The People, Appellant,v.William Brown, Respondent.BriefN.Y.February 12, 2015APL-2014-00057 To be argued by DAVID M. COHN (10 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - WILLIAM BROWN, Defendant-Respondent. R E P L Y B R I E F F O R A P P E L L A N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Appellant One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov ALAN GADLIN DAVID M. COHN ASSISTANT DISTRICT ATTORNEYS Of Counsel SEPTEMBER 25, 2014 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii INTRODUCTION................................................................................................................ 1 POINT THE APPELLATE DIVISION APPLIED AN INCORRECT RULE OF LAW IN HOLDING THAT THE POLICE OFFICERS LACKED REASONABLE SUSPICION TO DETAIN DEFENDANT FOR A BRIEF INVESTIGATION. ......................................................................... 1 A. This appeal presents a reviewable question of law. ........................................... 2 B. The hearing evidence sufficiently established that the police officers had reasonable suspicion to conduct a brief, investigative stop. Thus, the Appellate Division erred by reversing that trial court’s suppression ruling “on the law.” .................................................................. 6 C. Even if defendant’s suppression motion should have been granted, any error was harmless. ............................................................................. 15 CONCLUSION ................................................................................................................... 19 TABLE OF AUTHORITIES FEDERAL CASES Brinegar v. United States, 338 U.S. 160 (1949) ...................................................................... 10 Illinois v. Wardlow, 528 U.S. 119 (2000) ................................................................................. 6 United States v. Crews, 445 U.S. 463 (1980) ..................................................................... 17-18 United States v. Rabinowitz, 339 U.S. 56 (1950) ................................................................... 10 United States v. Salvucci, 448 U.S. 83 (1980) ......................................................................... 15 United States v. Sharpe, 470 U.S. 675 (1985) ........................................................................ 15 United States v. Ventresca, 380 U.S. 102 (1965) .................................................................... 11 United States v. Wagner, 989 F.2d 69 (2d Cir. 1993) ............................................................ 10 United States v. Wingate, 520 F.2d 309 (2d Cir. 1975) ........................................................... 7 STATE CASES People v. Benjamin, 51 N.Y.2d 267 (1980) ........................................................................... 4-5 People v. Bradford, 15 N.Y.3d 329 (2010) ............................................................................. 13 People v. Brannon, 16 N.Y.3d 596 (2011)................................................................................ 8 People v. Brown, 115 A.D.3d 38 (1st Dept. 2014) ............................................................... 14 People v. Carter, 86 N.Y.2d 721 (1995) ..................................................................... 11-12, 16 People v. Chestnut, 51 N.Y.2d 14 (1980) ........................................................................... 8, 10 People v. De Bour, 40 N.Y.2d 210 (1976) ............................................................................. 15 People v. Hicks, 68 N.Y.2d 234 (1986) ................................................................................. 10 People v. Holmes, 81 N.Y.2d 1056 (1993) ............................................................................... 7 People v. Johnson, 22 N.Y.3d 1162 (2014) ............................................................................. 13 People v. Johnson, 64 N.Y.2d 617 (1984) ...................................................................... 9-10, 14 ii People v. Martinez, 80 N.Y.2d 444 (1992) ............................................................................ 10 People v. McCray, 51 N.Y.2d 594 (1980) ......................................................................... 4-5, 8 People v. Mercado, 68 N.Y.2d 874 (1986) ................................................................................ 8 People v. Morales, 42 N.Y.2d 129 (1977)................................................................................. 3 People v. Pursley, 158 A.D.2d 255 (1st Dept. 1990) ............................................................ 15 People v. Rogers, 52 N.Y.2d 527 (1981) ................................................................................. 