The People, Respondent,v.John A. DiSalvo, Appellant.BriefN.Y.October 21, 2014To be Argued by: STEVEN R. KARTAGENER (Time Requested: 30 Minutes) APL-2013-00188, APL-2013-00189 Queens County Indictment No. 2078/07 Appellate Division, Second Department Docket Nos. 2010-10891 and 2010-11029 C!tnurt nf Appeals nftlt.e ~tate nf New 1Jnrk ------~··.------ THE PEOPLE OF THE STATE OF NEW YORK, -against- COST ANDINO ARGYRIS and JOHN DISALVO, BRIEF FOR APPELLANTS Date Completed: November 7, 2013 STEVEN R. KARTAGENER, ESQ. Attorney for Appellants The Woolworth Building 233 Broadway, Suite 2340 New York, New York 10279 Tel.: (212) 732-9600 Fax: (212) 732-6966 Respondent, Appellants. TABLE OF CONTENTS Page Preliminary Statement.................................................................................. 1 Jurisdictional Statement (Rule 500.13[a]) ................................................... 2 Questions Presented .. .. . . . .. . . .. .. .. .. .. .. .. .. .. .. .. .. . . . . . .. .. . .. .. .. .. . . . . .. .. .. .. . . . . . .. . .. .. . . . . . .. . 3 THE FACTS Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Anonymous 911 Call, Verbatim .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . 5 The Seizure of Defendants and Their Vehicle .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . 7 The Motions to Suppress . .. .. .. .. .. .. .. .. .. .. .. . .. . . .. .. . .. .. .. .. .. .. .. . .. . .. .. .. .. .. .. .. . .. .. .. .. 8 The Undisputed Factual Findings of the Court Sitting at Nisi Prius ....... 11 ARGUMENT POINT I THE POLICE ACTED UNREASONABLY IN RELYING ON AN ANONYMOUS 911 CALL TO JUSTIFY, IN THE ABSENCE OF A SCINTILLA OF "PREDICTIVE" INFORMATION, THEIR FORCIBLE SEIZURE OF DEFENDANTS' MOVING VEHICLE AT GUNPOINT; THE LOWER COURTS' RULINGS IN THIS CASE, UPHOLDING THIS POLICE CONDUCT, FLIES IN THE FACE OF THE SUPREME COURT'S DECISION IN FLORIDA V. J.L., 529 U.S. 266 (2000), AND THE GOVERNING DECISIONS OF THIS COURT IN PEOPLE V. MOORE, 6 N.Y.3d 496 (2006) AND PEOPLE V. WILLIAM II, 98 N.Y. 2d 93 (2002) ..................................... 17 -1- POINT II THE FORCIBLE, GUNPOINT SEIZURE OF DEFENDANTS AND THEIR VEHICLE WAS NOT SUPPORTED BY REASONABLE SUSPICION, AND, CONSISTENT WITH THIS COURT'S SEMINAL RULING IN PEOPLE V. DE BOUR, THE WEAPONS FOUND IN DEFENDANTS' CAR AND ON THEIR PERSONS WERE, THEREFORE, OBTAINED IN VIOLATION OF DEFENDANTS' CONSTITUTIONAL RIGHTS (U.S. CONST. AMEND. 4; N.Y. CONST. ART. 1, SEC. 12)......................................... 28 POINT III THE APPELLATE DIVISION VIOLATED CPL § 470.15(1) AND THE JURISDICTIONAL RULE OF PEOPLE V. lAFONTAINE AND PEOPLE V. CONCEPCION WHEN, AFTER REJECTING THE HEARING COURT'S RELIANCE ON THE SO-CALLED AGUilAR/SPINELLI TEST IN AN EFFORT TO FIND THE EXISTENCE OF REASONABLE SUSPICION, THE APPELLATE DIVISION, IN AFFIRMING THE JUDGMENTS OF CONVICTION, INSTEAD APPLIED A TOTALITY OF THE CIRCUMSTANCES ANALYSIS THAT HAD NOT BEEN PRESENTED TO OR CONSIDERED BY THE COURT SITTING AT NISI PRIUS................ 37 CONCLUSION FOR ALL OF THE ABOVE-STATED REASONS, THE ORDERS APPEALED FROM SHOULD BE REVERSED, SUPPRESSION SHOULD BE GRANTED, AND THE INDICTMENTS HEREIN SHOULD BE DISMISSED...................................................................... 41 -11- TABLE OF AUTHORITIES Cases Aguilar/Spinelli . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Florida v. J.L., 529 U.S. 266 (2000) ............................... passim People v. Bigelow, 66 N.Y.2d 417 (1985) .............................. 25 People v. Bora, 83 N.Y.2d 531(1994) .................................. 31 People v. Cantor, 36 N.Y.2d 106, 111 (1975) ........................... 30 People v. Chisholm, 21 N.Y.3d 990 (2013) .............................. 24 People v. Colucci, 268 A.D.2d 531 (2nd Dept. 2000) ...................... 24 People v. Concepcion, 17 N.Y.3d 192 (2011) ......................... 2, 38 People v. DeBour, 40 N.Y.2d 210 (1976) .......................... passtm People v. DiFalco, 80 N.Y.2d 693 (1993) ........................... 24,25 People v. Elwell, 50 N.Y.2d 231 (1980) ............................ 10, 24 People v. Green, 35 N.Y.2d 193 (1974) ................................ 36 People v. Griminger, 71 N.Y.2d 635 (1988) ............................ 24 People v. Herold, 282 A.D.2d 1(Pt Dept. 2001) ...................... 20, 24 People v. Ingram, 18 N.Y.3d 948 (2012) ............................... 39 People v. Jeffery, 2 A.D.3d 1271 (4th Dept. 2003) ............... 10, 22, 23, 38 -lll- People v. Johnson, 66 N.Y.2d 398 (1985) ........................... 24, 25 People v. LaFontaine, 92 N.Y.2d 470 (1998) ........................ passim People v. LaPene, 40 N.Y.2d 210 (1976) ............................ 35, 36 People v. Long, 36 A.D.3d 132 (r1 Dept. 2006) .......................... 30 People v. May, 81 N.Y.2d 725 (1992) ................................. 30 People v. Moore, 6 N.Y.3d 496 (2006) ............................. passim People v. Moss, 89 A.D.3d 1526 (41h Dept. 2011) ............ 10, 21, 22, 23, 38 People v. Ocasio, 85 N.Y.2d 982 (1995) ............................... 30 People v. Prochilo, 41 N.Y.2d 759 (1977) .............................. 34 People v. Scott, 79 N.Y.2d 474 (1992) ................................. 20 People v. Sobotker, 43 N.Y.2d 559 (1978) .............................. 30 People v. Spencer, 84 N.Y.2d 749 (1995) ............................... 30 People v. Voner, 74 A.D.3d 1371 (2nd Dept. 2010) ....................... 24 People v. William II, 98 N.Y. 2d 93 (2002) .......................... passim Spinelli v. United States, 393 U.S. 410 (1969) ........................... 25 Terry v. Ohio, 392 U.S. 1 (1968) ...................................... 33 United States v. Cortez, 449 U.S. 411 (1981) ............................ 33 -IV- Statutes U.S. Const. Amend. 4 .............................................. 28 N.Y. Const.Art. 1, Sec. 12 ........................................... 28 CPL § 470.15[1] ........................................ 2, 3, 37, 39, 40 CPL § 470.20 ..................................................... 40 CPL § 4 70.35(1) .................................................. 40 CPL § 470.40 (1) .................................................. 40 CPL § 710.70 (2) ..................................................... 9 -v- STATE OF NEW YORK COURT OF APPEALS ---------------------------------------------------------------------" THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- COST ANDINO ARGYRIS, JOHN A. DiSALVO, Defendants-Appellants. ---------------------------------------------------------------------" APL-2013-00188 APL-2013-00189 BRIEF FOR DEFENDANTS-APPELLANTS Preliminary Statement Pursuant to the issuance of certificates by Hon. Susan Phillips Read on July 9, 2013, granting them leave to appeal to the Court of Appeals, defendants-appellants Costandino Argyris and John A. DiSalvo appeal to this Court from orders of the Appellate Division, Second Department, entered on October 10, 2012, which unanimously affirmed judgments of the Supreme Court, Queens County (Holder, J.), rendered on November 12, 2010, by which judgments defendants-appellants were convicted, upon their pleas of guilty, of criminal possession of a weapon in the -1- second degree (Penal Law§ 265.02 [a class C violent felony offense]). Defendant- appellant Argyris received a determinate prison sentence of three and one-half years, and defendant-appellant DiSalvo received a determinate prison sentence of six years. Both of the