The People, Appellant,v.Jeffrey Johnson, Respondent.BriefN.Y.June 24, 2014 April 11, 2014 Hon. Andrew W. Klein Clerk of the Court New York Court of Appeals 20 Eagle Street Albany, NY 12207-1095 Re: People v. Jeffrey Johnson APL-2013-00309 SSM Consideration Dear Mr. Klein: By permission of the Honorable Richard T. Andrias of the Appellate Division: First Department, the People appeal from an August 27, 2013 order of that court. The Appellate Division’s order reversed a January 21, 2010 judgment of the Supreme Court, New York County (Marvin, J.), convicting defendant, after a bench trial, of criminal possession of a weapon in the fourth degree and attempted possession of ammunition. By this Court’s order, dated November 19, 2013, this appeal has been calendared for summary treatment pursuant to Section 500.11 of this Court’s Rules of Practice. Respondent Jeffrey Johnson submits this letter in response to the People’s letter dated February 25, 2014. PROCEDURAL HISTORY Under Bronx County docket number 2007BX071337, respondent was charged with criminal possession of a weapon in the second and fourth degrees and possession of ammunition in connection with an incident that occurred on November 23, 2007. After ballistics determined that the gun was inoperable, on January 9, 2008, the People dismissed the second degree weapons possession charge against respondent. The People later reduced the fourth degree weapon possession charge to attempted criminal possession of a weapon in the fourth degree. The case then proceeded to a bench trial. 2 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 PRE-TRIAL MOTION PRACTICE In his pre-trial suppression hearing motion, counsel requested a Mapp/Dunaway hearing. (See Motion contained in the Supreme Court trial file.) Citing People v. DeBour, 40 N.Y.2d 210 (1976), counsel asserted that the “minimal intrusion of approaching to request information is permissible [only] when there is some objective credible reason for that interference not necessarily indicative of criminality.” Id. at pp. 2-3. Counsel further argued that although police officers have “fairly broad authority” to approach and pose questions, they may not do so on mere “whim or caprice,” the request must be based on “an articulable reason not necessary related to criminality.” Id. at p. 3. Continuing, counsel argued that “in determining whether the legality of an encounter under DeBour and Hollman, it has been crucial whether a nexus of conduct existed, that is, whether the police were aware of or observed conduct which provided a particularized reason to request information”. Id. at pp. 3-4. Counsel asserted that the “fact that an encounter occurred in a high crime vicinity, without more, has not passed DeBour and Hollman scrutiny.” Id. at p. 4. Counsel further contended that “the police are under the impression that routine patrol means that they are permitted to subject less economically fortunate citizens to warrantless searches and seizures”. Id. at p. 5. Counsel argued that the “mere fact that a person is within the public area of a New York City Housing tenement at 5:19 p.m. by itself is not an articulable reason for a first and second tier inquiry by the police.” Continuing, counsel argued: “Such a holding would in essence mean that the police would have unfettered and unchecked power. Moreover, such a holding would treat and subject less economically fortunate citizens to a different standard with respect to police intrusion into their lives. Bluntly stated, being poor and living in a public housing tenement is not an “articulable” reason to justify a right of inquiry.” Id. Counsel concluded by requesting suppression of the recovered weapon and ammunition in this case. Id. at p. 6. In their response, the People opposed counsel’s motion. (See People’s Response in the Supreme Court trial file.) The People argued: “First and foremost, as to defendant’s assertion that any physical evidence recovered is the 3 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 fruit of an unlawful arrest in that there was no probable cause to arrest him, the People contend that based upon the aforementioned facts the arresting officers did have probable cause to arrest the defendant for criminal possession of a weapon in the second degree. The arresting officer had reasonable suspicion to question the defendant about his residence, as he appeared nervous and uncomfortable as soon as he noticed the two officers, and was possibly trespassing in a NYCHA building. People v. De Bour, 40 N.Y.2d 210 (1976). As the defendant searched for identification, PO Rodriguez observed a black pistol in the inside pocket of defendant’s jacket, which was open at the time. At that point, probable cause arose to arrest the defendant for Criminal Possession of a Weapon in the Second Degree.” Id. at pp. 2-3. As a result, the People requested the denial of respondent’s motion. Id. at pp. 3-4. At no point in their papers did the People assert that People v. De Bour did not apply to the instant case. To the contrary, the People argued that De Bour did apply and that under the De Bour standards that they should prevail on respondent’s motion. Nor did the People make any argument concerning the different police functions of law-enforcement and public service. The court, in turn, ordered a Mapp/Dunaway hearing on respondent’s suppression motion. THE SUPPRESSION HEARING The Testimony Sergeant Albert Rodriguez was a 5½ year veteran of the NYPD (H 7).1 He was promoted to sergeant five months before his testimony at the suppression hearing (H 7). During his police career, Rodriguez has made over three hundred arrests (H 8). On November 23, 2007, Rodriguez was working with his partner Sergeant Charles Romero (H 9).2 At 5:19 p.m. that day, he arrested respondent at East 174th Street in the Bronx (H 9). The location is a New York City Housing Authority (NYCHA) building (H 10-11). 1 Parenthetical references preceded by “H” refer to pages of the suppression hearing transcript. 2 Romero did not testify at the suppression hearing. 4 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 Rodriguez and his partner entered the rear of the building (H 11). As they approached the door to the lobby, Rodriguez saw respondent “coming down the stairs” (H 11). Rodriguez was at the bottom of the stairway (H 11). Respondent momentarily stopped on the stairs (H 12). Rodriguez claimed that he “observed [respondent] as if he was going back up the stairs” (H13). Rodriguez then asserted that respondent “froze” or “jerked back” (H 13). The officer then asked respondent to “come down the stairs;” he readily complied (H 13). The prosecutor asked Rodriguez why he engaged in a conversation with respondent; the officer replied, “It is a NYCHA building” (H 13). Continuing the officer testified, “It is a NYCHA building and we’re allowed to ask anybody inside the building - - ” (H 13). Counsel objected “to what they’re allowed to do” (H 13). While the court was sustaining that objection, Rodriguez non-responsively interjected on his own. “It is a prone drug location.” (H 13). Rodriguez then asked respondent if he lived in the building (H 14). Initially, respondent