17 People v. Seney, 34 N.Y.2d 817 (1974) .................................................................................. 10 People v. Sierra, 83 N.Y.2d 928 (1994) ................................................................................... 7 iii COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- WILLIAM BROWN, Defendant-Respondent. REPLY BRIEF FOR APPELLANT INTRODUCTION The People submit this brief in reply to the brief filed by defendant-respondent William Brown. This reply brief addresses a few discrete issues raised in defendant’s brief. For all other issues, the People rely on their main brief. POINT THE APPELLATE DIVISION APPLIED AN INCORRECT RULE OF LAW IN HOLDING THAT THE POLICE OFFICERS LACKED REASONABLE SUSPICION TO DETAIN DEFENDANT FOR A BRIEF INVESTIGATION. As detailed in the People’s main brief to this Court, the hearing court correctly found that the police had reasonable suspicion to detain defendant for a brief investigation. In reversing that determination “on the law,” the Appellate Division applied an incorrect legal standard and wrongly interpreted this Court’s precedents. Those points are amply developed in the People’s main brief, and there is no need to repeat them in detail here. A few discrete arguments raised in defendant’s brief, however, merit a response. For instance, while acknowledging that it is question of law whether the hearing evidence satisfied the minimum standard necessary to show reasonable suspicion, defendant asserts that this Court may review such a question of law only on an appeal by a defendant and not on an appeal by the People (see DB: 17-21).1 Next, on the merits, defendant repeats the Appellate Division’s mistakes by claiming that his pattern of criminal conduct in the area, as well as the time, location, and circumstances of his flight, were not relevant to the reasonable suspicion calculus (see DB: 21-29). Further, in arguing that any error in the suppression court’s ruling was not harmless, defendant contends that he was entitled to suppression not just of the victim’s showup identification of him, but also of any evidence that he was caught fleeing the scene with Thomas (see DB: 29-31). Defendant’s claims are partially unpreserved and entirely without merit. A. This appeal presents a reviewable question of law. Initially, as explained on pages 38-40 of the People’s main brief, the Appellate Division’s reversal turned on a question of law, not on a question of fact or of credibility. In that regard, the Appellate Division reversed the suppression court’s 1 References designated as “DB” are to defendant’s brief. 2 order by ruling, based on the undisputed facts, that the People did not make a legally sufficient showing of reasonable suspicion. And, of course, “it is a question of law whether the facts found to exist are sufficient” to justify a stop. People v. Morales, 42 N.Y.2d 129, 134 (1977). To be sure, as defendant notes, a mixed question of law and fact may arise where the lower court’s “determination rest[ed] on facts, and on the subtle interplay of facts and law” (DB: 19). Here, however, defendant does not identify a single fact that was in dispute at the suppression hearing. Indeed, defendant does not assert that a disagreement over the facts motivated the Appellate Division to reverse the hearing court’s determination. Instead, defendant argues that, based on the undisputed facts, the totality of his conduct “cannot be enough to create reasonable suspicion” (DB: 24). In other words, defendant claims that the People failed to put forward the minimum evidence necessary to support a finding of reasonable suspicion. And, as discussed, that “legal sufficiency” claim presents a reviewable question of law. See Morales, 42 N.Y.2d at 134.2 Defendant does not seriously dispute this point. Instead, pressing an unabashedly one-sided view of the law, he asserts that, if the Appellate Division commits an error of law in defining the minimum standard for reasonable suspicion, 2 For that reason, defendant’s citations to cases where the disputed issues were essentially factual in nature (see DB: 19-20) are inapt. 