defendants-appellants are currently incarcerated . .Jurisdictional Statement (Rule 500.13[a]) This Court has jurisdiction to entertain these appeals pursuant to CPL §450.90( 1 ), following the issuance of a certificate granting defendants leave to appeal pursuant to CPL § 460.20 by Hon. Susan Phillips Read on July 9, 2013. Defendants are appealing from final orders of the Appellate Division, Second Department, which denied their motions to suppress physical evidence and affirmed their judgments of conviction. Defendants' argument that the Appellate Division acted in excess of its jurisdiction (see CPL § 470.15[1]; People v. Concepcion, 17 N.Y.3d 192 [2011]; People v. LaFontaine, 92 N.Y.2d 470 [1998]) was preserved for this Court's review in defendants' unsuccessful motion to reargue in the Appellate Division (A. 585-586). See, e.g., People v. Concepcion, 17 N.Y.3d at 196, supra, ("After defendant unsuccessfully moved to reargue, in part on the ground that LaFontaine barred the Appellate Division from finding that he consented to the search, a Judge of this Court granted him permission to appeal"). -2- Questions Presented 1. Whether the Appellate Division improperly ignored the pertinent teachings of both the United States Supreme Court and this Court when it created a new erroneous rule of search and seizure jurisprudence to the effect that the untested report by an anonymous 911 telephone caller vcan serve to establish reasonable suspicion to justify a gunpoint seizure even though thee was absolutely no "predictive" information of the type mandated by the Supreme Court's decision in Florida v. J.L., 529 U.S. 266 (2000), and this Court's decisions in People v. Moore, 6 N.Y.3d 496 (2006) and People v. William II, 98 N.Y. 2d 93 (2002)? 2. Whether, under the traditional four-tier analysis governing street level citizen/police encounters, as established in People v. DeBour, 40 N.Y.2d 210 (1976), the Appellate Division incorrectly concluded that a gun-point seizure of appellants, and the vehicle in which they were driving -a level three confrontation, requiring at least reasonable suspicion - could be justified by the sparse information available to the police at the time that they took action? 3. Whether the Appellate Division acted without jurisdiction when it affirmed the denial of defendants' motions to suppress on an alternative ground that had not been presented to or ruled upon by the hearing court? See CPL § 470.15(1); People v. Concepcion, 17 N.Y.3d 192 (2011); People v. LaFontaine, 92 N.Y.2d 470 -3- (1998). THE FACTS Introduction The pertinent facts underlying this case are few and undisputed. At about 2:15p.m. on July 19,2007, in Queens, New York, an anonymous tipster telephoned 911 and reported that he had seen four "big bully white guys" getting into a new black Mustang automobile, which had New York license plate EAA 5909. According to the caller, he had seen one of the four men place a "big gun" into the back of the car. 1 The caller did not indicate whether the "big gun" was a large pistol, or instead a hunting rifle or shotgun. Furthermore, there was no suggestion that the gun had been, or was about to be, used for criminal purposes. The caller additionally said that there was a nondescript gray van traveling with the Mustang, either in front of it or behind it. The anonymous 911 caller expressly refused to give his name or to provide any identifying information. He also declined to wait for the police to arrive. 1The 911 recording was subsequently introduced into evidence at the suppression hearing in this case and played in open court (A. 280). It was deemed to be admitted as People's Exhibit 1 (A. 280-281 ). A digital recording of the call will be transmitted to this Court, and a printed transcript on the 911 call is set forth verbatim herein. -4- The Anonymous 911 Call. Verbatim In order to provide this Court with a complete and accurate understanding of the minimal information provided by the anonymous 911 caller, we have set forth a verbatim transcript of the 911 call: ANONYMOUS: Yes, can I have the police ... number please. Oh, listen let me tell you, I'm in Astoria on New Town Avenue and 31st Street. I was coming out of a building and then I saw a black mustang, brand new black mustang with like four guys and I saw one of them put in a big gun in the back of the car. ANONYMOUS: Hello? 911 OPERATOR: Ok, New Town Avenue and 31st Street you saw a black? ANONYMOUS: Yeah well they went down to 27th to 28th Street and they make a right like going toward Astoria Boulevard. Ok it's a black Mustang, brand new black Mustang and there is also a Ford gray Van. 911 OPERATOR: Hold on, hold on, hold on, you said it's on 28th Street and made a right on where? ANONYMOUS: They made a right, they coming down from, from ... oh, how can I tell you, west they going down west on New town Avenue in Astoria ok, and they made a right on 28th Street. OPERATOR: Ok, you want to leave your name and telephone number? ANONYMOUS: Ah? 911 OPERATOR: You want to leave your name and telephone number? ANONYMOUS: No I don't really want to, I just saw something and I say -5- something like they say. Ok it's a black. .. 911 OPERATOR: Hold on, it's a black Mustang, what's the plate number? ANONYMOUS: Oh, the plate number is E - A - A 911 OPERATOR: E-8, like the number 8? ANONYMOUS: No. E-A, the letter A. 911 OPERATOR: Ok. E as in air-what-A. ANONYMOUS: A. ANONYMOUS: A again. 911 OPERATOR: Ahha. ANONYMOUS: 5-9-0-9 911 OPERATOR: Ok. Did you happen to see what one of them looked like? ANONYMOUS: Was the big ... tall big bully white guys. There was also ... a gray tall van behind or in front of them. 911 OPERATOR: What was their clothing description? ANONYMOUS: Huh? 911 OPERATOR: What was their clothing description? ANONYMOUS: The ... what do you mean the clothing description ... I can't tell you ... no ... I don't know what to tell you. 911 OPERATOR: You don't know what they were wearing? ANONYMOUS: Oh no, I'm sorry ... well when the guy that was putting the gun on -6- the back of the car saw that I saw him ... so I just made, I play stupid and I went right into my car. 911 OPERATOR: Ok, well the police will be there soon as possible. Ok? Are you going to wait around for them, no, yes? ANONYMOUS: Huh? Well, uh, do you want me to wait around for them? 911 OPERATOR: It's up to you. ANONYMOUS: I don't really have to. 911 OPERATOR: Ok. ANONYMOUS: Ok? 911 OPERATOR: Alright. ANONYMOUS: Alright. 