responded that he lived in the building (H 14). As a result, Rodriguez asked to “see [his] I.D.” (H 14). In response, respondent moved his hands, “especially around his chest area” (H 15).3 Respondent then clarified his earlier statement and told Rodriguez that he was actually visiting his girlfriend in the building (H 15, 16). The officer, however, could not recall the specific apartment number that respondent provided, nor the name of his girlfriend that he also provided (H 24). Notwithstanding the fact that he had never before met respondent or had previously spoken to him, Rodriguez claimed that respondent was stuttering (H 15, 17, 34-35). Rodriguez and his partner made eye contact (H 15). He testified “We just made eye contact because we didn’t want this to get out of hand” (H 15). Respondent told Rodriguez that his identification was in his pocket (H 17). As respondent was moving his hands in response to Rodriguez’s demand to produce identification, Romero grabbed respondent’s left arm (H 17). Romero pulled respondent’s hand behind his back; as a result, his jacket opened up and Rodriguez saw a silver handgun inside his coat pocket (H 17-18). In response, Rodriguez seized the gun and placed respondent under arrest (H 19). 3 Rodriguez’s multiple attempts to testify that respondent appeared to be nervous were thwarted by the court’s consistent sustaining of counsel’s timely objections to this proposed testimony (H 14, 15, 17, 23). 5 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 Rodriguez asserted that the NYPD was the lawful custodian of NYCHA buildings (H 21). He maintained it was his standard practice to ask anyone that he saw in a NYCHA building if they lived in the building (H 20-21). Rodriguez asserted that he initially stopped respondent for suspected trespassing; he then added “that’s why we stop people, make sure they live in the building” (H 21-22). Romero told Rodriguez that he grabbed respondent’s hand and put it behind his back for “our safety” (H 22). Rodriguez contended that this was because of respondent’s “movement” and “it was time to put his hands behind his back” (H 23). Rodriguez alleged that respondent was “moving too much” (H 23). Rodriguez clairvoyantly claimed “Right then and there, I thought he had some thing, he had a weapon” (H 23). The officer did not explain the rationale for this belief. As cross-examination began, Rodriguez became an obstinate witness. He claimed a lack of recollection concerning any information that respondent imparted concerning his girlfriend (H 24). Although he acknowledged that he recovered property from respondent, Rodriguez could not recall if he recovered apartment keys from him (H 25). The officer told counsel, “I don’t have the voucher in front of me” (H 25). Rodriguez could not recall whether he had any conversation with respondent concerning his possession of keys to his girlfriend’s apartment (H 25). Rodriguez stated that the confrontation with respondent lasted three to five minutes (H 25). He conceded that he could not see anything inside respondent’s jacket at their initial encounter (H 26). The officer also acknowledged that he told the DA that respondent was exiting the building when he first saw him on the stairs (H 26). The following combative colloquy then ensued between counsel and Rodriguez: Q. Now in your discussion with the district attorney you never told the district attorney that he tried to go back up the stairs, did you? A. Maybe she didn’t ask me at the moment. 6 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 Q. I’m asking you. She wrote down what you said, right? A. I’m telling you what happened now. Q. Well, you didn’t write down anywhere in your reports, did you - - A. What reports? Q. Your reports, officer. You show me, tell me what paper that you wrote down that my client tried to walk back up the stairs? Please tell me what paper? A. Well, I’m telling you now that’s what he did. Q. I’m not asking that, I’m asking you about your paperwork. When you filled it out on the date of the incident, right, you were taught and trained to do that, correct? A. I was taught to fill out paperwork, yes. Q. And you were taught to write down what happened, right? A. Yes. Q. And you were taught to memorialize it just in case it came up in court? A. Yes. Q. And you did that on the date of the incident, isn’t that correct? A. Did I? Q. Yes? 7 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 A. Assuming I did, because I didn’t write it down. Q. It’s not written down anywhere that he tried to go back upstairs, right? A. Yes. Q. As a matter of fact, when you filled out the criminal report, right, you never put down inside the criminal report that he tried to go back up the stairs, did you? A. What is the criminal report? (H 27-28) (emphasis added). A discussion among the court, the prosecutor and counsel ensued (H 28129). Rodriguez again attempted to participate in this discussion (H 29). As a result, the court had to again admonish the officer that it was improper for him to speak (H 29). Rodriguez then reviewed the document in question (H 30). Although this hostile witness acknowledged signing the affidavit, he stated “I wasn’t the one actually typing it” (H 30). The following colloquy between counsel and Rodriguez occurred: Q. Right, but nowhere in there did you put down anything regarding what had occurred? A. Which is? Q. The incident that you just described here a moment ago? A. What incident, what exactly are you referring to? Q. That my client came down the stairs and then he allegedly froze and he tried to go back up the stairs, you never - - 8 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 A. You’re mistaken again. Q. I’m not mistaken, sir. A. What I’m saying, the client was - - your client was coming down the stairs, froze, kind of jerked back, attempted to walk back up. He never walked back up. Q. So now he jerked back and tried to - - and attempted to go back up the stairs? A. It’s not now that he did that, no. That’s what I meant to say. If you didn’t understand it, then that’s what we’re clarifying. (H 31) (emphasis added). As a result, the court had to rebuke Rodriguez for the third time (H 31). The court admonished the officer, “No, no, I don’t want give and take here. You only respond to questions” (H 31). Counsel then established that Rodriguez had memorialized in his memobook that his encounter with respondent began at 5:10 p.m. (H 32). Counsel then cross-examined Rodriguez concerning the time discrepancies between his testimony and his memobook notes concerning the time of events in this case (H 32). Rodriguez conceded that he had not received any information concerning respondent’s participation in criminal activity before he stopped him (H 33). The officer likewise conceded that he did not initially see any weapon or contraband on respondent’s person (H 33). Prior to his interaction with respondent, Rodriguez only saw respondent walking down the stairs; he made no furtive movements and committed no violations (H 33-34). No one told Rodriguez that respondent did not belong in the building before he stopped him (H 34). Counsel then pressed the issue with