3 this Court may correct such an error only on a defendant’s appeal and not on an appeal by the People (see DB: 20). According to defendant, “even if this Court believed there were minimally sufficient facts to establish reasonable suspicion, and that the Appellate Division was wrong,” this Court “lacks authority” to correct the error (DB: 20-21). Defendant is simply wrong, as this Court’s precedents demonstrate. For instance, in People v. Benjamin, 51 N.Y.2d 267 (1980), a police officer recovered a loaded handgun from the defendant during a level three stop. After the hearing court denied the defendant’s motion to suppress, he pleaded guilty. The Appellate Division reversed the defendant’s conviction, holding that the police lacked reasonable suspicion to conduct a “stop and frisk.” See id. at 269-70. The People appealed to this Court, which held that, under “the totality of the circumstances, . . . there was an ample measure of reasonable suspicion necessary to justify the limited intrusion which produced the loaded revolver.” Id. at 271. As a result, this Court reversed the order of the Appellate Division and remitted the case to that court “for consideration of the facts.” Id. Similarly, in People v. McCray, 51 N.Y.2d 594 (1980), and in a companion case, People v. Hester, the hearing courts denied the defendants’ motions to suppress. The Appellate Division reversed in both cases, holding, on the law, that the police lacked probable cause to arrest. See id. at 599-600. The People obtained leave to appeal to this Court, which reversed the Appellate Division’s rulings in both cases. See id. at 4 606. At the outset, this Court observed that, in both cases, the hearing courts’ decisions had been “reversed by the Appellate Division on the law, essentially on the ground that the undisputed facts do not meet the threshold requirement for probable cause.” Id. at 601. This Court explained, therefore, that both cases presented reviewable questions of law, namely, “the standard by which probable cause is measured -- the minimum showing necessary to establish probable cause.” Id. Next, applying the correct understanding of probable cause, this Court reversed the Appellate Division’s determinations in both cases. In that regard, in McCray, this Court observed that the People had presented sufficient evidence for the factfinder to “properly draw an inference of probable cause,” and thus “the Appellate Division erred in reversing on the law.” Id. at 606. Likewise, in Hester, this Court declared that “the sum of” the “circumstances makes out a fact question as to the existence of probable cause, and the Appellate Division erred in reversing on the law.” Id. Accordingly, this Court held that “the orders of the Appellate Division should be reversed, and the cases remitted to that court for a review of the facts.” Id. As Benjamin, McCray, and Hester demonstrate, this Court may review the propriety of the Appellate Division’s reversal here. As in those cases, it is a question of law whether the hearing evidence satisfied the minimum standard necessary to justify the police conduct. Therefore, as in those cases, this Court should hold that People met the relevant minimum standard (in this case reasonable suspicion), reverse 5 the order of the Appellate Division, and remit the case to that court for consideration of the facts. B. The hearing evidence sufficiently established that the police officers had reasonable suspicion to conduct a brief, investigative stop. Thus, the Appellate Division erred by reversing that trial court’s suppression ruling “on the law.” Turning to the merits, as detailed in the People’s main brief, the hearing evidence amply established that the officers had reasonable suspicion to conduct a brief, investigative stop. In fact, in light of the fast-moving nature of the situation and the lack of alternative courses of action, the brief, limited intrusion was the officers’ only option to thwart a crime in progress. Under these circumstances, the Appellate Division erred by ruling that, as a matter of law, the evidence was insufficient to establish reasonable suspicion. To begin, it is beyond dispute that flight, while “not necessarily indicative of wrongdoing, . . . is certainly suggestive of such.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Thus, the suspicions of the experienced Cabaret Unit officers were quite reasonably piqued when they saw defendant and Thomas darting across the middle of Broadway -- perhaps the busiest thoroughfare in Manhattan -- in the wee hours. Moreover, contrary to defendant’s assertion (see DB: 23), he was not merely “running.” Significantly, defendant and Thomas were looking back over their shoulders as they ran -- a clear sign that they were fleeing from someone or something and were fearful of being chased. 