The People, Respondent,v.John Gayden, Appellant.BriefN.Y.October 14, 2016 To Be Argued By: David R. Juergens Time Requested: 10 Minutes APL-2016-00006 __________________________________________________________________ Court of Appeals State of New York _______________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- JOHN GAYDEN, Appellant. _______________________ __________________________________________________________________ REPLY BRIEF FOR APPELLANT __________________________________________________________________ TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant BY: DAVID R. JUERGENS Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 Tel: (585) 753-4093 Fax: (585) 753-4234 Date Completed: April 22, 2016 _________________________________________________________________ TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES i Reply to the People’s “Question Presented” 1 Reply Point I: On this record, with respect to Mr. Gayden, the second police officer only had an articulable reason to approach (DeBour Level I), not a founded suspicion that criminal activity was afoot (DeBour Level II). Therefore, with respect to Mr. Gayden, the police pursuit was unlawful because the second officer did not have “reasonable suspicion” to believe that Mr. Gayden was involved in criminal activity (DeBour Level III). 2 CONCLUSION 10 i TABLE OF AUTHORITIES State Cases People v Berrios, 28 NY2d 361 [1971] ................................................................... 3 People v Diaz, 81 NY2d 106 [1993] ........................................................................ 2 People v Hollman, 79 NY2d 181 [1992] ................................................................. 8 People v Holmes, 81 NY2d 1056 [1993] ................................................................. 8 People v William II, 98 NY2d 93 [2002] ................................................................. 8 1 Reply to the People’s “Question Presented” For the sake of clarity, Mr. Gayden disputes four erroneous or misleading factual assumptions or suggestions contained in the People’s version of the “Question Presented” (see People’s Brief at 1). As will be discussed, the People did not establish: • That Mr. Gayden was found only “one minute” after the anonymous telephone tip, or • That Mr. Gayden was found “in the area given in the report,” or • That Mr. Gayden “fit the general description” contained in the anonymous report, or • That Mr. Gayden “immediately fled when a police officer attempted to speak with him.” 2 Reply Point I: On this record, with respect to Mr. Gayden, the second police officer only had an articulable reason to approach (DeBour Level I), not a founded suspicion that criminal activity was afoot (DeBour Level II). Therefore, with respect to Mr. Gayden, the police pursuit was unlawful because the second officer did not have “reasonable suspicion” to believe that Mr. Gayden was involved in criminal activity (DeBour Level III). In their heading for “Point II” (People’s Brief at 12), the People conflate some facts. The issue is not whether “the police” as an amorphous entity had reasonable suspicion to pursue Mr. Gayden. The precise issue is whether, before Mr. Gayden’s flight, the second officer had an articulable basis to approach (DeBour Level 1) or a common-law right of inquiry (DeBour Level 2). If the second officer only had a right to approach Mr. Gayden (DeBour Level 1), then his immediate pursuit of Mr. Gayden was unlawful. The People’s Burden of Going Forward An anonymous tip may provide a police officer with a basis for conducting an investigation. But that tip, standing alone, does not provide a basis for police interference with private citizens. Instead, the information provided by the tip must be verified by subsequent observations. These observations will determine what level of police intrusion is authorized (DeBour Levels I, II, III or IV). Indeed, all “warrantless searches and seizures are per se unreasonable unless they fall within one of the acknowledged exceptions to the Fourth Amendment’s warrant requirement” (People v Diaz, 81 NY2d 106, 109 [1993]). Thus, while a 3 defendant bears the ultimate burden of persuasion, the People bear the burden of going forward in the first instance with evidence to justify any warrantless police intrusion (People v Berrios, 28 NY2d 361, 367-368 [1971]). Time Here, the People did not go forward with any evidence to establish when the anonymous tip was received. This omission eliminates the alleged significance of the short-response time to the police radio dispatch – a communication prompted by the anonymous tip. In other words, Officer Bongiovanni’s testimony