The People, Respondent,v.Lawrence Parker, Appellant.BriefN.Y.March 20, 20185111 '11£1 Ill! THE ... R LEGAL ~:'II AID ii:, ;.; I SOCIETY April 18, 2016 Honorable Janet Defiore Chief Judge New York Court of Appeals 20 Eagle Street Albany, NY 12207-1095 Re: People v. Parker(Lawrence), APL-2016-00050 Your Honor: Crin1inal Appeals Bureau 199 Water Street New York, NY 10038 T (212) 577-3564 www.legal-aid.org Direct Dia!: {2!2) 577-3343 Direct Fax: (646) 616-4343 E-mail: LMaddalo@lcgal-aid.org Blaine (Fin) V. l'ogg Presidenl Seymour W. Jan1es, Jr. Attorney-in-Chief Justine M. Luongo A /lorney-in-Clmrge Criminal Practice This letter is submitted in accordance with this Court's preliminary determination to review this case pursuant to section 500.11 of the Court of Appeals Rules of Practice (the Rules). However, as this case raises the very important question of whether a defendant can be deemed to flee when his co- defendant runs from the police, appellant strongly requests that this Court consider this case after full briefing and argument. The lower courts, in attributing the co-defendant's fligbt to defendant, violated appellant's constitutional rights to be free from unreasonable searches and seizures and significantly expanded the rules regarding the permissible level of intrusion. U.S. Const., Amends. IV, XIV; N.Y. Const., Art. I, § 12; People v. DeBour, 40 N.Y.2d 210 (1976). INTRODUCTION Lawrence Parker and his co-defendant, Mark Nanni, were walking on the driveway away from the building at 3341 Country Club Road in the Bronx, known as the Westchester Country Club, when approaching police officers yelled at them to stop. The officers were responding to a radio run they had received a short time earlier saying that a burglary was in progress at the above address. The men kept walking; the officers repeated their order. Nanni began to run away in one direction, while Mr. Parker walked briskly away in another. Police Office Fraterrigo chased appellant; after the officer caught up to appellant, he claimed that he saw a sledgehammer in appellant's unzipped backpack. With the help of his partner, Officer Fraterrigo pushed appellant to the ground and handcuffed him. In addition to a sledgehammer, April 18, 2016 Page 2 the officer recovered other property from appellant's backpack and pants pocket. While appellant was handcuffed and in the custody of the police, the complaining witness Robert Ederle came outside of the building and identified appellant as one of the people who committed the charged crimes. After a Dunaway/Mapp/Wade hearing, the court issued a written decision finding the police officers acted within their permissible level of intrusion when they chased appellant. The coUit found that the officers had a common law right to inquire when they directed appellant to stop. The coUit ruled that appellant's walking away from the officers after they asked him to stop gave the officers reasonable suspicion and justified their chase and seizure of appellant. The court also found that the identification by of appellant by the complaining witness was proper. The court denied appellant's motion in its entirety. The Appellate Division First Department, affirmed the hearing coUit's ruling in a split decision. The majority found that, based on the information that the officers had when they arrived, as well as their observation of appellant and the co-defendant walking away from the scene of the burglary, the police had a "founded suspicion that defendants were involved with the burglary, warranting a level-two common-law inquiry" People v. Mark Nanni & People v. Lawrence Parker,135 A.D.3d 52 (1'1 Dept. 2015). The majority also found that both defendants fled, thereby creating reasonable suspicion and raising the permissible level of police intrusion. Id at 56-57. The two-judge dissent found, inter alia, that the officers were not justified in pursuing appellant, who did not flee, but merely walked at a "hurried pace" across the road. Id. at 60. FACTUAL AND PROCEDURAL BACKGROUND The Pre-Trial Dunawav/Mapp/Wade Hearing On January 21, 2008, Police Officer Michael Fraterrigo was working as a patrol officer with his paitner, Police Officer Daniel Balaj, in the 45th precinct area of Bronx County, New York City when they received a radio run that a burglary was in progress at 3341 Country Club Road (H78-80; 81; 91). 