Rodriguez and the officer returned to his combative non-responsive stance: 9 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 Q. As a matter of fact, you had no reason to believe that he was actually trespassing there, did you? A. Well, once he stopped - - Q. No, no, answer my question; you had no reasonable belief or any proof or anything that he was trespassing, did you? A. Once he stopped - - Q. Yes or no? (H 34). After the prosecutor objected, the court had to admonish Rodriguez for the fourth time instructing the officer “Hold on. If you can’t answer the question within a yes or no fashion, let counsel know. It appears to call for a yes or no response” (H 34). Rodriguez then testified “I can’t answer a yes or no on this” (H 34). Counsel then asked Rodriguez, “You never received any radio run or call that a suspicious person was in the stairwell of that building, did you?” (H 35). The officer non-responsively replied, “That doesn’t mean we’re not allowed to - - “ (H 35). Once again, the court admonished Rodriguez and directed the officer “to respond yes or no” (H 35). Rodriguez then acknowledged that he had not received such a radio call (H 35). Rodriguez conceded that respondent never brandished the gun or threatened the officers (H 36-37). Eventually, Rodriguez conceded that respondent “did nothing wrong” before he stopped him (H 42). Nonetheless, Rodriguez maintained that he suspected that respondent was trespassing when he first saw him (H 43). The officer, however, could not recall whether he cited respondent for trespassing (H 44). Rodriguez later conceded that he did not see respondent engaged in any criminal or drug activity (H 46). Turning to the time of day, counsel asked Rodriguez if there was anything unusual about that time of day (H 45). Rodriguez responded “No, it’s a drug- prone location. Remember, I did say that” (H 45). On its own initiative, the court again rebuked Rodriguez for his non-responsive answer (H 45). Rodriguez then 10 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 testified that he could not answer whether there was anything unusual about that time of day (H 45). Rodriguez acknowledged that his “stop and frisk report” did not contain anything that indicated that respondent had “tried to reach into his pocket and was reaching around his chest area” (H 50). Nor did the report indicate that respondent was stuttering (H 50). Nor did the paperwork indicate that Romero seized respondent for safety reasons (H 52). On redirect examination, Rodriguez testified that the police had the right to ask any person inside a NYCHA building whether they lived in the building (H 59). The officer asserted that these buildings were drug-prone locations (H 59). Rodriguez contended that he suspected that respondent was trespassing because he “stopped, he jerked back, I don’t know if he was going to run, I don’t know - - I don’t know if he did anything in the building” (H 60). The People presented no evidence that the NYCHA building in question had any posted “No Trespassing” signs. Arguments Defense Counsel argued for suppression of the recovered weapon (H 61-64). He contended that the People had failed to meet their probable cause burden to justify respondent’s seizure and search (H 61). Specifically, counsel argued: I submit to the Court that this officer was all over the place, and it was kind of obvious in - - his reports that he submitted contained nothing that he is claiming today. As a matter of fact, he was questioned by the district attorney’s office and his only explanation is the district attorney must have left it out. I submit to the Court that my client, based upon the evidence that was adduced out of this witness, my client prior to him being stopped committed no crime, had committed no infraction, had done nothing wrong, was simply walking down the stairs, exiting the building. The police officer stopped him and he never checked to 11 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 see that my client’s girlfriend lived there in Apartment . There was absolutely nothing, no basis, no legitimate legal basis to stop him besides it being, as he claims, a housing building and his claim is that he can stop him to ask him questions, but the problem is the next thing you know it escalated from just even being a stop to ask him where he’s coming from to where the other officer is grabbing his arm. He’s claiming that my client was grabbing his chest area. Nowhere in the paperwork, not a single thing. All the man was doing was walking down the stairs. He said that he puts in his report that the time of day was one of the reasons why he factored in high, drug-prone area. Time of day? Time of day, Judge, is 5:19 p.m. How does that in any shape or form or reason - - if it was 5:19 a.m., maybe he has an argument, but 5:19 p.m., a man walking down the stairs to exit a building, that is all he’s doing, and now that justifies a stop here? Now it’s basically opening up the door to anyone can be stopped for any reason, anybody living in a housing project. Anyone in a housing project, they can be stopped for any reason, it doesn’t really matter, forget about constitutional protections, throw those out the door, because police can stop you at random. The man here saw nothing, my client was dong nothing, he observed nothing in plain view, he had nothing. His basis was hunch and suspicion. He says, “Officers’ safety.” Nowhere in his paperwork, Judge, nowhere does it say, “Officer safety.” My client basically walked down the stairs, they noticed him coming down the stairs, that’s the only reason why he was stopped. They took it past DeBour, well past reasonable, just the right of inquiry, they escalated, they grabbed him and they started searching him. 12 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 I submit to the Court that based upon everything that has been adduced here, they had no legitimate or lawful right to stop him. Everything should be suppressed as a matter of law. (H61-64). Prosecution The People opposed suppression (H64-67). The prosecutor asserted that they had met their burden of proving that the police had probable cause to stop and search respondent (H64). She contended that the NYPD was the lawful custodian of all NYCHA buildings (H 65). She asserted that the police had observed respondent “walking down the stairs” and “freeze” (H65). As a result, the People argued that “Officer Rodriguez had every right to approach the defendant and to ask him questions whether he lives there or not” (H65). The prosecutor asserted that the building in question was a “drug-prone location” and that respondent had given inconsistent responses concerning his residence (H65). In addition, the prosecutor alleged that respondent had made furtive movements before Romero seized him (H65-66). Based upon these movements, the prosecutor argued that the police “were justified in frisking the defendant or stopping him further” (H66). As to the paperwork discrepancies, the prosecutor argued that police paperwork did not have to be comprehensive in nature (H66-67). In sum, the People argued that Rodriguez had probable cause to stop and search respondent(H67). As a result, the People requested that the court deny respondent’s suppression motion (H67). At no point did the People argue that People v. DeBour did not apply to the instant case. Decision The court did not immediately decide the suppression hearing (H67). Instead, the court reserved decision until it could issue a written decision (H 67). 