1196, 1197 [4th Dept 2012] , lv dismissed 19 NY3d 861, while the defendant was running away from the police, the officers observed him “grab and hold onto an object in his waistband area with his left hand.” This Court held that the “defendant’s flight from the police, coupled with his actions 8 in grabbing an object in his waistband, gave rise to a reasonable suspicion to justify their pursuit of defendant” (Id., at 1197-1198) , noting that “defendant was not simply reaching in the direction of his waistband” but rather “clutching an object that appeared to be a gun” (Id., at 1198) Off icer Beyer was presented with the same imminent danger as the officers in Bachiller. The court below distinguished the two cases by pointing to the fact that the officers in Bachiller were responding to a 911 call of a recent stabbing. However, the nature of the call was not a factor in this Court’s analysis of the danger facing the officers; it was only relevant to the separate question of whether their initial observations provided founded suspicion that criminal activity was afoot (Id., at 1197-1198) On the issue of officer safety, the circumstances are identical. 9 This Court has recognized that a suspect who grabs an object in his pocket presents a greater danger than one who merely reaches in the direction of his waistband (compare People v Bachiller, 93 AD3d 1196, 1197 [4th Dept 2012] , lv dismissed 19 NY3d 861 with People v Cady, 103 AD3d 1155, 1156 [4th Dept 2013]) . In order to confer reasonable suspicion, a defendant’s actions must demonstrate some “indication[s] of a weapon” (People v Riddick, 70 AD3d 1421, 1422-1423 [4th Dept 2010] , lv denied 14 NY3d 844) , which in this case were his aggressive attempts to pull an object from his pocket. Officer Beyer had every indication that defendant was reaching for a gun, short of actually seeing the weapon itself. The law did not require Beyer to wait until defendant successfully retrieved the gun before responding (People v Benjamin, 51 NY2d 267, 270-271 [1980] ) which he did only after showing considerable restraint. Beyer acted appropriately in the face 10 of reasonable suspicion that defendant was armed and dangerous. Officer Beyer had reasonable suspicion to believe that defendant was engaged in criminal activity. The court below held that Officer Beyer had no more than an objective, credible basis for his initial approach of defendant, rendering his subsequent pursuit and seizure unlawful. In finding that defendant had the right to walk away from the police, the court determined that his behavior was not suggestive of criminality and that Officer Sharpe’s informant was unreliable. However, by the time that defendant turned to run, Beyer had founded suspicion that criminal activity was afoot. He was therefore justified in chasing defendant upon his flight (People v McKinley, 101 AD3d 1747 [4th Dept 2012] In People v Pines, 281 A]D2d 311 [1st Dept 2001] , affirmed 99 NY2d 525, the police observed a suspect in a high-crime area, walking 11 down the street with a companion and looking around nervously. When he saw the police vehicle, the suspect’s eyes bulged out and he cupped his hand underneath the right side of his jacket, in his waist area. The suspect appeared to be clutching an object, and his actions reminded one of the officers of how he would sometimes adjust his gun. When the police pulled up alongside the suspect, he shielded his right side from view and began walking in the opposite direction, leaving his companion behind. The officers called out to the suspect that they wanted to ask him a few questions, at which point the suspect took off running. The police pursued the suspect, who discarded a firearm during the chase, which the police recovered (Id., at 311-312) The officers in Pines were found to have acted lawfully. Their initial observations of the suspect gave rise to a founded suspicion that he was involved in criminal activity (Id., at 312). As a result of his “flight upon the approach of 12 the officers, and the additional suspicion engendered by it, the evidence met the level of reasonable suspicion,” allowing the police to pursue and detain the suspect (Id.). The motion to suppress was denied. Beyer was presented with the same suspicious circumstances as the officers in Pines. Like the suspect in that case, defendant was in a high-crime neighborhood; his eyes bulged out when he spotted the police; he walked away from his companion in order to avoid the police; and he was grabbing an object in his pocket in a manner suggesting that it was a firearm. Beyer also had one additional piece of information: a tip that guns were stashed behind 118 Montana Street, the address that defendant and Chris Pratt were walking away from. While the court below found this information to be unreliable, the record warrants the opposite conclusion. 13 When a police officer acts upon the unverified tip of a known informant, there must be some “indicia of reliability” to justify the officer’s reliance on the information (Adams v Washington, 407 U.S. 143, 146-147 [1972] ) . In this case, just as in Adams, the informant was reliable because the tip was immediately verifiable at the scene, and it is against the law to provide the police with false information about a crime (Id., Penal Law § 240.50[3] [a]). The information itself was reliable because the informant’s belief was drawn from personal knowledge, which was his recent “first-hand observation of criminal activity” at the property (People v Tyrell, 248 AID2d 747, 748-749 [3rd Dept 19981 , lv denied 92 NY2d 907) The reliable tip of nearby criminal activity, in combination with defendant’s behavior and the observations of the police, justified Beyer’s pursuit of defendant upon his flight. The “additional implication of guilt” demonstrated by 14 defendant’s flight was “sufficient to enhance [founded suspicion] to the reasonable suspicion necessary to justify a chase” (People v Madera, 189 AD2d 462, 482 [1st Dept 1993] , affirmed 81 NY2d 1022) . Beyer acted appropriately in the face of reasonable suspicion that defendant was involved in criminal activity. Either of the justifications raised by the People -- imminent danger or suspicious circumstances -- warrants a reversal of the court’s suppression order. Officer Beyer made the “common sense, spur-of-the-moment judgments that street encounters demand and that are essential to achieving a proper balance between individual rights and law enforcement” (People v Moore, 6 NY3d 496, 501 [2006] [Smith, J., dissenting] ) . He acted lawfully at every stage of the encounter. 15 CONCLUS ION THE ORDER OF THE LOWER COURT SUPPRESSING THE EVIDENCE SHOULD BE REVERSED, AND THE CASE REMITTED TO ERIE COUNTY SUPREME COURT FOR FURTHER PROCEEDINGS. Respectfully submitted, FRANK A. SEDITA, III District Attorney Erie County Attorney for Appellant 25 Delaware Avenue Buffalo, New York 14202 DAVID A. HEPATY Assistant District Attorney Of Counsel April 18, 2013 16