The People, Respondent,v.John A. DiSalvo, Appellant.BriefN.Y.October 21, 2014To be argued by DONNA ALDEA (TIME REQUESTED: 25 MINUTES) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against COSTANDINO ARGYRIS and JOHN DiSALVO, Defendants-Appellants. W444444444444444444444444444444444444444444444444444 BRIEF FOR RESPONDENT W444444444444444444444444444444444444444444444444444 RICHARD A. BROWN District Attorney Queens County Attorney for Respondent 125-01 Queens Boulevard Kew Gardens, New York 11415 (718) 286-6100 DONNA ALDEA BARKET, MARION, EPSTEIN & KEARON, LLP COUNSEL FOR RESPONDENT, PRO BONO ROBERT J. MASTERS Assistant District Attorney Of Counsel MARCH 21, 2014 Queens County Indictment Number 2078/07 TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 FACTUAL AND LEGAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . 2 INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 THE MAPP/DUNAWAY HEARING.. . . . . . . . . . . . . . . . . . . . . . . . . . 5 Supreme Court’s Initial Decision on the Motion to Suppress. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 The People’s Motion to Reargue and the Decision Upon Reargument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Defendants’ Appeal to the Appellate Division. . . . . . . . . . . . 17 POINT ONE THE COURTS BELOW PROPERLY DETERMINED THAT AN ANONYMOUS CITIZEN’S 911 CALL, BASED ON HIS PERSONAL OBSERVATION OF A GUN AND PARTICULARIZED DESCRIPTION OF THE VEHICLE IN WHICH IT WAS PLACED, COULD BE RELIED UPON TO FURNISH POLICE WITH REASONABLE SUSPICION TO STOP THE CAR; AND NEITHER FLORIDA V. J.L., NOR ANY OTHER CASE, REQUIRES A DIFFERENT RESULT BASED ON THE FACTS OF THIS CASE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 i A. The Anonymous 911 Call in this Case Was Sufficiently Reliable to Furnish Reasonable Suspicion for the Stop Under the Standard Enunciated in Florida v. J.L. . . . . . . . . . . . . . . . . . . . . . . . . . . 24 B. As the Anonymous Tip in this Case Passes Muster Under New York’s Far More Rigorous Aguilar-Spinelli Test, it is a Fortiori Reliable for Purposes of Furnishing Reasonable Suspicion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 POINT TWO IN AFFIRMING THE SUPPRESSION COURT’S DETERMINATION THAT THE POLICE HAD REASONABLE SUSPICION FOR THE STOP, AND, THUS, THAT THERE WAS NO BASIS FOR SUPPRESSION, THE APPELLATE DIVISION DID NOT VIOLATE CPL §470.15(1) OR THIS COURT’S PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 ii TABLE OF AUTHORITIES Page No. Cases Aguilar v. Texas, 378 U.S. 108 (1964). . . . . . . . . . . . . . . . . . . . . . . . . 14n.10 Alabama v. White, 496 U.S. 325 (1990). . . . . . . . . . . . . . . . . . . . . . . . . 25, 28 Draper v. United States, 358 U.S. 307 (1959). . . . . . . . . . . . . . . . . . . . . . . 45 Dunaway v. New York, 442 U.S.200 (1979). . . . . . . . . . . . . . . . . . . . . . . 4n.3 Fitzpatrick v. Roesenthal, 29 A.D.3d 24 (4 Dept. 2006) . . . . . . . . . . . . . . 48th Florida v. J.L., 529 U.S. 266 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . passim Illinois v. Gates, 462 U.S. 213 (1983).. . . . . . . . . . . . . . . . . . . . . . 43, 45, 51 Mapp v. Ohio, 367 U.S. 643 (1961). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4n.3 Niesig v. Team I, 76 N.Y.2d 363 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 People v. Argyris, 99 A.D.3d 808 (2d Dept. 2012) . . . . . . . . . . . . . 18-19, 35 People v. Arthurs, 24 N.Y.2d 688 (1969). . . . . . . . . . . . . . . . . . . . . . . . 36, 49 People v. Bartley, 298 A.D.2d 160 (1 Dept. 2002). . . . . . . . . . . . . . . 27n.15st People v. Bedoya, 190 A.D.2d 812 (2d Dept. 1993) . . . . . . . . . . . . . . 27n.15 People v. Bell, 5 A.D.3d 858 (3d Dept. 2004) . . . . . . . . . . . . . . . . . . . . . . . 48 People v. Benjamin, 51 N.Y.2d 267 (1980). . . . . . . . . . . . . . . . . . . . . 47n.20 People v. Boria, 204 A.D.2d 652 (2d Dept. 1994). . . . . . . . . . . . . . . . . . . . 42 People v. Brnja, 50 N.Y.2d 366 (1980). . . . . . . . . . . . . . . . . . . . . . . . 27n.15 iii People v. Brown, 256 A.D.2d 414 (2d Dept. 1998). . . . . . . . . . . . . . . . . . . 41 People v. Colon, 186 A.D.2d 443 (1 Dept. 1992). . . . . . . . . . . . . . . . . . . . 39st People v. Concepcion, 17 N.Y.3d 192 (2011). . . . . . . . . . . . . . . . . . . . . . . 55 People v. Cruz, 191 A.D.2d 507 (2d Dept. 1993).. . . . . . . . . . . . . . . . . . . . 39 People v. Daniels, 172 A.D.2d 766 (2d Dept. 1991). . . . . . . . . . . . . . . . . . 39 People v. DeBour, 40 N.Y.2d 210 (1976).. . . . . . . . . . . . . . . . . . . 24, 27n.15 People v. DiFalco, 80 N.Y.2d 693 (1993). . . . . . . . . . . . . . . . . . . . . . . 38, 49 People v. DiSalvo, 99 A.D.3d 811 (2d Dept. 2012) .. . . . . . . . . . . . . . . . . . 19 People v. Dolly, 40 Cal. 4th 458 (Cal. 2007) . . . . . . . . . . . . . . . . . 34, 37n.18 People v. Edwards, 95 N.Y.2d 486 (2000). . . . . . . . . . . . . . . . . . . . . . . 46, 48 People v. Elwell, 50 N.Y.2d 231 (1980). . . . . . . . . . . . . . . . . . . . . . . . passim People v. Finlayson, 76 A.D.2d 670 (2d Dept. 1980) . . . . . . . . . . . . . 28n.15 People v. Gamble, 279 A.D.2d 478 (2d Dept. 2001). . . . . . . . . . . . . . . . . . 48 People v. Glover, 23 A.D.3d 688 (3d Dept. 2005). . . . . . . . . . . . . . . . . . . . 39 People v. Griminger, 71 N.Y.2d 635 (1988).. . . . . . . . . . . . . . . . . . . . . 46, 49 People v. Herold, 282 A.D.2d 1 (1 Dept. 2001). . . . . . . . . . . . . . . . . . . . . 48st People v. Hollins; 221 A.D.2d 863 (3d Dept. 1995).. . . . . . . . . . . . . . . . . . 39 People v. Hollman, 79 N.Y.2d 181 (1992). . . . . . . . . . . . . . . . . . . . . . 27n.15 People v. Jackson, 235 A.D.2d 923 (3d Dept. 1997) .. . . . . . . . . . . . . . . . . 41 iv People v. Jeffery, 2 A.D.3d 1271 (4 Dept. 2003). . . . . . . . . . . . . . . . . 19, 28th People v. Johnson, 66 N.Y.2d 398 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . 45 People v. Kennedy, 282 A.D.2d 759 (2d Dept. 2001). . . . . . . . . . . . . . 41, 48 People v. LaFontaine, 92 N.Y.2d 470 (1998).. . . . . . . . . . . . . . . . . . . . 20, 55 People v. Landy, 59 N.Y.2d 369 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 People v. LaPena, 40 N.Y.2d 210 (1976). . . . . . . . . . . . . . . . . . . . . . . . 24, 36 People v. Leung, 68 N.Y.2d 734 (1986). . . . . . . . . . . . . . . . . . . . . . . . 27n.15 People v. Maldonado, 55 A.D.3d 626 (2d Dept. 2008). . . . . . . . . . . . . . . . 38 People v. Mondolfi, 221 A.D.2d 726 (3d Dept. 1995) .. . . . . . . . . . . . . . . . 42 People v. Montague, 180 A.D.2d 601 (1 Dept. 1992).. . . . . . . . . . . . . . . . 36st People v. Moore, 6 N.Y.3d 496 (2006) . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Moss, 89 A.D.3d 1526 (4 Dept. 2011). . . . . . . . . . . . . . . . . 19, 28th People v. Munford, 49 A.D.3d 444 (1 Dept. 2008) . . . . . . . . . . . . . . . . . . 48st People v. Nunez, 186 A.D.2d 764 (2d Dept. 1992).. . . . . . . . . . . . . . . . . . . 39 People v. Perez, 301 A.D.2d 434 (1 Dept. 2003). . . . . . . . . . . . . . . . . . . . 41st People v. Ramos, 99 N.Y.2d 27 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 People v. Rendon, 273 A.D.2d 616 (3d Dept. 2000). . . . . . . . . . . . . . . . . . 41 People v. Rodriguez, 98 N.Y.2d 93 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . 24 People v. Sanchez, 151 Misc.2d 431 (Sup. Ct. Kings Co. 1991). . . . . . . . . 36 v People v. Smalls, 271 A.D.2d 754 (3d Dept. 2000). . . . . . . . . . . . . . . . 41, 48 People v. Stalworth, 190 A.D.2d 762 (2d Dept. 1993).. . . . . . . . . . . . . . . . 42 People v. Torres, 155 A.D.2d 231 (1 Dept. 1989). . . . . . . . . . . . . 41, 42-43st People v. Voner, 74 A.D.3d 1371 (2d Dept. 2010).. . . . . . . . . . . . . . . . 38, 43 People v. William II, 98 N.Y.2d 93 (2002) . . . . . . . . . . . . . . . . . . . . . passim Spinelli v. United States, 393 U.S. 410 (1969). . . . . . . . . . . . . . . . 14n.10, 42 Texas v. Cobb, 532 U.S. 162 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 U.S. v. Wheat, 278 F.3d 722 (8 Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . 51th United States v. Andrade, 551 F.3d 103 (1st Cir. Mass. 2008) . . . . . . 37n.18 United States v. Freeman, 735 F.3d 92 (2d Cir. 2013).. . . . . 29n.16, 37n.18 United States v. Ruidiaz, 529 F.3d 25 (1st Cir. Mass. 2008) .. . . . . . . 37n.18 Statutes Administrative Code § 10-131-I. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3n.2, 4 C.P.L. §160.50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4n.2 C.P.L. §470.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 55 Penal Law §140.35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Penal Law §265.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3n.2, 4 Penal Law §265.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Penal Law §265.03. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 3n.2, 4, 27n.15 vi Penal Law §265.15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27n.15 Other Authorities Kamins, New York Search and Seizure, §102[2][d] (2009). . . . . . . . . . 42, 48 vii COURT OF APPEALS STATE OF NEW YORK -----------------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : : COSTANDINO ARGYRIS and JOHN DiSALVO, 1 : Defendant-Appellant. -----------------------------------------------------------------------------x BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Susan Phillips Read, defendants Costandino Argyris and John DiSalvo appeal from October 10, 2012 orders of the Appellate Division, Second Department, separately affirming each defendant’s November 12, 2010 judgment of conviction, entered in the Supreme Court, Queens County (Holder, J.). By those judgments, defendant Argyris was convicted, upon his plea of guilty, of two counts of Criminal Possession of a Weapon in the Second Degree (Penal Law §265.03-1[b]), one In some prior pleadings and proceedings before the Supreme Court and Appellate1 Division, defendant’s name was captioned by defense counsel and the court as “Constantino Argyris,” “Constandino Argyris” or “Constantine Argyris”, which are all different from the spelling now used before this Court. As in prior proceedings, the People will defer to the spelling currently used by defendants’ counsel in his brief to this Court. count of Criminal Possession of a Weapon in the Fourth Degree (Penal Law §265.01) and one count of Unlawful Possession of Pistol Ammunition (Administrative Code §10-131-I[3]). He was adjudicated a Violent Felony Offender and sentenced to an aggregate prison term of three and one-half years. Defendant DiSalvo was convicted, upon his plea of guilty, of four counts of Criminal Possession of a Weapon in the Second Degree (Penal Law §265.03), three counts of Criminal Possession of a Weapon in the Third Degree (Penal Law §265.02), and Unlawful Possession of Pistol Ammunition (Administrative Code § 10-131-I[3]). He was adjudicated a Second Felony Offender and sentenced to an aggregate prison term of six years followed by five years of post-release supervision. Both defendants are currently incarcerated. FACTUAL AND LEGAL BACKGROUND INTRODUCTION On July 19, 2007, at approximately 2:15 p.m., police responded to a 911 call from an unnamed citizen stating that he was coming out of a building in Astoria on Newtown Avenue and 31 Street, and that he saw a manst put a big gun in the back of a new black Mustang, license plate number EAA- 5909, which had four big bully white guys inside and was traveling with a grey 2 van. After canvassing the area, police spotted the black Mustang and grey van, which consistently followed each other for approximately 10 minutes around the block, and observed that the Mustang had four large white males inside, including defendants Argyris and DiSalvo, and license plate number EAA- 5909. When approached at an intersection by an officer on foot, the vehicles turned in