13 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 In its written decision, the court denied suppression of the recovered weapon (D1-6).4 The court held that the weapon was “properly seized as a result of a frisk stemming from the officers’ reasonable belief that they were in danger of physical injury” (D2). The court held that the police had reasonable suspicion for their stop and frisk of respondent (D2). In making that decision, the hearing court specifically cited People v. DeBour and its progeny, including People v. Benjamin, 51 N.Y.2d 267 (1980) (D2-3). The court determined that the police were justified in seizing respondent because of his furtive and suspicious behavior in this “drug-prone area” (D3). In addition, the court noted that respondent had given a false and evasive response to the officers’ questions (D3). Still further, the court held that the police had reasonable suspicion to believe that respondent “was committing a trespass crime” (D3-4). Indeed, the court found that the police had probable cause to arrest respondent for trespassing (D4). In conclusion, the court held that the seizure of respondent was supported by probable cause (D6). As a result, the court denied respondent’s suppression motion (D6). THE TRIAL The People’s Case On November 23, 2007, Sergeant Charles Romero and his partner, Sergeant Albert Rodriguez entered a NYCHA building located at East 174th Street around 5:19 p.m. (T1: 16).5 They went to the building to visit a sub-station video surveillance unit located in apartment 1C (T1: 16-17). Romero first noticed respondent midway down the stairs by the building’s rear entrance (T1: 17). After making eye contact with Romero, respondent stopped on the stairs (T1: 18). Romero then directed respondent to come down the stairs (T1:18). Initially, respondent told Romero that he lived in the building (T1:19). After 4 Parenthetical references preceded by “D” refer to pages of the court’s written suppression decision. 5 Parenthetical references preceded by “T1” refer to pages of the trial transcript from July 9, 2009; those preceded by “T2” refer to pages of the trial transcript from July 10, 2009. 14 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 Romero requested the apartment number, respondent told the police that his girlfriend lived in the building (T1:19). Respondent appeared a little fidgety and nervous (T1:20). Eventually, Romero handcuffed respondent (T1:20). When Romero did this, his partner saw a gun in respondent’s jacket (T1:20). Rodriguez seized this weapon (T1:20-21). The police then arrested respondent and transported him to the precinct (T1:21). Respondent told the police that he found the gun and was trying to get rid of it (T1:32). Respondent stated that he found the gun while cleaning his girlfriend’s apartment (T1:34). Detective Rodney Robinson, a firearms expert, tested the recovered weapon (T1:45-46, 50). Although the weapon was inoperable, the ammunition within the weapon was live (T1:51). The Defense Case Latoya Marin and respondent lived together in her apartment at East 174th Street since 2004 (T1:62-63). From 2004 to 2006, respondent’s uncle lived with them (T1:63). When respondent’s uncle became ill, he had to move out of the apartment (T1:63-65). Respondent’s uncle left behind a number of his possession when he moved out (T1:65). On November 23, 2007, respondent Jeffrey Johnson was cleaning the apartment; while doing so, he discovered his uncle’s gun in a shoe box (T2:4). Respondent intended on taking the gun to the precinct to dispose of it (T2:6, 13). While en route, he was stopped by two police officers who searched him and arrested him (T2:7). Respondent told the police that he was “going to bring the gun to the precinct and then go to my mother’s house” (T2:9). Later, at the precinct, respondent made a written statement (T2:27). He wrote: I was cleaning the house and I seen a very old gun, cobwebs, broken handle. And so I was get something out the building and I seen the officer. I was gong to my mother’s. I didn’t want it in the house at all. I have a clean record and I am a security officer. I am a good person. (T2:27). 15 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 Verdict At the conclusion of this bench trial, the court rejected respondent’s defense of temporary lawful possession and convicted him of attempted criminal possession of a weapon in the fourth degree and attempted possession of ammunition (T2:47-48). The court sentenced respondent to an unconditional discharge and a $50 fine. APPELLATE DIVISION ACTION On appeal to the Appellate Division, respondent argued that the hearing court’s decision was erroneous because there was neither probable cause to arrest respondent for trespassing nor reasonable suspicion to stop and frisk him. Respondent contended that the police lacked the requisite objective credible reason to conduct a DeBour level one interaction with him on the date in question. In their response, the People applied the standard DeBour four level protocol to the instant case. At no point did the People assert that DeBour did not apply to the instant case. Nor did the People raise any issue concerning the public service/law enforcement dichotomy of police actions in a NYCHA building in the Appellate Division In a 3 - 2 decision, the Appellate Division: First Department reversed respondent’s conviction, granted his suppression motion and dismissed the accusatory instrument against him. See People v. Johnson, 109 A.D.3d 449 (1st Dept. 2013). The majority held the “circumstances herein did not provide an objective credible reason for a level one request for information.” Id. at 450. Continuing, the majority held that presence in a high-crime or drug-prone location alone did not furnish an objective credible reason for the police to approach an individual and request information. Id. The majority further held that “an individual’s desire to avoid contact with police – even in a high-crime neighborhood” did not “constitute an objective credible reason for making a level one inquiry.” Id. In addressing the issue of flight, the majority held that “even if defendant’s conduct on the staircase can be equated with flight - - which is extremely doubtful, given the testimony that he simply stopped descending the stairs upon reviewing the officers - - there was no equivocal circumstances.” Id. at 451. As a 16 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 result, the majority concluded that the “right of police to patrol inside NYCHA buildings does not eliminate the requirement that each level of intrusion be supported by the corresponding level of suspicion. Id. As to the facts, the majority found: In a New York City Housing Authority building, which the testifying officer characterized as a “drug- prone” location, the officer observed