911 OPERATOR: Bye-bye. ANONYMOUS: Bye-bye. The Seizure of Defendants and Their Vehicle Police Officer Valles, who had heard the substance of the anonymous call transmitted over the police radio while driving in his patrol car, saw the black Mustang described in the 911 call. Relying only on the sparse information provided by the 911 caller, P.O. Valles put on his lights and siren and cut off the moving -7- vehicle by pulling in front of it. A 596.2 Defendant DiSalvo was the front-seat passenger, and defendant Argyris was one of the two rear passengers. P.O. Valles emerged from his vehicle with his gun drawn and pointed at defendants' car, and its passengers. He waited there until eight other officers arrived at the scene before approaching the Mustang. When the other officers showed up, P.O. Valles holstered his weapon, but the other officers had their guns drawn, pointed at the Mustang and its occupants. After defendant DiSalvo emerged from the vehicle, as ordered, P.O. Valles saw that he had a pistol located in the waistband of his pants. When defendant Argyris emerged from the car, he was found to be wearing a bullet-proof vest and carrying a blackjack and a switchblade knife. A subsequent search of the Mustang led to the discovery of a loaded .38 caliber automatic under the driver's seat, and a box of 9- millimeter ammunition on the back seat. No "big gun"was found in the back of the vehicle. The Motions to Suppress In Supreme Court, Queens County, defendants jointly moved to suppress the incriminating physical evidence recovered from the Mustang. Initially, on February 2Numerical references preceded by "A." are to the pages of Defendants' Joint Appendix. -8- 22,2010, Justice Kenneth C. Holder granted the suppression motion on constraint of the United States Supreme Court's holding in Florida v. J.L., 529 U.S. 266 (2000), and the New York Court of Appeals decisions in People v. Moore, 6 N.Y.3d 496 (2006) and People v. William II, 98 N.Y. 2d 93 (2002). See A.94-104. However, the People moved for reargument, claiming that by relying upon the so-called "Aguilar/Spinelli" test, the lower court could find that the People established reasonable suspicion to justify the seizure of the Mustang and its occupants at gunpoint. See A. 123-146. Justice Holder granted reargument, and upon such reargument the court reversed itself, overruling its own prior determination and finding instead that reasonable suspicion for the stop of the vehicle supposedly existed because "based upon his [the 911 caller's] personal observations, the reliability of the assertion of illegality was established, and JL 's requirement of predictive information simply does not apply where "both prongs of the Aguilar/Spinelli test were demonstrated .... " See A. 16. Both defendants thereafter pleaded guilty to second degree weapon possession. As a consequence, defendant Argyris received a three and one-half year determinate sentence and defendant DiSalvo received a six-year determinate sentence. Following their guilty pleas, defendants jointly appealed their convictions to the Appellate Division, Second Department. See CPL § 710.70 (2). That court ruled -9- initially, as had been urged by the defendants on appeal, thatAguilar/Spinelli analysis really had nothing to do with the "reasonable suspicion" determination made in this case. See A. 596. In that regard, the Appellate Division essentially agreed with the defendants - "We note that 'the Aguilar/Spinelli' test, as framed in People v. Elwell . . . need not be satisfied where [as here] the necessary predicate for justifying the police action under review is the less demanding standard of reasonable suspicion." A. 596-597. However, the Appellate Division then went on to find, essentially under a "totality of the circumstances" type analysis, that P.O. Valles had reasonable suspicion to take the actions that he had, in pulling over defendants' vehicle, and then seizing, at gunpoint, them and the other occupants of the vehicle. A. 597. Specifically, the appellate court considered that "the report of the 911 caller, which was 'based on the contemporaneous observation of conduct that was not concealed,' was sufficiently corroborated to provide reasonable suspicion for the stop." See People v. Argyris, A. 597, citing People v. Moss, 89 A.D.3d 1526, 1527 (4th Dept. 2011), quoting People v. Jeffery, 2 A.D.3d 1271, 1272 (4th Dept. 2003). In ruling as it did, the Appellate Division simply ignored and made no mention of the Queens County trial court's adverse determination regarding the supposed inapplicability of the plainly applicable ruling in Florida v. J.L., supra, and the supposed inapplicability of this Court's plainly applicable rulings in People v. Moore and People v. Willliam -10- II, supra. After both of their convictions were affirmed, defendants jointly moved to reargue based not only on the reasonable suspicion issue presented by Florida v. J.L., but also on a newly presented claim that the Appellate Division had acted in excess of its jurisdiction when it affirmed their convictions on a legal theory different from the one that had been decided against them by the lower court sitting at nisi prius. See CPL § 470.15(1); People v. Concepcion, 17 N.Y.3d 948 (2012); People v. LaFontaine, 92 N.Y.2d 470 (1998). Their motions for reargument were denied. A.576, 577. On July 9, 2013, Judge Read granted the defendants certificates permitting them to appeal to this Court. A. 618, 619. The Undisputed Factual Findings of the Court Sittin~: at Nisi Prius For their statement of the facts herein, defendants respectfully adopt the pertinent "Findings of Fact" made by Hon. Kenneth C. Holder, the Justice who presided over the suppression hearing that was conducted in this case. A. 95-98. As noted above, there is no dispute over the facts. 3 3 Although he reversed his February 22, 2010 decision on the law, Justice Holder preserved and adhered to the factual findings therein. As he stated in his June 18, 2010 decision reversing himself, "as an initial matter, the court hereby vacates the conclusions of law articulated in its February 22, 2010 decision, but adheres to the -11- "On July 19, 2007, at approximately 2: 15 p.m., a man called 911 to report that he had just seen four 'big bully white guys' get into a brand new black Mustang at Newtown Avenue and 31st Street, and that one of the men put a 'big gun' in the back of the car. He reported that the license plate number on the Mustang was EAA 5909 and that he had seen the vehicle make a right tum on 28th Street, heading towards Astoria Boulevard. He also stated that there was a gray Ford van either in front of, or in back of, the Mustang. The man did not leave his name and telephone number and indicated that he would not wait for the police to arrive. A. 95. "At approximately 2:19 p.m., Sgt. Bauso, received a radio transmission indicating that an individual had called to report that there were four white males with big guns on Newtown Avenue and 30th Street inside a black Mustang bearing license plate number EAA 5909, and a gray van was following that vehicle. They canvassed the area for approximately ten minutes to search for the vehicles, but did not see either of them in the immediate vicinity. A. 95. "At approximately 2:30 p.m., P.O. Castelli was riding in a marked police vehicle with his partner, P.O. Feduniak, when he heard a second radio transmission describing white males with a big gun in a black Mustang with a gray van either in findings of fact stated therein." A. 8. Additionally, there were no contrary facts found by the Appellate Division. -12- front or following behind it. A license plate number was also given. At that time, P.O. Castelli and his partner had been headed toward a housing development in the area. A. 95. "While stopped at a light, P.O. Castelli observed two vehicles that fit the description traveling on 31st St. He also recognize the license plate on the Mustang as the one that had been given in the radio transmission. When the light changed, they followed the vehicles for approximately five to 10 minutes, at a distance of approximately one car length behind. During that time, he observed the vehicles circling around the blocks in the vicinity of 31st St. - - one following the other. Shortly thereafter, P.O. Feduniak made a radio transmission stating that he was following the vehicles and requesting another police vehicle to assist them. A. 96. "Meanwhile, as Sgt. Bauso and his partner were driving westbound