that he arrived at the intersection of Bay and Ellison Street about “one minute” after receiving the police radio dispatch has little-to-no probative value because the People did not establish how much time passed between the anonymous tip and the police radio dispatch. Simply stated, there is no record support for any conclusion that the time period between the receipt of the anonymous tip and the arrival of the two police officers (at the intersection of Bay Street and Elliott Street) was a short period of time. Place Contrary to the People’s assertion, there is no record support for a conclusion that Mr. Gayden was found “in the area given in the [anonymous telephone] report” (see People’s Brief at 1). The reported “area” was the intersection of Webster Avenue and Elliott Street, not the intersection of Bay Street 4 and Elliott Street. Moreover, the County Court, the Appellate Division and the People have all glossed over the undisputed fact that Mr. Gayden was located twenty-five houses away from the reported “area” (R 131). The significance of this distance is amplified by the fact that the first officer (Bongiovanni) never drove down Elliott Street and the second officer (Jorge) was focused on responding to Officer Bongiovanni’s dispatch about observing two suspects at the intersection of Bay and Elliott. While Thacker and Gayden may have been the only two pedestrians located near the southwest corner of Bay and Elliott, there is no record support for any conclusion that Elliott Street (between Bay Street and Webster Avenue) was completely devoid of any other pedestrian traffic. It is simply unknown whether other black males wearing t-shirts were walking or standing on this twenty-five-house stretch of Elliott Street. Suspect Description The only record support for the People’s assertion that Mr. Gayden “fit the general description” contained in the anonymous tip (People’s Brief at 1, 12) is proof establishing that Mr. Gayden is a black male. But the significance of this extremely sparse “match” is offset by the undisputed non-match of the only other physical feature contained in the anonymous tip – that the black male was wearing a white t-shirt with red letters. Contrary to this description, Mr. Gayden wore a 5 blue jacket and a dark shirt. Yet, the County Court, the Appellate Division and the People have either ignored or downplayed this critical difference. In fact, the People go so far as to wrongly assert that the “only difference” between the suspect description contained in the anonymous tip and Mr. Gayden’s appearance “was the fact that defendant [Gayden] was wearing a blue coat – which he could have easily put on between the time of the call and Officer Bongiovanni’s arrival one minute later” (People’s Brief at 11). As noted above, the People did not present any evidence to establish the time period between the anonymous tip and Officer Bongiovanni’s arrival. And, more to the point, the People’s unqualified assertion that “wearing a blue coat” was the “only difference” between the tip and Mr. Gayden’s appearance is not supported by the record. Once again, it was the People’s burden, in the first instance, to present evidence to support the legality of the warrantless police intrusion. Initially, Officer Bongiovanni did claim that he saw “a white shirt” extending “from the bottom of the jacket from the waist area” (R 94); a “white shirt” that was “hanging out beneath the bottom of the jacket” (R 115). On cross-examination, however, he was confronted with Mr. Gayden’s arrest photograph and changed his testimony: “That [photograph] shows a dark shirt, yes, sir. Like I said, I thought I saw a white shirt sticking out from underneath the jacket, but it could have been just a lower portion of his jacket which was light blue. I mean – I was looking over at him, looking over at Gregory [Thacker], looking over at him, looking at Gregory. I thought I saw a 6 little white shirt hanging out underneath it but it looks like he’s got a black shirt on there. So I might have made a mistake. And I didn’t put ‘white shirt’ in my report, so as I’m thinking back at it from today and at Grand Jury, those were mental notes that I thought I may have saw when he was holding his waistband. I thought I saw a white shirt, light blue jeans and his blue jacket. But it looks like I made a mistake” (emphasis added) (R 139). While initially admitting that Officer Bongiovanni “acknowledged that defendant appeared to be wearing a dark colored t-shirt underneath his coat” (People’s Brief at 10), the People still attempt to salvage the possibility that “a light-colored shirt” was protruding from the jacket by noting that the “arrest