opposite directions, and the police then stopped the cars and, with guns drawn, ordered the occupants to exit one at a time. The subsequent searches of the occupants and vehicles resulted in the recovery of multiple guns, ammunition, gravity knives, bolt cutters, a black jack, and bullet-proof vests. All seven defendants were arrested and indicted by a Grand Jury of Queens County. Defendant John DiSalvo, who had a gun in his waistband2 The two other defendants in the Mustang, Anthony Colarossi and Louis2 Vicidomini, who were not personally armed, were each charged with two counts of Criminal Possession of a Weapon in the Second Degree (Penal Law §265.03-1[B]; 265.03-3), Criminal Possession of a Weapon in the Fourth Degree (Penal Law §265.01-1), and Unlawful Possession of Pistol Ammunition (Administrative Code §10-131-I[3]). On November 1, 2010, Vicidomini and Anthony Colarossi entered negotiated pleas of guilty to fourth-degree possession and possession of pistol ammunition, respectively, and were each sentenced to a conditional discharge. They have not appealed. The occupants of the van, Demetrios Argyris, Christopher Colarossi, and Robert Tarani were each charged with two counts of Criminal Possession of a Weapon in the Second Degree (Penal Law §265.03-1[B]; 265.03-3), Criminal Possession of a Weapon in the Fourth Degree (Penal Law §265.01-1), and Possession of Burglar’s Tools (Penal Law §140.35). Additionally, Christopher Colarossi was also charged with one count of Criminal Possession of a Weapon in the 3 in addition to the other weapons and ammunition in the Mustang, was charged with four counts of Criminal Possession of a Weapon in the Second Degree (Penal Law §265.03-1[B]; 265.03-3), three counts of Criminal Possession of a Weapon in the Third Degree (Penal Law §265.02-1; 265.02-3), and Unlawful Possession of Pistol Ammunition (Administrative Code §10-131-I[3]). Costandino Argyris, who was wearing a bullet-proof vest and had a blackjack in his pocket, was charged with two counts of Criminal Possession of a Weapon in the Second Degree (Penal Law §265.03-1[B]; 265.03-3), Criminal Possession of a Weapon in the Fourth Degree (Penal Law §265.01) and Unlawful Possession of Pistol Ammunition (Administrative Code §10-131- I[3]). In their omnibus motions, defendants Argyris and DiSalvo challenged the propriety of the police stop of the Mustang and the admissibility of the physical evidence recovered pursuant to that stop. A Mapp-Dunaway3 hearing was held before the Honorable Kenneth Holder, Justice of the Supreme Third Degree (Penal Law §265.02-1). Their suppression motions were granted (see June 18, 2010 Suppression Decision at 12-13, A-17 - A-18), the People did not appeal from that portion of the decision, and their cases were dismissed pursuant to C.P.L. §160.50 on November 30, 2010. Mapp v. Ohio, 367 U.S. 643 (1961); Dunaway v. New York, 442 U.S.200 (1979)3 4 Court, Queens County. Defendants subsequently pled guilty to the indictment and were sentenced as noted above. THE MAPP/DUNAWAY HEARING On July 19, 2007, at approximately 2:15 pm, a man called 911 from his cellular phone to report that he was in Astoria on Newtown Avenue and 31 Street, and saw a new black Mustang, with “four big bully white guys”st inside, and “saw” one of them put a “big gun in the back of the car.” He also reported that the Mustang’s license plate number was EAA-5909, that it was with a grey van, and that it had proceeded down to 28 Street and made a rightth towards Astoria Boulevard. When asked if he could provide a clothing description, the caller stated that he did not see what they were wearing, because “the guy that was putting the gun in the back of the car saw that I saw him, so I just played stupid and I went right into my car.” The 911 operator asked the caller if he wanted to leave his name and telephone number, but he declined, stating, “I just saw something and I say something, like they say.” The operator also inquired “are you gonna wait around for [the police]? No? Yes?”, which prompted the caller to ask, “Do you want me to wait around for 5 them?” The operator told him, “It’s up to you.” And the caller then stated that he would not wait (See 911 Call, Hearing Exhibit 1). 4 At the time of the 911 call, Police Officer Michael Castelli and5 his partner, Officer Feduniak, were on standard patrol in a marked police car in Queens County when they received a radio transmission alerting that a caller had seen “men with guns in a black Mustang,” with a specified license plate number, “and a grey van” either following the Mustang or being followed by it, on Newtown Avenue (Castelli: 12-14, A385-87). Castelli then saw two6 vehicles traveling on 31 Street that fit the description, and began to follow thest cars, noticing that the Mustang’s plates matched those that had been transmitted (Castelli: 14, A387). Feduniak transmitted that they had spotted the cars, and requested a backup vehicle, and they continued to follow the cars Defendants’ counsel has indicated that he has furnished this Court with an audio4 copy of the 911 call that was admitted into evidence at the hearing, which is part of the record on appeal, and is essential for this Court’s review of this case (see Defendants’ Brief at 4, n.1). Should this Court require the original exhibit, the People will gladly provide it. Names in bold designate witnesses who testified at the suppression hearing held5 on July 21, 2009, July 23, 2009, and August 14, 2009. Parenthetical citations refer to the minutes of the suppression hearing and the corresponding pages in Defendants’ Appendix to this Court. Castelli subsequently testified that the transmission stated that there were “male6 whites in the vehicle” armed with a “big gun or guns” (Castelli: 89, A462). 6 for between five to ten minutes, during which time the Mustang and the van drove around in circles, going around the block three or four times, with the van following the Mustang the entire time (Castelli: 15-17, A388-90; 85, A458; 96, A469). Meanwhile, at approximately 2:45 pm, Sergeant Louis Bauso was also on patrol in a marked police car in Astoria, New York, when he received a radio transmission alerting that a caller had seen “four males in a black vehicle with big guns,” with a “gray van following” the black car, in the vicinity of Newtown Road and 30 Street, and had identified the two vehiclesth as a black Mustang with license plate EAA-5909 and a gray work van (Bauso: 19, A286). Bauso and his partner began to canvas the area, and approximately ten minutes after the transmission, observed two police cars stopped at a red light behind a gray van and black Mustang, which matched the transmitted license plate number, at the intersection of 31 Street and 30 Avenue. Bausost th pulled his car into a bus stop in front of the vehicles stopped at the light, exited his car, stepped into the street, and approached the Mustang on foot. As the light turned green, the Mustang’s driver made eye contact with Bauso, and Bauso pointed to the right, toward the side of the road, and said, “pull over” (Bauso: 20, A287). Instead of complying, the Mustang’s driver turned his head 7 and continued driving straight on 30 Avenue, past Bauso, and then turned leftth onto 31 Street – the direction opposite from the one to which Bauso hadst pointed (Bauso: 21-22, A288-89; 98-99, A365-66). At this point, the van, which had previously been following the Mustang, turned right on 31 Street,st now going in the opposite direction from the Mustang (Bauso: 22, A289; Castelli: 18, A391). Bauso ran back to his car, got in, drove halfway up the block, and then made a U-turn to pursue the Mustang. As the Mustang turned the corner onto 31 Street, finally splittingst up from the van, Officer Kashim Valles – who had also heard the radio transmission of “males with guns” and the description of the “vehicle, plate, and white males” – and who was then on 30 Avenue near the intersection,th observed the Mustang turning the corner (Valles: 125-26, A498-99). Valles immediately turned on his lights and sirens to pull over the Mustang, and then cut in front of the Mustang, stopping his car to block its path, and radioed for backup. Valles then exited his car, with his gun drawn, and waited, as backup began to arrive within the minute (Valles: 126-27, A499-500). When Sergeant Bauso caught up to the Mustang, he saw that it had been stopped by two other police vehicles, and that Castelli’s Housing Police vehicle had turned to pursue the van (Bauso: 22, A289; Castelli: 18, 8 A391). Bauso exited his car and approached the Mustang on foot, with his gun drawn, joining the other six uniformed officers who were securing the passengers as they exited the vehicle (Bauso: 23, A290). The first person taken out of the Mustang was defendant, John DiSalvo, the front passenger (Valles: 128-29, A501-02). He exited, pursuant to Officer Valles’s order, with his hands up, and a revolver visible in his waistband (Valles: 130, A503). Valles removed the revolver, which was defaced and loaded with five rounds of hollow-point ammunition (Valles: 141, A514), and promptly handcuffed DiSalvo (Valles: 131, A504). Next, Valles ordered the driver, Anthony Collorossi, out of the car. He, too, complied and was handcuffed and patted- down (Valles: 133, A506). Next, the passengers in the back seat, defendant Costandino Argyris and Louis Vicidomini, exited the car one at a time and were patted-down. Argyris was wearing a bullet-proof vest and had a blackjack in his pocket, and Vicidomini was carrying a switchblade (Valles: 136-39, A509-12). Additionally, upon searching the car, Officer Valles recovered a loaded .380 automatic from the back of the car, under the driver’s seat, and a box of .9-millimeter ammunition, which was in plain view on the rear bench (Valles: 139-41, A512-14). 9 Meanwhile, Officers Castelli and Feduniak, who had pursued the van onto 31 Street, turned on their lights and sirens and instructed the vanst over the loudspeaker to pull over (Castelli: 18, A391). The van complied, and the officers commanded that the van’s occupants shut off the car and remain inside (Castelli: 18, A391). Officer Castelli waited until he was joined by Sergeant Bauso and his partner, who had jogged over, and then Castelli commanded the van’s occupants to show their hands and exit the vehicle (Castelli: 18-19, A391-92; Bauso: 24-26. A291-93). In compliance with the directive, the passenger side of the van opened, and Christopher Colarossi stepped out. Bauso holstered his gun, handcuffed Colarossi, and searched him for weapons, recovering a gravity knife from his front pocket and a bullet resilient vest from around his body (Bauso: 26-27, A293-94). Subsequently,7 the van’s driver, Demetris Argyris, exited the vehicle through the driver’s side door and was secured by Officer Castelli (Bauso: 30, A297; Castelli: 22, A395), and then another passenger, Robert Tarani, exited the van through the back-panel door, and was also handcuffed and patted-down (Bauso: 31, A298; Castelli: 22-23, A395-96). After the three occupants of the van had all exited, Subsequent examination of the vest at the precinct revealed a spent round in its7 rear panel, which was also vouchered (Castelli: 40-41, A413-14). 10 Bauso saw two large “joker poker” gambling machines laying on their sides in the back of the van next to some broken padlocks, which had been clipped, and a bolt cutter (Bauso: 32, A299). Bauso then approached the front passenger- side of the van, and noticing that the van was still running, stepped inside to shut the ignition and placed the key on top of the dashboard. When he stepped in, he noticed a black fanny pack on the floor of the van. He picked it up, and felt that it was very heavy and had a handle, consistent with a firearm (Bauso: 34, A301). Bauso then stepped out of the van, unzipped the fanny pack, and saw a black and silver handgun, later identified as a fully loaded 9-millimeter Luger, and some currency (Bauso: 34-35, A301-02). 