1 Page numbers preceded by "H" refer to the minutes of the Dunaway/Mapp/Wade hearing held November 30, 2009; citations preceded by "D" refer to the court's written decision denying suppression, dated April 15, 2010; citations without reference refer to the minutes of the trial testimony taken July 21 - August 2, 2010; and citations preceded by "S" refer to the 1ninutes of the sentencing proceeding held on Nove1nber 4, 2010. April 18, 2016 Page 3 The officers had no additional information regarding the number of perpetrators, any physical description, or of whether or not any weapons were used in the burglary (H88). They drove to the above address (H82, 91-92). Fraterrigo saw two men exiting the building's driveway onto the street (H84, 92). He did not see anyone else in the vicinity that he did not recognize as police officers (H83-84, 95). Fraterrigo saw Officer David Martinez, a summons officer who had arrived alone at the scene (H83). Martinez yelled out to the two men to stop (H85, 93, I 02). Officer Peter Delaney heard Martinez repeat the order, saying that he wanted to speak to the men (H: 23- 24). One of the men, later learned to be Nonni, began to tun (H85). Several officers ran after him (H85). 2 Fraterrigo saw the man he identified as appellant walk briskly across the street (H93-94). Fraterrigo chased appellant, catching up with him across the street, near the lawn of 3338 Country Club Road (H85). Fraterrigo claimed that at that point he saw a sledgehammer in the unzipped red backpack that appellant was wearing (H85, 97). Fraterrigo directed appellant to stop (H85). He also directed him to put his hands behind his back, in preparation to be handcuffed (H85). Fraterrigo claimed that appellant "put up a struggle," and refused to "give me his hands" (H85-86). Fraterrigo asked Balaj to help handcuff appellant (H85-86). The two officers pushed appellant face-forward onto the ground (H86). They turned appellant over after they handcuffed him (H86). Appellant was no longer "combative" once he was subdued by the officers (H86). Fraterrigo seized appellant's backpack (H86). He also searched appellant's person (H87). Fraterrigo recovered the sledgehammer and a crowbar from the backpack and a small steak knife from appellant's right front coat pocket (H87). With appellant handcuffed and in custody, Fraterrigo heard someone yelling (H89, 97). He turned and saw the complaining witness, Robert Ederle, standing in the middle of the street wearing boxer shorts (89-90). Ederle pointed to appellant and shouted, "that's him" (H89, 90, 104). A few minutes later, other officers brought Nanni back to the scene (H90, 98). Ederle identified him as "the other guy" (H90, I 06). Officer Delaney_testified regarding the seizure and subsequent search and identification by Robert Ederle of Mr. Nonni (HI 0-63; 97-107). He also testified to recovering a roll of duct tape, two knives, and three envelopes each containing one thousand dollars from Nonni (H30, 55). April 18,2016 Page 4 At the close of the hearing, defense counsel argued that the officers had no reason to stop appellant (Hl 14). He explained that appellant was merely walking across the street (Hl 14). He pointed out to the court that the officer only saw the sledgehammer in appellant's backpack after be chased and stopped him (Hl 15). The prosecutor claimed that, because the officers saw the two men within five minutes of receiving the report of a burglary in progress, the officers had a reasonable suspicion to stop and search the men, or, at minimum a common-law right to inquire (Hl27-128). He argued that appellant was walking away "as fast as he could" (H130). He said that the sledgehammer was in plain view when appellant was stopped by Fraterrigo (Hl31). The prosecutor also argued that the identification by Ederle of the handcuffed appellant surrounded by police officers was not a police-arranged identification procedure (H132). The court issued a written decision, dated April 15, 2010. The comt deemed the two testifying officers, Delaney and Fraterrigo, to be credible witnesses (D9). The court ruled that Officer Martinez's direction to stop to appellant and Nonni as they were walking down the driveway was an encounter at the "minimal level of intrusiveness" (D13). In discussing this first encounter between the police and appellant, the court found that, because the two men were the only ones in the immediate vicinity of the reported burglary in progress, the officers "at