The People, Appellant,v.William Brown, Respondent.

Brief

N.Y.February 12, 2015

APL-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. 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 Respondent 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 JUNE 27, 2014 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................. iii INTRODUCTION................................................................................................................ 1 QUESTIONS PRESENTED .............................................................................................. 6 SUMMARY OF ARGUMENT ........................................................................................... 7 THE EVIDENCE AT THE SUPPRESSION HEARING .......................................... 10 The People’s Case ..................................................................................................... 10 Defendant’s Case ...................................................................................................... 14 The Court’s Decision ............................................................................................... 14 THE EVIDENCE AT TRIAL .......................................................................................... 17 The People’s Case ..................................................................................................... 17 Defendant’s Case ...................................................................................................... 22 THE APPELLATE DIVISION DECISION ................................................................. 23 POINT THE HEARING COURT CORRECTLY FOUND THAT THE POLICE OFFICERS HAD REASONABLE SUSPICION TO DETAIN DEFENDANT FOR A BRIEF INVESTIGATION. IN CONCLUDING OTHERWISE, THE APPELLATE DIVISION APPLIED AN INCORRECT RULE OF LAW AND DISREGARDED THIS COURT'S PRECEDENTS. ............................ 26 A. The Applicable Law ........................................................................................... 27 B. The hearing court correctly applied this Court’s precedents in concluding that the police officers had reasonable suspicion to detain defendant for a brief investigation. ............................................................. 32 ii C. The Appellate Division majority erred as a matter of law, and disregarded longstanding precedents of this Court, by holding that the officers’ observations were insufficient to provide reasonable suspicion for a brief, investigative stop. ............................................. 38 D. In any event, any error in the trial court’s suppression ruling was harmless in light of the overwhelming evidence of defendant’s guilt. ....................................................................................................... 44 CONCLUSION ................................................................................................................... 49 iii TABLE OF AUTHORITIES FEDERAL CASES Beck v. Ohio, 379 U.S. 89 (1964) .......................................................................................... 30 Brinegar v. United States, 338 U.S. 160 (1949) ...................................................... 8, 30-31, 40 Illinois v. Wardlow, 528 U.S. 119 (2000) ................................................................... 28-29, 33 Terry v. Ohio, 392 U.S. 1 (1968) ...................................................................................... 28, 34 United States v. Brignoni-Ponce, 422 U.S. 873 (1975) ............................................................ 37 United States v. Cardoza, 713 F.3d 656 (D.C. Cir. 2013) .................................................... 40 United States v. Chhunn, 11 F.3d 107 (8th Cir. 1993) ........................................................... 40 United States v. Conley, 4 F.3d 1200 (3d Cir. 1993) ............................................................. 40 United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) ..................................................... 40 United States v. Erwin, 155 F.3d 818 (6th Cir. 1998) ........................................................... 40 United States v. Harris, 403 U.S. 573 (1971) ........................................................................ 31 United States v. Jackson, 300 F.3d 740 (7th Cir. 2002) ......................................................... 40 United States v. Jones, 700 F.3d 615 (1st Cir. 2012) .............................................................. 40 United States v. Lockett, 553 Fed. Appx. 957 (11th Cir. 2013) ............................................ 40 United States v. Perkins, 363 F.3d 317 (4th Cir. 2004) ......................................................... 40 United States v. Platt, 2014 WL 1013897 (5th Cir. 2014) .................................................... 40 United States v. Rabinowitz, 339 U.S. 56 (1950) ......................................................... 8, 30, 40 United States v. Salvucci, 448 U.S. 83 (1980) ......................................................................... 45 United States v. Sharpe, 470 U.S. 675 (1985) ............................................................ 31, 37-38 United States v. Simpson, 609 F.3d 1140 (10th Cir. 2010) .................................................... 40 United States v. Wagner, 989 F.2d 69 (2d Cir. 1993) ..................................................... 31, 40 iv STATE CASES People v. Bennett, 70 N.Y.2d 891 (1987) ............................................................................... 28 People v. Bigelow, 66 N.Y.2d 417 (1985) ................................................................................. 9 People v. Bigelow, 66 N.Y.2d 420 (1985) ......................................................................... 32, 40 People v. Brannon 16 N.Y.3d 596 (2011) .................................................................. 28, 33, 43 People v. Brown, 115 A.D.3d 38 (1st Dept. 2014) ............... 4-5, 23-25, 33-34, 36-40, 42-43 People v. Cantor, 36 N.Y.2d 106 (1975) ................................................................................ 28 People v. Chestnut, 51 N.Y.2d 14 (1980) ..................................................................... 8, 27, 43 People v. Church, 31 A.D.3d 892 (3d Dept. 2006) ............................................................... 40 People v. Concepcion, 68 A.D.3d 404 (1st Dept. 2009) .......................................................... 48 People v. De Bour, 40 N.Y.2d 210 (1976) ................................................................. 27-28, 43 People v. Dodt, 61 N.Y.2d 408 (1984)................................................................................... 45 People v. Evans, 65 N.Y.2d 629 (1985) ........................................................................... 29, 33 People v. Gethers, 86 N.Y.2d 159 (1995) ............................................................................... 45 People v. Hicks, 68 N.Y.2d 234 (1986) ........................................................................... 31, 43 People v. Holmes, 81 N.Y.2d 1056 (1993) ................................................................... 7, 24, 29 People v. Howard, 50 N.Y.2d 583 (1980) .............................................................................. 44 People v. Johnson, 64 N.Y.2d 617 (1984) ..................................................... 7, 9, 23, 30, 40-42 People v. Letendre, 264 A.D.2d 943 (3d Dept. 1999) ........................................................... 40 People v. Marinelli, 100 A.D.2d 597 (2d Dept.1984) .......................................................... 40 People v. Martinez, 80 N.Y.2d 444 (1992) .................................................. 7-8, 28-29, 31, 42 People v. McRay, 51 N.Y.2d 594 (1980) ......................................................................... 32, 40 People v. Moore, 6 N.Y.3d 496 (2006) ................................................................................... 27 v People v. Morales, 42 N.Y.2d 129 (1977) ................................................. 8, 31-32, 37, 39, 43 People v. Pursley, 158 A.D.2d 255 (1st Dept. 1990) ............................................................. 45 People v. Roque, 99 N.Y.2d 50 (2002) ............................................................................. 29, 32 People v. Seney, 34 N.Y.2d 817 (1974) ........................................................................ 8, 30, 40 People v. Sierra, 83 N.Y.2d 928 (1994) ............................................................................. 7, 29 People v. Teasley, 88 A.D.3d 490 (1st Dept. 2011) ............................................................... 40 People v. Thomas, 115 A.D.3d 69 (1st Dept. 2014) ................................................................ 5 People v. Vasquez, 20 N.Y.3d 461 (2013)............................................................................. 48 People v. Wheeler, 2 N.Y.3d 370 (2004) ...................................................................... 8, 27, 43 People v. Woodring, 48 A.D.3d 1273 (4th Dept. 2008) ......................................................... 40 People v. Woods, 98 N.Y.2d 627 (2002) ................................................................................ 29 STATE STATUTES CPL 140.50 ............................................................................................................................ 28 Penal Law § 155.30 ........................................................................................................... 1, 46 Penal Law § 155.35 ........................................................................................................... 1, 46 Penal Law § 165.30 ........................................................................................................... 