8 Officer Castelli vouchered the physical evidence recovered from the van, including the van itself, which he drove to the 114 Precinct. th Although Castelli conducted an inventory search of the van at the Precinct and found no other contraband, when he drove it to the pound he hit a bump in the road, and a firearm fell out from behind the dashboard on the passenger side onto the floor (Castelli: 36-37, A409-10; 50-52, A423-25). Subsequent testing revealed that this gun was also loaded, with one live round in the chamber (Castelli: 38, A411). The fanny pack also contained a gravity knife (Castelli: 78-79, A451-52).8 11 Supreme Court’s Initial Decision on the Motion to Suppress At the conclusion of the hearing, defendants Argyris and DiSalvo moved to suppress all of the evidence recovered from the Mustang and their persons on the grounds that the anonymous 911 call was allegedly insufficient to furnish the requisite reasonable suspicion to justify the stop of the vehicle. The People argued that, under the totality of the circumstances, the information available to the police – including the 911 call, as corroborated by their own observations of the Mustang and van in close spatial and temporal proximity to the location provided by the caller – was sufficient to furnish reasonable suspicion. In a decision dated February 22, 2010, the hearing court granted defendants’ suppression motion under constraint of Florida v. J.L., 529 U.S. 266 (2000). Specifically, the court reasoned, the anonymous tip, in the9 absence of predictive information or independent corroboration of criminality, could not contribute to a finding of reasonable suspicion (A100-01). The court was, however, deeply troubled by the result, as, in its assessment, the police officers acted completely reasonably in the situation that unfolded before them, The suppression court’s original decision, which has since been vacated in9 accordance with the court’s June 18, 2010 decision, is reproduced in Defendants’ Appendix at A94-104. 12 and, in fact, it was “difficult to imagine any officer” acting differently under the circumstances (A104). The court concluded, “this case sheds a bright light on what appears to be a disconnect between the law and the reality of actions that police officers are expected to, and will, undertake under similar circumstances” (A104). The People’s Motion to Reargue and the Decision Upon Reargument On March 19, 2010, the People moved for reargument and reconsideration on the grounds that the suppression court had misapplied or misapprehended the applicable law, and it was this misapplication that caused the “disconnect” that had troubled the court. The People explained that pursuant to Florida v. J.L., upon which defendant and the court had relied, the anonymous tip in this case could furnish reasonable suspicion because, in this case – unlike in J.L. – the caller had clearly stated that he actually saw the gun, thus providing a reliable basis of knowledge (A143-44). Additionally, the People noted that the reliability of the call in this case, unlike in J.L., was also supported by the fact that the 911 call had been recorded and was admitted into evidence at the hearing; and, although the caller was “anonymous” for purposes of the legal analysis, the caller’s identity had subsequently been 13 ascertained because he called from his personal cell phone, which had an unblocked number (A131 n.4). In support of the argument that predictive information or independent corroboration of criminality was only required where, as in J.L., the anonymous caller’s basis of knowledge could not be ascertained as personal observation, the People applied New York’s traditional Aguilar- Spinelli test, which is by far the most rigorous test ever conceived by any10 court, and has been applied by New York courts for half-a-century to determine whether hearsay accounts of criminality imparted to the police by anonymous sources could be relied upon to furnish probable cause. The People argued that since the anonymous call in this case passed muster under the far-tougher Aguilar-Spinelli test, and thus could be relied upon to furnish the higher standard of probable cause, then, a fortiori, it could also furnish reasonable suspicion (A130-35, 141). Accordingly, the People argued that the police stop of the vehicles was proper and defendants’ suppression motion should have been denied. Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 41010 (1969). 14 On June 18, 2010, the court granted the People’s motion for reargument and reconsideration and, upon reargument, denied suppression as to the four defendants in the Mustang, including John DiSalvo and Costandino Argyris. In a lengthy and well-reasoned decision, the court analyzed the facts11 of all of the cases relied upon by the defense, including Florida v. J.L. and this Court’s decisions applying it, and concluded that none of those cases involved a situation like this one -- where the caller’s basis of knowledge was clearly established as “personal observation” -- and this deficiency in basis of knowledge was precisely why those cases required “predictive information” or “corroboration of criminality” as a substitute (A189-191, 194). The court thus reasoned that, “under the case law, the caller’s statement [in this case] that he saw what he was reporting sufficiently establishes that his allegation of criminality was based upon his own personal knowledge and, therefore, meets the test of reliability articulated in J.L., even without providing predictive information, as well as the more strict Aguilar/Spinelli test” (A191-92, emphasis added), which the court recognized applied to determinations of the higher standard of probable cause (A187, 188). Further, the court reasoned The suppression court’s decision is reproduced in Defendants’ Appendix at11 A184 - A196. 15 that from a policy standpoint, it would be illogical and unwise to interpret J.L. as requiring predictive information or police observation of criminality in every case “involving an anonymous source of information, no matter how strong the indicia of reliability of the informant and his basis of knowledge,” as this would not only have the absurd result of making it more difficult to acquire reasonable suspicion than it would be to acquire the higher standard of probable cause under the more rigorous Aguilar Spinelli test, but it would also “severely curtail [police] ability to respond effectively to emergency situations” reported by citizen 911 callers who “see something and say something,” and who will almost never have the predictive information that only an informant or co-conspirator in the criminal enterprise would be expected to have (A-193-94). 12 Defendants subsequently moved for reargument, but their motions for reargument were denied on September 27, 2010.13 The court, however, adhered to its decision suppressing the evidence recovered12 from the three defendants who were in the grey van, reasoning that – unlike the Mustang, in which the caller had actually seen a man place a big gun in the car – there was no observation or information suggesting that the van or its occupants were engaged in any criminal activity (A195). In the Table of Contents of their Appendix, Defendants erroneously designate13 the suppression court’s June 18, 2010 and September 27, 2010 orders as the “Orders Appealed from” (See Appendix, TOC). Actually, defendants now appeal from the (continued...) 16 Defendants’ Appeal to the Appellate Division After pleading guilty to the indictments, defendants appealed to the Appellate Division, Second Department, claiming, as they did before the suppression court, that the anonymous 911 call did not furnish reasonable suspicion for the ensuing stop of the Mustang, and, thus, that all physical evidence recovered following the stop should have been suppressed. More specifically, defendants argued that Florida v. J.L. was controlling; that the Aguillar-Spinelli test was inapplicable; and that, in any event, Aguillar-Spinelli requires an anonymous tip to contain “predictive information” even when the caller’s basis of knowledge was personal observation. The People filed an opposing brief, arguing that Florida v. J.L., and state court cases applying it, do not require suppression of evidence seized when police act on a citizen’s 911 call which is recorded, admitted into evidence at the suppression hearing, and clearly reports the caller’s basis of knowledge as personal observation. More specifically, the People argued that (...continued)13 Appellate Division’s decision; and previously, in the Appellate Division, they appealed from the Judgment of Conviction, as there is no appeal from a suppression court’s decision denying suppression. Moreover, because the suppression court denied reargument, rather than granting reargument and adhering to its decision, none of the issues presented in defendants’ motions for reargument are preserved for appellate review. 17 in this case, where the information imparted by the 911 caller clearly satisfied both prongs of the far-more rigorous Aguillar-Spinelli test, which New York has applied for nearly half-a-century to evaluate whether an anonymous tip or other hearsay report is sufficiently reliable to furnish probable cause for a seizure, it would be nonsensical to nonetheless conclude that the lesser standard of reasonable suspicion could not be satisfied under a less rigorous test. With respect to the test, the People argued that, unlike in J.L. or any other case cited by defendants, the 911 call in this case satisfied the basis of knowledge prong by clearly stating that the caller “saw” a big gun being put into the Mustang, thus ensuring the reliability of the information. The 911 call also satisfied the veracity prong by reporting specific details not necessarily indicative of criminality -- including the Mustang’s license plate, description, location, and route -- which were corroborated by police when they arrived on the scene, thus demonstrating the reliability of the caller. In unanimous decisions dated October 10, 2012, the Appellate Division, Second Department, affirmed defendants’ judgments of conviction, holding – as did the suppression court before it – that the testimony at the suppression hearing established that the police had reasonable suspicion to justify the forcible stop of defendants’ vehicle. See People v. Argyris, 99 18 A.D.3d 808 (2d Dept. 2012) (A620-22); People v. DiSalvo, 99 A.D.3d 811 (2d Dept. 2012) (A623-24). In reaching this conclusion, the Appellate Division found it unnecessary to determine whether the 911 call satisfied both prongs of the Aguilar-Spinelli test, correctly noting that this rigorous test “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.” People v. Argyris, 99 A.D.3d at 810; A621 (internal quotations omitted). Instead, the court reasoned that under the circumstances, where the officers had a description of the Mustang and its license plate, and observed the Mustang in close geographical and temporal proximity to the scene, “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.” Id. at 810; A621-22, quoting People v. Moss, 89 A.D.3d 1526, 1527 (4 Dept. 2011); People v. Jeffery, 2 A.D.3d 1271, 1272th (4 Dept. 2003). Additionally, the court held that the actions of the police inth drawing their weapons and ordering defendants out of the Mustang were justified under the circumstances to ensure the officers’ safety. People v. Argyris, 99 A.D.3d at 810, A622. 19 On December 21, 2012, defendants moved for reargument, claiming that the Appellate Division misapprehended and misapplied Florida v. J.L., and that the Court violated CPL §470.15(1) and People v. LaFontaine, 92 N.Y.2d 470 (1998), by allegedly “rejecting ... the Aguilar/Spinelli test” and applying “a general ‘totality of the circumstances’ analysis, which had not been decided adversely to defendants by the hearing court, in order to find that reasonable suspicion was made out” (Defendants’ Motion at A583, A587). The People opposed defendants’ motion, arguing that the court did not exceed its jurisdiction under CPL §470.15(1), as it did not affirm the suppression court’s decision on a ground rejected, or not passed upon, by the lower court; but, rather, evaluated the exact same facts, issues, and arguments to conclude, as did the lower court before it, that the collective circumstances before the police – including the anonymous 911 call – were adequate to furnish reasonable suspicion for the stop. The People also argued that the Appellate Division did not “reject” the Aguilar Spinelli test, but merely found that it was unnecessary to satisfy this more rigorous test where the determination of the lesser standard of reasonable suspicion was at issue. And, finally, the People argued that this Court did not misapprehend the significance of Florida v. J.L. and its progeny, as those cases do not prohibit a finding of reasonable 20 suspicion where the information furnished by an unnamed citizen in a 911 call clearly states that the caller personally observed the reported criminality, as well as furnishes a specific and detailed description of the suspects. That the Appellate Division agreed with the People on this point, and, thus, did not cite these inapposite cases, does not demonstrate that it misapprehended the law. Nor did it permit defendant to reargue the same question previously decided. In decisions dated April 25, 2013, the Appellate Division denied defendants’ motions for reargument. 21 POINT ONE THE COURTS BELOW PROPERLY DETERMINED THAT AN ANONYMOUS CITIZEN’S 911 CALL, BASED ON HIS PERSONAL OBSERVATION OF A GUN AND PARTICULARIZED DESCRIPTION OF THE VEHICLE IN WHICH IT WAS PLACED, COULD BE RELIED UPON TO FURNISH POLICE WITH REASONABLE SUSPICION TO STOP THE CAR; AND NEITHER FLORIDA V. J.L., NOR ANY OTHER CASE, REQUIRES A DIFFERENT RESULT BASED ON THE FACTS OF THIS CASE (Answering Defendants’ Brief, Point I and II). In this case, both the Appellate Division, and the suppression court before it, properly concluded that police officers had reasonable suspicion to stop defendants’ car based on a 911 call which specified that the caller was on the street at a specified location and had personally seen one of four big bully white guys place a big gun in the back seat of a new black Mustang, with a specified license number, which was with, and being followed by, a grey van. For while the caller chose to remain anonymous, the call was reliable both in its assertion of criminality and its identification of a particular subject; and that is all that Florida v. J.L. and all of this Court’s precedent has ever required. 22 Nevertheless, defendant argues, as he did below, that pursuant to Florida v. J.L. and its progeny, the 911 call could not furnish reasonable suspicion absent predictive information or police observation of other evidence corroborating criminality. But defendants’ analysis is wrong, for as repeatedly explained by both state and federal courts, such level of corroboration is only required when the anonymous tip – like that at issue in J.L. and all of the state cases applying it – either fails to specify the tipster’s basis of knowledge or is based on information the tipster overheard rather than personally observed. Indeed, though there is little case law applying J.L.’s principles to reasonable- suspicion cases, like this one, where the caller clearly reveals that his basis of knowledge is personal observation, the tip in this case clearly satisfies both prongs of this Court’s far more rigorous Aguilar-Spinelli test, which has for half-a-century controlled the related question of whether an anonymous tip can be relied upon to furnish the higher standard of probable cause. And it would be an absurd rule indeed to deem an anonymous tip sufficiently reliable to furnish probable cause under Aguilar-Spinelli, yet insufficient to furnish reasonable suspicion. Therefore, based on both law and logic, the courts below correctly rejected defendants’ interpretation of the law in this area, properly 23 denied defendants’ suppression motions, and affirmed their judgments of conviction. This Court should do the same. A. The Anonymous 911 Call in this Case Was Sufficiently Reliable to Furnish Reasonable Suspicion for the Stop Under the Standard Enunciated in Florida v. J.L. While it is well settled under New York law that information from an anonymous source can furnish reasonable suspicion for a stop, or even probable cause for an arrest, such information is, nonetheless, viewed as inherently suspect. See, e.g., People v. LaPena, 40 N.Y.2d 210, 224 (1976) (companion case with People v. DeBour, 40 N.Y.2d 210 [1976]). Thus, both the Supreme Court and this Court have held that in order to be capable of furnishing reasonable suspicion for a stop, an anonymous tip must be “reliable [both] in its assertion of illegality” and “in its tendency to identify a determinate person.” Florida v. J.L., 529 U.S. at 272, quoted in People v. Moore, 6 N.Y.3d 496, 499 (2006); People v. William II, 98 N.Y.2d 93, 99 (2002) (companion case with People v. Rodriguez, 98 N.Y.2d 93 [2002]). In J.L., as in Moore and William II, the anonymous tip, which furnished a description of the suspect and his location, was deemed sufficiently reliable to “identify a determinate person;” however, in each of those cases, the tip, which merely stated that the suspect “had a gun” was not deemed reliable 24 “in its assertion of illegality,” because it “neither explained how [the tipster] knew about the gun nor supplied any basis for believing he had inside information.” Florida v. J.L., 529 U.S. at 270; see also People v. Moore, 6 N.Y.3d at 496 (no indication how caller knew that suspect was armed); People v. William II, 98 N.Y.2d at 93 (same). The Court in J.L. thus distinguished the tip before it from that it in Alabama v. White, where notwithstanding a lack of any indication of the informant’s “basis of knowledge or veracity”, the tip contained predictive information which imbued it with “sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.” Florida v. J.L., 529 U.S. at 270, quoting Alabama v. White, 496 U.S. 325, 329, 327 (1990). The court reasoned that in the absence of “predictive information” or any “other” such “indicia of reliability” to compensate for the lack of a stated basis of knowledge in J.L., the tip could not be relied upon in “its assertion of illegality”, and, thus, could not furnish reasonable suspicion. See Florida v. J.L., 529 U.S. at 270; and concurring opinion at 275; see also People v. Moore, 6 N.Y.3d at 496; People v. William II, 98 N.Y.2d at 93. Here, even more clearly than in J.L., Moore, and William II, it is beyond cavil that the information imparted by the 911 caller was “reliable in its ... tendency to identify a determinate person”, or, in this case, a particular 25 car, so as to eliminate any possibility that the police might stop the wrong vehicle. In addition to providing the make, model, color, and license plate number of the Mustang, the caller also provided the Mustang’s location and accurately described it as traveling with a grey van. And the caller also correctly described the occupants of the car as “four big, bully white guys”, which also matched the appearance of the car’s occupants. 14 But here, in sharp contrast to J.L., Moore, William II, and Rodriguez – and, indeed, most other anonymous tip cases – the 911 caller in this case did clearly specify his basis of knowledge and explain how he knew Defendants’ undeveloped insinuation that there was some deficiency in the14 particularity of the description because the caller “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” (Defendants’ Brief at 22), is patently meritless. The caller did describe the men as “four big, bully white guys” traveling together in a black Mustang, with a particular license plate number, in a particular location, together with a grey van. This is far more specific than the description of the “black man with the plaid shirt” in J.L. And, though the caller had no means of knowing the defendants’ names, as he did not know them, but was merely a private citizen who “saw something and sa[id] something,” like the signs say; and although he did not notice their clothing, as his attention was focused on the “big gun” and the fact that the man wielding it “saw that I saw him,” there was no possibility whatsoever that, given the description in this case, the police might have stopped the wrong suspects. Additionally, it is completely irrelevant in this case that the caller did not particularize which of the four men had put the big gun in the back of the car, for, under New York law, all four of the men could be charged with possession of the gun. See P.L. §265.15 (the presence in an automobile of any firearm is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon is found). 26 that there was a gun in the Mustang – he “SAW” a big, bully white guy put a big gun in the back of that car (see 911 call; transcription in Defendants’ Brief at 5) (emphasis added). Thus, in this case, unlike in all of those cases now relied upon by defendant, the information imparted by the caller was “reliable in its assertion of illegality, not just in its tendency to identify [] determinate person[s].” See Florida v. J.L., 529 U.S. at 272, quoted in People v. Moore,15 In this regard, to the extent that defendant contends in Point II of his brief, that15 even a reliable report of a person carrying a gun on a public street cannot furnish reasonable suspicion for a stop in the absence of some indication that “there was a crime committed by the [person], such as, perhaps a dispute, shots fired, or a robbery in progress” (Defendants’ Brief at 36), this contention is completely meritless. As a threshold matter, this claim, which, as defendant acknowledges, was only presented by defendant in his motion to reargue the suppression decision (see Defendants’ Brief at 29, n.5), is unpreserved for this Court’s review, as reargument was denied, and the court never reached the merits of the claim. See, e.g., People v. Bartley, 298 A.D.2d 160 (1 Dept. 2002). But, in any event, the contention is simply untrue. While it isst beyond cavil that a forcible stop requires a reasonable suspicion that an individual is involved in a felony or misdemeanor (see People v. DeBour, 40 N.Y.2d at 223; People v. Hollman, 79 N.Y.2d 181, 184-85 [1992]), in New York, possession of a gun outside the home is, itself, a felony. See P.L. §265.03; see also P.L. §265.15(4) (the possession by any person of any weapon is presumptive evidence of intent to use the same unlawfully against another). And, thus, the observation of a man holding a gun on a public street – even standing alone – is not an ambiguous fact, equally susceptible to innocent explanation; it is, by itself, sufficient to furnish not only a reasonable suspicion for a forcible, gunpoint stop, but also probable cause for an arrest. See, e.g., People v. Leung, 68 N.Y.2d 734 (1986); People v. DeBour, 40 N.Y.2d at 223. Indeed, when defendant DiSalvo exited the vehicle, a gun was clearly visible in his waistband, and there were still three other men in the car with possible access to the gun that the caller had reported in the back seat. Thus, under these circumstances, the police were not only justified in initially drawing their guns, but also in keeping them drawn until all of the passengers in the Mustang had safely exited the car. People v. Brnja, 50 N.Y.2d 366 (1980); People v. Bedoya, 190 A.D.2d 812, 813 (2d Dept. 1993) (actions of police in drawing their guns after approaching (continued...) 