on 30th Ave., he observed two housing police vehicles stopped at a red light behind a brand- new black Mustang and a gray van, all facing eastbound on 30th Ave. Sergeant Bauso' s partner stopped their police vehicle in a bus stop on 30th Ave. And 31st St. When Sgt. Bauso exited the car, he observed that the license plate on the black Mustang matched the plate number that had been given in the radio transmission. When the light turned green, the vehicles proceeded toward him. At that time, he looked at the driver of the black Mustang, and, believing that he had made eye -13- contact with him, pointed with his index finger and said, 'Pull over.' A. 96. "The driver of the black Mustang turned his head and continued driving eastbound on 30th A venue with the gray van following behind it, and the two housing police vehicles behind them. Sgt. Bauso then observed the black Mustang turn left onto 31st Street going northbound, and the van turned right onto 31st Street going southbound. Sergeant Bauso and his partner then returned to their police vehicle and drove approximately one-half of a block to make a U-turn to follow the black Mustang. By then, Sgt. Bauso noticed that two other police vehicles, one of which was occupied by P.O. Valles, and one of the housing police vehicles had stopped the black Mustang on 31st Street going northbound, and a housing police vehicle had followed the gray van going southbound. A. 96. "It appears that P.O. Valles had heard a radio transmission concerning white males with guns along with a description of the vehicle and license plate. After hearing the radio transmission, he proceeded eastbound on 30th A venue and observed the Mustang coming toward him and then making a turn onto 31st Street. He did not see any other police vehicles or officers at that time. He made a turn to follow the vehicle and stopped his police vehicle in front of it to stop it. [Officer Valles had not heard any radio transmissions that any other officers had found the vehicles.] Thereafter, he made a radio transmission that he had the car stopped and waited for -14- backup to arrive. He then exited his vehicle with his gun drawn and pointed toward the car. A. 97. "Approximately eight police officers, along with Sgt. Bauso and his partner, arrived within one minute and P.O. Valles holstered his weapon. The remaining officers had their guns drawn while he ordered defendant DiSalvo, who was the front passenger, to step out of the vehicle. Defendant DiSalvo complied and exited with his hands raised. At that time, P.O. Valles observed a revolver in his waistband and ordered him to put his hands on the vehicle. He handcuffed defendant DiSalvo and searched him, recovering the gun. He also recovered a sum of currency from him. A. 97. * * * * "Police Officer Valles subsequently ordered both defendant Vicidormini and defendant Costandino Argyris to exit the back seat of the car in the same manner and they each complied. When he searched defendant Costandino Argyris, he observed a "lift" in his sweatshirt that appeared to be a bullet-resistant vest. Police Officer. Valles then patted him down, confirming that he was wearing a bullet-resistant vest, and also recovered a blackjack from one of his pockets and a switchblade knife. A.97. "During a subsequent search of the Mustang, P.O. Valles recovered a .380 -15- caliber automatic handgun with two rounds in the magazine and one in the chamber from underneath the driver's seat. He also recovered a box of .9 mm ammunition from on the backseat of the car. He later vouchered the car. A. 98. "Sergeant Bauso and his partner had blocked the intersection to assist P.O. Valles and the other police officers in securing the occupants of the black Mustang. All of the officers had their guns drawn during that time, including Sgt. Bauso." A. 98. -16- ARGUMENT POINT I THE POLICE ACTED UNREASONABLY IN RELYING ON AN ANONYMOUS 911 CALL TO JUSTIFY, IN THE ABSENCE OF A SCINTILLA OF "PREDICTIVE" INFORMATION, THEIR FORCIBLE SEIZURE OF DEFENDANTS' MOVING VEHICLE AT GUNPOINT; THE LOWER COURTS' RULINGS IN THIS CASE, UPHOLDING THIS POLICE CONDUCT, FLIES IN THE FACE OF THE SUPREME COURT'S DECISION IN FLORIDA V. J.L., 529 U.S. 266 (2000), AND THE GOVERNING DECISIONS OF THIS COURT IN PEOPLE V. MOORE, 6 N.Y.3d 496 (2006) AND PEOPLE V. WILLIAM II. 98 N.Y. 2d 93 (2002). These appeals present a significant constitutional search and seizure question under the 4th Amendment of the United States Constitution, and under Art. 1, § 12 of the Constitution of the State of New York. The fully preserved and squarely presented question is whether the Appellate Division improperly ignored the pertinent teachings of both the Supreme Court and this Court when it created a new, erroneous rule of search and seizure jurisprudence to the effect that the untested report by an anonymous telephone caller can establish reasonable suspicion to justify a gunpoint seizure even though there is lacking the type of "predictive" information called for by the Supreme Court's decision in Florida v. J.L., 529 U.S. 266 (2000), and this Court's decisions in People v. Moore, 6 N. Y.3d 496 (2006) and People v. William II, -17- 98 N.Y. 2d 93 (2002). We respectfully submit that if the Appellate Division's decisions in these two cases are allowed to stand unchallenged, the Appellate Division- a lower court- will have succeeded in overruling Florida v. J.L., People v. William II, and People v. Moore, by judicial fiat. In Florida v. J.L., the Supreme Court addressed a case in which an anonymous informant had called the police and reported that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. Police officers who responded to the scene saw a young black man, wearing a plaid shirt, standing at the bus stop. J.L. made no threatening or unusual movements. Nevertheless, a police officer approached J .L. and frisked him, finding a gun. The Supreme Court ultimately ruled that reasonable suspicion to justify the stop and frisk was lacking. Critical to the Court's analysis was its concern that an accurate description of a person standing on the street, or of a vehicle and its license plate, coming from an anonymous source, does nothing to address the critical concern that a malevolent tipster, by providing a readily observable description, can so easily point a finger of accusation at anyone he or she wishes to disturb, embarrass, or upset. The Court wrote: "An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of -18- concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." 529 U.S. at 272, supra (emphasis added). That the Supreme Court in Florida v. J.L. was clearly focused on the concern and very real danger that an anonymous informant can too easily make a false accusation against another citizen is to be found both in the Opinion of the Court, and in the concurring opinion written by Justice Kennedy. Justice Ginsburg, the author of the Opinion of the Court, wrote: "In the instant case, the officers' suspicion that J.L. was carrying a weapon arose not from any observations of their own but solely from a call made by an unknown caller. Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated [citation omitted], 'an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity. * * * * "The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility." 529 U.S. at 270, 271 supra (emphasis added). Justice Kennedy's concurring opinion loudly echoes this same concern of false accusations: -19- "When a police officer tetstifies that a suspect aroused the officer's suspicion, and so justifies a stop and frisk, the courts can weigh the officer's credibility and admit evidence seized pursuant to the frisk even if no one, aside from the officer and the defendant themselves, was present or observed the seizure. An anonymous telephone tip without more is different, however; for even if the officer's testimony about receipt of the tip is found credible, there is a second layer of inquiry respecting the reliability of the informant that cannot be pursued. If the telephone call is truly anonymous, the informant has not placed his credibility at risk and can lie with impunity. The reviewing court cannot judge the credibility of the informant and the risk of fabrication becomes unacceptable. " 529 U.S. at 275, supra (emphasis added); see, also, People v. Herold, 282 A.D.2d 1, 5-6 (1st Dept. 2001) ("As seems apparent, the Supreme Court's concern over anonymous tips stemmed from the possibility of false reports and the potential such reports had for the harassment of citizens by informants who, by virtue of their anonymity, could not be held accountable"). This Court relied upon and adopted the reasoning of Florida v. J.L., first in People v. William II, 98 N.Y.2d 93 (2002), and then in People v. Moore, 6 N.Y.3d 496 (2006). The Court had to do so, for while State courts are free to apply more protective rules for their citizens under State law (see, e.g., People v. Scott, 79 N. Y.2d 474,495-497 [1992]), they may not abide by or promote a rule that is less protective of the rights of the citizenry guaranteed by the Federal constitution. This Court -20- interpreted Florida v. J.L. to require, before reasonable suspicion might be found to exist in a case involving an anonymous informant, that there be some "predictive information" provided by the anonymous informant so that the credibility of the unknown tipster could be measured: "An anonymous tip cannot provide reasonable suspicion to justify a seizure, except where that tip contains predictive information- such as information suggestive of criminal behavior - so that the police can test the reliability of the tip [citation omitted]. Indeed, in J.L.,a unanimous United States Supreme Court held that an anonymous tip regarding a young Black male standing at a particular bus stop, wearing a plaid shirt and carrying a gun, was insufficient to provide the requisite reasonable suspicion to authorize a stop and frisk of the defendant. "The State argued in J.L. that the tip was sufficient to justify the police intrusion because the defendant matched the detailed description provided by the tipster. The Supreme Court held, however, that reasonable suspicion 'requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person' [citation omitted]. The Court further explained that an anonymous tip could demonstrate the tipster's reliability and thus provide reasonable suspicion of criminal activity only if it predicted actions subsequently engaged in by the suspect." 6 N.Y.3d at 499, supra (emphasis added). In the case at bar, we respectfully submit that the Appellate Division laid waste to these governing constitutional principles when it completely disregarded the -21- requisite "predictive information" component of Florida v. J.L. and People v. Moore. The precise description of the Mustang and its license plate, provided by the anonymous informant, was all information that could be gleaned simply from the vehicle's presence on a public street. Although the tipster claimed that he had seen a "big gun" being placed into the back of the vehicle, not a scintilla of "predictive information" existed on the basis of which the police might have determined that the tipster was likely to be telling the truth. The informant could not name any of the vehicle's occupants, could not describe what they were wearing or what they looked like, and could not supply any information to individualize exactly which of the four men he meant to accuse of possessing the weapon. Cf People v. William II, 98 N.Y.2d at 99, supra. Nor did the 911 caller say that any of the four men in the car had used the "big gun" to commit a crime. In fact, nothing in the information provided by the informant offered the slightest assurance that he was not making this up.4 And, the telephone tipster twice refused to leave his name and number. Thus, 4ln denying suppression, the Appellate Division (A. 597) erroneously relied upon two Fourth Department cases, People v. Moss, 89 A.D.3d 1526, 1527 (4th Dept. 2011), and People v. Jeffery, 2 A.D.3d 1271, 1272 (4th Dept. 2003), both of which sought to avoid the governing "predictive information" rule of Florida v. J.L. by asserting that the anonymous 911 calls from two anonymous tipsters, which offered no "predictive information," were somehow to be considered more reliable because the anonymous informants reported to have seen criminal conduct that was allegedly in the open, rather than concealed. The self-evident, obvious defect in this analysis is that the police in those cases were left wholly dependent on the untested credibility -22- as People v. Moore instructs, absent further predictive information that might have allowed the police to make their own assessment of the informant's reliability, the gunpoint stop in this case could not be found to be supported by reasonable suspicion. Ironically, Justice Holder correctly found in his original decision and order of February 22, 2010, that, in light of the holdings of Florida v. J.L., People v. Moore, and People v. William II, the evidence seized in this case should have been suppressed because there was no "predictive information" in the anonymous caller's tip. See A. 100-103. Unfortunately, however, Justice Holder subsequently allowed himself to be swayed in the wrong direction by the People's fallacious argument, made for the first time upon reargument, that Florida v. J.L. 's requirement of "predictive information" did not apply where the application of the so-called Aguilar/Spinelli standard to the circumstances of the case at bar supposedly permitted for a finding that both prongs of the Aquilar/Spinelli test had been satisfied, thereby allegedly establishing reasonable suspicion to justify the police officers' gunpoint seizure of the defendants and their vehicle. See A. 16. According to Justice Holder, because he found Aguilar/Spinelli to apply, he could no longer find the rule of of the anonymous 911 callers in order to accept their claims of what they had allegedly seen. This, we respectfully submit, was bootstrapping of the highest order, and the rulings in Moss and Jeffery, which attempted to create an exception to J.L. 's "predictive information" rule, should be quickly disregarded as a matter of law. -23- Florida v. J.L. to be applicable. The People's argument, and Justice Holder's acceptance of it, were both critically flawed. To begin, Aguilar/Spinelli really has nothing at all to do with the calculus of determining whether an anonymous tip can provide police with reasonable suspicion of the sort that might support a police/citizen gun-point "stop and frisk." Rather, as this Court is well aware, the two-prong Aguilar/Spinelli standard is normally relevant in determining whether a confidential informant, known to the police, can provide probable cause - not reasonable suspicion - to support the issuance of a search warrant. See, e.g., People v. Chisholm, 21 N.Y.3d 990,992-993 (2013); People v. DiFalco, 80 N.Y.2d 693, 695 (1993); People v. Griminger, 71 N.Y.2d 635 (1988); People v. Johnson, 66 N.Y.2d 398, 400-401 (1985); People v. Elwell, 50 N.Y.2d 231, 235 (1980); People v. Herold, 282 A.D.2d at 4-5, supra; People v. Voner, 74 A.D.3d 1371 (2nd Dept. 2010); People v. Colucci, 268 A.D.2d 531, 532 (2nd Dept. 2000). The two-prong Aguilar/Spinelli test requires, in order to establish probable cause on the basis of hearsay information provided by a confidential informant, that both his basis of knowledge and his reliability be demonstrated separately and independently. By no stretch of the imagination can it be said that the anonymous 911 caller in this case was shown to be sufficiently credible for the purpose of -24- satisfying either prong of the Aguilar/Spinelli test. While the 911 caller claimed o have personally observed a "big gun," that statement alone did not satisfy the "basis of knowledge" requirement. Absent from the tip were any indicia of "underlying circumstances" indicative of a person who possesses inside knowledge of criminal activity. See Spinelli v. United States, 393 U.S. 410,416-417 (1969). Additionally, the anonymous tipster's statements "did not describe defendants [criminal] activities with specific particularity to warrant an inference of personal knowledge." Cf. People v. Bigelow, 66 N.Y.2d 417 (1985). In fact, the tip here was more consistent with the report of a person who has little or no knowledge of what he is talking about. Separately, the reliability of the tipster here could not be shown. The anonymous caller's reliability was not established by proof that he had a prior track record of supplying valid information to the police. He also did not supply information that might be deemed more reliable because it was against his own penal interest. Cf. People v. Johnson, 66 N.Y.2d at 403, supra. The veracity of the information itself was completely uncorroborated. People v. DiFalco, 80 N. Y .2d at 697, supra. Moreover, P.O. Valles, here, had not seen any gun prior to his seizure of defendants and the car in which they were riding. Thus, as can be seen, the -25- anonymous information was totally lacking in the detail of criminal activities and the attributable knowledge of a criminal scheme which might satisfy theAguilar/Spinelli test. Indeed, the Appellate Division's ruling in this case confirmed that the reliance placed upon the Aguilar/Spinelli test by Justice Holder and the People was quite erroneous, since the Appellate Division's opinion expressly stated that it was rejecting such reliance upon Aguilar/Spinelli as being inapposite. A. 596. The Appellate Division then went on to misapprehend the significance of the impact that the Supreme Court's decision in Florida v. J.L, supra, and this Court's decisions in People v. William II, supra, and People v. Moore, supra, necessarily should have had in the cases now before the Court. Indeed, in its decisions herein, the Appellate Division decided a substantial constitutional "reasonable suspicion" question without even making reference to Florida v. J.L. We do not see how that is possible when the issue of reasonable suspicion was outcome determinative of these cases now before the Court. Furthermore, Florida v. J.L. was the authority initially and primarily relied upon by Justice Holder in granting suppression. It seems to us that if, as defendants argued to Justice Holder, the Aguilar/Spinelli test had no proper application to the lower court's reasonable suspicion analysis, then, upon the Appellate Division's rejection of reliance upon the -26- the Aguilar/Spinelli analysis, the focus of the case in the Appellate Division should have reverted back to review of Justice Holder's June 18,2010 determination, where he decided adversely to defendants that the requirement of "predictive information," in the trilogy of Florida v. J.L., People v. Moore, and People v. William II, did not apply. This was the only other issue decided adversely to defendants by Justice Holder. For all of the above-stated reasons, defendants respectfully urge this Court to find that they are entitled to suppression of the weapons seized from them, since the police lacked any "predictive information" that might have supported a ruling that reasonable suspicion existed. The anonymous 911 call, standing alone, as it did, could not justify defendants' gun-point seizure by the police. The evidence seized from defendants should have been suppressed, and the indictment dismissed. -27- POINT II THE FORCIBLE, GUNPOINT SEIZURE OF DEFENDANTS AND THEIR VEHICLE WAS NOT SUPPORTED BY REASONABLE SUSPICION, AND, CONSISTENT WITH THIS COURT'S SEMINAL RULING IN PEOPLE V. DE BOUR, THE WEAPONS FOUND IN DEFENDANTS' CAR AND ON THEIR PERSONS WERE, THEREFORE, OBTAINED IN VIOLATION OF DEFENDANTS' CONSTITUTIONAL RIGHTS (U.S. CONST. AMEND. 4; N.Y. CONST. ART. 1, SEC. 12). In Point I, we make the argument that an anonymous 911 call that lacks "predictive information" of the sort demanded by Florida v. J.L., People v. Moore, and People v. William II, cannot serve to provide the police with reasonable suspicion that might support a forcible seizure of defendants and their vehicle by eight gun- pointing police officers. In this Point, it is our contention that even without the "predictive information" rule, one must consistently conclude under well-settled older authority that the police conduct here was violative of defendants' federal and state constitutional rights. U.S. Const. Amend. 4; N.Y. Const.Art. 1, Sec. 12. For the past 37 years, the legal yardstick by which New York Courts have determined the propriety of police/citizen encounters leading to the discovery of incriminating evidence has been this Court's seminal decision in People v. De Bour, 40 N.Y.2d 210 (1976). As the Court explained in People v. Moore, 6 N.Y.3d -28- 496, 498 (2006), "The Court's purpose in De Bour was to provide clear guidance for police officers seeking to act lawfully in what may be fast-moving street encounters and a cohesive framework for courts reviewing the propriety of police conduct in these situations. Having been the basis for decisions in likely thousands of cases over the past 30 years, De Bour has become an integral part of our jurisprudence." 6 N.Y.3d at 498-499, supra. 5 As this Court went on to explain in People v. Moore, 6 N.Y.3d at 498-499: "In De Bour, we set forth a graduated four-level test for evaluating street encounters initiated by the police: level one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two, the common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot; level three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor; level four, arrest, requires probable cause to believe that the person to be arrested has committed a crime (De Bour, 40 N.Y.2d at 223; see also People v. Hollman, 79 N.Y.2d 181, 184-185 [1992] )." (Emphasis added). 5Defendants' arguments based on this DeB our analysis was presented to Justice Holder on the defendants' motion to reargue, made after Justice Holder reversed himself and denied the suppression motion on the basis of the Aguilar/Spinelli rule. A. 215-227. -29- With De Bour' s four levels of police action as the conceptual foundation, certain principles have emerged relating to police searches and seizures involving automobiles, and/or the people who are traveling therein. As a general rule, and one that is plainly applicable as a matter of law to the case at bar, police action which requires a moving vehicle to pull over while on the public highway is a Level Three "seizure" requiring "reasonable suspicion." People v. Ocasio, 85 N.Y.2d 982, 984 (1995); People v. Spencer, 84 N.Y.2d 749, 753 (1995); People v. May, 81 N.Y.2d 725,727 (1992); People v. Sobotker, 43 N.Y.2d 559,563-564 (1978); People v. Long, 36 A.D.3d 132, 135 (1st Dept. 2006). "Reasonable suspicion is that 'quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand'." People v. William II, 98 N.Y.2d 93, 98 (2002); People v. Long, supra. If force is used by police in dealing with a citizen whose vehicle is "cut off' by police with flashing lights (see People v. Argyris, A. 596) , and if the citizen is actually or constructively restrained from going on his or her way by gun-pointing police officers, that is a seizure requiring De Bour Level Three reasonable suspicion for its justification. See People v. Cantor, 36 N.Y.2d 106, 111 (1975) ("Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty or movement as a result of police action, that individual has -30- been seized within the meaning of the Fourth Amendment [citation omitted]. This is true whether a person submits to the authority of the badge or whether he succumbs to force."). The Appellate Division, in it's decision, noted that P.O. Kashim Valles, "patrolling alone," "with his lights and sirens on, cut off the Mustang by pulling in front of it." He then radioed for backup, stepped from his vehicle and drew his gun while waiting for additional officers to arrive. The responding officers also "had their guns drawn." See People v. Argyris, supra, A. 596). In the context of a vehicle stop, courts are required to examine the manner in which the officers approached the car: "Was there a chase, were the lights, sirens or a loudspeaker used, were the officers' guns drawn, were the individuals prevented from moving, how many verbal commands were given, what was the content and tone of the commands, how many officers were involved, where did the encounter take place?'' People v. Bora, 83 N.Y.2d 531, 535-536 (1994). There is no room in the undisputed record facts before this Court for an argument that what happened here was not a seizure within the meaning of the law, where the officer stopped the defendant's vehicle with force and firearms to carry out what he described as a "felony car stop." A. 498. Furthermore, the record will not support, and -31- no claim was ever made, that the Mustang or it's occupants tried to flee. What the record will support is a conclusion that P.O. Valles observed the Mustang and its occupants do absolutely nothing illegal or suspicious prior to the forcible seizure of the vehicle and its occupants. To be sure, P.O. Valles certainly had not observed a gun prior to the seizure.6 A. 548, 549. 6P.O. Valles's testimony confirms that he did not see the Mustang or its occupants do anything that was out of the ordinary: "Q. Did you see that black Mustang do anything illegal prior to you stopping them? "A. N 0. "Q. The didn't run the red light, did they? "A. N 0. "Q. Did you see anybody waving any guns? "A. N 0. "Q. No music blasting? "A. N 0. "Q. Okay. When you pulled them over, you immediately come out of your car, have your gun already drawn, right? "A. y es. "Q. They comply with your orders up until that point, correct? "A. Yes." -32- It should be kept in mind that this was a stop that occurred in Astoria, Queens, in a peaceful area in the middle of the day. We submit that this was hardly the setting in which it would be reasonable to assume that a group of men riding together in a new Mustang would necessarily be armed. P.O. Valles, in his testimony, was unable to put forth any evidence which might have prompted him to believe that there was a gun in the black Mustang, other than the brief report from the anonymous 911 tipster. P.O. Valles's sole justification for making the "felony car stop" was, "basically, it's when you get a call for guns." A. 498. Unquestionably, in the present case a seizure occurred, of such intensity and scope, that the police were required to demonstrate, at the very least, the minimal showing of reasonable suspicion. And, it is also quite clear that they utterly failed to do so. Before a person may be forcibly stopped and detained in a public place, a law enforcement officer must have a reasonable suspicion that the subject of the forcible seizure and detention has committed a felony or a misdemeanor. In other words, the officer must be able to state the "specific" and "articulable facts" reasonably prompting his intrusion; mere vague and unparticularized hunches are insufficient. United States v. Cortez, 449 U.S. 411,417 (1981); Terry v. Ohio, 392 U.S. 1 (1968). Absent here was A. 548,549. -33- any "describable conduct that provides a reasonable basis for the officer's belief that the defendant had a gun in his possession" See People v. Prochilo, 41 N.Y.2d 759, 761 (1977). The record will not support that the officer who performed the seizure, P.O. Valles, gave any testimony of the specific and articulable reasons that might have prompted him to believe the defendants had committed a felony or a misdemeanor. Valles provided approximately 200 pages of testimony and the only corroboration he could supply was that the black Mustang matched (a) the vehicle make and (b) the license plate number transmitted over a police radio bulletin. A. 97, A. 54 7. P. 0. Valles, without any face-to-face or radio communication from his fellow officers (A. 97), simply saw the Mustang and it's license plate and immediately seized it. What else was P.O. Valles relying upon when he performed his seizure but innocuous information, which originated from an anonymous source? The caller in no way identified himself, and while prompted twice by the 911 operator to leave his name and telephone number, he refused. He also refused to wait around for the responding officers (see transcript of 911 call). What had the anonymous caller described but seeing one of four men place a "big gun" in the back of a Mustang bearing the license plate number EAA-5909, on Newtown A venue along with the presence of a gray van? In fact, P.O. Valles had not seen or known anything about the gray van prior to his seizure of -34- the Mustang and its occupants. A. 561. When asked by the 911 operator, the caller could not describe any of the defendants. He could not provide the physical descriptions of any of the men. He could not identify any of the men by name or nickname or demonstrate any kind of familiarity with the men or their conduct. Also, the caller does not indicate if he knew the gun was illegally possessed. Most importantly, the caller did not allege any criminal activity engaged in by any of the men with the gun. The caller merely reported that the suspect had a gun in his possession. "A report of possession by itself will not authorize police action of the intensity resorted to here." See People v. LaPene, 40 N.Y.2d 210, 225 (1976). Similar circumstances arose in the People v. Moore, supra, where this court upheld suppression, in part, because the officer could not corroborate the reported "criminal activity." In Moore, the anonymous tipster reported a "dispute involving a man with a gun," but when the police arrived within a minute of receiving the radio call, they did not find a dispute in progress. "Such a tip was insufficient to afford the police reasonable suspicion of criminal activity, and thus did not support the gun point stop." People v. Moore, 6 N.Y.3d at 500, supra. The tip was also insufficient, in part, because, as here it did not provide any "predictive information" relative to the defendant's criminal conduct. See People v. William II, 98 N.Y.2d at 500, supra. -35- The caller did not indicate in any way that there was a crime committed by the men in the Mustang, such as, perhaps, a dispute, shots fired, or a robbery in progress. See A. 350-351. "An anonymous tip lacking indicia of reliability ... does not justify a stop and frisk whenever and however it alleges the illegal possession of a firearm" (see Florida v. J.L., at 267, supra). In other words, the bare bones assertion that a person is carrying a hand gun will not, in and of itself, lawfully allow a forcible seizure. "There is a difference of significant degree between a report only that a person has a gun in his possession and another report that a person not only has a gun but that he has just used it in the commission of a crime." People v. Green, 35 N.Y.2d 193, 196 (1974), as quoted in People v. La Pene, 40 N.Y.2d at 225, supra. As this Court observed in Green: "A citizen walking our streets should not, without more, be exposed to physical assault by an officer on the basis of an unsubstantiated report of the mere possession of firearms volunteered by a stranger. To condone such conduct would be to expose innocent persons to harassment by pranksters and irresponsible meddlers." People v. Green, 35 N.Y.2d at 196, supra. Standing alone, the information contained in the anonymous tip in this case could not establish a reasonable suspicion without the required "predictive information" mandated by the trilogy of Florida v. J.L., People v. Moore and People -36- v. William II. An anonymous tip lacking such "predictive information" cannot lawfully justify a seizure of the scope and intensity that occurred here. In the present case, because reasonable suspicion was absent throughout, the evidence in this case should have been suppressed and the indictment should now be dismissed. POINT III THE APPELLATE DIVISION VIOLATED CPL § 470.15(1) AND THE JURISDICTIONAL RULE OF PEOPLE V. lAFONTAINE AND PEOPLE V. CONCEPCION WHEN, AFTER REJECTING THE HEARING COURT'S RELIANCE ON THE SO- CALLEDAGUIIARISPINELUTEST IN AN EFFORT TO FIND THE EXISTENCE OF REASONABLE SUSPICION, THE APPELLATE DIVISION, IN AFFIRMINGTHEJUDGMENTSOFCONVICTION, INSTEAD APPLIED A TOTALITY OF THE CIRCUMSTANCES ANALYSIS THAT HAD NOT BEEN PRESENTED TO OR CONSIDERED BY THE COURT SITTING AT NISI PRIUS. After first conducting a full evidentiary hearing, Justice Holder granted defendants' suppression motions on the basis of the United States Supreme Court's holding in Florida v. J.L., 529 U.S. 266 (2000), and the New York Court of Appeals decisions in People v. Moore, 6 N.Y.3d 496 (2006) and People v. William II, 98 N.Y. 2d 93 (2002). The People, however, moved for re-argument and subsequently convinced Justice Holder, quite erroneously, that by relying upon theAguilar/Spinelli -37- test, reasonable suspicion could be found to sustain the police officers' gunpoint seizure of the defendants, thereby rendering irrelevant Florida v. J.L. 's requirement of "predictive information" in this case. When defendants appealed to the Appellate Division, that court found that Aguilar/Spinelli analysis was itself essentially irrelevant when the issue was one of reasonable suspicion, not probable cause. Instead, the Appellate Division affirmed the defendants' convictions by announcing a totality of the circumstances analysis that had never been raised by the People or considered by Justice Holder. The Appellate Division's principal ruling was that "the report of the 911 caller, which was 'based on the contemporaneous observation of conduct that was not concealed,' was sufficiently corroborated to provide reasonable suspicion for the stop." People v. Argyris, citing People v. Moss, quoting People v. Jeffery. A. 597. As a preliminary matter, the defect in this argument is that one must rely on the credibility of the anonymous informant - where he states that he saw the gun being placed in the vehicle- in order to find reasonable suspicion. This, however, would be blatant bootstrapping. We respectfully submit that when the Appellate Division relied upon this different analytical approach in order to affirm the judgments of conviction - an approach that was not utilized by Justice Holder in either of his earlier decisions - -38- it ran afoul of the statutory dictates of CPL § 470.15(1), and the related case law of People v. LaFontaine, 92 N.Y.2d 470 (1998), and its progeny. CPL § 470.15(1) states that: "Upon an appeal to an intermediate appellate court from a judgment . . . of a criminal court, such intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant. " Emphasis added. Simply put, "CPL 4 70.15( 1) precludes the Appellate Division from relying on an issue to affirm that was either decided in an appellant's favor or was not decided by the trial court." People v. Ingram, 18 N.Y.3d 948, 949 (2012) (emphasis added); see People v. Concepcion, 17 N.Y.3d 192 (2011); People v. LaFontaine, 92 N.Y.2d 470,473-474 (1998). In light of this precedent, the Appellate Division, upon rejecting Justice Holder's reliance on the Aguilar/Spinelli analysis in order to find reasonable suspicion, had the limited jurisdiction under CPL § 470.15(1) and (2) to reverse the judgments of conviction, or to review the only other legal issue decided adversely to the defendants by Justice Holder, which was that Florida v. J.L. 's, People v. Moore's, and People v. William 1/'s requirement of predictive information to test the caller's reliability, or lack thereof, did not apply. A 16. -39- In consideration of this question, the CPL gives this Court no broader jurisdiction to review the alternative grounds considered in upholding the judgments of conviction than it did to the intermediate appellate court. CPL §§ 470.35(1), 470.15(1). However, this Court may consider and determine any questions of law or defects which were raised and considered upon the appeal to the intermediate appellate court, so long as that issue resulted in the original criminal court judgment, sentence or order. Accordingly, defendants respectfully urge this Court to review Justice Holder's only other adverse ruling that Florida v. J.L. 's "requirement of predictive information simply does not apply." A.16. Defendants further contend that, according to CPL § 470.40 (1), upon review of Justice Holder's ruling resulting in the judgments of conviction, this Court should take or direct such corrective action as an intermediate appellate court should have taken pursuant to CPL § 470.20. Finally, if this Court should agree with defendants, upon such review the defendants seek the same outcome that would have been mandated in the Appellate Divisions- a reversal and dismissal of the indictment. In all events, an affirmance based upon the Appellate Division's totality of the circumstances argument, an issue -40- never ruled upon by Justice Holder, cannot be sustained. CONCLUSION FOR ALL OF THE ABOVE-STATED REASONS, THE ORDERS APPEALED FROM SHOULD BE REVERSED, SUPPRESSION SHOULD BE GRANTED, AND THE INDICTMENTS HEREIN SHOULD BE DISMISSED. Dated: New York, NY November 7, 2013 -41- Respectfully submitted, STEVEN R. KARTAGENER, ESQ. Attorney for Defendants-Appellants Costandino Argyris & John DiSalvo 233 Broadway- Suite 2340 New York, NY 10279 Tel. (212) 732-9600 Fax. (212) 732-6966