1, 46 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- WILLIAM BROWN, Defendant-Respondent. BRIEF FOR APPELLANT INTRODUCTION By permission of the Honorable David B. Saxe, Justice of the Appellate Division, First Department, the People appeal from a January 16, 2014 order of that court. By that order, the Appellate Division reversed a June 22, 2011 judgment of the Supreme Court, New York County (Michael Sonberg, J., at suppression hearing; Cassandra Mullen, J., at trial and sentence), convicting defendant of Grand Larceny in the Third and Fourth Degrees (Penal Law §§ 155.35[1], 155.30[5]) and Fraudulent Accosting (Penal Law § 165.30[1]). Defendant was sentenced, as a second felony offender, to concurrent prison terms of three and one-half to seven years for third- degree grand larceny, two to four years for fourth-degree grand larceny, and one year for fraudulent accosting. He is currently free on bail. 2 In the early morning hours of December 9, 2010, defendant approached a foreign businessman, Jonas Ulf Kihlberg, near the corner of 51st Street and Broadway, in Manhattan. Defendant offered Kihlberg drugs, alcohol, or “girls.” When Kihlberg inquired what defendant meant by “girls,” defendant replied that he knew a club on the second floor of a building that featured women and alcohol. Defendant instructed Kihlberg to “follow me.” When they arrived at the location, near the corner of 49th Street and Seventh Avenue, co-defendant Patrick Thomas -- a larger, heavier-set man -- made eye contact with defendant and approached. Thomas and defendant directed Kihlberg to the building’s vestibule and said that it would cost $200 to enter. Kihlberg entered the small vestibule and saw that the building was dark inside. Defendant and Thomas also entered the vestibule, and Thomas repeated his demand for $200. Kihlberg believed he was being “scammed” but, fearing for his safety, gave Thomas the money. Thomas next demanded that Kihlberg hand over his $10,000 Rolex watch, explaining that they would need to pass through a metal detector. Kihlberg refused, as he did not believe there was actually a club inside the building. At that point, Thomas became more hostile and demanded, “You have to take off your watch, I want your watch.” Kihlberg unbuckled his watch, and Thomas pulled it off his arm, leaving a visible mark. Defendant and Thomas then left the vestibule. Thomas gave some money to defendant, and they sprinted away together. 3 Meanwhile, three police officers in an unmarked van were driving south on Broadway between 49th and 48th Streets. Defendant and Thomas, still running together, cut across traffic and passed in front of the officers’ van. Two of the officers recognized defendant, because he had previously been arrested for fraudulent accosting in the area. Specifically, the officers knew that defendant committed scams and that he targeted men exiting the Lace nightclub, which was located near the corner of 49th Street and 7th Avenue. In fact, one of the officers had encountered defendant in front of Lace earlier that night, at about 1:00 or 1:30 a.m. One of the officers recognized Thomas as well. As they ran, defendant and Thomas looked back over their shoulders towards Lace. Suspecting that defendant and Thomas had committed a crime and were fleeing the scene, two of the officers exited the police van and stopped them. The third officer drove around the corner and located Kihlberg, who reported that his watch had been stolen. About two minutes later, in a showup at the scene, Kihlberg identified defendant and Thomas as the culprits. The police recovered Kihlberg’s Rolex watch and $185 in cash from Thomas and $10 in cash from defendant. By New York County Indictment Number 5845/10, filed on December 10, 2010, defendant was charged with Robbery in the Second and Third Degrees, Grand Larceny in the Third and Fourth Degrees, and Fraudulent Accosting. Prior to trial, defendant moved to suppress Kihlberg’s showup identification of him, alleging that it 4 was the fruit of an unlawful stop. On June 1, 2011, following a hearing, the Honorable Michael Sonberg denied defendant’s motion. Justice Sonberg held that defendant’s suspicious flight across Broadway at 4:40 a.m., combined with the officers’ knowledge of defendant’s previous criminal activities in the area, justified a brief, investigative detention.1 On June 6, 2011, defendant’s jury trial commenced before the Honorable Cassandra Mullen. On June 8, the jury convicted defendant of the grand larceny and fraudulent accosting charges and acquitted him of the robbery charges. On June 22, 2011, Justice Mullen sentenced defendant as noted above. Defendant appealed, arguing that his motion to suppress should have been granted. On January 16, 2014, a divided panel of the Appellate Division, First Department, reversed defendant’s conviction “on the law,” holding that Kihlberg’s showup identification of defendant should have been suppressed. The majority held that defendant’s flight and criminal history were insufficient to establish reasonable suspicion for an investigative stop. See People v. Brown, 115 A.D.3d 38, 40-41 (1st Dept. 2014). Justice Saxe, joined by Justice Tom, dissented, arguing that the combination 1 Prior to the hearing, the court (Thomas Farber, J.) had denied defendant’s request for a hearing on his motion to suppress physical evidence, because defendant’s moving papers had not identified any property seized from him, and defendant had no standing to seek suppression of the property recovered from Thomas (A322 [3/15/11 Dec.] ¶ 5). In addition, prior to the suppression hearing, the People informed the court that they would not seek to introduce defendant’s post-arrest statements on their case-in-chief (A2). Thus, no hearing was held on the admissibility of defendant’s statements, in which he denied his guilt but also proclaimed, “That guy is not going to be around.” Page references preceded by “A” are to the People’s appendix. 5 of factors was sufficient to establish reasonable suspicion, and that the officers had made a “reasonable, split-second decision” to detain defendant and Thomas for “mere minutes” pending a showup. See Brown, 115 A.D.3d at 46 (Saxe, J., dissenting). The dissenters observed that the majority had set a new precedent that would “serve to impede effective law enforcement and interfere with the protection and safety of the public.” Brown, 115 A.D.3d at 41 (Saxe, J., dissenting). On March 13, 2014, Justice Saxe granted the People’s application for leave to appeal to this Court.2 In this appeal, the People contend that the Appellate Division applied an incorrect legal standard in holding, on the law, that the victim’s out-of-court identification must be suppressed. Specifically, as the hearing court found -- and as this Court’s longstanding precedents make clear -- a combination of factors, including defendant’s suspicious flight and his history of criminal conduct in the same location -- amply established reasonable suspicion for an investigative stop. 2 Thomas was tried jointly with defendant. He was convicted of the same charges and received an identical sentence. In a separate appeal, the Appellate Division reversed Thomas’s conviction on similar grounds, also by a vote of 3-2. See People v. Thomas, 115 A.D.3d 69 (1st Dept. 2014). Justice Saxe granted the People leave to appeal from that decision as well. 6 QUESTIONS PRESENTED 1. Was defendant’s pattern of criminal activity in the area an “attendant circumstance” that could, when combined with his inherently suspicious flight, provide reasonable suspicion for a brief, investigative stop? 2. Did the Appellate Division err as a matter of law, and disregard this Court’s precedents, by failing to consider the time and location of defendant’s conduct, the brevity of the detention, the fast-moving nature of the situation, and the lack of alternative courses of action when assessing whether the police had reasonable suspicion to conduct a brief, investigative stop? 7 SUMMARY OF ARGUMENT The Appellate Division disregarded longstanding precedents of this Court in holding that Kihlberg’s showup identification of defendant must be suppressed. The hearing court found that defendant’s suspicious flight across Broadway at 4:40 a.m., combined with the police officers’ knowledge that defendant had a history of fraudulently accosting tourists in the area from where he was fleeing, provided reasonable suspicion for a brief investigative stop. The Appellate Division accepted the hearing court’s findings of fact but reversed on the law, holding that the undisputed facts were insufficient to provide reasonable suspicion. Thus, the Appellate Division held that Kihlberg’s showup identification of defendant must be suppressed as the fruit of an illegal stop. In so holding, the Appellate Division relied on cases stating that flight alone, or a suspect’s criminal history alone, is insufficient to establish reasonable suspicion. See People v. Holmes, 81 N.Y.2d 1056, 1058 (1993); People v. Johnson, 64 N.Y.2d 617, 619 (1984). The Appellate Division erred, however, by failing to recognize that the combination of defendant’s suspicious flight and his pattern of criminal activity in the precise area provided reasonable suspicion. As this Court has long held, a defendant’s 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); see also People v. Martinez, 80 N.Y.2d 444, 448 (1992). And, it is equally well settled that a defendant’s criminal history, while 8 not by itself sufficient to justify a forcible stop, certainly qualifies as a factor that can support a finding of 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, 162-74 (1949). Further, the Appellate Division disregarded this Court’s precedents by failing to consider the “time” and “location” of the defendant’s suspicious flight (4:40 a.m., in the precise location where defendant had a history of committing scams), the brevity of the detention (less than two minutes), and the lack of alternative “investigatory techniques.” See Martinez, 80 N.Y.2d at 448; People v. Morales, 42 N.Y.2d 129, 136 (1977). Moreover, the Appellate Division failed to recognize that the ultimate touchstone when evaluating police-citizen encounters is “reasonableness.” See People v. Wheeler, 2 N.Y.3d 370, 374 (2004). The Appellate Division committed a fundamental legal error by “attempt[ing] to dissect each individual act by the police[]” in this fast-moving street encounter, instead of evaluating the officers’ conduct in light of the totality of the circumstances and the realities of police work. See People v. Chestnut, 51 N.Y.2d 14, 23 (1980). Judged by the correct standards, the police conduct here was eminently reasonable -- as the hearing court found. The combination of suspicious circumstances was more than sufficient to justify an investigative stop, and the intrusion was exceedingly brief. Indeed, the two-minute detention was the only 9 feasible way for the police officers to investigate, and in fact solve, what appeared to be a crime in progress. Contrary to the Appellate Division’s holding, the law did not require the officers to sit idly by while the two suspects disappeared into the woodwork of Times Square. The Appellate Division’s failure to adhere to this Court’s precedents presents a reviewable question of law. After all, it is a question of law whether the Appellate Division applied the correct legal principles to the case at hand. Also, where, as here, the facts are undisputed, it is a question of law whether the minimum showing necessary to establish reasonable suspicion has been made. See, e.g., People v. Bigelow, 66 N.Y.2d 417, 420-21 (1985) (“When the issue is the minimum showing necessary to establish probable cause, however, a question of law is presented for our review”); Johnson, 64 N.Y.2d at 619 (holding that this Court has the power to review whether the undisputed facts provide a “basis for an inference of criminal activity”). In any event, even if defendant’s motion to suppress should have been granted, any error was harmless in light of the overwhelming evidence of defendant’s guilt. The Appellate Division erred, too, by failing to recognize that any error was harmless. Accordingly, the order of the Appellate Division should be reversed. 10 THE EVIDENCE AT THE SUPPRESSION HEARING The People’s Case In the early morning hours of December 9, 2010, Sergeant KENNETH MONAHAN, Police Officer EDWARD CAREY, and Police Officer Thomas Donovan were on uniformed patrol, near Times Square, in an unmarked police van (Carey: A6-A7, A13). The officers were assigned to the Cabaret Unit, which specialized in identifying crimes committed around bars and nightclubs. The unit also made arrests for drug sales, fraudulent accosting, and loitering for prostitution (Carey: A4-A5). Sergeant Monahan, an 11-year veteran of the New York City Police Department, was a supervisor in the Cabaret Unit (Monahan: A19). Officer Carey, a 19-year veteran of the New York City Police Department, had made about 120 arrests as a member of the Cabaret Unit, including arrests for fraudulent accosting (Carey: A6). Carey had seen defendant numerous times while patrolling the Times Square area (Carey: A7-A8, A48, A55). In fact, Carey had arrested defendant on two previous occasions for fraudulent accosting -- that is, engaging in scams or “trick[s]” (Carey: A8-A9, A48). The usual targets of defendant’s scams were single men coming out of gentlemen’s clubs, such as Lace or Flashdancers (Carey: A8). Sometimes, defendant would sell his victims fake drugs -- specifically, crushed aspirin, Alka Seltzer, or headache powder that was packaged to look like crack cocaine (Carey: A8- A9). Defendant was also known for a scam in which he would direct men to a 11 building with a promise of “girls and unlimited drinks.” When the customers arrived, however, they would find the building closed (Carey: A9). Likewise, Sergeant Monahan knew that defendant and co-defendant Patrick Thomas “victimized” people in the area, and he had seen them hanging out in front of the Lace gentleman’s club, which was located on Seventh Avenue near 49th Street (Monahan: A27-A28, A30, A32-A33).3 At around 1:00 or 1:30 a.m. on December 9, while the officers were on patrol, Carey encountered defendant in front of Lace (Carey: A10-A11). Carey directed defendant to leave the area (Carey: A10-A11, A46-A47, A50). A few hours later, around 4:30 a.m., the three officers were driving south in their unmarked van on Broadway between 49th and 48th Streets (Carey: A9; Monahan: A25, A35). Suddenly, the officers saw defendant and Thomas “running very fast” across Broadway, through the middle of the street. Defendant and Thomas appeared to be coming from the vicinity of 49th Street and Seventh Avenue. They ran “diagonally” from the east corner of Broadway and 49th Street to the west corner of Broadway and 48th Street. As they ran, defendant and Thomas crossed in front of the police van, which was about three or four car lengths away. And, while they ran, defendant and Thomas looked back over their shoulders toward the vicinity of 49th 3 Carey had seen Thomas once or twice before but did not know Thomas personally (Carey: A7-A8, A55). Monahan recognized Thomas’s face (Monahan: A29). 12 Street and Seventh Avenue (Carey: A9-A10, A40-A43, A49, A51-A52; Monahan: A20-A21, A25-A26, A35). Upon seeing defendant, Carey exclaimed to the other officers, “that’s Willie Brown” (Carey: A42). Carey and Monahan believed that defendant and Thomas had just committed a crime, in light of defendant’s history, his flight, and the fact that he and Thomas were looking back over their shoulders towards a location where crimes often occurred (see Carey: A10, A42, A44, A56). Monahan promptly stopped the van; Carey and Donovan exited. Carey called out to defendant and Thomas, and the two men stopped in front of a hotel on Broadway. Officer Donovan held defendant, and Officer Carey frisked Thomas for weapons (Carey: A10, A13, A42-A46, A53, A57- A61; see Monahan: A26).4 Thomas was holding four pamphlets from gentlemen’s clubs, which were similar to pamphlets often possessed by persons engaged in fraudulent accosting (Carey: A15-A16, A60). Defendant, who was out of breath from running, sat on the ground (Carey: A13). Officer Donovan watched defendant to keep him from fleeing, as defendant had fled from and fought with the police during previous apprehensions (Carey: A13-A14, A49; see A59). Carey likewise watched Thomas to keep him from fleeing (Carey: A13, A59). Defendant and Thomas were not handcuffed (Carey: A13). 4 Carey believed that Donovan frisked defendant (Carey: A53). 13 Meanwhile, Monahan drove around the corner toward the Lace gentleman’s club (Monahan: A20-21, A24, A27-A28; see Carey: A10). He saw a man standing in front a building on Seventh Avenue located next door to the club (Monahan: A21, A30, A36). Monahan drove up to the man, rolled down the van’s window, and asked if “they took anything from him” (Monahan: A21, A30-A31, A36-A37). The man replied, “they took my watch” (Monahan: A21, A37; see Monahan: A23-A24) -- a Rolex worth $10,000 (Carey: A10). Monahan told the man that the police had “stopped” two individuals and asked if he would come to see if they were “the guys” (Monahan: A21, A39). Monahan then drove the victim to the location where defendant and Thomas had been stopped (Monahan: A21-A22; see Carey: A7, A10). They arrived only a minute or a minute and a half after defendant and Thomas had been apprehended (Carey: A10-A11). Upon viewing defendant and Thomas from the van, the victim stated, “there they are” (Monahan: A22-A23, A29-A30, A38-A39; see Carey: A11-A12). Monahan informed Carey and Donovan that the victim had identified defendant and Thomas as the men who had stolen his watch (Carey: A12). One of the officers asked defendant and Thomas, “where’s the watch?” (Carey: A14). In response, Thomas reached into his pants pocket and produced a silver Rolex watch (Carey: A14-A15). 14 The officers then placed defendant and Thomas under arrest (Carey: A7, A10; Monahan: A19). From Thomas’s right pants pocket, Carey recovered 27 promotional cards from clubs, which were similar to cards often possessed by persons engaged in fraudulent accosting (Carey: A15-A16). The officers recovered $10 in cash from defendant (Carey: A16).5 At the station house, in a subsequent search incident to arrest, the police recovered $185 in cash from Thomas’s left front pants pocket (Carey: A15). Defendant’s Case Defendant presented no evidence at the hearing. The Court’s Decision The court denied defendant’s motion to suppress, finding that the police had reasonable suspicion to stop him and to hold him briefly for a showup (see A71-A75). At the outset, the court credited the testimony of Sergeant Monahan and Officer Carey, noting their experience in the Cabaret Unit (A71). In addition, the court found that when the officers observed defendant and Thomas running across Broadway, in the midst of traffic, at 4:30 a.m., they had reasonable suspicion to conduct a level three stop. The court reasoned that “an ordinarily prudent and cautious man under those circumstances would have believed that criminal activity 5 The police vouchered the $10 for safekeeping and ultimately returned it to defendant. Carey initially believed that the $10 “could have been [defendant’s] own money,” so Carey “erred on the side of giving it back to him” (Carey: A16). 