defendant descending the stairs to the lobby. Upon seeing the police, defendant “froze,” jerked back,” and appeared “as if he was going to go back up the stairs,” although he never retreated up the stairs. The officer asked defendant to come downstairs, and defendant complied. The officer inquired whether defendant lived in the building, and defendant replied in the affirmative, whereupon the officer asked defendant to produce identification. Defendant immediately clarified that he was visiting his girlfriend, who lived in the building, and informed the officer that his identification was located in his pocket. As defendant moved his hands to retrieve it, the officer’s partner grabbed defendant’s left arm and pulled his hand behind his back, revealing a handgun inside defendant’s coat pocket. The officer seized the gun and placed defendant under arrest. When the prosecutor asked the officer why he had engaged defendant in conversation, the officer replied “It is a NYCHA building and we’re allowed to ask anybody inside the building - -“ As the court sustained an objection, the officer interjected, “It is a prone drug [sic] location.” Id. at 449-450. In a footnote, the majority noted: The arrest paperwork omitted any mention of defendant attempting to go back upstairs. On cross, the officer explained that while defendant “attempted” 17 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 to walk back up the stairs, he had never actually walked back up the stairs. Id. at 450. The dissenting judges stated that respondent’s “abrupt, halting and furtive movements provided the police with an objective credible reason for asking defendant if he was a resident of the New York Housing Authority (NYCHA) building, and subsequent events led to a lawful stop and frisk.” Id. at 451. The dissenting justices had a different view of the facts in this case; they stated: The uniformed police officers entered the building to check on other officers stationed inside. As the officers made their way towards the lobby, they saw defendant descending the stairs. When defendant saw the officer, he froze, jerked back, began to retreat, then stopped and stood on the stairs. Based on defendant’s reaction, and given the drug-prone nature of the building, the officers “suspected [defendant of] trespassing,” and asked him to come down the stairs to “make sure if he lived in the building.” Defendant initially told the officers that he lived there. However, when asked for identification, he began to stutter, and changed his story to say that he was visiting his girlfriend. Although defendant stated that he had his identification in his pocket, he began moving his hands “all over the place, especially around his chest area,” which the officers interpreted to be threatening and indicative of possession of a weapon. To “take control of the situation” before it could “get out of hand,” an officer grabbed defendant’s left arm and brought it behind defendant’s back, which caused defendant’s open jacket to open up further and reveal a silver pistol in the netted interior coat pocket. One officer removed the pistol from the pocket, and another handcuffed defendant. Id. at 451-452. 18 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 The dissenting justices focused on the issue of trespassing in their dissenting opinion. They stated that the police officers reasonably suspected respondent of being a trespasser by his actions. Id. at 452-453. The dissenting justices further stated that respondent’s subsequent actions led the police officers to reasonably suspect that respondent possessed a weapon. Id. at 453. As a result, the dissenting justices would have affirmed respondent’s conviction. Id. at 451. THE PEOPLE’S SSM FILING In this Court, the People now raise an issue that they did not raise at either the trial court level or in the Appellate Division. The People now argue, for the first time, that the Appellate Division erroneously applied People v. DeBour to determine whether “the police may approach an individual inside a public housing building to enquire whether he is tenant or lawful guest”. See People’s SSM letter at p. 5. The People assert that DeBour only applies to street encounters between the police and private citizens. Id. The People now contend that the “NYCHA’s partnership with NYPD effectively transforms police officers into doormen, hired for the specific purpose of regulating trespassing inside public housing buildings.” Id. at p. 8. The People attempt to draw a distinction between when a police officer is performing a law enforcement duty and when an officer is performing a public service duty. Id. They contend that DeBour “has no bearing on police encounters arising from the discharge of a requested law- enforcement-related public service: the removal of trespassers from inside residential buildings.” Id. In conclusion, the People asserted that “this case examines whether DeBour is the proper analytical tool for deciding whether police may perform their assigned doormen functions inside residential buildings.” Id. at p. 11. LEGAL ANALYSIS On appeal, the sole issue that the People raise is whether the trial court and the Appellate Division properly applied this Court’s opinion in People v. DeBour to the instant case. Since that issue was decided in respondent’s favor in the trial court, that issue is beyond this Court’s review. Moreover, since the People did not raise this issue in the trial court, that issue is also unreviewable in this Court because it is unpreserved for appellate review. Still further, the issue of whether the police had an objective credible reason to approach respondent and request information is a mixed question of law and fact that is beyond this 19 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 Court’s review. Finally, the Appellate Division properly determined that the police did not possess an objective credible reason to approach respondent and request information on the date in question. Therefore, this Court should either dismiss the People’s appeal on jurisdictional grounds or affirm the Appellate Division’s opinion. (A) C.P.L. §470.15(1) precludes the Appellate Division from reviewing an issue that was either decided in a respondent’s favor or was not decided by the trial court. People v. Yusuf, 19 N.Y.3d 314 (2012); People v. Ingram, 18 N.Y.2d 948 (2012); People v. Concepcion, 17 N.Y.2d 192 (2011); People v. LaFontaine, 92 N.Y.2d 470 (1998). Moreover, C.P.L. §470.35(1) grants this Court no broader review power than that possessed by the Appellate Division. People v. Ingram, 18 N.Y.3d at 949; People v. Concepcion, 17 N.Y.3d at 195; People v. LaFontaine, 92 N.Y.2d at 474. Here, in the trial court, respondent argued that the instant case was governed by the principles set forth by this Court in People v. DeBour, 40 N.Y.2d 210 (1976). Although the hearing court did not ultimately grant respondent’s suppression motion, that court did accept respondent’s argument that DeBour governed the instant case. Since the hearing court thus decided the issue of the applicability of DeBour to this case in respondent’s favor, that issue is beyond this Court’s review. Since the