photograph only showed defendant’s head and neck area and did not show the color of the t-shirt sticking out from underneath his jacket” (People’s Brief at 10). The People’s attempt to erase officer Bongiovanni’s mistaken testimony merits two responses. First, as previously stated, it was the People’s burden to go forward with evidence to rebut the presumption of unreasonableness but the People submitted nothing to contradict Mr. Gayden’s arrest photograph. Second, on re- direct examination, Officer Bongiovanni never retracted his own conclusion (“I made a mistake”) (R 139): “As I sit here and think mentally what he wore, he had a long sleeved blue jacket on and he had some light - - I believe light colored jeans and I thought there was a light colored shirt coming out from underneath him, but he was running so fast and hanging onto his waistband, I might have misjudged his shirt for the bottom portion of his jacket. I never really got hands on with Mr. Gayden. I never 7 patted him down. I never went back to see him being handcuffed. I never saw him in the back of a police car. I just made quick mental notes of him as he walked away from me and then ran by me. And then after I ducked, I got backup to see where he ran and - - if he didn’t have a white shirt - - if he had a white shirt on, normally I put that in my police report, but I didn’t put black shirt either, so - -” (R 140). Thereafter, Officer Bongiovanni opined that it looked like Mr. Gayden was wearing a black shirt in the black-and-white arrest photograph but stated that the shirt could have been some other dark color (R 140). Importantly, in this case, the discrepancy between the suspect description and Mr. Gayden’s appearance was not simply a matter of degree. In other words, this was not an anonymous tip with a height description of six-foot and an age description of 21 where the person approached was 5’ 10” and age 25. Police officers can expect descriptions of such physical features to be mere estimates and subject to a certain degree of variability. In contrast, the distinction between a white t-shirt with red letters and a blue jacket (with a dark shirt underneath) is a difference in kind, not degree. In other words, there is no “estimation factor” that can excuse the difference. Mr. Gayden’s Behavior For the most part, the People have ignored Mr. Gayden’s argument that neither police officer confirmed the “criminality” suggested by the anonymous tip. Mr. Gayden’s pre-flight behavior was certainly “equivocal” or “readily susceptible 8 of an innocent explanation” (see People v Holmes, 81 NY2d 1056, 1058 [1993]). It was not unreasonable conduct for Mr. Gayden to walk off the sidewalk when Officer Bongiovanni (a uniformed police officer, with his firearm drawn) was running down that same sidewalk (chasing after Gregory Thacker). Importantly, neither police officer saw any indicia of criminality by Mr. Gayden before Officer Jorge began to chase him. The People simply go too far when they argue that “[i]n our case, unlike William II, police officers’ observations corroborated rather than discredited the report of gun possession” (People’s Brief at 19). In William II (98 NY2d 93 [2002]) the report of gun possession by a particular suspect was discredited because that person wore clothing that could not readily conceal a firearm. In our case, however, nothing corroborated “gun possession” by anyone. No telltale bulges, waist-grabbing or other indicia of gun possession were observed by either police officer before Officer Jorge began to chase Mr. Gayden. Summary In this case, the anonymous tip did not give police officers carte blanche to ask any black-male pedestrian on Ellison Street whether he possessed a gun. At most, a responding police officer could approach someone like Mr. Gayden and ask non-threatening questions (identity, address, destination, etc.) (DeBour Level I) (see People v Hollman, 79 NY2d 181, 185 [1992]). 9 On the other hand, Mr. Gayden had a constitutional and statutory right to be let alone. Because the record does not support a finding of reasonable suspicion for the police pursuit, the recovered property must be suppressed and the indictment must be dismissed. 10 CONCLUSION This Court should reverse the Appellate Division, vacate Mr. Gayden’s convictions, grant his suppression motion and dismiss the indictment. Alternatively, this Court should grant such other and further relief as this Court deems just and proper. Dated: April 22, 2016 Respectfully submitted, TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant _________________________ BY: DAVID R. JUERGENS Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 (585) 753-4093