15 was at hand” (A74). The court observed that defendant and Thomas were running at a “significant pace” and were “looking over their shoulders towards 49th Street in an eastward direction as if to see if they were being followed” (A71-A72). Further, the court noted that “[b]oth Officer Carey and Sergeant Monahan knew from prior contacts that [defendant] engaged in fraudulent accosting in that area” (A72). The court added that both officers found it “more than suspicious” that defendant and Thomas “were proceeding at a rapid pace at that hour in the morning, and looking back over their shoulders back toward Seventh Avenue and up 49th Street” (A72). Thus, the court found that the officers’ suspicions of criminal activity were reasonable. The court explained that “someone knowing of [defendant] and his prior criminal activities” would reasonably “believe that he had engaged in some sort of scam, and was fleeing a scene” (A74). Similarly, the court found that the officers had reasonable suspicion to stop Thomas as well. The court explained, “[t]he fact that [Thomas] was with [defendant] and mimicking his conduct provided reasonable susp[icion] that he had been engaged in whatever conduct [defendant] had committed” (A74). Further, the court emphasized that the officers detained defendant and Thomas for only a “brief” time, “[l]ess than 2 minutes,” prior to the showup (A74). Finally, the court found that the prompt, on-the-scene showup was appropriate under the circumstances and was not suggestive (A74). Accordingly, the 16 court denied defendant’s motion to suppress, as well as Thomas’s motion, “in all respects” (A75). 17 THE EVIDENCE AT TRIAL The People’s Case On December 7, 2010, JONAS ULF KIHLBERG, a resident of Geneva, Switzerland, traveled to New York City on business. Kihlberg’s company was negotiating to purchase oil tankers from a Korean company; the financing and one of the ship brokers were based in New York (Kihlberg: A133-A135, A183-A184). On the night of December 8-9, Kihlberg was working, at his hotel, until about 3:00 a.m., which was 5:00 p.m. in Seoul, South Korea (Kihlberg: A135-A136, A157, A184- A186). After finalizing the negotiations at 3:00 a.m., the broker suggested to Kihlberg that they go out for a drink (Kihlberg: A136-A137, A157, A185-A186).6 They decided to meet outside a McDonald’s located at 51st Street and Broadway (Kihlberg: A137, A157). At around 4:00 a.m., Kihlberg took a cab to the McDonald’s and waited outside for the broker (Kihlberg: A137, A161-a163, A186). While Kihlberg was waiting, defendant approached him twice, offering drugs and alcohol; Kihlberg declined (Kihlberg: A137, A162, A165-A166, A188).7 Kihlberg went inside the McDonald’s to get a cup of coffee. The broker then contacted 6 Earlier that evening, Kihlberg had consumed three or four glasses of wine during dinner (Kihlberg: A136, A185). 7 Kihlberg described defendant as a slim black man of average height (Kihlberg: A137). 18 Kihlberg and canceled their plans, saying he was tired (Kihlberg: A137, A164, A166, A187). When Kihlberg walked back outside, at about 4:40 a.m., defendant approached again and offered “drugs, alcohol and girls” (Kihlberg: A137, A166-A167, A183, A188). Kihlberg inquired, “what do you mean girls?” (Kihlberg: A137). Defendant replied that he knew a club on the second floor of a building where there were women and alcohol (Kihlberg: A137-A137, A167-A168, A170-A171, A188). He told Kihlberg to “follow me” (Kihlberg: A137, A167-68, A188). Kihlberg followed defendant to 49th Street and Seventh Avenue (Kihlberg: A138, A170-A171). At that point, Thomas approached from across the street and made eye contact with defendant (Kihlberg: A138-39, A171-72).8 Thomas ran very quickly to catch up with defendant and Kihlberg (Kihlberg: A172). Kihlberg knew immediately that something was “wrong” (Kihlberg: A139, A148; see Kihlberg: A145). Kihlberg stopped, and Thomas approached from across the street (Kihlberg: A139, A172-A173). Defendant and Thomas then told Kihlberg that, in order to enter the club, they had to go into a vestibule. Defendant and Thomas stated that the admission price was $200 (Kihlberg: A140, A173-A174). 8 Thomas was also a black man, taller and heavier set than defendant (Kihlberg: A139). 19 Kihlberg felt “threatened,” but he did not try to run away, because he did not want to risk “unnecessary danger” in case defendant or Thomas had a weapon (Kihlberg: A149; A173-A175). Kihlberg felt that he had no option but to go inside the vestibule (Kihlberg: A189). After Kihlberg entered the vestibule, Thomas repeated the request for $200 (Kihlberg: A140-A141, A175). Kihlberg realized that he had been “scammed,” since no lights were illuminated inside the building (Kihlberg: A141, A174). Still, Kihlberg “opted” to give defendant and Thomas the $200, hoping that they would leave (Kihlberg: A141-A142, A175). Thomas next told Kihlberg to “give me your watch” (Kihlberg: A142, A193). Kihlberg was wearing a Rolex watch, which he had purchased two years earlier for approximately $10,000 (Kihlberg: A150-A152; Stipulation: A198-A199). When Kihlberg asked why he should take off his watch, Thomas replied that it was for the metal detectors (Kihlberg: A142, A175-A176, A192-A193). Kihlberg refused, since he did not believe that there was actually a club inside the building (Kihlberg: A142, A193). Thomas then became more hostile and demanded, “You have to take off your watch, I want your watch” (Kihlberg: A142-A143, A193). At that point, Kihlberg unbuckled his watch, and Thomas pulled it off his arm (Kihlberg: A143, A192). Kihlberg resisted, and in the struggle, a mark was left on Kihlberg’s arm (Kihlberg: A143-A144, A150). 20 Defendant and Thomas then left the vestibule (Kihlberg: A144). Thomas handed defendant some money, after which defendant and Thomas fled towards 49th Street and Seventh Avenue (Kihlberg: A144, A191). Kihlberg ran out to the street, screaming (Kihlberg: A145, A178, A191). Kihlberg saw two men standing near a black Mercedes and asked, “which direction did they run?” (Kihlberg: A145, A178, A192). The men pointed out defendant’s and Thomas’s location but advised Kihlberg to “stay here,” saying, “here’s the police coming, most likely” (Kihlberg: A145, A192). Meanwhile, Police Officers EDWARD CAREY and THOMAS DONOVAN, along with Sergeant Kenneth Monahan, had been driving south on Broadway, near 49th Street, in an unmarked police van (Carey: A93-A95; Donovan: A119-A121).9 The officers saw defendant and Thomas running diagonally across Broadway, at a “pretty quick pace,” from 49th Street toward 48th Street (Carey: A97-A99, A112-A113; Donovan: A121). Defendant and Thomas were running close together (Carey: A98). As they ran, they were looking over their shoulders, in the direction of 49th Street and Seventh Avenue -- from where they appeared to be coming (Carey: A97-A100; 9 The officers were members of the 18th Precinct Cabaret Unit, which combated, among other things, bar incidents, street drug sales, fraudulent accosting, and loitering for prostitution (Carey: A93; Donovan: A119). “Fraudulent accosting” refers to a scam where a victim is tricked out of money (Carey: A93). 21 Donovan: A121). Carey and Donovan exited the police car and stopped the two men on Broadway (Carey: A97, A100; Donovan: A121-A122). Sergeant Monahan drove around the corner to try to locate a victim (Donovan: A122). Monahan pulled up next to Kihlberg and asked what had happened; Kihlberg replied that someone had stolen his watch. Monahan then asked Kihlberg to get in the car (Kihlberg: A145, A178-A179). Monahan drove Kihlberg around the corner to Broadway, between 49th and 48th Streets (Kihlberg: A145-A146). He pulled the van up to the curb, alongside defendant and Thomas. Kihlberg identified the two men as the thieves (Kihlberg: A145-A147). Only about five minutes had elapsed since the incident (Kihlberg: A154; see Carey: A98; Donovan: A122). After Carey spoke to Thomas, Thomas produced Kihlberg’s Rolex watch from his right pants pocket (Carey: A101, A103-A104; see Donovan: A122). The officers placed defendant and Thomas under arrest (Carey: A96, A113; Donovan: A120- A121, A123). In searches incident to arrest, the officers recovered $185 in cash from Thomas and $10 in cash from defendant (Carey: A101, A105-A106; Donovan: A123, A125).10 In addition, Officer Carey recovered pamphlets from Thomas depicting 10 The $10 was subsequently returned to defendant (Donovan: A126). 22 scantily-clad women, as well as business cards from nightclubs or gentlemen’s clubs (Carey: A101-A102).11 At the precinct, Carey noticed that Kihlberg had a one-half inch “pressure cut” on his wrist (Carey: A110). The mark was “very pronounced” (Carey: A110). At trial, Kihlberg identified defendant and Thomas as the men who took his watch and his money (Kihlberg: A138-A140). Defendant’s Case When Sergeant Monahan saw Kihlberg on Seventh Avenue, Monahan approached and asked if “they took anything from him” (Stipulation: A199). Kihlberg replied, “they took my watch” (Stipulation: A199). Kihlberg was “looking around” and appeared to be “confused” (Stipulation: A200). 11 Thomas was holding some of the pamphlets in his hand when Officer Carey stopped him, and Carey recovered additional pamphlets from Thomas in a search incident to arrest (Carey: A101-A102). 