People challenge no other aspect of the Appellate Division’s decision, this Court should now affirm that decision. (B) Furthermore, parties are generally precluded from raising on appeal, as questions of law, unpreserved issues. People v. Becoats, 17 N.Y.3d 643 (2011); People v. Hawkins, 11 N.Y.3d 484 (2008). This Court has consistently held that the People are precluded from raising legal contentions for the first time on appeal. People v. Ryan, 12 N.Y.3d 28 (2009); People v. More, 97 N.Y.2d 209 (2002); People v. Stith, 69 N.Y.2d 313 (1987); People v. Johnson, 64 N.Y.2d 617 (1984); People v. Dodt, 61 N.Y.2d 408 (1984. While the intermediate appellate courts have been granted statutory authority to review defendants’ unpreserved claims as a matter of discretion in the interest of justice, there is no parallel provision that applies to the People, and the intermediate appellate courts are without authority to review the People’s arguments raised for the first time on 20 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 appeal. See C.P.L. §470.15; People v. Caban, 14 N.Y.3d 369 (2010); People v. Chavis, 91 N.Y.2d 500 (1998). In this Court, for the first time on appeal, the People argue that the trial court and the Appellate Division improperly applied the principles of this Court’s opinion in People v. DeBour to the situation in respondent’s case. The People, however, did not simply fail to raise this issue in the trial court and the Appellate Division. To the contrary, in both courts, the People specifically argued that DeBour did apply to respondent’s situation and that, under these principles, respondent’s suppression motion should be denied. Therefore, the People’s present claim is unpreserved for appellate review and is thus beyond the review of this Court. C.P.L. §§470.35, 470.05(2); People v. Becoats, 17 N.Y.3d at 450; People v. Kelly, 5 N.Y.3d 116, 119 (2005). Moreover, the People’s contention that this Court’s decision in People v. DeBour is strictly limited to police-citizen street encounters is wrong as a matter of law. First, in People v. Garcia, this Court held that the “graduated framework set forth” in DeBour 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” 20 N.Y.3d 317, 319-320 (2012). More significant, in People v. Roque, this Court already applied the principles of DeBour to police- citizen encounters in residential apartment buildings. 99 N.Y.2d 50, 52, 54 (2002). Therefore, since the only issue presented by the People on this appeal is unpreserved for this Court’s review and, in any event, has already been decided in respondent’s favor in this Court, this Court should affirm the Appellate Division’s decision. (C) Furthermore, in criminal cases, this Court has jurisdiction to review only questions of law. N.Y. Const., Art. VI, §3(a); People v. Albro, 52 N.Y.2d 619, 624 (1981); C.P.L. §470.35. Thus, Fourth Amendment and related state constitutional issues that involve questions of fact or mixed questions of law and fact are beyond the review powers of this Court. People v. Francois, 14 N.Y.3d 732, 733 (2010); People v. Wheeler, 2 N.Y.3d 370, 373 (2004). When a mixed question is at issue, this Court is precluded from reversing the Appellate Division’s determination unless the determination has no support in the record. 21 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 People v. Bradford, 15 N.Y.3d 329 (2010); People v. Paulman, 5 N.Y.3d 122 (2005). Obviously, the fact and mixed-question limitation precludes review by this Court of pure questions of fact and credibility. But this Court’s powers of review are far more circumscribed than that. For example, determinations “which require the drawing of inferences from the facts”, ordinarily constitute unreviewable mixed questions. People v. Mayorga, 64 N.Y.2d 864, 865 (1985). Thus, when “reasonable minds could differ as to the inferences to be drawn” from the facts, “further review by this [C]ourt is precluded.” People v. Harrison, 57 N.Y.2d 470, 479 (1982); see People v. Williams, 17 N.Y.3d 834 (2011); People v. Centano, 76 N.Y.2d 837, 838 (1990); People v. McRay, 51 N.Y.2d 594, 601 (1980). Moreover, this Court has observed that “questions of the reasonableness of conduct can rarely be resolved as matter of law even when the facts are not in dispute.” People v. Harrison, 57 N.Y.2d at 478; see also People v. Madera, 82 N.Y.2d 775, 777 (1993) (whether reasonable suspicion existed was a mixed question of law and fact since “[t]he legal standard is not at issue, but only its application to undisputed facts”). As a result, this Court is often barred from determining whether actions were “justified,” People v. Harrison, 57 N.Y.2d at 479. Regarding the relevant law, it is beyond cavil that the propriety of police conduct during an encounter with a citizen turns on whether that conduct is reasonable in light of the circumstances facing the officer. People v. DeBour, 40 N.Y.2d at 215. Reasonableness is determined on a case-by-case basis and is assessed upon the totality of the facts known by the officers at the relevant moment in time. People v. Hollman, 79 N.Y.2d at 189-192; People v. DeBour, 40 N.Y.2d at 223-224. Moreover, “whether police conduct in any particular case conforms to DeBour is a mixed question of law and fact.” People v. McIntosh, 96 N.Y.2d 521, 524 (2001). Notably, the mixed-question limitation on this Court’s power of review applies even when the Appellate Division has disagreed with the suppression court’s determination. See, e.g., People v. Holland, 18 N.Y.3d 840, 841 (2011); People v. Paulman, 5 N.Y.3d at 129; People v. Pines, 99 N.Y.2d 925, 926-27 (2002); People v. Jose, 94 N.Y.2d 844 (1999); People v. Powell, 92 N.Y.2d 886 (1998); People v. Boulware, 70 N.Y.2d 994 (1988). Indeed, under C.P.L. §450.90 (2)(a), a party may take an appeal from an Appellate Division order reversing a criminal court’s order only if this Court concludes that the Appellate Division’s reversal “was on the law alone or upon the law and such facts which, 22 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 but for the determination of law would not have led to reversal or modification.” This statute is another manifestation of the principle that this Court ordinarily is not empowered to review mixed questions of law and fact. See, e.g., People v. Hinton, 81 N.Y.2d 867 (1993); People v. Mayorga, 64 N.Y.2d at 865-66. Here, the issue whether the police had an objective credible reason to approach respondent and request information clearly involves a mixed question of law and fact. The majority and dissenting opinions in the Appellate Division are differentiated by their view of the facts and the competing inferences to be drawn from those facts. The Appellate Division majority concluded that inferences could not be drawn from respondent’s conduct or the attending circumstances that would justify a level one request for information. In contrast, the dissent asserted that these inferences did support a level one request for information. Moreover, as to the facts itself, the majority and the dissent disagreed. The majority found that although it appeared as if respondent “was going to go back up the stairs,” he