6 To be sure, as defendant notes (DB: 23), flight alone, or flight accompanied by equivocal circumstances, does not warrant a level three intrusion. See People v. Holmes, 81 N.Y.2d 1056, 1058 (1993). But it is equally well established that flight, “combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, may give rise to reasonable suspicion.” People v. Sierra, 83 N.Y.2d 928, 929 (1994). And here, the officers knew far more than just that defendant and Thomas were fleeing. In fact, based on their specific, first-hand experience, the officers knew the likely reason for the men’s flight. Critically, as they ran, defendant and Thomas looked back toward the direction of the Lace nightclub, which was around the corner. As the officers knew, defendant had a history of fraudulently accosting victims in front of Lace. Likewise, the officers had seen Thomas hanging out in front of Lace with individuals who “victimized” people at that location. Notably, too, just three hours earlier, one of the officers had seen defendant hanging out in front of Lace, demonstrating that he had been stalking the location. See United States v. Wingate, 520 F.2d 309, 315 (2d Cir. 1975) (upholding finding of probable cause where, among other factors, defendant and codefendant were “observed casing the area together”). Under those circumstances, as the hearing court found, the officers reasonably suspected that defendant and Thomas had perpetrated a crime in front of Lace and that they were fleeing the scene, looking back to see if the victim was giving chase. Indeed, any reasonable police officer would have reached the same conclusion. 7 Therefore, a level three stop was warranted, since the officers had reason to believe, based on “specific and articulable facts” and “logical deductions,” that “criminal activity [was] at hand.” People v. Brannon, 16 N.Y.3d 596, 601-02 (2011) (internal quotations omitted). In response, defendant argues that the conduct observed by the police was capable of an innocent interpretation. For instance, in an attempt to minimize the significance of his dash across Broadway, defendant argues that he was merely “running” and “looking,” not fleeing, and that as far as the police knew, he might have been a “crime victim” rather than a criminal. He even muses that, as far as the police knew, he was simply running “late for getting somewhere” (DB: 24). But as discussed, the minimum standard for a level three stop was met so long as the officers’ inference of criminality was reasonable, considering the facts “as a whole.” People v. Chestnut, 51 N.Y.2d 14, 23 (1980). The officers were not prohibited from acting merely because one might imagine an innocent explanation for defendant’s and Thomas’s frantic sprint across Broadway in the middle of the night. After all, reasonable suspicion -- and even probable cause -- does not require “proof beyond a reasonable doubt or evidence sufficient to warrant a conviction.” McRay, 51 N.Y.2d at 602 (citations omitted); see also People v. Mercado, 68 N.Y.2d 874, 877 (1986) (“Probable cause does not require proof to a mathematical certainty, or proof beyond a reasonable doubt”). 8 Simply put, considering all of the circumstances, it was reasonable for the officers to deduce that defendant and Thomas were fleeing, and looking back over their shoulders, because they had just committed a crime. Indeed, defendant’s suggestions that perhaps he was merely going for a jog across the middle of Broadway, or that he was a victim rather than a perpetrator, or that he was late for some sort of 4:30 a.m. meeting, are so far-fetched as to be preposterous. Nevertheless, echoing the Appellate Division majority, defendant argues that the officers should not have been allowed to consider his history of criminality in the area (DB: 26-27). Offering a parade of horribles, defendant imagines that if a suspect’s history may be used to elevate an officer’s suspicion, the police will respond to crime by merely rounding up the “usual suspects,” ex-convicts will not enjoy the “ability to walk, run, and look where they choose,” and there will be “thousands of forcible stops of innocent people” (DB: 27). Defendant’s argument, however, is hyperbole, because his history was only one of several factors that combined to yield reasonable suspicion. To be sure, as defendant points out (see DB: 26), a suspect may not be stopped merely on account of his previous crimes. See, e.g., People v. Johnson, 64 N.Y.2d 617 (1984). But as is explained on pages 40-42 the People’s main brief, Johnson involved a far different scenario from the one at hand, where there were no circumstances justifying the intrusion aside from the defendant’s criminal past. Here, as demonstrated, the officers’ suspicions were reasonably piqued based on the time, location, and 9 circumstances of defendant’s flight; his prior record was merely an elevating factor. For that reason, the Appellate Division erred by relying on Johnson. Indeed, longstanding precedent -- which the Appellate Division ignored -- holds that a suspect’s criminal history, while not alone sufficient to justify a stop, can be a relevant factor in assessing reasonable suspicion or probable cause. See People v. Seney, 34 N.Y.2d 817, 818 (1974); United States