best had a common law right of inquiry" (Dl3). The court did not differentiate between appellant's ignorance of the officer's command while he walked across the street and Nonni's running away when it found that both men "actively fled from the police" and therefore did more than exercise their "right to be let alone" (D13). The court remarked that, after he stopped appellant, Fraterrigo saw a sledgehammer in the backpack that he was carrying (D14). The court found that, based on the officer's "observations," the recovery of the backpack and its contents was "justified and lawful" (D14).3 The court also found the identification by Ederle was not police-arranged (D 14 ). The court denied appellant's motion to suppress in its entirety (DIS). 3 Although the court stated that the crowbar and steak knife were recovered from the backpack, as noted above, the knife was actually recovered from appellant's pocket. April 18, 2016 Page 5 The Trial, Verdict, and Sentencing Anne Ederle (AE) and her husband, Robert (RE), were the caretakers of the social club located at 3341 Country Club Road, Bronx, New York (AE: 41, 89-90; RE: 188, 190). They lived on the premises, taking care of the grounds and the facilities (AE: 39-40, 42; RE: 197, 339, 371, 423). The club consists of a bar, a kitchen, a catering hall upstairs, and a pier outside, near the adjacent beach (AE: 42; RE: 192; RE: 200, 339). The building is at the end of a driveway, some distance from the road (AE: 42-43; RE: 190). AE explained that the catering hall was previously available for anyone to rent, but now only members can rent the space (AE: 45, 104-105). RE said that the policy has always been that anyone wanting to rent the hall had to be referred by a member (RE: 201, 340). As part of their compensation for this work, the couple lived rent-free (AE: 93). RE also got a salary for this work, of approximately $15,600 per year (AE: 92, 96, 98, 131; RE: 376-377). He supplemented his income with tips and extra pay for baitending and/or working parties held in the upstairs catering hall (RE: 371, 377). Additionally, RE ran football betting "pools" from the club (AE: 78; RE: 202, 376). The price per box for the largest Super Bowl pool in January 2008 was ten thousand dollars per box, resulting in the possibility that one person would win one million dollars (RE: 204, 341-342). RE called himself the "kingpin" of this pool (RE: 204, 351). He received what he tenned "voluntary tips" for running the pool (RE: 348-349). He admitted that he did not pay taxes on the money that he made from the pools (RE: 3 85). On January 18, 2008, at about 8 p.m., AE went from the club's kitchen out to the bar to let her husband know that his dinner was ready (AE: 54-55). She saw that he was speaking with a woman (AE: 55; RE: 208). The woman's name was Samantha Sanchez (RE: 208). Ms. Sanchez had a reference that cleared her for renting the upstairs hall (RE: 209). RE gave Ms. Sanchez a sheet of paper with information about renting the hall; he attached a business card to the paper (AE: 72, 184-185; RE: 212, 384). AE brought Ms. Sanchez upstairs and showed her the space (AE: 56, 109; RE: 209-211). Ms. Sanchez later called RE (AE: 74, 109; RE: 222). She made an appointment for her husband to look at the hall on the following Monday at about 9:30 a.m. (RE: 223-224). April 18, 2016 Page 6 On the morning of January 21, 2008, RE got up and dressed for his 9:30 a.m. appointment (AE: 81, l 15; RE: 235). At about 9:20 a.m., RE saw two men, later identified as appellant and Nanni, walking up the driveway of the club (RE: 236). RE greeted the two men; he held the door open for them to enter the club (RE: 246, 274). RE walked ahead of the men up the stairs to show them the hall (RE: 247, 278). Once the three men were upstairs, according to RE, appellant yelled out "now," and took out a knife that with a seven to nine inch blade (RE: 249, 281 ). As appellant walked toward him, RE raised his arm and blocked him by giving him a "shot across his chest," causing appellant to stumble backward (RE: 250-251, 281-282). RE told the jury that he was not afraid at this time (RE: 250). RE could not see Nanni, so he "spun" to his right, intending to get past him to go to the stairway (RE: 251). RE then saw that Nanni had a knife pointed at his side near his kidney (RE: 251-252, 281, 399-400). Nonii told RE not to move, that he'd kill him (RE: 252, 282). RE put