The People, Appellant,v.Robert L. Ingram, Respondent.BriefN.Y.December 10, 2014OFFICE OF THE ERIE COUNTY DISTRICT ATTORNEY FRANK A. SEDITA, III DISTRICT ATTORNEY October 6, 2014 ANDREW W. KLEIN CLERK OF THE COURT OF APPEALS COURT OF APPEALS HALL 20 EAGLE STREET ALBANY, NEW YORK 12207 Re: People v Robert L. Ingram Indictment No. 00668-20 12 Court of Appeals Docket No. APL-2014-00228 Appellant’s Argument Pursuant to Section 500.11 of the Court of Appeals Rules of Practice Dear Mr. Klein: By permission ofthe Honorable Robert S. Smith, the People appeal from a February 14,2014 decision of the Appellate Division, Fourth Department, affirming the decision of the Erie County Supreme Court granting defendant’s motion to suppress the firearm and his statements to the police. Pursuant to section 500.11 of the Court’s Rules ofPractice, the following is offered in support of the People’s argument that both the Appellate Division, Fourth Department’s order should be reversed. Enclosed are three copies of the Appellate Division briefs, three copies of the Record on Appeal, and proof of service on opposing counsel. No exhibits were entered into evidence. The People ask this Court to conduct the normal course of full briefing and oral argument. This appeal presents a legal issue of statewide importance, best addressed through the standard briefing and argument procedure. At issue on this appeal is whether, when a police officer observes a suspect repeatedly attempt to pull an object out of his pocket in a manner suggesting that the object is a weapon, he must wait for the suspect to draw the weapon before effecting a seizure. 25 DELAWARE AVENUE. BUFFALO, NEW YORK. 14202-3903 (716) 858-2424. FAX: (716) 858-7425 www.erie.gov Andrew W. Klein October 6, 2014 Page -2- Statement of Facts On March 25, 2012, Buffalo Police Officers John Beyer and Kelvin Sharpe were investigating a tip of criminal activity on Montana Street, the site of numerous drugs and weapons arrests. The tip indicated that guns were stashed behind one of the houses on the street. The officers saw two individuals, defendant and a young man named Chris Pratt, crossing the street near that address. While Sharpe spoke to Pratt, a recent shooting victim, defendant separated from Pratt and continued walking. When he saw the police, defendant’s eyes bulged out, and he quickened his pace. Wondering why defendant was walking away so quickly, Beyer asked him, “hey, what’s your name?” Without a word, defendant looked at Beyer, grabbed the right side of his jacket, and tried to pull something out of it. He was about fifteen feet away from Beyer at the time (Suppression hearing transcript, volume II, pp. 4-10). Beyer warned defendant, “don’t do it.” From his experience in being involved in numerous weapons arrests, Beyer knew that when an individual aggressively attempts to pull something from his jacket and the object does not come out easily, it is usually a weapon. Defendant turned toward Beyer, began to run, and continued pulling at the object in his jacket. At this point, Beyer drew his service weapon, aimed it at defendant, and again warned him, “don’t do it.” Defendant continued to run away, with Beyer in pursuit. The officers eventually apprehended defendant and recovered a firearm from his right jacket pocket. As he was being handcuffed, defendant told the officers, “okay, okay, take the gun, I’m good” (Suppression hearing transcript, volume II, pp. 10-15). Background Under the above-captioned indictment, defendant was charged with criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). Following a hearing, Erie County Supreme Court granted defendant’s motion to suppress the firearm, as well as his statements to the police. In a 3-2 decision, the order was affirmed by the Appellate Division, Fourth Department, which held that Officer Beyer lacked the reasonable suspicion necessary to justify his seizure of defendant (People v Ingram, 114 AD3d 1290 [4th Dept 2014]). Argument The Seizure of Defendant Was Justified by Reasonable Suspicion That He Was Armed and Dangerous, and Therefore Lawful. Before effecting a seizure by drawing his service weapon, Officer Beyer had made the following observations of defendant’s behavior: (i) his hand was inside of his pocket; (ii) he had Andrew W. Klein October 6, 2014 Page -3- grabbed an object in his pocket; (iii) he was aggressively attempting to puH the object out of his pocket; (iv) he was struggling to retrieve the object, suggesting, from Beyer’ s