23 THE APPELLATE DIVISION DECISION The Appellate Division reversed defendant’s conviction by a vote of 3-2, holding, “on the law,” that Kihlberg’s showup identification of defendant should have been suppressed. See People v. Brown, 115 A.D.3d 38 (1st Dept. 2014). The majority noted, at the outset, that the officers had conducted a “level three” stop of defendant and Thomas, which required reasonable suspicion. Id. at 39. Citing this Court’s decision in People v. Johnson, 64 N.Y.2d 617 (1984), the majority reasoned that “[t]he officers’ knowledge of defendant’s prior criminality in the same neighborhood was not sufficient to give rise to reasonable suspicion justifying a level three intrusion.” Brown, 115 A.D.3d at 39. The majority added that “[t]he fact that the officers observed defendant and Thomas running [did] not elevate the level of suspicion.” Id. at 40. The majority noted that “[f]light, accompanied by equivocal circumstances, does not supply the requisite reasonable suspicion.” Id. And here, the majority opined that “[t]he police did not observe conduct indicative of criminality, nor did they even possess information that a crime had occurred in the area.” Id. at 41. Accordingly, the Appellate Division held that the victim’s out-of-court identification should have been suppressed and that the case should be remanded for a new trial preceded by an independent source hearing. See id.12 12 The Appellate Division did not expressly address defendant’s separate claim that by obtaining an indictment prior to defendant’s arraignment, the prosecutor had improperly denied him notice of his right to testify before the grand jury. 24 Justice Saxe, joined by Justice Tom, dissented, arguing that that the majority had set a new precedent that would “serve to impede effective law enforcement and interfere with the protection and safety of the public.” Brown, 115 A.D.3d at 41 (Saxe, J., dissenting). In that regard, while noting that a defendant’s criminal history does not, standing alone, provide reasonable suspicion for a level three stop, the dissent observed that “[a] defendant’s criminal history, or even an officer’s recognition of a defendant from an earlier investigation, may be a factor in assessing reasonable suspicion.” Id. at 43. Similarly, the dissent pointed out that “‘[f]light, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity,’ may provide the necessary predicate to stop and detain a defendant.” Id. (quoting People v. Holmes, 81 N.Y.2d 1056, 1058 [1993]). The dissent thus explained that, contrary to the majority’s holding, “each of those factors, prior criminality and flight, may serve as components of the total quantum of knowledge that would lead a reasonable person under the circumstances to believe that “criminal activity is at hand.” Brown, 115 A.D.3d at 43 (emphasis in original). Applying that standard, the dissent opined that the officers had made a “reasonable, split-second decision” to detain defendant and Thomas for “mere minutes” pending a showup. See Brown, 115 A.D.3d at 46 (Saxe, J., dissenting). The dissent noted that defendant’s and Thomas’s conduct was “far from innocuous” and that the circumstances were “far from equivocal.” Id. at 45. In fact, it was 25 “inherently suspicious” that the two men were “running across Broadway at around 4:30 a.m., darting through traffic and looking back over their shoulders in the direction of 7th Avenue and 49th Street as if fearful of being chased.” Id. Further, the dissent pointed out that briefly stopping the men was “the only plausible way to investigate [these] highly suspicious circumstances.” Brown, 115 A.D.3d at 46 (Saxe, J., dissenting). Indeed, the dissent observed, “the officers had no reasonable alternative course of action.” Id. The dissent added that the “brevity of the detention” for a quick showup identification was yet “another factor demonstrating that the officers acted reasonably.” Id. Accordingly, the dissent described the officers’ actions as “not only constitutionally proper but also laudable.” Id. at 41. 26 POINT THE HEARING COURT CORRECTLY FOUND THAT THE POLICE OFFICERS HAD REASONABLE SUSPICION TO DETAIN DEFENDANT FOR A BRIEF INVESTIGATION. IN CONCLUDING OTHERWISE, THE APPELLATE DIVISION APPLIED AN INCORRECT RULE OF LAW AND DISREGARDED THIS COURT’S PRECEDENTS. A sharply-divided Appellate Division panel held that the police officers’ observations of defendant’s and Thomas’s flight, combined with their knowledge of the men’s pattern of criminal conduct in the area, was insufficient to provide reasonable suspicion for a brief, investigative stop. In reaching that conclusion, however, the Appellate Division majority made several errors of law. First, the majority disregarded longstanding precedents by holding that the officers’ knowledge of the defendants’ previous criminal conduct in the area was not an attendant circumstance that, when combined with the defendants’ precipitous flight, could yield reasonable suspicion. In addition, the majority failed to consider the brevity of the detention, the fast-moving nature of the situation, and the lack of alternative courses of action -- factors that this Court has deemed relevant to whether a stop is reasonable. Indeed, the majority ignored the basic principle that each action taken by the police should not be viewed in isolation; instead, the reasonableness of police conduct must be evaluated based on the totality of the circumstances, with a recognition of the challenges involved in responding to quickly-developing situations. Judged by the correct standards, the majority erred by holding that the law required 27 suppression of the victim’s showup identification of defendant. In fact, as the hearing court found, the officers engaged in good police work and took only the minimal steps necessary to thwart a crime in progress. A. The Applicable Law This Court’s precedents establish several basic rules that suppression courts must apply when assessing the lawfulness of an encounter on the street between police and civilians. Initially, when assessing the legality of a street encounter, the ultimate touchstone is the “reasonableness” of the police conduct. See People v. Wheeler, 2 N.Y.3d 370, 374 (2004). After all, “the facts in suppression cases are not always neatly categorized and therefore have favored general guidelines for the resolution of individual cases.” Id. at 373. Indeed, “unrealistic restrictions on the authority to approach individuals would hamper the police in the performance of their other vital tasks.” People v. De Bour, 40 N.Y.2d 210, 218 (1976). For that reason, “[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.” People v. Chestnut, 51 N.Y.2d 14, 23 (1980). To guide courts in assessing the reasonableness of police conduct, this Court has defined four stages of police-citizen interactions. See People v. Moore, 6 N.Y.3d 496, 498 (2006); De Bour, 40 N.Y.2d at 215-17. Here, the parties do not dispute that by briefly detaining defendant and Thomas for a showup identification, the police conducted what this Court described in De Bour as the third level of police-citizen 28 encounters, or what federal courts describe as a “Terry stop.” See De Bour, 40 N.Y.2d at 223; accord Illinois v. Wardlow, 528 U.S. 119, 122 (2000); Terry v. Ohio, 392 U.S. 1, 13 (1968). Of course, a “level three” or “Terry” stop is permissible when the police “have a reasonable suspicion that [the] defendant has committed or is about to commit a crime.” People v. Martinez, 80 N.Y.2d 444, 446 (1992); see also People v. Bennett, 70 N.Y.2d 891, 893 (1987) (police had reasonable suspicion “to briefly detain and question defendant”); De Bour, 40 N.Y.2d at 223 (a forcible stop and detention is justified where a “police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor”) (citing CPL 140.50[1]). This Court has defined reasonable suspicion as “the quantum of knowledge to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand.” People v. Brannon 16 N.Y.3d 596, 601-02 (2011) (quoting People v. Cantor, 36 N.Y.2d 106, 112–113 [1975]). Critically, the “reasonable suspicion” standard should not be applied in a hyper-technical way. Instead, “[a] stop based on reasonable suspicion will be upheld so long as the intruding officer can point to ‘specific and articulable facts which, along with any logical deductions, reasonably prompted th[e] intrusion.’” Brannon, 16 N.Y.3d at 602 (quoting Cantor, 36 N.Y.2d at 113). 29 More particularly, a suspect’s flight, while “not necessarily indicative of wrongdoing, . . . is certainly suggestive of such.” Wardlow, 528 U.S. at 124. To be sure, 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). However, it is 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); see also Martinez, 80 N.Y.2d at 448 (When assessing whether reasonable suspicion exists, a police officer may consider the defendant’s flight “in conjunction with other attendant circumstances”). Indeed, flight under suspicious circumstances can reasonably suggest criminality. See, e.g., People v. Woods, 98 N.Y.2d 627, 628-29 (2002) (affirming finding of reasonable suspicion where the defendant fled even though the police believed that he was the victim of a reported crime, since the defendant’s flight was “inconsistent with his status as a victim”); People v. Roque, 99 N.Y.2d 50, 52-54 (2002) (affirming finding of reasonable suspicion where defendant called out to known drug dealer and then acted suspiciously upon police officer’s approach). Notably, a suspect need not be fleeing from the police in order for his flight to arouse an officer’s suspicions. As this Court has held, a reasonable suspicion of criminality can arise where a person is running in a manner that suggests he is fleeing from the scene of an apparent crime. See, e.g., People v. Evans, 65 N.Y.2d 629, 630 30 (1985) (affirming finding of reasonable suspicion where defendant “look[ed] back over his shoulder several times” as he ran from a train station, carrying a shopping bag, and tried to gain access to two apartment buildings). In addition, a suspect’s relevant criminal history can, combined with other factors, support a finding of reasonable suspicion. Of course, the police may not forcibly detain an individual merely because he has a criminal record. See Beck v. Ohio, 379 U.S. 89, 96-97 (1964) (probable cause could not arise from the mere facts that “the officers knew what the petitioner looked like and knew that he had a previous [criminal] record”); People v. Johnson, 64 N.Y.2d 617, 619 (1984) (police did not have reasonable suspicion to stop defendant based merely on the facts that he had “previously been arrested for burglary and that there ha[d] been burglaries in the area”). However, as this Court has recognized, a suspect’s criminal history can be a factor supporting a finding of reasonable suspicion or probable cause. See People v. Seney, 34 N.Y.2d 817, 818 (1974) (suspects’ criminal history was a relevant factor in establishing probable cause for eavesdropping warrant); accord United States v. Rabinowitz, 339 U.S. 56, 58 (1950) (officers’ knowledge that defendant was an “old offender” who had previously sold forged stamps was a relevant factor in establishing probable cause for warrant to