his hands up (RE: 252-253). At this point, appellant was still six feet away, where he was after RE "knocked" him (RE: 252). Nanni asked for the football pool money; he also asked RE if his wife was home (RE: 253). RE told Nanni that his wife was not there, that they did not live on the premises (RE: 253-254, 294). Nonni again asked for the money (RE: 254, 255). Nanni told RE to kneel (RE: 254, 294). He directed RE to lay down flat on his stomach, with his hands behind his head (RE: 255, 294). RE said that appellant then kneeled and straddled him, as he told him not to move or ''I'll kill you" (RE: 255, 295). Appellant held a knife across the back of RE's neck (255, 295, 297). Nanni then tied RE's wrists together with duct tape (RE: 255-256, 296-297, 400). RE told the men the money was downstairs (RE: 256). Appellant then moved away from RE (RE: 297). Nonni, pointing a knife near RE's kidney, told him to stand up (RE: 297). The men kicked RE' s slippers over to him (297). Nanni put some paper and a rag in RE's mouth (RE: 297). Nonni also put some duct tape on RE's mouth (RE: 298). With Nonni behind him pointing a knife, and appellant in third place, RE went downstairs to an area where he kept some of the money from one of the smaller football pools (RE: 298-299, 301-302). RE had three thousand dollars in envelopes in a metal canister (RE: 299, 365-366). He did not, as a April 18,2016 Page 7 practice, deposit this money in a bank (RE: 380). RE told Nonni where to find the canister (RE: 303). Nonni opened the canister and removed three envelopes, each containing one thousand dollars (RE: 303, 315, 379). Nonni told appellant to take RE over to a nearby message chair; he told RE to lmeel in the chair (RE: 303). RE heard Nonni make a telephone call. Nonni said, "we got it. That's all there is" (RE: 304-305). RE told the jury that the men then bound his ankles together with more duct tape (RE: 305, 367, 400). RE slid off of the chair (RE: 306). The men directed him to lie on his stomach (RE: 306). Appellant threw the comforter that was on a nearby chair over RE's body (RE: 306-307, 401). After laying there for a while in silence, RE got up and took his hands out of the duct tape. He said that he pulled down his pants, got free, and went into the kitchen of his apartment (RE: 308-309, 368). AE said her husband knocked on the kitchen door and came inside wearing his underwear only (AE: 87). Sometime earlier, while inside the apartment, AE heard what she determined were more than two sets of footsteps upstairs (AE: 16, 82, 115). AE called Joe Ives, a family friend (AE: 83, 116, 145). Joe told her that he was on his way, but, that, in the meantime, she should call 911 (83, 116). AE called 911 (AE: 83, 85). A few minutes later, but before RE knocked on the door, Joe came into the apartment (AE: 86, 108, 163). RE and Joe ran out the door (AE: 88-89, 108, 109). They got into Joe's car (RE: 309-311, 368-369). When they reached the gate of the club, RE saw appellant sitting on the ground, handcuffed and in the custody of two police officers (RE: 312). RE told the officers that appellant was "the guy" (RE: 312, 370). A few minutes later, RE saw additional police officers bring Nonni back to the scene. RE identified Nonni as "the other guy" (313, 370, 412). Police Officer Mike Fraten-igo' s testimony was substantially similar to his hearing testimony regarding the events that occurred between the time he received the radio transmission and appellant's arrest and identification by RE (MF: 454-495). Similarly, Police Officer Peter Delaney testified at trial substantially similar to his hearing testimony regarding the arrest and identification ofNonni (PD: 505-541, 562-565). Police Officer Edward Lemp also testified about Nonni's arrest and identification by RE (EL: 567-588). Police Officer Kegham Jarjokian explained that, as a member of the evidence collection team, he "dusted" the upstairs catering hall (KJ: 627, 642). April 18, 2016 Page 8 He did not find any usable fingerprints (KJ: 642). In addition, he was unable to get any results from DNA and fingerprint analysis of the duct tape that had allegedly been used to bind RE (KJ: 645). The jury acquitted appellant of both counts of robbery in the first degree (involving the knives allegedly held by each man), but found him guilty of robbery in the second degree (900-902).4 On November 4, 2010, the court sentenced appellant as