experience, that it was a weapon; and (v) he had just ignored a command to desist. Faced with a clear and immediate threat to his safety, Beyer was left with only two choices: to wait for defendant to draw his weapon, or to respond to the threat by effecting a seizure. Drawing his service weapon was, in these circumstances, the safest and most appropriate course of action for everyone involved. “It would, indeed, be absurd to suggest that a police officer has to await the glint of steel before he can act to preserve his safety” (People v Benjamin, 51 NY2d 267, 271 [1980]). The Fourth Department’s decision failed to comply with this holding. Rather, it found fault with the actions of a police officer who reasonably feared for his safety, who had already exercised restraint, and who was out of options. The decision was unfair and contrary to the Fourth Amendment, and it must be reversed. “Reasonableness is the ultimate touchstone of the Fourth Amendment” (People v Hall, 10 NY3d 303, 308 [2008]), and any such analysis should take into account all of the facts and circumstances confronting the officer. The two dissenting Justices found it “disturbing that Supreme Court failed to consider [Beyer’s testimony] that, based on his prior experience, when someone is vigorously trying to pull an object out of a coat pocket and the object does not come out easily, that object is normally a weapon” (Ingram, 114 AD3d at 1296 [Scudder, P.J. and Peradotto, J., dissenting]). The dissent went on to cite the proposition that “the police are allowed to draw on their own experience and specialized training” to make inferences that might elude an untrained person (Id., quoting Hall at 311). By contrast, the majority briefly mentioned and then disregarded the significance of this fact, even though it was at the core of the People’s argument. An exhaustive analysis can result in only one inference: that Beyer’s actions were reasonable. The Benjamin rule is well-founded. It recognizes that reasonable suspicion can be provided before a weapon is drawn. By allowing a police officer to freeze a dangerous situation by effecting a seizure, the rule promotes the safety of all parties involved in the street encounter. Had defendant been permitted to draw his weapon, the risk to both men would have escalated dramatically. Unfortunately, the decision of the Fourth Department jeopardized the safety of both police officers and civilians by discouraging a reasonable response to danger. There Is No Support in the Record for the Decision of the Fourth Department. A suppression determination generally presents a mixed question of law and fact. However, “when the facts and circumstances are undisputed, when only one inference can reasonably be drawn therefrom and there is no problem as to credibility,” then an issue of law is presented for this Court’s review (People v Oden, 36 NY2d 382, 384 [1975]). Because the facts are essentially undisputed and Andrew W. Klein October 6, 2014 Page -4- the decision of the Fourth Department finds no support in the record, this is such a case. For the decision of the Fourth Department to be affirmed (or the appeal dismissed) as presenting a mixed question, the undisputed facts would have to warrant an inference that Beyer acted unreasonably. Such an inference simply cannot be made. Respectfully submitted, DAVID A. HERATY Assistant District Attorney Appeals Bureau c: Sherry Chase, Esq. THE PEOPLE OF THE STATE OF NEW YORK, Respondent V ROBERT INGRAM, Appellant STATE OF NEW YORK COUNTY OF ERIE ) SS: CITY OF BUFFALO KRISTY A. SWANSON, being duly sworn, deposes and says: That she is over the age of twenty—one (21) years and is employed by the County of Erie at the Erie County District Attorney’s Office; that on October 6, 2014, she served the within Letter Brief upon Sherry Chase, Esq., attorney for defendant— appellant, addressed to Sherry Chase, Esq. at The Legal Aid Bureau of Buffalo, Inc., 237 Main Street — Suite 1602, Buffalo, New York 14203, by depositing a true copy of same, securely enclosed in a postpaid wrapper, in a Post Office box regularly maintained by the United States Postal Service at the Erie County Hall in the City of Buffalo, New York in the above-referenced matter. K Y A. SWANSON Subscribed and sworn to before e on Octob r 6, 0141. DONNA A. MILLING j Notary Public, State of Ne York Qualified in Erie County My Commission Expires February 9, 2016. STATE OF NEW YORK COURT OF APPEALS AF F I DAV IT OF SERVICE Indictment No. 00 668—2012