27 6 N.Y.3d at 499; People v. William II, 98 N.Y.2d at 99. And, accordingly, no substitute for basis of knowledge – be it predictive information or anything else – was required. Indeed, while there are very few reported cases where an anonymous call reveals the caller’s basis of knowledge as personal observation – a fact explicitly recognized by the Supreme Court in J.L. (see Florida v. J.L., 529 U.S. at 270, quoting Alabama v. White, 496 U.S. at 329: “an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity”) – there are a couple that have cropped up in J.L.’s wake aside from this one. And, notably, in each of them, the Appellate Division firmly rejected any requirement of predictive information or independent police observation of criminality, finding that these substitutes were unnecessary where the caller’s report was “based on the contemporaneous observation of conduct that was not concealed.” See People v. Moss, 89 A.D.3d 1526, 1527 (4 Dept. 2011);th People v. Jeffery, 2 A.D.3d 1271, 1272 (4 Dept. 2003). th 16 (...continued)15 defendants’ vehicle were justified under the circumstances as appropriate measures to ensure their safety); People v. Finlayson, 76 A.D.2d 670 (2d Dept. 1980) (scope and intensity of police conduct remained reasonably related to the circumstances surrounding the encounter). Conversely, defendant does not cite to a single case that has held that reasonable16 suspicion cannot be established based on an anonymous caller’s account of personally (continued...) 28 And while defendant now contends that Moss and Jeffery “attempted to create an exception to J.L.’s ‘predictive information’ rule, [and] should be quickly disregarded as a matter of law” (Defendants’ Brief at 22-23, n.4), his argument is fundamentally wrong; for these cases are not an exception to J.L. – they are an embodiment of it, in perfect harmony with its central holding: that the tip in that case could not be deemed reliable “in its assertion of illegality,” because it “neither explained how [the tipster] knew about the gun nor supplied any basis for believing he had inside information.” Florida (...continued)16 and contemporaneously seeing a man holding a gun on a public street; and indeed, it appears that no such case exists. In this regard, defendants’ post-briefing letter to this Court requesting that this Court take note of the Second Circuit’s “extremely significant, persuasive decision” in United States v. Freeman, 735 F.3d 92 (2d Cir. 2013), only underscores the point (see Defendants’ December 26, 2013 letter). In Freeman, police responded to two anonymous 911 calls from the same caller reporting that a “Hispanic male, wearing a black hat and a white t-shirt had a gun, near the Chase Bank on East Gun Hill Road in the Bronx” (735 F.3d at 94). The court highlighted that a police officer “repeatedly asked the dispatcher to verify whether the 911 caller ‘actually saw a firearm’ [and] [e]ach time, the dispatcher was unable to confirm if that was the case.” Id. Thus, on these facts – where the caller never specified that she saw a gun – the Second Circuit concluded that the anonymous tip was reliable in identifying a determinate person; for clearly the caller saw the man she described. But it was not reliable in its assertion of illegality, because, just as in J.L., there was no indication of how she knew that the man had a gun – nothing to suggest that she personally saw it, rather than speculating or hearing a rumor from some third party; nor was there any predictive information that might cure the deficiency by suggesting that she had inside knowledge of the criminality. Thus, just as in J.L., and for precisely the same reason, the court found that the call could not furnish reasonable suspicion for the stop. The case is indeed instructive, for it highlights the significance of whether the caller specifies that he “actually saw a firearm” – the precise factor that is dispositive of the case at bar. 29 v. J.L., 529 U.S. at 270. According to J.L., either one will do; both are not required. And that is precisely what the Appellate Division held in Moss, in Jeffery, and in this case. In the rare case where the anonymous tipster does explain how he knows about the gun – and that knowledge is based on contemporaneous personal observation, not on unreliable hearsay or speculation – then J.L.’s requirement that the tip be reliable “in its assertion of illegality” is necessarily satisfied. No predictive information is necessary. Ironically, while Moss, Jeffery, and the decisions of the courts below in this case are in perfect harmony with the Supreme Court’s decision in J.L, defendants’ argument is wholly inconsistent with J.L.’s express language – which highlighted no less than three times that the tip there was not based on personal observation, and that this was crucial to the Court’s decision. See Florida v. J.L., 529 U.S. at 270, 271, 272 (reasoning that “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity”; that “all the police had to go on . . . was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L.”; and that an accurate description of a subject, like that given in J.L., while reliable as to identity, is insufficient for the very reason that it “does not show 30 that the tipster has knowledge of concealed criminal activity”). Thus, while defendants hyperbolically claim that the Appellate Division effectively “overrul[ed] Florida v. J.L. ... by judicial fiat” (Defendants’ Brief at 18), and “laid waste to these governing constitutional principles when it completely disregarded the requisite ‘predictive information’ component of Florida v. J.L.” (Defendants’ Brief at 21-22), it is telling that defendants have offered no argument whatsoever to explain the significance of this language in J.L. – although it is clearly central to the holding in the central case upon which they rely. Indeed, J.L.’s either/or requirement – of a basis of knowledge based on personal observation or predictions based on inside information -- is not just a product of the decision’s syntax, it is a logical necessity. For predictive information is not even possible in the case of an anonymous-citizen 911 caller who, like the caller in this case, simply “sees something and says something,” as such a caller would never be privy to the criminals’ plans or know what the criminals are going to do next. Thus by reading J.L. as requiring predictive information in every case, defendant creates an impossible and illogical standard that would absolutely prohibit police from relying on an unnamed, law-abiding citizen’s 911 call, while, at the same time, permitting 31 police to rely on an anonymous call from a participant in the criminal enterprise, with inside knowledge of the crime, whose motives in implicating another and general credibility are far more suspect. This standard makes no sense whatsoever. It is not the law articulated by the Supreme Court in J.L., and it should not be permitted by this Court to become the law of New York State. Similarly meritless is defendants’ related argument, that a requirement of “predictive information” is required in every anonymous tip case so as 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” (Defendants’ Brief at 18). First, there is no basis to assume, as defendants do, that citizens who simply “see something and say something” – as thousands of posters in NYC beseech them to do – have some hidden motive to call 911 and report criminality where none exists. But, while an anonymous citizen has nothing to gain by reporting a stranger, there is ample reason to suspect that an anonymous informant, who might obtain a benefit for giving information, be paid, or have an axe to grind with the people he knows and reports, would have reason to furnish a false report based on some predictive information to which 32 he would uniquely have access. In other words, while there may be some risk that a “malevolent tipster” can call in a false report against a person he does not know, whom he happens to see on the street, there is a far greater risk that a “malevolent tipster” would call in a false report against a person that he does know, and whose future conduct he can predict. Again, a rule that would bar police from investigating tips in the former category – that are far more likely to be reliable – but permit them to act on tips in the latter category, simply does not make sense. Moreover, it must be noted that unlike in J.L., where the court noted that the call was not recorded or noted in any manner – calling into question not only its reliability and content, but even its very existence – in this case the 911 call at issue was recorded, admitted into evidence at the hearing, and is available to the Court to hear. On this record, the credibility of this particular caller can be – and should be – independently assessed by the Court on the basis not only of the information imparted and how it was obtained, but also on other traditional factors relevant to credibility, like the caller’s tone, demeanor, responsiveness, and level of cooperation – all of which strongly 33 support the lower courts’ findings of reliability. Indeed, for this reason, the17 availability of a tape- recorded call for a court to review was specifically mentioned by the concurring opinion in J.L. as a factor that would, potentially, change the result of the case. Florida v. J.L., 529 U.S. at 275 (concurring opinion) (reasoning that an informant would not be deemed truly anonymous, ie., able to “lie with impunity,” in a case where his tip comes by telephone but “some notation or other documentation of the call was made ... by a voice recording”); see also People v. Dolly, 40 Cal. 4th 458, 468 (Cal. 2007) (distinguishing J.L. on the grounds that reliability in Dolly was enhanced by the existence of a 911 recording that permitted the reviewing Court to independently hear and assess the caller’s veracity). In fact, the caller’s very anonymity – caused by his failure to leave his name and17 wait for the police – is clearly revealed on the tape to be, in part, a product of his fear that the man with the gun saw him, but, in greater part, a result of the 911 operator’s statements. For instance, instead of just asking for his name, the 911 operator asked the man, “[do] you want to leave your name and telephone number?” The man’s answer, “no, I don’t really want to, I just saw something and I say something like they say,” was not a direct refusal, and might have been more related to a reluctance to leave his cell phone number than his name. More saliently, when the operator impatiently asked the caller whether he was “going to wait around for [the police],” the caller did not refuse, but asked, “Well, uh, do you want me to wait around for them?” Clearly, if the 911 operator had told him it would be important to do so, he would have. Instead, she said, “It’s up to you,” to which the caller mused, without any understanding of the possible ramifications of his choice on the police officer’s ability to act on his report, “I don’t really have to...” (See 911 call). In this context, where the 911 operator effectively prodded a cooperative and reliable citizen-caller to remain anonymous, it is truly anomalous to then deem his information unreliable as a result. 34 In short, while the requirement of predictive information articulated by J.L. makes sense for anonymous “informants,” who do not see criminal activity, but claim to nonetheless know about it, and who likely have their own motives for falsely implicating someone, it is not a standard that applies – or makes sense – for a citizen who has no inside knowledge but personally observes a stranger committing a crime or carrying a deadly weapon. Indeed, it makes no sense at all to adopt the per se, automatic, blanket rule urged by defendants, under which there would be no difference whatsoever between the tip in J.L., which the high court intimated might not even have existed, and that here, which was recorded, was based on personal observation, was demonstrably reliable, and can be independently assessed by the Court. B. As the Anonymous Tip in this Case Passes Muster Under New York’s Far More Rigorous Aguilar-Spinelli Test, it is a Fortiori Reliable for Purposes of Furnishing Reasonable Suspicion As the Appellate Division correctly noted, “the Aguilar-Spinelli test, as framed in People v. Elwell, [50 N.Y.2d 231 (1980)] ... 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.” (People v. Argyris, A621, internal quotations omitted). Nevertheless, an understanding 35 and application of that well-defined, and far more rigorous test, is instructive here; for as this Court has noted in a slightly different context, “[a]lthough we are considering a less stringent degree of belief, i.e., reasonable suspicion, [instead of probable cause] a parity of reasoning compels similar analysis....” People v. LaPena, 40 N.Y.2d at 224 (analyzing whether an anonymous call, for which the People were “unable to provide elucidation as to the caller or the caller’s basis of knowledge”, was sufficient to provide reasonable suspicion for a stop under DeBour). Because the tip in this case clearly satisfies both prongs of the Aguilar-Spinelli test, and, thus, would be sufficiently reliable to be factored into a probable cause determination, it is a fortiori sufficiently reliable to furnish reasonable suspicion. It is well settled that, unlike information derived from an officer’s personal observations, or from a known and named witness, information from an anonymous source is inherently suspect, and must satisfy both prongs of the Aguilar-Spinelli test to be deemed sufficient to furnish probable cause for a search or arrest. See People v. Arthurs, 24 N.Y.2d 688 (1969); People v. Montague, 180 A.D.2d 601 (1 Dept. 1992); People v. Sanchez, 151 Misc.2dst 431 (Sup. Ct. Kings Co. 1991). 36 Under the first prong, which is also known as the “veracity” prong, the People must establish that the informant is reliable – i.e. that he is trustworthy and speaks the truth. Under the second prong, known as the18 “basis of knowledge” prong, the People must show that the informant has some basis for the knowledge he transmits; i.e., that the information is reliable. Notwithstanding the confusion engendered by the use of the term “reliable” in each prong of the test, and the tendency of courts to frequently fail to delineate When a citizen-informant is identified or provides face-to-face information to18 police, the citizen’s veracity is presumed, and the People need not satisfy this prong of the test because the citizen would be subject to prosecution for making a false report. Here, as the record shows, the citizen-informant is not, in fact, truly anonymous, as his call was recorded and was heard by the suppression court and he was identified from his cell phone number, which was automatically traced by the 911 system and was noted on the SPRINT report. Nevertheless, although the People spoke to the caller, who was cooperative with the prosecution, the People chose not to disclose the caller’s identity, and proceeded at the suppression hearing, and again on this appeal, under the legal analysis required for an anonymous caller. Although not necessary to the analysis in this case, it should be noted that, under such circumstances, many courts have held that J.L. does not apply at all. See, e.g., Florida v. J.L., 529 U.S. at 275 (concurring opinion) (reasoning that an informant would not be deemed truly anonymous, ie., able to “lie with impunity,” in a case where his tip comes by telephone but “some notation or other documentation of the call was made either by a voice recording or tracing the call to a telephone number”); United States v. Andrade, 551 F.3d 103, 110 (1st Cir. Mass. 2008) (finding that caller was not anonymous under such circumstances); United States v. Ruidiaz, 529 F.3d 25, 31 (1st Cir. Mass. 2008) (same); People v. Dolly, 40 Cal. 4th 458, 468 (Cal. 2007) (distinguishing J.L. on the grounds that reliability in Dolly was enhanced by the existence of a 911 recording that permitted the reviewing Court to independently hear and assess the caller’s veracity). See also United States v. Freeman, 735 F.3d 92 (2d Cir. 2013), dissenting opinion of Wesley, J. (reasoning that anonymous call should be deemed reliable under such circumstances, and beseeching Supreme Court to revisit this issue, left open in J.L.). 37 which facts pertain to which prong in their decisions, it is well settled that each prong of the test is analytically independent and must be evaluated separately. People v. DiFalco, 80 N.Y.2d 693 (1993); People v. Voner, 74 A.D.3d 1371 (2d Dept. 2010); People v. Maldonado, 55 A.D.3d 626 (2d Dept. 2008). Under the first prong of the test, an anonymous informant’s “reliability” or “veracity” can be established in two different ways. For a paid or confidential informant known to the police, this prong is typically satisfied by showing that the informant has previously given reliable information or is acting against his penal interest. Alternatively, for an anonymous citizen, who “sees something and says something,” and who would never have a track record with the police, this prong can be satisfied by showing that prior to the stop the police confirmed some details of the informant’s account – such as physical descriptions of people or vehicles, location, routes, or mannerisms. And, significantly, these details need not be suggestive of criminal activity. See People v. DiFalco, 80 N.Y.2d at 693 (“Veracity may, in a proper case, be established through corroboration where the police have verified only noncriminal details of activity referred to in the informant’s statement. The reliability of the information provided, as distinguished from the basis of knowledge, could be corroborated by details concerning dress, mannerisms, 38 route or conveyance to be used by the subject of the information, which in themselves are wholly unsuggestive of crime”); People v. Elwell, 50 N.Y.2d at 231 (“Reliability of the informant as distinct from his information can be established either by the arresting, or warrant-seeking, officer attesting to past instances of reliability or by the personal observation by the police of sufficient details corroborative of the informant’s data to indicate that he knew whereof he spoke. Reliability of the informant, therefore, can be corroborated by details concerning dress, mannerisms, route or conveyance to be used by the subject of the information, which in themselves are wholly unsuggestive of crime”) (emphasis added); see also People v. Glover, 23 A.D.3d 688 (3d Dept. 2005); People v. Hollins; 221 A.D.2d 863 (3d Dept. 1995); People v. Cruz, 191 A.D.2d 507 (2d Dept. 1993); People v. Colon, 186 A.D.2d 443 (1 Dept.st 1992); People v. Nunez, 186 A.D.2d 764 (2d Dept. 1992); People v. Daniels, 172 A.D.2d 766 (2d Dept. 1991). 19 In this regard, defendants’ statement that the “Aguilar/Spinelli standard is19 normally relevant in determining whether a confidential informant, known to the police, can provide probable cause ... to support the issuance of a search warrant” (Defendants’ Brief at 24) is very misleading; for, irrespective of the cases where it is most frequently applied, the test is designed to evaluate whether hearsay information imparted to a police officer can furnish probable cause -- for either a search or an arrest -- either pursuant to a warrant or without one. Defendants’ follow-up argument that the veracity-prong of the test cannot be satisfied unless the People can show that the tipster had a prior “track record” or was providing information contrary to his (continued...) 39 Here, and based on the suppression court’s findings of fact, this first prong of the test was satisfied by the officers’ observations of numerous details corroborating the anonymous caller’s account, such as the presence of both a black Mustang and a grey van at or near the location specified by the caller; the odd travel pattern of the car and van, which were still together and following each other repeatedly around the block even more than 20 minutes after the 911 call; the license plate number of the Mustang matching that provided by the caller; and the presence of four large white men in the Mustang, as described by the caller. Therefore, even though these corroborative details were not indicative of criminality, the first, or “veracity”, prong of the Aguilar-Spinelli test, was still amply satisfied, as no indicia of criminality is required under this part of the test. (...continued)19 penal interest is simply absurd (see Defendants’ Brief at 25). Not only is such argument directly refuted by the case law cited above, but, as the suppression court aptly noted, this argument makes no sense, as it would make it impossible for a law- abiding, anonymous, private citizen, with no motive to fabricate, who simply follows the instruction of the signs around the city and “sees something and says something,” to ever provide police with information deemed “reliable” enough for police to investigate, because such citizens will never have a track record, and are not involved in the criminality. Conversely, according to the defense, the same information provided by inherently unreliable paid or confidential informants – who usually have criminal records, and invariably have ulterior motives – could be reliable enough to prompt police investigation (see June 18, 2010 Suppression Decision at 10, A193). 40 Under the second prong of the applicable test, the “basis of knowledge prong,” courts must assess one of two factors. Initially, if the court concludes that the informant spoke from personal knowledge or observation of criminality, this prong will be automatically satisfied. People v. Torres, 155 A.D.2d 231 (1 Dept. 1989); Cf. People v. Jackson, 235 A.D.2d 923 (3d Dept.st 1997) (finding information supplied by informant insufficient because there was no indication that it was based on personal observation); People v. Kennedy, 282 A.D.2d 759 (2d Dept. 2001)(same); People v. Brown, 256 A.D.2d 414 (2d Dept. 1998)(same). Even if, however, there is no indication that the informant personally observed the reported events, this prong may still be satisfied if the police are able to corroborate details of the informant’s information that suggest or directly relate to criminal activity. Unlike the analysis under the first prong of the test, under this analysis – which is applicable only to the basis-of-knowledge prong of the test, and only if personal observation is lacking – corroboration of noncriminal details will be insufficient under New York law. See People v. Elwell, 50 N.Y.2d 231 (1980); People v. Perez, 301 A.D.2d 434 (1 Dept. 2003); People v. Rendon, 273st A.D.2d 616 (3d Dept. 2000); People v. Smalls, 271 A.D.2d 754 (3d Dept. 41 2000); People v. Boria, 204 A.D.2d 652 (2d Dept. 1994); People v. Stalworth, 190 A.D.2d 762 (2d Dept. 1993). Here, the second prong of the test was clearly satisfied by the caller’s statement that he “saw” one of the occupants of the Mustang put a big gun in the back of that car. And, having thus established basis of knowledge, defendant errs in arguing that the People are also required to establish that the tip contained predictive details or that the police observed details corroborative of criminality – for this is only required as a substitute means of satisfying this second prong of the Aguilar-Spinelli test where personal observation is lacking. Contrary to defendants’ contentions, it is never required to satisfy the first prong of the test, and is not necessary to satisfy the second prong where the caller clearly states that he “saw” the events he describes. See Kamins, New York Search and Seizure, §102[2][d], pp. 1-85-1-87 (2009); see also Spinelli v. United States, supra at 425 (concurring opinion) (to establish basis of knowledge, “the informant must declare either [1] that he has himself seen or perceived the fact or facts asserted; or [2] that his information is hearsay, but there is good reason for believing it.”); People v. Mondolfi, 221 A.D.2d 726 (3d Dept. 1995) (basis of knowledge established by informant’s statement that the information was based upon personal information); People v. Torres, 155 42 A.D.2d 231, 232 (1 Dept. 1989) (basis of knowledge easily established byst informant’s statement that he was basing his report on his own personal knowledge, gained through direct observations); Cf. People v. Voner, 74 A.D.3d at 1371 (suppressing evidence recovered following car stop predicated on an informant’s tip because “the basis-of-knowledge prong of the Aguilar- Spinelli test was not satisfied. The informant never indicated to [police] that the information he was supplying was based upon his personal knowledge or observations”). Thus, here, as both prongs of the Aguilar-Spinelli test were satisfied, the information imparted by the anonymous 911 call could properly be relied upon by the police in effecting the stop of the two vehicles, and was, thus, properly factored into the probable cause or reasonable suspicion analysis undertaken by the suppression court. Nor did the Supreme Court’s decision in Florida v. J.L. change the analysis under New York’s Aguilar-Spinelli test, or articulate a more stringent standard than Aguilar-Spinelli for evaluating the reliability of anonymous tips. To the contrary, the Supreme Court’s decision in Florida v. J.L. can, at most, be seen as signaling a very limited return to the old Aguilar- Spinelli standard, which it had previously abandoned in Illinois v. Gates, 462 U.S. 213 (1983). Specifically, as discussed above, in Florida v. J.L., the 43 Supreme Court addressed the lawfulness of a stop based on anonymous information. In that case, an anonymous caller reported to police that a young black male was standing at a specified bus stop, wearing a plaid shirt, and carrying a gun. The call was not recorded and no information was known about the caller. The police arrived at the bus stop six minutes later, and observed three black males, only one of whom was wearing a plaid shirt. While the defendant made no threatening gestures and did not seem to have any bulge in his waistband, the police nonetheless frisked him and recovered a gun in his pocket. The Supreme Court held that the anonymous information was not sufficiently reliable to constitute reasonable suspicion and that the frisk was improper, for while the anonymous caller had provided information to correctly identify the person carrying the gun (i.e. an analog to the first prong of the Aguilar-Spinelli test), the tipster did not indicate how he knew that the defendant was carrying the gun (i.e. an analog to the second prong of the Aguilar-Spinelli test). Thus, consistent with the result that would be mandated under New York’s Aguilar-Spinelli test, the Court held that, under these circumstances, the anonymous information could not furnish reasonable suspicion absent some corroboration of criminality in addition to the corroboration of identity. 44 In so holding, Florida v. J.L. did have a very significant impact on federal jurisprudence in two ways. First, as noted above, the case was read by many as heralding a kind of return to the more protective and rigid Aguilar- Spinelli test, which the Supreme Court had largely abandoned in 1983 in favor of a more fluid, and easily satisfied, “totality of the circumstances test.” Illinios v. Gates, 462 U.S. 213 (1983). Second, and even more significantly, the case actually went beyond Spinelli under the basis-of-knowledge prong of the test by requiring corroboration of criminality in any case where the anonymous tip is not based on personal observation – a requirement that had never before been imposed by federal courts, which even prior to 1983 had permitted the basis-of-knowledge prong to be satisfied by confirmation of details not necessarily suggestive of criminal activity. Spinelli v. United States, 393 U.S. 410 (1969); Draper v. United States, 358 U.S. 307 (1959). But while J.L. may have effected significant changes on federal search and seizure law, its impact on New York state law was far more limited. First, unlike the Supreme Court, which had in 1983 rejected the two-pronged test in favor of Gates’ more permissive totality-of-the-circumstances test, this Court persistently refused to do so, retaining the Aguilar-Spinelli test under State constitutional law. See People v. Landy, 59 N.Y.2d 369 (1983); People 45 v. Johnson, 66 N.Y.2d 398 (1985); People v. Griminger, 71 N.Y.2d 635 (1988); People v. Edwards, 95 N.Y.2d 486, 496 (2000). Thus, in New York, J.L. did not herald any kind of return to Aguilar-Spinelli, for the test had never been abandoned. Second, to the extent that J.L.’s requirement of corroboration of criminal activity under the second prong of the test shook the federal legal landscape, the tremors were far less pronounced in New York State, which had imposed a stricter standard for evaluation of this prong under the State constitution as early as 1980. Compare Spinelli and Draper (permitting second prong of test to be satisfied by details not necessarily indicative of criminality where informant did not indicate how he acquired his information) with People v. Elwell, 50 N.Y.2d 231 (1980) (requiring corroboration of criminality under second prong of test where basis of knowledge was not clearly satisfied). Instead, in New York, this Court’s “adoption” of J.L. in People v. William II, 98 N.Y.2d 93 (2002) and People v. Moore, 6 N.Y.3d 496 (2006), represented a reaffirmance of principles enunciated in Elwell, and an application of those principles to different fact patterns – all of which, significantly, involved an anonymous caller who supplies information, but fails to indicate how he acquired it – a key element to the applicability of those cases, and all of the other cases cited in defendants’ brief, that is, simply, not 46 at issue here, where the caller specified that he “saw” the gun, thus automatically satisfying the basis-of-knowledge prong of the test. Indeed, the defense reading of J.L., and the New York cases applying it, as establishing a sweeping, broad, and deceptively simple rule that an anonymous tip can never furnish probable cause absent independent corroboration of criminality is flawed on many levels: it is legally unsupportable, and, indeed, has been implicitly and explicitly rejected by case law and fundamental principles of legal interpretation; it is intellectually strained, as it is based on a selective reading of the authority it cites and depends on ignoring key language of those decisions, as well their factual and historical context; it is logically unsound, as it runs afoul of the fundamental principles underlying the exclusionary rule; and it would have disastrous public policy consequences, as it would prohibit police officers from investigating reports of criminality that they are duty-bound to pursue, and20 would sanction them for acting completely reasonably – indeed, for acting as they must – in cases where the action taken was wholly reasonable and the alternative of inaction would be not just unreasonable, but impermissible. In Police are duty-bound to investigate a report of a man with a gun. People v.20 Benjamin, 51 N.Y.2d 267, 270 (1980). 47 short, the standard that is urged by the defense in this case is not, cannot, and, most importantly, should not be the law. First, from a purely precedential standpoint, there is no question that, contrary to the defense position, the two-pronged Aguilar-Spinelli test continues to be the applicable test in New York state even after J.L. See, e.g., Kamins, Search and Seizure, §1.02[2][c], [d], pp. 1-83; 1-85 (2009) (identifying this as the applicable test in New York); People v. Edwards, 95 N.Y.2d 486 (2000) (stating, after J.L. was decided, that while the federal courts no longer use the Aguilar-Spinelli standard, New York continues to adhere to it); People v. Munford, 49 A.D.3d 444 (1 Dept. 2008) (applying Aguilar-st Spinelli to probable cause determination based on anonymous informant’s tip); Fitzpatrick v. Roesenthal, 29 A.D.3d 24 (4 Dept. 2006) (same); People v. Bell,th 5 A.D.3d 858 (3d Dept. 2004) (same); People v. Kennedy, 282 A.D.2d 759 (2d Dept. 2001); People v. Gamble, 279 A.D.2d 478 (2d Dept. 2001); People v. Herold, 282 A.D.2d 1 (1 Dept. 2001); People v. Smalls, 271 A.D.2d 754 (3dst Dept. 2000). It is also firmly established that if both prongs of that test are satisfied, an anonymous tip can form the basis for a finding of probable cause. Indeed, the seminal New York cases providing and explaining this principle have never been overruled or even questioned in J.L.’s wake, and continue to 48 be cited as controlling authority by appellate courts across the state. See Shepard’s Analysis of People v. DiFalco, 80 N.Y.2d 693 (1993); People v. Elwell, 50 N.Y.2d 231 (1980); People v. Griminger, 71 N.Y.2d 635 (1988); People v. Arthurs, 24 N.Y.2d 688 (1969). Thus, in this posture, defendants’ statement of the law -- that an anonymous tip, like the one here, might satisfy both prongs of Aguilar-Spinelli, but still cannot form the basis for a probable cause determination absent independent indicia of criminality – must be rejected by this Court as it is directly contrary to controlling precedent.21 Second, the defendants’ attempts to derive a contrary rule from broad language taken from J.L. and cited in a couple of this Court’s cases decided in its wake, is not only legally impermissible, as it violates basic tenets of legal interpretation, but is intellectually strained, as it depends on a very Indeed, defendants’ argument that J.L., and more directly, Moore and Williams21 II, effected a sea change in New York law, overruling all prior precedent in this area, is quite far-fetched given that all of these cases were relatively brief summary decisions, that did not garner a tremendous amount of attention, and did not even mention the cases they purportedly overruled – which, as argued above, continue to be cited as controlling authority by both hornbooks and case law more than ten years after any dust kicked up by J.L. has fully settled. Thus, while defendant is free to argue that the law should now be extended to bar reliance on any anonymous tip, irrespective of whether it satisfies Aguilar-Spinelli, he should not be permitted to contend that such change has already occurred under these circumstances -- especially in the absence of the existence of even a single New York State case applying J.L. to suppress evidence seized pursuant to an anonymous tip explicitly stating personal observation as the tipster’s basis of knowledge. 49 selective reading of the language of those cases, taken out of their factual and historical contexts. It is well settled that the reach of a court’s decision is necessarily limited by the facts of the case before it. See, e.g., Niesig v. Team I, 76 N.Y.2d 363 (1990) (noting that the Court’s decisions “are limited by the facts before us and the questions put to us”); see also People v. Ramos, 99 N.Y.2d 27, 34 (2002), quoting Texas v. Cobb, 532 U.S. 162, 169 (2001) (“Constitutional rights are not defined by inferences from opinions which did not address the question at issue”). In this vein, while J.L. and this Court’s cases citing it, did state, in broad terms, that “an anonymous tip cannot provide reasonable suspicion to justify a seizure, except where the tip contains predictive information -- such as information suggestive of criminal behavior – so that the police can test the reliability of the tip,” (People v. Moore, 6 N.Y.3d 496, 499 [2006], citing Florida v. J.L., 529 U.S. 266 [2000]; People v. William II, 98 N.Y.2d 93, 99 [2002]), the sweep of this statement is necessarily limited to future cases on all fours with the salient facts before the Courts in Moore, William II, Rodriguez (William II’s companion case), and J.L. – where, unlike in this case, the anonymous tipster’s basis of knowledge was unknown. Indeed, this key fact -- shared by all of these cases -- is not peripheral to the analysis; it is its very heart. 50 In fact, as previously mentioned, the Supreme Court repeatedly referenced the lack of a stated basis of knowledge in J.L., reasoning that “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity” (529 U.S. at 270); that “all the police had to go on . . . was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L.” (Id. at 271); and that an accurate description of a subject, like that given in J.L., while reliable as to identity, is insufficient for the very reason that it “does not show that the tipster has knowledge of concealed criminal activity” (Id. at 272). To ignore this language in J.L., as the defense must do in order to justify extending its holding to the case at bar, is to cut the very heart out of that decision. And, worse, not only of that decision, but of half-a-century of New York and federal case law, which has always, consistently, and unanimously upheld seizures based on anonymous tips containing clear statements of the tipster’s personal and contemporaneous observation of the reported criminality. See discussion of second prong, supra, see also U.S. v. Wheat, 278 F.3d 722, 734 (8 Cir. 2001) (“a primaryth determinant of a tipster’s reliability is the basis of his knowledge”); Illinois v. Gates, 462 U.S. 213, 234 (1983) (“even if we entertain some doubt as to an 51 informant’s motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case”). Thus, defendants’ attempt to extend J.L. and its progeny to cases where the anonymous caller specifically states that he saw the described criminality is simply not a viable stretch, as it ignores both the facts and the logic behind the cases purportedly establishing the rule. Third, the rule sought by defendant is also logically unsound and, in fact, absurd in its result. As discussed above, Florida v. J.L., and the Court of Appeals cases adopting it, are meant to clarify the law by settling inconsistencies and confusion about the quality and quantity of corroborating evidence that is necessary to compensate for a lack of personal observation by an anonymous caller or informant; ie. to provide a means to shield evidence against suppression even when the anonymous information is not based on personal observation. But when the anonymous caller specifically states that he “saw” the events he describes, as in the case at bar, there is no question that the second prong of the strictest interpretation of the strictest test -- Aguilar- Spinelli -- is satisfied, and J.L., by its terms, simply does not apply. To hold, as defendant urges here, that independent evidence of criminality is required 52 even when the basis of knowledge prong is satisfied by personal observation is to transform this intended shield into a sword, with the concomitant absurd effects of eviscerating and overruling half a century of New York precedent under the Aguilar-Spinelli test, and, more importantly, requiring suppression of evidence, as the suppression court noted here, that was obtained through police conduct that was at all times “reasonable.” In other words, adherence to the standard urged by the defense not only runs contrary to the specific law governing reliability of anonymous information, but also to the purpose of the exclusionary rule in general, which is designed to deter unreasonable police conduct; not to prohibit police conduct that is not just reasonable, but required and desired. Stated another way, in the Fourth Amendment context, “reasonableness” is the end of the inquiry; not its beginning. The case law cited and relied upon by defendant was designed to delineate the contours of an exception to Aguilar- Spinelli’s basis of knowledge prong, which was deemed by federal courts as too strict and hard to satisfy – not too lax. The defense argument turns this law on its head, openly contending that while the police action might have been reasonable, and while the officers were duty-bound to act as they did, J.L.’s test nonetheless mandates suppression of the evidence they obtained. But it is precisely the 53 reasonableness of the police conduct that affirmatively precludes suppression. And this, more clearly than all else, shows that defendant is wrong. POINT TWO IN AFFIRMING THE SUPPRESSION COURT’S DETERMINATION THAT THE POLICE HAD REASONABLE SUSPICION FOR THE STOP, AND, THUS, THAT THERE WAS NO BASIS FOR SUPPRESSION, THE APPELLATE DIVISION DID NOT VIOLATE CPL §470.15(1) OR THIS COURT’S PRECEDENT (Answering Defendants’ Brief, Point III). In addition to their substantive arguments before this Court, defendants also claim that the Appellate Division exceeded its authority under section 470.15(1) of the Criminal Procedure Law in allegedly “rejecting [the suppression court’s] reliance on the Aguilar/Spinelli analysis,” but then affirming on “alternative grounds” not considered by the lower court (Defendants’ Brief at 37-40). Defendants are wrong on both the facts and the law. First, contrary to defendants’ contentions, the Appellate Division did not exceed its jurisdiction under section 470.15(1) of the Criminal Procedure Law and the cases interpreting it; for while that section prohibits an appellate court from affirming a lower court’s decision on a ground either 54 rejected, or not passed upon, by the lower court (see People v. Concepcion, 17 N.Y.3d 192 [2011]; People v. LaFontaine, 92 N.Y.2d 470 [1998]), it does not prevent an appellate court from considering the identical facts, issues, and arguments as those raised and decided by the court below and then applying what it deems to be the appropriate legal standard to resolve those issues. Stated another way, the suppression motion here was decided “adversely” to defendants -- the “appellant” -- because the lower court found that the police had reasonable suspicion to stop the car; thus the Appellate Division had authority to consider that claim on defendants’ appeal. See CPL §470.15(1). And the Appellate Division did not affirm that finding based on a different ground than that relied upon by the lower court -- to the contrary, it affirmed on the same ground and for the same reason: that the police had reasonable suspicion to stop the car. Defendants’ argument that the court applied a different legal standard to reach that conclusion simply does not trigger section 470.15’s prohibition or this Court’s concerns in LaFontaine and Concepcion prohibiting alternative grounds for affirmance. Moreover, defendants’ argument on this point is even more misplaced because, contrary to defendants’ understanding, the Appellate 55 Division did not hold that the suppression court applied the wrong legal standard; it merely noted that the higher Aguilar-Spinelli standard discussed by the suppression court did not need to be satisfied to demonstrate the reliability of the 911 call and to compel rejection of defendants’ claims. Indeed, and as the Appellate Division noted, “the Aguilar-Spinelli test … 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.” People v. Argryis, 99 A.D.3d 808 (2012) (internal quotations omitted) (emphasis added). The People’s point, both on appeal and in the lower court, was that since that most-demanding Aguilar-Spinelli test could be satisfied under the facts of this case, it defied reason to nonetheless conclude that the lesser standard required to support a finding of reasonable suspicion could not be satisfied. This is why, the People argued, defendants’ reading and understanding of Florida v. J.L. and the New York Court of Appeals’ cases applying it was necessarily wrong -- because those cases did not require predictive information or corroboration of criminality for any and all anonymous tips, as defendants claimed, but only for those anonymous tips that failed to show the reliability of the assertion of criminality by failing to 56 establish the caller’s basis of knowledge. Where the caller’s basis of knowledge was, as here, personal observation of a man placing a gun into the back of a particularly described car, Florida v. J.L’s requirement that the tip be reliable in its “assertion of criminality” as well as its description of an individual suspect, was clearly satisfied even in the absence of any predictive information. That was the argument adopted by both the suppression court and the Appellate Division to find that there was reasonable suspicion in this case (see A191; A621-22; A623). That the suppression court additionally noted that the caller’s personal observation of criminality satisfied the “more strict Aguilar-Spinelli test” “as well” (A191), does not lead to a contradiction between it’s holding and that of the Appellate Division in any respect. Instead, both courts recognized that the People did not “need” to satisfy that higher standard in order to prevail. Therefore, contrary to defendants’ contentions, the Appellate Division, while not applying Aguilar-Spinelli itself, did not reject any facet of the lower court’s decision, it agreed with it. And it affirmed on the same grounds: that the tip was reliable both in its assertion of criminality and 57 identification of a particular suspect; and that the police, therefore, had reasonable suspicion to stop defendants’ car on the basis of that tip coupled with their own observations. Accordingly, defendants’ attempt to cast the Appellate Division’s decision as a rejection of the lower court’s decision, or an affirmance on alternate grounds, is flatly wrong and should be rejected. CONCLUSION Defendants’ understanding of the reach and impact of the Supreme Court’s decision in Florida v. J.L. is flawed and should now be rejected by this Court. It is demonstrably incorrect based on the language of J.L. itself and its interpretation and application by state and federal courts over the past ten years; it runs contrary to all of the binding New York case law applying Aguillar-Spinelli to anonymous tips over the past half-century; it is unsupported by even a single case holding that an anonymous caller’s report that he personally and contemporaneously “saw” a gun cannot furnish reasonable suspicion; and, most importantly, it has the untenable result of requiring suppression of evidence obtained as a result of police conduct that is not only completely and wholly reasonable, but that the police are duty- bound to pursue. And as it fails under law, logic, and policy, this Court should now reject the standard urged by the defense and hold, under the correct 58 standard – which comports not just with the law, but with common sense notions of “reasonableness” – that the police conduct in this case was reasonable, that the stop of defendants’ vehicle and recovery of physical evidence was proper, that defendants’ suppression motions were properly denied, and that defendants’ judgments of conviction, resulting from their knowing, intelligent, and voluntary pleas of guilty to the indictment, should be affirmed. Respectfully Submitted, RICHARD A . BROWN District Attorney Queens County BY: _________________________ Donna Aldea Counsel for Respondent, Pro Bono DONNA ALDEA Barket, Marion, Epstein & Kearon, LLP Counsel for Respondent, Pro Bono ROBERT J. MASTERS Assistant District Attorney of Counsel March 21, 2013 59 60