a persistent violent felony offender to a term of incarceration of twenty years to life (15). The court also issued a final order of protection in favor of RE ( 16). The Appellate Division Decision On appeal, appellant argued, inter alia, that the police officers exceeded the permissible level of intrusion when they ordered him to stop, and when they chased, tackled, arrested, and searched him. On November 5, 2015, in an opinion by Justice Friedman, a bare majority of the Appellate Division found that the police officers' successive actions were justified by the requisite level of suspicion and that the hearing court properly denied appellant's suppression motion. The majority found that the radio run of a burglary in progress and the observation of appellant and Nonni walking out of the driveway of the establishment gave the police officers "at least a founded suspicion that [the] defendants were involved with the burglary, warranting a level-two common-law inquiry" People v. Nanni, People v. Parker, 135 A.D.3d 52, 55 (l" Dept. 2015). The majority concluded that both men actively fled from the police. The majority noted that, while appellant did not run away from the police, his "brisk" walking away, coupled with the headlong flight of Nanni~ with whom he had been walking, created a reasonable suspicion and "justified the police in pursuing and forcibly stopping him." Id. at fn. 3. The court further found that the sledgehammer in appellant's unzipped bag justified a "protective" search of the bag, and appellant's resistance to being detained justified the use of handcuffs. Id. at 58. Justice Sallie Manzanet-Daniels wrote the dissent, in which she was joined by Justice Rosalyn Richter. The dissent found that, given the extremely " As stated earlier, Nonni was also convicted of robbery in the second degree. April 18, 2016 Page 9 limited information possessed by the officers when they mrived at the scene, at most, they were entitled to conduct a level-one request for information. Id. at 59. Thus, the dissent found that, since the police did not initially have a founded suspicion, they were not justified in pursuing either appellant or Nanni. Importantly, the dissent noted that appellant, unlike Nanni, did not flee but walked at a "hurried pace" across the street. Id. 59-60. ARGUMENT POINT THE COURT ERRED IN DENYING APPELLANT'S SUPPRESSION MOTION, WHERE APPELLANT MERELY WALKED BRISKLY A WAY FROM THE POLICE, THEREBY EXERCISING lilS RIGHT TO BE LEFT ALONE; APPELLANT'S PRESENCE NEXT TO THE FLEEING CO-DEFENDANT DID NOT CREATE A REASONABLE SUSPICION THAT HE COMMITTED THE CHARGED CRIME. Even if the police officers had a founded suspicion that criminal activity was afoot when they ordered appellant and Nanni to stop, appellant had the right to disobey their command and to exercise his right to be left alone.5 People v. Moore, 6 N.Y.3d 496, 500 (2006). Appellant did exactly that, by walking hurriedly across the street. Nanni immediately ran away from the police. While Nanni may have elevated the permissible level of police intrusion by his flight, appellant did not flee. As such, the officers' chase and subsequent seizure of appellant went beyond the permissible level of police intrusion. The lower courts improperly found that appellant fled, because he was standing next to the fleeing Nanni. By finding appellant responsible for the independent actions of his co-defendant, the lower courts impermissibly expanded, as a inatter of law, those actions that create a reasonable suspicion that a crime has been committed. Consequently, all evidence obtained as a result of the unlawful seizure and search of appellant, including the property recovered and the out-of-court identification by the complainant, must be 5 Although appellant argued below that the police had only an objective, credible reason to approach when they ordered appellant and Nonni to stop, in order to clearly present an issue of law to this Court, appellant \Viii not contest the lower courts' factual finding that the officers had a founded suspicion when they approached the 1nen and ordered them to stop. April 18, 2016 Page 10 suppressed. This Court should vacate the judgment, reverse the conviction, and remand the matter for a new trial to be preceded by an independent source hearing. U.S. Const. Amend. IV, XIV; N.Y. Const. Art. I,§ 12. The state and federal constitutions guarantee to every citizen the right to be free from unreasonable searches and seizures. U.S. Const., Amends. IV, XIV; N.Y. Const., Art. I, § 12; People v. DeBour, 40 N.Y.2d 210 (1976). The scope of police interference with an individual's privacy and freedom of movement must be commensurate with the amount of information possessed by the officers at the time. New York law divides police-citizen encounters into four categories. People v. DeBour, 40 N.Y.2d at 223; People v. Hollman, 79 N.Y.2d 181, 184-185 (1992). Level one is a request for information, which must be based upon an objective credible reason, not necessarily related to criminality. Next is the common-law right to inquire, which requires a founded suspicion that criminal activity is afoot and which permits interference with a person to the extent necessary to gain explanatory information to confi1m or refute that suspicion, but short of a forcible seizure. Hollman, 79 N.Y.2d at 191; DeBour, 40 N.Y.2d at 218-219, 223. At these levels, the individual has the right not to answer the officer's questions and may walk away. People v. Howard, 50 N.Y.2d 583 (1980). Neither level will support a protective frisk. People v. DeBour, 40 N.Y.2d at 223. In order for the police to forcibly stop and detain an individual, they must have a reasonable suspicion that he or she is co1nmitting, has com1nitted, or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 30-31 (1968); People v. DeBour, 40 N.Y.2d at 215; C.P.L. §140.50. Reasonable suspicion is the "quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circu1nstances to believe criminal activity is at hand." People v. Cantor, 36 N.Y.2d 106, 112-113 (1975). Lastly, to arrest an individual, the fourth and most intrusive level of police interference, the prosecutor must demonstrate that the information in the possession of the police officers at the time of the arrest made it more probable than not that the person arrested was the perpetrator. People v. Carrasquillo, 54 N. Y,2d 248, 254 (1981). Here, appellant and Nanni were ordered to stop by police officers who possessed, at most, a common law right to inquire. Both men chose not to stop to speak to the officers. Appellant "briskly" walked away. In doing so, he exercised his right to be let alone. Instead of allowing him to exercise this right, however, the officers chased, seized, and searched him. The lower April 18, 2016 Page 11 courts' finding that appellant's fast walking was flight, because appellant was standing next to Nanni, who ran from the police, improperly expanded the longstanding rules regarding permissible levels of police intrusion set forth in DeBour. In People v. Moore, 6 N.Y.3d 496, 500 (2006), where the police similarly had a common law right to inquire, and the defendant walked away from the approaching police, the officers were authorized only to "ask questions [] - and to follow [him] while attempting to engage him," the defendant "remained free to continue about his business without risk of forcible detention" (citations omitted). Id~ at 500. As this Court explained: "the very right to be let alone - . . . --- is the distinguishing factor between the level of intrusion permissible under the common-law right of inquiry and the right to stop forcibly. If merely walking away from the police were sufficient to raise the level of suspicion to reasonable suspicion --- and a suspect who attempted to move could be required to remain in place at the risk of forcible detention --- the common-law right of inquiry would be tantamount to the right to conduct a forcible stop and the suspect would be effectively seized whenever only a common-law right of inquiry was justified." (citations omitted) Id. at 569-570. Appellant's fast walking was clearly protected by DeBour and Moore. The police officers did not obtain additional information that connected appellant to the crime, such as a description of the perpetrators, or an identification by the complainant. Appellant did not have any visible proceeds of the burglary; he did not engage in suspicious behavior while he was walking away from the scene. Moreover, appellant was not connected in any way to Nanni's running away from the officers, i.e., the police did not observe any conversations between the two men or any behavior that would indicate that appellant was connected in any way with Nanni, let alone with the latter's running away from the police. Whether or not Nanni's flight added sufficiently to the circumstances surrounding the police approach to create a reasonable suspicion as to him and justify the police pursuit of him, Nanni's flight cannot not be used to raise the permissible level of intrusion regarding April 18, 2016 Page 12 appellant. In doing so, the lower courts ignored the longstanding principle of law that a citizen's "mere propinquity to'' so1neone whotn the police may have a right to search or arrest does not grant the police the right to similarly intrude on that citizen. See Ybarra v. Illinois, 444 U.S. 85, 91(1979). Accordingly, this Court should vacate the judgment, reverse the conviction, and remand the matter for a new trial to be preceded by an independent source hearing. U.S. Const. Amend. IV, XIV; N.Y. Const. Art. I,§ 12. This issue has been preserved for appellate review. Defense counsel moved to suppress the property recovered and the identification of appellant by RE because of the impropriety of the police conduct. At the close of the hearing testimony, counsel argued that the officers had no basis to initially stop appellant. He pointed out that appellant was merely walking across the street when the police chased him and that the sledgehammer was recovered after the officer had stopped appellant. The trial court analyzed its decision in light of the DeBour framework, finding that the police initially had a common- law right to inquire, and that both defendants "actively fled" from the officers.6 * * * The court's constitutional error in failing to suppress the property recovered from appellant and the identification by RE cannot be deemed harmless beyond a reasonable doubt. "[S]uch error calls for reversal and a new trial unless it was harmless under the test for harmless constitutional error laid down by the Supreme Court of the United States, namely, that there is no reasonable possibility that the error might have contributed to defendant's conviction and that it was thus harmless beyond a reasonable doubt." People v. Crimmins, 36 N.Y.2d 230, 237 (1975) (citations omitted). Moreover, as the court did not address the question of independent source, the complainant's in- court identification may not be considered in assessing the harm. See People v. Gethers, 86 N.Y.2d 159, 163 (1995). Here, the trial court's erroneous admission of testimony about the sledgehammer, crowbar, and knife recovered from appellant, as well as RE's identification of appellant certainly contributed to appellant's conviction. Had the comt not erred in denying appellant's suppression motion, the jury would have been able to examine the evidence more closely. u See C.P.L.§470.05(2) (question of law presented "if in response to a protest by a party, the court expressly decided the question raised on appeal"). April 18, 2016 Page 13 When the officers arrived at the scene, appellant and Nanni were merely walking down the driveway of the Country Club on a weekday morning. They were not running away or acting in any way as though they had just committed a crime. The jury heard testimony regarding the property recovered from appellant, including items commonly considered burglar's tools. This testimony served to paint appellant a "criminal" in the jury's mind, despite the fact that the tools were not alleged to have been used in connection with the charged crime. RE's identification of appellant while he was handcuffed and in police custody bolstered the possibility that he had committed a crime. 7 Without this illegally obtained evidence, and since RE's in-court identification cannot be considered in assessing harm, the denial of appellant's motion to suppress cannot possibly be considered harmless beyond a reasonable doubt. Accordingly, this Court should grant appellant's motion to suppress, reverse his conviction, and order a new trial preceded by an independent source hearing. People v. Gethers, 86 N.Y.2d 159; People v. Dodt, 61N.Y.2d408 (1984). Sincerely, ~u~ Jtj~{)' Lorraine Maddalo / Attorney for Appellant Lawrence Parker cc: Hon. Darcel D. Clark Bronx County District Attorney 198 East 161'' Street Bronx, NY 10451 Attn.: Nancy Killian and Ryan Mansell 7 The jury clearly had questions about RE's credibility. Although he testified that appellant held a knife to his neck and Nonni held a knife near his kidney, the jury acquitted appellant (and Nonni) of both counts of robbery in the first degree (those involving the use ofknives).