v. Rabinowitz, 339 U.S. 56, 58 (1950); Brinegar v. United States, 338 U.S. 160, 162-78 (1949); United States v. Wagner, 989 F.2d 69, 73 (2d Cir. 1993). Contradicting the hearing court, defendant also finds it irrelevant that the incident occurred late at night in Times Square (see DB: 28) and that the investigative detention was relatively brief (see DB: 28-29). As detailed in the People’s main brief, however, the time and location of the stop were relevant to the reasonable suspicion calculus, see People v. Martinez, 80 N.Y.2d 444, 446 (1992), and the brevity of the detention was relevant to the reasonableness of the intrusion, see People v. Hicks, 68 N.Y.2d 234, 242 (1986). Hence, the Appellate Division erred by failing to consider those factors. Moreover, defendant is wrong to focus on each of these factors individually instead of considering the totality of the circumstances as an integrated whole. As this Court has made clear, suppression “[c]ourts simply must not . . . attempt to dissect each individual act by the police[]; rather, the events must be viewed and considered as a whole, remembering that reasonableness is the key principle.” Chestnut, 51 10 N.Y.2d at 23. And, of course, “the Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract.” United States v. Ventresca, 380 U.S. 102, 108 (1965). The critical question, therefore, is whether the officers chose a reasonable and practical course of action considering their knowledge, experience, and the totality of their observations. Here, as demonstrated -- and considering the totality of the circumstances -- the officers made a reasonable decision to stop defendant for a brief investigation.3 As an alternative basis for suppression, defendant argues that it was not necessary for the officers to conduct a level three stop. He asserts that, instead of stopping him and Thomas, the police could have “tracked” them using “security cameras” and then “radio[ed] to colleagues” to follow them as they progressed through Times Square (DB: 26 n. 3). Defendant, however, never suggested to the hearing court that the officers had an alternative to conducting a brief, level three stop, and his present claim is therefore unpreserved. See People v. Carter, 86 N.Y.2d 721, 722 (1995) (“Because defendant failed to assert this claim at the suppression hearing, his contention is not preserved for our review”). 3 Defendant claims that there is a “suggestion throughout the People’s brief, that the police officers had descriptive facts establishing reasonable suspicion, but that they just did not articulate them well” (DB: 29). This assertion is puzzling, as the People made no such “suggestion.” Notably, defendant does not provide a citation to any particular page or passage of the People’s brief where such a suggestion is supposedly set forth, revealing that this claim is without foundation. In fact, as demonstrated, the hearing evidence amply supported the trial court’s finding of reasonable suspicion. 11 Moreover, defendant’s newfound assertion that the police could have tracked him in real time using unspecified security cameras is nothing more than a fantasy -- perhaps born of watching too many spy movies and television dramas. The record contains no evidence that such technology exists, much less that the officers could have summoned it at a moment’s notice. Nor is there any record evidence that other officers stood ready to assist immediately with the pursuit. Hence, the only conclusion supported by the record is that the officers’ best -- and perhaps only -- chance to thwart the crime in progress, and to recover any stolen property, was to stop the suspects immediately, before they had a chance to escape and dispose of the proceeds of the crime. Simply put, and contrary to the Appellate Division’s conclusion, the officers made a sensible, split-second decision to act, which cannot be deemed unreasonable as a matter of law.4 Next, unable to find fault with the actual stop, defendant contends that Officer Carey acted improperly at 1:30 a.m., three hours before the stop, when he ordered defendant to “leave the neighborhood” after encountering him in front of Lace (see DB: 31). But this claim, too, is unpreserved, because defendant did not raise it at the suppression hearing. See Carter, 86 N.Y.2d at 722. Indeed, because defendant did not 4 Nor was it a feasible alternative for the officers to merely ask defendant to talk (see DB: 26 n. 3). As defendant does not dispute, he and Thomas were running away at a significant pace. Thus, the officers could not have simply walked up and approached the two men, because they would have been long gone by the time that the officers posed a question. As the hearing court found, the only reasonable way to