arrest defendant for new sale of forged stamps); Brinegar v. United States, 338 U.S. 160, 162-78 (1949) (defendant’s history of liquor smuggling in the area was a relevant factor in establishing probable cause for officers 31 to stop and search defendant’s car for evidence of smuggling); United States v. Wagner, 989 F.2d 69, 73 (2d Cir. 1993) (“Prior convictions are a relevant consideration in determining probable cause”); see also United States v. Harris, 403 U.S. 573, 583 (1971) (“We cannot conclude that a policeman’s knowledge of a suspect’s reputation -- something that policemen frequently know and a factor that impressed such a ‘legal technician’ as Mr. Justice Frankfurter -- is not a ‘practical consideration of everyday life’ upon which an officer (or a magistrate) may properly rely in assessing the reliability of an informant’s tip”) (quoting Brinegar, 338 U.S. at 175). Further, when evaluating the reasonableness of an investigative stop, a reviewing court should consider the “time” and “location” of the defendant’s suspicious conduct, Martinez, 80 N.Y.2d at 448; whether the detention was “for a reasonable and brief period of time,” People v. Morales, 42 N.Y.2d 129, 135 (1977); whether the defendant was transported from the scene, see People v. Hicks, 68 N.Y.2d 234, 242-43 (1986); whether the “police diligently pursued a minimally intrusive means of investigation likely to confirm or dispel suspicion quickly,” id. at 242; and whether “other investigatory techniques” were available, see Morales, 42 N.Y.2d at 136. Moreover, a reviewing court “should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing.” United States v. Sharpe, 470 U.S. 675, 686 (1985). 32 Finally, it is a question of law whether the undisputed facts are sufficient to justify a police intrusion. See, e.g., Morales, 42 N.Y.2d at 134 (“it is a question of law whether the facts found to exist are sufficient to constitute probable cause”). To be sure, “where the facts are disputed, where credibility is at issue or where reasonable minds may differ as to the inference to be drawn from the established facts, this court, absent an error of law, will not disturb the findings of the Appellate Division and the suppression court.” People v. McRay, 51 N.Y.2d 594, 601 (1980); see also Roque, 99 N.Y.2d at 54 (“The determination of whether the circumstances of a particular case rise to the level of reasonable suspicion is a mixed question of law and fact, beyond our review if the determination is supported by the record”). However, if the court below applied the wrong standard -- or if the court below wrongly identified the minimal showing necessary for a finding of reasonable suspicion or probable cause -- a question of law is presented. See People v. Bigelow, 66 N.Y.2d 420, 420-21 (1985); People v. McRay, 51 N.Y.2d at 601. B. The hearing court correctly applied this Court’s precedents in concluding that the police officers had reasonable suspicion to detain defendant for a brief investigation. Applying these standards, the hearing court correctly concluded that the police officers had reasonable suspicion to detain defendant for a brief investigation. Defendant’s and Thomas’s headlong flight, combined with the time, location, and circumstances of their flight, along with the police officers’ detailed knowledge of defendant’s ongoing criminal conduct in the area, would have caused any “ordinarily 33 prudent and cautious” officer to suspect that “criminal activity” was “at hand.” Brannon, 16 N.Y.3d at 602. While the Appellate Division majority came to a contrary conclusion, it did so by applying the wrong legal standards and by disregarding this Court’s precedents. As the Appellate Division dissent observed, the majority set a new “precedent” that “will serve to impede effective law enforcement and interfere with the protection and safety of the public.” Brown, 115 A.D.3d at 41 (Saxe, J., dissenting). To begin, the experienced Cabaret Unit officers -- who were familiar with the types of crimes commonly committed late at night near Times Square -- saw defendant and Thomas engage in inherently suspicions behavior. Specifically, defendant and Thomas darted across the middle of Broadway, a major Manhattan thoroughfare, at around 4:40 a.m. In addition, defendant and Thomas looked back over their shoulders while running, as if they were being chased. Of course, a chase through the city streets in the wee hours is a hallmark of possible criminality. See Evans, supra, 65 N.Y.2d at 630 (affirming finding of reasonable suspicion where, among other things, defendant “look[ed] back over his shoulder several times” as he ran). Indeed, “[h]eadlong flight -- wherever it occurs -- is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Wardlow, supra, 528 U.S. at 124. The hearing court recognized this fact, finding defendant’s and Thomas’s flight “more than suspicious” (A72). Likewise, as 34 the Appellate Division dissenters understood, defendant’s and Thomas’s flight was “far from innocuous, and the circumstances [were] far from equivocal.” Brown, 115 A.D.3d at 45 (Saxe, J., dissenting). Indeed, it would have been “poor police work” for the experienced Cabaret officers, who knew that fraudsters and thieves operated in the area, “to have failed to investigate this behavior further.” Terry, 392 U.S. at 23. To be sure, defendant’s and Thomas’s flight alone did not justify a level three intrusion. But as the hearing court found, the circumstances surrounding their flight raised a reasonable inference of criminality. As discussed, the experienced Cabaret Unit officers knew that scam artists commonly accosted victims late at night near Times Square. Moreover, the officers knew that defendant had a history of fraudulent accosting in the precise location from which he was fleeing. In fact, Officer Carey had twice arrested defendant for fraudulent accosting in the area. Those arrests were not isolated incidents: Carey knew defendant well and had interacted with him on 15 or 20 previous occasions. And critically, Carey knew defendant’s modus operandi: defendant would target single men leaving gentlemen’s clubs such as Lace or Flashdancers, and he would sell them fake drugs or fraudulently induce them to pay for introductions to “girls.” Likewise, Sergeant Monahan knew that defendant and Thomas had “victimized” people in the area, and he had previously seen the two men hanging out in front of Lace. 35 Significantly, Lace was located on Seventh Avenue near 49th Street -- a short distance away from where the officers saw defendant and Thomas running. Further, while they ran, defendant and Thomas looked back, over their shoulders, towards the corner where Lace was located. It was obvious to any reasonable officer what had likely occurred: defendant and Thomas had perpetrated a crime in their regular stomping ground, and they were fleeing the scene, looking back to see if the victim was giving chase. Notably, too, the time was 4:40 a.m. -- an opportune hour to accost a vulnerable, perhaps intoxicated victim who is looking for women or drugs. On top of all that, Officer Carey had seen defendant standing in front of Lace just three hours earlier, demonstrating that defendant had been stalking the location. Indeed, since defendant had been staking out Lace earlier, the officers had good reason to believe that his presence in the area three hours later was not a coincidence. Instead, it was entirely reasonable for the officers to conclude that defendant was hanging out in front of Lace to perpetrate scams -- as was his pattern. And, when the officers saw defendant fleeing from that precise location, looking back over his shoulder as if he was being chased, the inescapable conclusion was that defendant had just perpetrated a scam and was fleeing the scene of the crime. Simply put, the combination of factors -- defendant’s precipitous flight across a major thoroughfare at an early morning hour, his history of fraudulently accosting tourists at that precise location, and his presence there just a few hours earlier -- 36 rendered the officers’ actions eminently reasonable. As the hearing court found, “someone knowing of [defendant] and his prior criminal activities” would reasonably “believe that he had engaged in some sort of scam, and was fleeing a scene” (A74). Likewise, the Appellate Division dissenters explained, “[T]he officers’ observations here were of conduct by defendant and Thomas that was inherently suspicious, which, in light of the officers’ prior knowledge of them, justified the reasonable belief that the two men were probably running from the area near the Lace nightclub, and that they had just engaged in criminal activity there.” Brown, 115 A.D.3d at 45 (Saxe, J., dissenting). Additionally, the officers took the most limited action necessary to investigate the situation, detaining defendant for “[l]ess than 2 minutes” (A74). In that regard, when Officers Carey and Donovan stopped defendant and Thomas on Broadway, Sergeant Monahan drove around the block and immediately located the victim near the corner of 49th Street and Seventh Avenue -- the spot from which defendant and Thomas had obviously fled. Within two minutes, Sergeant Monahan brought the victim to Broadway to view the suspects, and the victim identified defendant and Thomas as the individuals who had stolen his watch and his money. Thus, far from violating defendant’s constitutional rights, the experienced officers engaged in good police work. They reacted quickly to an inherently suspicious, fast-moving situation and “diligently pursued a means of investigation that was likely to confirm or dispel 37 their suspicions quickly.” Sharpe, 470 U.S. at 686. Significantly, given the brevity of the detention, “this case does not involve any delay unnecessary to the legitimate investigation of the law enforcement officers.” Id. at 687. Further, the officers had no reasonable, alternative course of action. Defendant and Thomas had darted across perhaps the busiest thoroughfare in Manhattan and, if not stopped immediately, would have disappeared into the woodwork of Times Square. The police, therefore, had no time to delay action or to ponder their options. If the officers had not stopped defendant and Thomas instantly, they would have had no opportunity to confirm or dispel their suspicions. The police were forced to make a split-second decision: act on their suspicions by briefly detaining the two suspects, or allow two possible criminals to escape unpunished. As the Appellate Division dissent explained, the “experienced officers made a reasonable, split-second decision, choosing the only plausible way to investigate highly suspicious circumstances.” Brown, 115 A.D.3d at 46 (Saxe, J., dissenting); see also United States v. Brignoni-Ponce, 422 U.S. 873, 881 (1975) (“minimal intrusion” of brief car stop justified where there was an “absence of practical alternatives”); Morales, 42 N.Y.2d at 136 (brief detention for questioning, upon reasonable suspicion, was permissible where “all other investigatory techniques were fruitless”). 38 In short, applying well-settled principles, the hearing court properly concluded that the police officers had reasonable suspicion to detain defendant and Thomas for a brief investigation. After all, a reviewing court should not engage in Monday- morning quarterbacking regarding an officer’s reasonable, on-the-spot judgments in fast-moving situations. See Sharpe, 470 U.S. at 686. Indeed, as demonstrated, the hearing court’s conclusion was supported by a wealth of precedent. C. The Appellate Division majority erred as a matter of law, and disregarded longstanding precedents of this Court, by holding that the officers’ observations were insufficient to provide reasonable suspicion for a brief, investigative stop. Despite all this, the Appellate Division reversed, holding that the officers’ observations were not sufficient to justify a level three stop. As the two dissenting Appellate Division Justices recognized, that holding constituted an error of law. At the outset, the Appellate Division’s reversal turned on a pure question of law, not on a question of fact or on a mixed question of law and fact. Indeed, the Appellate Division decreed that its reversal was “on the law,” Brown, 115 A.D.3d at 47, and that description was correct. Critically, the Appellate Division did not take issue with the hearing court’s findings of fact. To the contrary, the Appellate Division reiterated the hearing court’s findings that the officers “observed defendant and Thomas ‘moving at a significant pace . . . looking over their shoulders . . . as if to see if they were being followed,’” and that “‘[b]oth Officer Carey and Sergeant 39 Monahan knew from prior contacts that [defendant] engaged in fraudulent accosting in that area.’” Id. at 39. Further, the Appellate Division’s reversal did not arise from a competing view of the inferences to be drawn from the uncontested facts or from a mixed question of law and fact. Instead, the Appellate Division reversed because it did not believe that the undisputed facts were sufficient to justify a level three stop. In that regard, the Appellate Division held that “[t]he officers’ knowledge of defendant’s prior criminality in the same neighborhood was not sufficient to give rise to reasonable suspicion justifying a level three intrusion.” Brown, 115 A.D.3d at 39. And, as noted, “it is a question of law whether the facts found to exist are sufficient” to justify a stop. Morales, 42 N.Y.2d at 134. Likewise, the Appellate Division majority held -- without disputing any of the facts found by the hearing court -- that the fact that “the officers observed defendant and Thomas running does not elevate the level of suspicion.” Id. at 40. Hence, the Appellate Division held, as a matter of law, that defendant’s and Thomas’s flight, even when combined with the officers’ knowledge of defendant’s pattern of criminal conduct in the same location, was not sufficient to meet the minimum standard justifying a level three intrusion. Put another way, the Appellate Division held that the officers’ detailed and specific knowledge of defendant’s pattern of criminal conduct was not an “attendant circumstance” that, combined with flight, could yield 40 reasonable suspicion. And, of course, a dispute about the “minimum showing necessary” to establish reasonable suspicion presents a question of law. See Bigelow, 66 N.Y.2d at 420-21; McRay, 51 N.Y.2d at 601. Further, in its opinion, the Appellate Division ignored this Court’s holding in People v. Seney, supra, that a suspect’s criminal history is a relevant factor in assessing an officer’s level of suspicion. See Seney, 34 N.Y.2d at 818. In fact, the United States Supreme Court, every federal Circuit Court, and every Department of the Appellate Division -- up until this case -- have held that a suspect’s criminal history is a relevant factor that can elevate an officer’s level of suspicion.13 Nevertheless, citing People v. Johnson, 64 N.Y.2d 617, supra, the Appellate Division ruled here that the officers’ knowledge of defendant’s criminal history could not be considered as a justification for the brief detention, even in conjunction with defendant’s flight. See Brown, 115 A.D.3d at 39-40. The Appellate Division’s reliance 13 See, e.g., Rabinowitz, supra, 339 U.S. at 58 (1950); Brinegar, supra, 338 U.S. at 162-74; United States v. Cardoza, 713 F.3d 656, 660 (D.C. Cir. 2013); United States v. Jones, 700 F.3d 615, 619, 623-24 (1st Cir. 2012), cert. denied, 133 S. Ct. 1619 (2013); United States v. Wagner, 989 F.2d 69, 73-74 (2d Cir. 1993); United States v. Conley, 4 F.3d 1200, 1207 (3d Cir. 1993); United States v. Perkins, 363 F.3d 317, 322 (4th Cir. 2004); United States v. Platt, 2014 WL 1013897, *1 (5th Cir. 2014) (unpublished); United States v. Erwin, 155 F.3d 818, 822-23 (6th Cir. 1998); United States v. Jackson, 300 F.3d 740, 746 (7th Cir. 2002); United States v. Chhunn, 11 F.3d 107, 110 (8th Cir. 1993); United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013), cert. denied, 145 S. Ct. 899 (2014); United States v. Simpson, 609 F.3d 1140, 1147 (10th Cir. 2010); United States v. Lockett, 553 Fed. Appx. 957, 967 (11th Cir. 2013) (unpublished); People v. Teasley, 88 A.D.3d 490, 491 (1st Dept. 2011); People v. Marinelli, 100 A.D.2d 597, 599 (2d Dept.1984); People v. Letendre, 264 A.D.2d 943, 943 (3d Dept. 1999), aff’d, 94 N.Y.2d 939 (2000); People v. Church, 31 A.D.3d 892, 894 (3d Dept. 2006); People v. Woodring, 48 A.D.3d 1273, 1275 (4th Dept. 2008). 41 on Johnson, however, was misplaced, because in that case, this Court held only that a defendant’s criminal history, standing alone, was insufficient to justify a level three stop. See Johnson, 64 N.Y.2d at 618-20. Specifically, in Johnson, the defendant was merely “walking around” and “looking at houses” in a residential area where prior burglaries had occurred. Johnson, 64 N.Y.2d at 618-19. The defendant did not engage in any “furtive” behavior, nor did he make any “unusual” movements. Id. at 619. Nevertheless, a police officer -- who knew that the defendant had previously been arrested for burglary -- approached and conducted a level three stop. See id. at 618-19 and n. 2. This Court held that the stop was unlawful, because it was “based on no more than that a suspect has previously been arrested for burglary and that there have been burglaries in the area.” Id. at 619. This Court noted, too, that it was not unusual for the defendant to be looking at houses in a residential area, since “there is little else to look at in a residential neighborhood.” Id. This case is far different from Johnson. Significantly, the defendant in Johnson was not fleeing the scene of an apparent crime, nor was he engaging in suspicious or furtive behavior. Instead, the police stopped and detained him solely on account of his past conduct. Here, in sharp contrast, the hearing court justified the stop based on the combination of defendant’s inherently suspicious flight across Broadway in the wee hours, and his pattern of accosting victims in the precise location from which he 42 was fleeing. As the Appellate Division dissenters explained, there is a difference between a stop based solely on a defendant’s flight or his prior record -- either one of which, standing alone, cannot justify a level three intrusion -- and a lawful stop where the defendant’s suspicious flight and criminal history combine to yield reasonable suspicion. See Brown, 115 A.D.3d at 43 (Saxe, J., dissenting). The majority’s failure to recognize this key difference was a foundational legal error.14 This error alone would be sufficient to warrant reversal of the Appellate Division’s order. But there is still more. In addition to discounting the relevance of defendant’s criminal history, the Appellate Division ignored this Court’s holding that the “time” and “location” of the defendant’s conduct are relevant to the reasonable suspicion analysis. See Martinez, 80 N.Y.2d at 448. Here, as discussed, the fact that defendant was fleeing across Broadway at 4:40 a.m., in a location where he had previously accosted victims, was another important “attendant” circumstance that elevated the officers’ level of suspicion. Likewise, the Appellate Division ignored other factors long deemed relevant by this Court: that the police had no reasonable, alternative course of action, and that the detention was exceedingly brief -- in fact, it 14 Notably, this Court’s holding in Johnson confirms that the Appellate Division’s ruling here is reviewable. In that regard, this Court ruled in Johnson that it had the power to review the Appellate Division’s suppression decision, because the question presented was whether the undisputed facts were sufficient to establish a “basis for an inference of criminal activity.” Johnson, 64 N.Y.2d at 619. 