never actually retreated up the stairs. Meanwhile, the dissent erroneously asserted that respondent “began to retreat,6 then stopped and stood on the stairs.” Thus, review is barred in this case “where reasonable minds may differ as to the inferences” to be drawn from the facts. People v. Harrison, 57 N.Y.2d at 477; People v. McRay, 51 N.Y.2d 584, 601 (1980). In addition, there is ample support in the record for the majority’s conclusion that the police did not have a credible and objective reason to approach respondent and request information. Therefore, this case presents a mixed question of law and facts beyond this Court’s review. Consequently, since the substance of the Appellate Division’s majority’s opinion and the long-standing precedent of this Court demonstrated that the reversal at bar turned upon a mixed question of law and fact, this Court should now dismiss the People’s appeal. People v. Holland, 18 N.Y.3d at 841-842 (dismissing an appeal on a mixed question of law and fact for lack of jurisdiction because “reversal on a mixed question typically does not meet the requisites of C.P.L. §450.90(2)(a)”). (D) In any event, the Appellate Division correctly determined that the police lacked an objective credible reason to approach respondent and request information. 6 The arresting officers actually testified that respondent “never walked back up” the stairs (H 31). 23 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 In determining the legality of police conduct, courts “must consider whether or not the [conduct] was justified at its inception and whether or not it was reasonably related in scope to the circumstances which rendered its initiation permissible.” People v. Cantor, 36 N.Y.2d 106, 111 (1975). In a hearing on a motion to suppress evidence, the burden of producing evidence to justify the warrantless search and seizure is placed upon the prosecution. People v. Berrios, 28 N.Y.2d 361, 367-68 (1971); accord People v. Dodt, 61 N.Y.2d at 415; People v. Misuis, 47 N.Y.2d 979, 981 (1979). See People v. Hodge, 44 N.Y.2d 553, 557 (1978) (“all warrantless searches presumptively are unreasonable per se” and “[w]here a warrant has not been obtained, it is the People who have the burden of overcoming that presumption”). In People v. DeBour, this Court set out the four-tiered framework that governs police-initiated encounters with citizens. Under DeBour, the most basic level of police inquiry is a request for information, which must be supported by an objective, credible reason. 40 N.Y.2d at 223. A request for information “is a general, non-threatening encounter in which an individual is approached for an articulable reason and asked briefly about his or her identity, destination or reason for being in the area.” People v. Hollman, 79 N.Y.2d 181, 191 (1992). Hollman emphasized that, under the DeBour framework, the police may approach individuals and ask them such questions only if they “do not act on whim or caprice and have an articulable reason not necessarily related to criminality for making the approach.” 79 N.Y.2d at 190; see also People v. Leung, 68 N.Y.2d 734, 736 (1986) (an objective, credible reason is required to “support the intrusion attendant to a police approach of a citizen”). New York courts have repeatedly held that an individual’s traveling from or presence in a high-crime or drug-prone location is not an objective, credible reason for the police to approach and question him. People v. McIntosh, 96 N.Y.2d 521 (2001), involved a “drug interdiction” conducted by sheriffs in Albany upon the arrival of a bus from New York City, which they termed a known source of narcotics. After the officers asked everyone on board to produce their tickets and identification, they grew suspicious of defendant and, after they asked for permission to search his luggage, found illegal drugs. This Court held that the questioning of the passengers was unlawful and suppressed the evidence recovered from defendant, observing, “We have never held that a police encounter was justified by anything so general as knowledge that an entire city was a known source of drugs. Even a discrete area of the city identified as a high crime area has not, by itself, been sufficient justification for informational 24 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 requests of the type involved here.”7 Id. at 526; see also People v. Howard, 147 A.D.2d 177, 182 (1st Dept.) (“that factor alone cannot serve as the justification for untoward or excessive police behavior against those of our citizens who happen to live, work or travel in what are characterized as ‘high crime areas’”). Moreover, the common police characterization of a neighborhood as a “high- crime” location applies to “many areas of New York City, at one time or another,” and thus has little probative value. People v. Holmes, 81 N.Y.2d 1056, 1058 (1993). Thus, to justify an officer’s approaching an individual to request information, the individual’s conduct must give the officer an objective, credible reason to initiate the encounter. People v. Hollman, supra, (defendant Hollman’s standing in bus station with travel bag several feet away, then placing it in bus several seats away from his justified police approach, as did, in the companion case, defendant Saunders’ nervous appearance and hesitation when he made eye contact with undercover officer). Even in a high-crime or drug-prone location, however, when an individual’s conduct is innocuous, the police lack an objective, credible reason to approach. E.g., Matter of Michael F., 84 A.D.3d 468 (1st Dept. 2011) (neither defendant’s standing in a group of young men late at night in a high-crime area, nor his ambiguous conduct in walking away as the officers approached, justified a level one encounter); People v. Miles, 82 A.D.3d 1010 (2nd Dept. 2011) (defendant’s presence in a car parked outside bar in an area with community complaints of gang and drug activity did not justify police approach); People v. Mobley, 48 A.D.3d 374 (1st Dept. 2008)(defendant’s presence with a woman in a car parked in an area known for drug activity and prostitution, without sign of sexual or drug-related conduct, gave police no basis to approach and ask occupants the reason for their presence). See also, People v. Fernandez, 87 A.D.3d 474 (1st Dept. 2011) (in absence of “other objective indicia of criminality,” defendant’s location in alleged high crime area did not provide requisite reasonable suspicion); People v. Powell, 246 A.D.2d 366 (1st Dept. 1998), appeal dismissed 92 N.Y.2d 886 (1998). 7 In McIntosh, this Court also made clear that the defendant’s subsequent acts in response to the illegal police approach (in that case trying to hide a black object) cannot “legitimize” the initial police action because “a police encounter cannot be validated by a later-acquired suspicion” and thus the officer’s “subsequent observations of defendant do not cleanse the initial request of its shortcomings under DeBour and Hollman.” 96 N.Y.2d at 527; see People v. Moore, 6 N.Y.3d 496, 498 (2006) (“Defendant’s later conduct cannot validate an encounter that was not justified at its inception”). 25 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 Moreover, even an officer’s knowledge of an individual’s past arrest record does not justify approaching him in a high crime area to ask what he was doing. In People v. Bouleware, 130 A.D.2d 370 (1st Dept. 1987) appeal dismissed 70 N.Y.2d 994 (1988), after “spotting defendant . . . in a high-crime area and believing him to be a person they knew had been previously arrested for gun possession offenses,” three officers decided to alight from their car, disperse the crowd on the corner, and segregate defendant to ask him “what he was doing.” The Appellate Division held that the high-crime nature of the area and the officers’ knowledge of Bouleware’s arrest record did not justify their approach. Therefore, the Appellate Division held that the nature of the area: must exist in combination with objective factors specific to the incident which together support a founded suspicion that some particular activity may be afoot. . . . Similarly futile [was the officers’] belief that defendant was a person known by them to have had gun possession arrests. That belief was also an insufficient basis upon which to found an objective suspicion of present criminal activity. To hold otherwise would be to exclude all persons with arrest records from the protection of the Fourth Amendment and render them subject to arbitrary stops and inquiries. Id. at 373. Because defendant’s conduct was “totally innocuous,” the police lacked a lawful basis to approach and request to speak with him. Id. In this case, the Appellate Division properly determined that the police lacked an objective credible reason to approach respondent and request information because the People had presented no evidence that respondent’s conduct was anything but innocuous. As a threshold matter, the People adduced absolutely no evidence that this NYCHA building in question possessed the requisite “no trespassing” signs for a criminal trespass charge to lie. See P.L. §140.10(e) (trespass in a NYCHA building only arises “in violation of conspicuously posted rules or regulations governing entry and use thereof”); In re James C, 23 A.D.3d 262 (1st Dept. 2005); cf. People v. Hendricks, 43 A.d.3d 361 (1st Dept. 2007). Absent that evidence, the police did not have probable cause to arrest respondent for criminal trespass under any circumstances.8 8 Therefore, the dissent’s conclusion that the police “reasonably suspected [respondent] of trespassing” is not supported by the record. Accordingly, the dissent’s 26 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 In any event, respondent provided a credible explanation for his presence in the building - - i.e., he was visiting his girlfriend who resided in the building. The police never even investigated respondent’s claim. Cf. People v. Hill, 72 A.D.3d 702 (2d Dept. 2010); People v. Crawford, 279 A.D.2d 267 (1st Dept. 2001). In fact, officer Rodriguez could not recall any information that respondent provided concerning his girlfriend. Nor could the officer recall if he recovered apartment keys from respondent. Indeed, the officer could not recall whether he even had a conversation with respondent concerning apartment keys. Thus, the police lacked probable cause to arrest respondent for criminal trespass on the date in question. Cf. People v. Lozado, 90 A.D.3d 582 (1st Dept. 2011); People v. Williams, 16 A.D.3d 151 (1st Dept. 2005); People v. Tinort, 272 A.D.2d 206 (1st Dept. 2000). Moreover, respondent’s innocuous actions and his compliant responses to police directives did not give rise to an objective credible reason for the police to request information from him. As a threshold matter, Officer Rodriguez improperly claimed that he had the right to question anyone he encountered in a NYCHA building about their residence. Indeed, the officer stated that it was his standard practice to ask anyone that he saw in a NYCHA building if they lived in the building. Thus, the officer, in essence, admitted that he routinely violated individuals’ constitutional rights because he routinely conducted level one interactions without the requisite objective credible reason to do so. Here, by officer Rodriguez’s own admissions, respondent had done nothing untoward prior to the police interaction with him. In fact, the officer simply assumed that respondent was exiting the building. The officer was not reacting to any reports of criminal activity in the building when he encountered respondent. He did not see any weapon or contraband on respondent’s person. See People v. Powell, 246 A.D.2d at 369 (absence of any bulge or any other tell tale sign of a weapon factor in court’s finding of a lack of reasonable suspicion). He had no information concerning respondent’s participation in any criminal activity prior to stopping him. Prior to the stop, respondent made no furtive movements and committed no violations. Nor did the officer have any credible reason to believe that respondent did not belong in the building. See People v. Smalls, 83 A.D.3d 1103 (2nd Dept. 2011). Thus, Rodriguez was forced to concede that respondent had done “nothing wrong” before he stopped him. reliance on respondent’s purported trespassing is misplaced and could not serve as the objective credible reason for the level one encounter in this case. 27 Hon. Andrew W. Klein People v. Jeffrey Johnson April 11, 2014 At worst, respondent was momentarily startled and stopped his descent when the police unexpectedly entered the rear of his building while he was walking down the stairs. This is a normal human response. He did not attempt to flee when he saw the police officers. Of course, although he did not do so, respondent could have walked away when he saw the police. See People v. Moore, 6 N.Y.3d 496, 500-01 (2006) (a person has the right to be left alone and to walk away from a police encounter); People v. Bethea, 67 A.D.3d 502, 504 (1st Dept. 2009) (defendant’s act of walking away from police approach did not “raise the police officers’ level of suspicion”); People v. Smith, 63 A.D.3d 510, 511 (1st Dept.) (distinguishing between a defendant who had exercised his “right to be let alone” and one who has “actively fled from the police”). Indeed, in light of the routine harassment of residents of NYCHA buildings by the NYPD, respondent had every reason to turn and walk away to avoid an onerous police encounter and to be left alone. Nonetheless, Rodriguez finally acknowledged that respondent did not even attempt to go back up the stairs. Instead, at worst, respondent momentarily stopped on the stairs when he was surprised by the police’s sudden rear entry into his building. This did not constitute an objective credible reason for the police to approach respondent and request information from him. Therefore, the Appellate Division properly determined that the police lacked the requisite level of suspicion to conduct a level one encounter with respondent. CONCLUSION Thus, in sum, for the above stated reasons, this Court should either dismiss the People’s appeal or affirm the Appellate Division’s decision in the instant case. Respectfully submitted, HAROLD V. FERGUSON, JR. Associate Appellate Counsel HVF/ac