prevent defendant and Thomas from escaping was to order them to stop. 12 raise that claim to the suppression court, the People had no occasion to elicit details at the hearing that might have explained why the order was justified. In any event, even if Officer Carey should not have given that order, defendant would not be entitled to any relief, because the 1:30 a.m. order did not result in the discovery of any evidence. After all, defendant plainly ignored the order, as he was apprehended in the vicinity of Lace three hours later. And, of course, the 4:30 a.m. stop arose from the officers’ entirely separate observation of defendant and Thomas fleeing suspiciously across Broadway -- an observation that could in no way be attributed to the 1:30 a.m. encounter. See generally People v. Bradford, 15 N.Y.3d 329, 333-34 (2010) (holding that defendant’s statements, made 2 ½ hours after he was arrested without probable cause, were attenuated from the illegal police conduct). Finally, defendant’s reliance on People v. Johnson, 22 N.Y.3d 1162 (2014), is misplaced. In that case, this Court held that the defendant did not commit disorderly conduct by refusing to move from a street corner near the entrance to a store, where he was standing with three other young men who were “reputed to be gang members.” Id. at 1164. This Court explained that the defendant’s actions caused no harm to the public, because no pedestrians were obstructed from entering or leaving the store. See id. This Court declared, “It is not disorderly conduct . . . for a small group of people, even people of bad reputation, to stand peaceably on a street corner.” Id. Therefore, this Court held that the drugs recovered from the defendant in a search incident to arrest should have been suppressed. See id. 13 The present case is far different from Johnson. For one thing, unlike in Johnson, the officers here did not stop defendant for committing disorderly conduct, so the Johnson Court’s analysis, which turns on the elements of that offense, is irrelevant. Defendant even acknowledges, in a vast understatement, that Johnson is “not directly on point” (DB: 28). Further, in Johnson, the defendant was doing nothing that was even suspicious; he was merely standing on a street corner. Here, in contrast, the police saw defendant engaged in inherently suspicious conduct: He and an apparent accomplice darted across the middle of Broadway at 4:30 a.m., looking back over their shoulders toward a location where defendant was known to commit scams. And unlike in Johnson, where the defendant was just standing around, the officers here were faced with a fast-moving scenario in which immediate action was required. As explained, it cannot be said, as a matter of law, that the officers acted unreasonably by conducting a brief investigation. In short, the Appellate Division erred as a matter of law by holding that the officers’ detailed and specific knowledge did not meet the minimum threshold for establishing reasonable suspicion. As the Appellate Division dissenters observed, the majority created a new, unjustified rule that will “serve to impede effective law enforcement and interfere with the protection and safety of the public.” People v. Brown, 115 A.D.3d 38, 41 (1st Dept. 2014) (Saxe, J., dissenting). Indeed, the Appellate Division majority placed “unrealistic restrictions” on the police that will hinder their 14 “vital task[]” of investigating “swiftly developing situation[s].” See People v. De Bour, 40 N.Y.2d 210, 218 (1976); United States v. Sharpe, 470 U.S. 675, 686 (1985). C. Even if defendant’s suppression motion should have been granted, any error was harmless. In any event, even if the level three stop was improper, any error was harmless. As argued on pages 44-48 of the People’s main brief, even without the victim’s identification testimony, the evidence of defendant’s guilt was overwhelming. At the outset, there is no dispute that two perpetrators fraudulently accosted the victim and stole property worth more than $3,000 from his person. Further, the victim’s identification aside, the trial evidence left no doubt that defendant was one of the two perpetrators. In that regard, moments after the crime, three experienced Cabaret Unit officers spotted defendant and Thomas fleeing together, barely a block away from the scene of the crime, looking back toward the crime scene as they ran. Officer Carey, who knew defendant from previous arrests and numerous street encounters, immediately recognized defendant. Sergeant Monahan knew defendant as well. When defendant and Thomas were promptly apprehended, Thomas was found in possession of the victim’s property: his Rolex watch and $185 in cash. In addition, the victim promptly identified Thomas as one of the two perpetrators.5 Those facts 5 Of course, as explained on Page 45 of the People’s main brief, defendant had no standing to challenge the stop of Thomas; thus, the property recovered from Thomas, and the victim’s identification of him, were plainly admissible. See United States v. Salvucci, 448 U.S. 83, 85-95 (1980); People v. Pursley, 158 A.D.2d 255, 256 (1st Dept. 1990). 