43 was the minimum intrusion necessary to confirm or dispel the officers’ suspicions. See Hicks, 68 N.Y.2d at 242-43; Morales, 42 N.Y.2d at 136. Perhaps most fundamentally, the Appellate Division made the cardinal error of analyzing the actions of the police out of context and in hindsight. Instead, as this Court has made clear, a suppression court is obliged to consider the totality of the circumstances and to take into account the realities of police work, including an officer’s need to make quick decisions when responding to fast-moving situations. See Wheeler, 2 N.Y.3d at 374; Chestnut, 51 N.Y.2d at 23. That is exactly what the hearing court and the Appellate Division dissenters did here -- and what the majority failed to do. Further, contrary to the Appellate Division majority’s conclusion, suppression was not required simply because the officers did not “possess information that a crime had occurred in the area.” Brown, 115 A.D.3d at 41. To justify a level three stop, the police need not know that a crime has been committed; they need only have a reasonable suspicion that “criminal activity is at hand.” Brannon, 16 N.Y.3d at 602. As explained, the hearing court correctly found that they did. The officers were not required to sit idly by -- and let two suspects run away -- just because there had not yet been a first-hand report of a crime. After all, part of good police work is to identify crimes in progress and to thwart them before the perpetrator escapes -- or, if possible, before they are committed. See De Bour, 40 N.Y.2d at 223 (level three stop 44 authorized if officers reasonably suspect that a person has committed or “is about to commit” a crime).15 In short, in holding, “on the law,” that the officers’ observations were not sufficient to justify a level three stop, the Appellate Division majority applied the wrong legal standards and disregarded key precedents of this Court. Thus, the Appellate Division’s ruling constituted an error of law, which this Court should correct on appeal. D. In any event, any error in the trial court’s suppression ruling was harmless in light of the overwhelming evidence of defendant’s guilt. In any event, even if defendant’s suppression motion should have been granted, any error was harmless in light of the overwhelming evidence of defendant’s guilt. 15 People v. Howard, 50 N.Y.2d 583 (1980), is not to the contrary. In that case, this Court held that the police did not have probable cause to arrest the defendant and search his belongings, merely because he was carrying what appeared to be a women’s vanity case and then ran away when police officers approached and began to follow him. See id. at 587, 590- 92. This Court explained that the officers “had no information that a crime had occurred or was about to take place,” that they “had not seen defendant do anything criminal,” and that the defendant had the right to rebuff the officers’ inquiries. See id. at 589-92. The present case, however, is far different from Howard. First, the search in Howard required probable cause, while the brief stop here required only reasonable suspicion -- a significantly lesser standard. Further, unlike here, the officers in Howard had an alternative course of action: they could have followed the defendant “unobtrusively.” See id. at 592. Finally, unlike in the present case, the defendant in Howard fled from plainclothes police, whom he might have mistaken for assailants. See id. at 589. Here, of course, defendant and Thomas started running before they encountered the police; they were obviously fleeing from the location of Lace, where defendant was known to commit crimes. Here, therefore -- unlike in Howard -- the brief detention, which amounted only to a level three stop, was eminently reasonable. 45 Critically, Kihlberg’s showup identification of defendant was the only suppressible fruit of the allegedly unlawful detention. Defendant had no standing to contest the stop of Thomas; hence, the property recovered from Thomas (the Rolex watch and $185 in cash) was plainly admissible. See United States v. Salvucci, 448 U.S. 83, 85-95 (1980) (a defendant may not challenge the lawfulness of a search unless his personal privacy rights were violated); People v. Pursley, 158 A.D.2d 255, 256 (1st Dept. 1990) (holding that defendant “lack[ed] standing to challenge the search of” codefendant). For the same reason, defendant had no standing to seek suppression of Kihlberg’s showup and in-court identifications of Thomas. Further, defendant did not move to suppress the $10 in cash that was recovered from him, so he cannot complain on appeal about the admission of that evidence. Even if the victim’s identification of defendant should have been suppressed, the remaining evidence overwhelmingly proved defendant’s guilt.16 Initially, there is no dispute that the two men who accosted Kihlberg were guilty of third- and fourth- degree grand larceny and fraudulent accosting. A person commits third-degree grand 16 Even if the admission of Kihlberg’s showup identification of defendant was error, Kihlberg would still be permitted to identify defendant at a new trial, if the People demonstrate an independent source for the in-court identification. See People v. Dodt, 61 N.Y.2d 408, 417-18 (1984). For the purposes of the instant harmless error argument, however, we cannot assume the outcome of an independent source hearing that has not yet been held. See People v. Gethers, 86 N.Y.2d 159, 163 (1995). Thus, for purposes of the present harmless error argument, we will evaluate the evidence without reference to Kihlberg’s identification of defendant. 46 larceny if he steals property worth more than $3,000. See Penal Law § 155.35(1). In addition, a person commits fourth-degree grand larceny if he steals property “from the person of another.” Penal Law § 155.30(5). And, a person is guilty of fraudulent accosting if he accosts another person “in a public place with intent to defraud him of money or other property by means of a trick, swindle or confidence game.” Penal Law § 165.30(1). Here, the evidence plainly showed that the two perpetrators stole property worth more than $3,000 from Kihlberg’s person. In that regard, after cornering Kihlberg in a vestibule, the two perpetrators ripped Kihlberg’s $10,000 Rolex watch from his arm. Nor is there any doubt that the men fraudulently accosted Kihlberg. After all, the two perpetrators accosted Kihlberg in a public place and fraudulently induced him to pay $200, purportedly as a cover charge for a club where there would be women and alcohol. Of course, the promise was a scam, and the building supposedly containing the club was empty. Tellingly, the perpetrators immediately fled after conning Kihlberg out of his money and stealing his watch. Moreover, even without Kihlberg’s identification of defendant, the trial evidence left no doubt that defendant was one of the two men who accosted Kihlberg and stole his property. Moments after the crime, three experienced Cabaret Unit officers spotted defendant and Thomas barely a block away from the crime scene, fleeing together and looking back toward the crime scene as they ran. The 47 officers promptly apprehended defendant and Thomas. Further, defendant and Thomas were caught red-handed in possession of Kihlberg’s property: Thomas had defendant’s Rolex watch and $185 in cash, and defendant had another $10 in cash. Notably, too, Thomas was holding pamphlets containing pictures of scantily-clad women, confirming Kihlberg’s testimony that the men had falsely promised to take him to a club to meet “girls.” And, of course, Kihlberg identified Thomas as one of the perpetrators in a showup and in court. No reasonable view of this evidence is consistent with defendant’s innocence. As discussed, Kihlberg testified unequivocally that two men had perpetrated the crime. Thomas was obviously one of the perpetrators, as he was found in possession of Kihlberg’s watch and the bulk of Kihlberg’s cash, and Kihlberg promptly identified him. Moreover, it is inconceivable that the second perpetrator was anyone other than defendant. Once again, defendant and Thomas were stopped moments after the crime, running away from the crime scene together, looking back over their shoulders towards the crime scene as they ran. It would be a remarkable coincidence if Thomas – who, again, was clearly one of the two perpetrators – was fleeing the scene at 4:40 a.m. with another man who was also looking back towards the crime scene but who, somehow, was not involved in the crime. Obviously, the man darting across Broadway with Thomas, moments after the crime, was the second perpetrator. Thus, even without Kihlberg’s identification of defendant, there is no reasonable 48 probability that the jury would have reached a different verdict. See People v. Vasquez, 20 N.Y.3d 461, 467-68 (2013) (admission of identification testimony, even if error, was harmless: “It is hard to believe that, in light of this evidence, a jury that did not know of the post-arrest identification would have been left in doubt of defendant’s guilt”); see also People v. Concepcion, 68 A.D.3d 404, 405 (1st Dept. 2009) (any error in the admission of identification testimony harmless “in view of the overwhelming circumstantial evidence, independent of identification testimony, establishing defendant’s guilt”). * * * In sum, the Appellate Division erred as a matter of law by holding that the police officers’ observations were not sufficient to justify a brief, investigative stop. In any event, any error in the admission of Kihlberg’s identification testimony was harmless in light of the overwhelming evidence of defendant’s guilt. Accordingly, the order of the Appellate Division should be reversed, and the judgment of conviction should be reinstated. CONCLUSION The order of the Appellate Division should be reversed. ALANGADLIN DAVID M. COHN Assistant District Attorneys Of Counsel June 27,2014 Respectfully submitted, CYRUS R. VANCE,JR. District Attorney New York County DAVID M. COHN Assistant District Attorney 49