The People, Respondent,v.Anthony Barksdale, Appellant.

Brief

N.Y.September 8, 2015

To be argued by JAN HOTH (15 Minutes Requested) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - APL-2014-00180 ANTHONY BARKSDALE, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT ROBERT S. DEAN Attorney for Defendant-Appellant CENTER FOR APPELLATE LITIGATION 120 Wall Street New York, NY 10005 Tel: (212) 577-2523 Fax: (212) 577-2535 JAN HOTH jhoth@cfal.org Of Counsel December 5, 2014 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT AS A MATTER OF LAW, THE POLICE LACKED AN OBJECTIVE CREDIBLE REASON TO APPROACH AND QUESTION APPELLANT UPON SEEING HIM SIMPLY STANDING IN THE LOBBY OF A BUILDING ENROLLED IN THE “TRESPASS AFFIDAVIT PROGRAM.” U.S. CONST., AMENDS. IV, XIV; N.Y. CONST., ART. I, § 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Reviewability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Merits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 i TABLE OF AUTHORITIES CASES People v. Concepcion, 17 N.Y.2d 192 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 People v. Bigelow, 66 N.Y.2d 417 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 People v. De Bour, 40 N.Y.2d 210 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6 People v. Dodt, 61 N.Y.2d 408 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 People v. Edwards, 69 N.Y.2d 814 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4 People v. Garcia, 20 N.Y.3d 317 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 People v. Hendricks, 43 A.D.3d 361 (1st Dep’t 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 People v. Hollman, 79 N.Y.2d 181 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 People v. Johnson, 109 A.D.3d 449 (1st Dep’t 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 People v. Johnson, 23 N.Y.3d 1001 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 People v. LaFontaine, 92 N.Y.2d 470 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 People v. McRay, 51 N.Y.2d 594 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ii People v. More, 97 N.Y.2d 209 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 People v. Rogue, 99 N.Y.2d 50 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 STATUTES C.P.L. § 470.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 C.P.L. § 450.90[2][a]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 N.Y. Const., art. I, § 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 U.S. Const., amends. IV, XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 iii COURT OF APPEALS STATE OF NEW YORK --------------------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : ANTHONY BARKSDALE, : Defendant-Appellant. : --------------------------------------------------------------------------------X PRELIMINARY STATEMENT Appellant, Anthony Barksdale, submits this brief in opposition to the brief the People submitted [“RB.”] in response to his original appellate brief. ARGUMENT AS A MATTER OF LAW, THE POLICE LACKED AN OBJECTIVE CREDIBLE REASON TO APPROACH AND QUESTION APPELLANT UPON SEEING HIM SIMPLY STANDING IN THE LOBBY OF A BUILDING ENROLLED IN THE “TRESPASS AFFIDAVIT PROGRAM.” U.S. CONST., AMENDS. IV, XIV; N.Y. CONST., ART. I, § 12. Reviewability Respondent asserts that this Court cannot review appellant’s challenge to the lawfulness of Officer Nieves’ approach and questioning of him because “the 1 Appellate Division’s determination that the officers acted reasonably is a mixed question of law and fact that, . . . is supported by the record” (RB. at p. 11). According to the People, the Court’s dismissal of the appeal in People v. Johnson, 109 A.D.3d 449 (1st Dep’t 2013), on the ground that the “reversal by the Appellate Division was not ‘on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal’ (CPL 450.90[2][a]),” see People v. Johnson, 23 N.Y.3d 1001 (2014), demonstrates the unreviewability of the instant case. The People theorize that because Johnson presented the same issue as this case, i.e., whether officers in a public housing building have an objective credible reason to ask anyone encountered therein if they lived there, “and there exists record support for the Appellate Division’s decision here, this question of mixed law and fact is beyond the Court’s further review” (RB. at p. 12). Notably absent from the People’s brief, however, is any1 recognition of the markedly different facts presented in Johnson. In Johnson, the majority and dissenting opinions neither agreed as to the relevant facts, i.e., whether Johnson reacted suspiciously to the appearance of the police, nor the inferences to be drawn from them; a classic mixed question. Here, in contrast, the facts are not in dispute – appellant was simply standing in the lobby of a TAP As discussed in appellant’s original brief, police officers enjoy the same authority1 to patrol a building enrolled in the Trespass Affidavit Program [“TAP”] as they do in a New York City Housing Authority Building (Appellant’s Brief at pp. 6, 20-21). 2 building, which fact, by itself, Officer Nieves believed gave him a level one right to inquire. This case does not, therefore, present the Court with a mixed question of law and fact. This Court has made clear that, “When the issue is the minimum showing necessary to establish probable cause . . . a question of law is presented for our review.” People v. Bigelow, 66 N.Y.2d 417, 420-21 (1985)(emphasis added); see also People v. Edwards, 69 N.Y.2d 814, 815 (1987); People v. McRay, 51 N.Y.2d 594, 601 (1980). Thus, in McRay, this Court decided as a question of law that the exchange of a glassine envelope – a “hallmark of an illicit drug exchange,” 51 N.Y.2d at 603 – in an area “notorious for narcotics activity,” meets “the minimum requirement” for establishing probable cause. Id. at 601-02. In Bigelow, this Court decided that the “basis of knowledge” prong for establishing probable cause through hearsay is not met as a matter of law when the informant’s statement contains no information based upon personal observation and fails to describe the defendant’s activities with particularity. 66 N.Y.2d at 423-24. And in Edwards, this Court decided as a matter of law that a search warrant application fails to meet the minimum standard for providing the magistrate with information sufficient to support a reasonable belief that evidence of illegal activity would be present at the specific time and place of the search, when the eavesdropping and surveillance 3 information is “as consistent with innocence as with guilt.” 69 N.Y.2d at 816. As set forth in our original brief, appellant’s case calls upon this Court to decide the minimum standard to authorize a level one stop and request for information in the context of buildings enrolled in TAP. That is, whether a building’s enrollment in TAP provides the police with an objective, credible reason to approach and question people in the building, absent any other indicia of criminality. Having chosen solely to emphasize the lower courts’ reasonableness determinations, Respondent implicitly concedes that if the case presents a “minimum showing” issue, this Court has the power to review it. As the case presents that question, the mixed question doctrine does not bar this Court’s review. Merits Respondent contends that “mere presence” in a building enrolled in TAP provides law enforcement with a sufficient foundation for a level-one encounter because appellant had “no legal right to be present there unless he was a resident or guest” (RB. at p. 17). In other words, appellant’s presence in the lobby of a TAP building was sufficiently related to the crime of trespass to justify police inquiry. This argument, however, ignores the obvious – there is nothing inherently 4 suspicious about occupying the common area of an apartment building. Indeed, residents and trespassers alike traverse the hallways and mingle in the lobby and courtyards. Consequently, mere presence in the lobby of a TAP building is no more related to the crime of trespass than mere presence in a department store is related to shoplifting. While it is certainly true that some people present in a TAP lobby may be trespassing, just as some people present in a department store may be shoplifting, People v. De Bour, 40 N.Y.2d 210 (1976) requires more before the police can conduct even a level one inquiry. Simply being in a location where certain acts have been criminalized does not justify a level one inquiry. Otherwise, anyone present in a any such location could be subjected to a level one inquiry. Allowing officers on vertical patrol in a TAP building to conduct level one inquiries predicated on nothing more than presence in the building would be tantamount to finding that the police may always conduct level one inquiries in TAP buildings. Not only would this partially remove DeBour’s protections from TAP buildings, it would encourage regular disruption of residents’ lives based solely on their inability to afford higher rents. Moreover, contrary to Respondent’s contention, asking someone found in the lobby of a TAP building to establish their right to be there is not “minimally intrusive question[ing]” (RB. at p. 22). During a vertical patrol, an officers’ 5 questions are directly related to whether or not the person being questioned either lives in the building or is an invited guest. While questions such as “Where do you live” and “Can I see some identification” do not imply particularized suspicion when posed on a street corner, they certainly imply suspicion of trespassing and the possibility of arrest when posed during a vertical patrol. The nature of the encounter becomes even more invasive as the officers demand corroboration of the answers provided to them. Indeed, officers have gone so far as to follow up to ascertain the veracity of the suspect’s answers. See, e.g., People v. Hendricks, 43 A.D.3d 361, 362 (1st Dep’t 2007)(defendant arrested for trespass after officers took him to fourth floor of building and he was unable to identify friend’s apartment). Thus, while everyone below agreed that Officer Nieves’ posed only a level one request for information, his questioning clearly manifested suspicion of a particular criminal act, trespassing, and cannot be considered “minimally intrusive.” Finally, Respondent’s suggestion that this Court’s decision in People v. De Bour, is not controlling because this was not a police-citizen street encounter (RB. at pp. 18-20), is wrong as a matter of law. In People v. Garcia, 20 N.Y.3d 317,2 Respondent did not raise this issue in the trial court and thus, the claim is2 unpreserved and thereby unreviewable in this Court. See, e.g., C.P.L. § 470.15; People v. More, 97 N.Y.2d 209 (2002); People v. Dodt, 61 N.Y.2d 408 (1984). Moreover, although the hearing court denied appellant’s suppression motion, it accepted appellant’s argument that De Bour governed the disposition of the issue. Because the hearing court thus decided the applicability (continued...) 6 319-20 (2012), the Court held that the “graduated framework set forth” in De Bour and People v. Hollman, 79 N.Y.2d 181 (1982), “for evaluating the constitutionality of police-initiated encounters with private-citizens applies with equal force to traffic stops.” Further, the Court has already applied the principles of De Bour to police-citizen encounters in residential apartment buildings. People v. Rogue, 99 N.Y.2d 50, 52 (2002). In sum, while enrollment in TAP authorizes the police to enter the premises, it can neither diminish an individual’s right to be free from an unreasonable search and seizure nor relieve the People of their burden in the suppression hearing of going forward with evidence of the legality of the police conduct. Moreover, upholding the intrusion in this case would subject all individuals in TAP buildings – residents and guests – to indiscriminate police inquiry. Accordingly, appellant’s conviction should be reversed, the razor blade suppressed, and the indictment dismissed. (...continued)2 of De Bour to this case in appellant’s favor, the issue is beyond this Court’s review. People v. Concepcion, 17 N.Y.2d 192 (2011); People v. LaFontaine, 92 N.Y.2d 470 (1998). 7 CONCLUSION FOR THE REASONS STATED HEREIN, AND IN A P P E L L A N T ’ S O R I G I N A L B R I E F , APPELLANT’S CONVICTION SHOULD BE REVERSED, THE RAZOR BLADE SUPPRESSED, AND THE INDICTMENT DISMISSED. Respectfully submitted, ROBERT S. DEAN Attorney for Defendant-Appellant JAN HOTH Of Counsel December 5, 2014 8