15 provided damning evidence of defendant’s guilt. After all, the man fleeing the crime scene with Thomas, moments after the crime, was obviously the second perpetrator. Thus, even without the victim’s identification of defendant, there is no reasonable probability that the jury would have reached a different verdict. In response, defendant argues that if the trial court had ruled the stop illegal, it would have suppressed not only the victim’s showup identification of him but also any testimony about his arrest. Thus, defendant asserts, the jury would never have learned that he “was arrested in close proximity to the crime” and “in close proximity to the person with the complainant’s watch and money” (DB: 31). However, in the suppression proceedings, defendant did not argue that the court should have barred the People from eliciting evidence that he was stopped alongside Thomas. Instead, defendant moved to suppress only the victim’s showup identification of him, along with any statements and physical evidence obtained from him as a result of his arrest (see A63-64, A71, A310).6 Thus, defendant has failed to preserve his current claim that the trial court should have suppressed evidence of the circumstances of his apprehension. See Carter, 86 N.Y.2d at 722. In any event, even if testimony about defendant’s arrest would have been precluded, the People still would have been able to establish that defendant was observed fleeing the scene with Thomas less than two minutes after the crime. In 6 Page references preceded by “A” are to the People’s previously-filed appendix. 16 that regard, Officer Carey recognized defendant prior to the purportedly illegal stop -- immediately upon seeing him darting with Thomas across Broadway, around the corner from where the crime was committed. Critically, Officer Carey knew defendant well from many previous encounters, including two prior arrests. And, upon seeing defendant running across Broadway, Carey exclaimed to the other officers, “that’s Willie Brown” (Carey: A42). Therefore, even if the subsequent stop were deemed illegal, defendant would not have been entitled to suppress Officer Carey’s identification of him, because it occurred before the alleged illegality. See United States v. Crews, 445 U.S. 463, 475 (1980) (holding that defendant was not entitled to suppression of his identity where “the record plainly discloses that prior to his illegal arrest, the police both knew [defendant’s] identity and had some basis to suspect his involvement in the very crimes with which he was charged”). In fact, this Court recognized that principle in People v. Rogers, 52 N.Y.2d 527 (1981), declining to suppress a pair of boots that was “discovered not as a result of defendant’s [illegal] detention, but rather as a result of the previously established lead,” as well as a bloody shirt that was discovered “totally independent of the arrest, as it had been found at the death scene prior to any detention at all.” Id. at 533. Simply put, “[t]he exclusionary rule enjoins the Government from benefiting from evidence it has unlawfully obtained; it does not 17 reach backward to taint information that was in official hands prior to any illegality.” Crews, 445 U.S. at 475.7 In short, even if defendant’s suppression motion should have been granted, the remaining evidence overwhelmingly proved his guilt. 7 Notably, too, defendant is wrong to assert that the jury was “misled into believing that [he] was arrested in close proximity to the crime” (DB: 31). Indeed, it is an undisputed fact that defendant was arrested near the crime scene shortly after the crime. Even if there were any merit to defendant’s unpreserved claim that the fact of his arrest “should have been suppressed” (DB: 31), no false information was provided to the jury. 18 CONCLUSION The order of the Appellate Division should be reversed, and the case should be remitted to the Appellate Division for consideration of the facts. ALAN GADLIN DAVID M. COHN Assistant District Attorneys Of Counsel September 25, 2014 Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County I BY:)/~ a DAVID M. COHN Assistant District Attorney 19 PRINTING SPECIFICATIONS STATEMENT The word count for this brief is 4512, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2013. The brief is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes.