The People, Respondent,v.Mark Nonni, Appellant.BriefN.Y.March 20, 2018To be argued by NICOLAS SCHUMANN-ORTEGA New York Supreme Court Appellate Division -- First Department THE PEOPLE OF THE STATE OF NEW YORK, Bronx County Respondent, Ind. No. 514/2008 - against - MARK NONNI, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT ROBERT S. DEAN Attorney for Defendant-Appellant CENTER FOR APPELLATE LITIGATION 120 Wall Street - 28th Floor New York, NY 10005 nschumann@cfal.org (212) 577-2523, Ext. 513 Fax: (212) 577-2535 NICOLAS SCHUMANN-ORTEGA Of Counsel April 2, 2015 TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 REPLY ARGUMENT (replying to Respondent’s Point I) THE OFFICERS DID NOT HAVE SUFFICIENT CAUSE TO STOP, CHASE OR SEARCH APPELLANT. U.S. CONST., AMENDS. IV & XIV; N.Y. CONST. ART. I, § 12.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Officers Had Insufficient Cause to Stop or Chase Appellant.. . . 1 The Officers Did Not Have Probable Cause to Search Appellant’s Person and Bag.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 PRINTING SPECIFICATIONS STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . 1A i TABLE OF AUTHORITIES Cases In re Victor M., 9 N.Y.3d 84 (2007).................................................................................. 5 People v Reyes, 69 A.D.3d 523 (1st Dept. 2010)............................................................ 3 People v Robinson, 282 A.D.2d 75 (1st Dept 2001). .................................................... 5 People v. Benjamin, 51 N.Y.2d 267 (1980)...................................................................... 3 People v. Cintron, 304 A.D.2d 454 (1st Dept. 2003)..................................................... 3 People v. Concepcion, 17 N.Y.3d 192 (2011). ................................................................ 4 People v. Diaz, 107 A.D.3d 401 (1st Dept. 2013). ......................................................... 6 People v. Gethers, 86 N.Y.2d 159 (1995). ....................................................................... 6 People v. McCree, 113 A.D.3d 557 (1st Dept. 2014)................................................. 5, 6 People v. Torres, 74 N.Y.2d 224 (1989). .......................................................................... 6 People v. Trevino, — N.Y.S.3d —, 2015 N.Y. Slip Op 02561 (March 26, 2015). ... 2 United States v. Robinson, 414 U.S. 218 (1973). ............................................................ 5 Statutes N.Y. CONST. ART. I, § 12. ............................................................................................... 1 U.S. CONST., AMENDS. IV & XIV. ............................................................................. 1 ii SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT --------------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : MARK NONNI, : Defendant-Appellant. : --------------------------------------------------------------------------X PRELIMINARY STATEMENT This reply addresses arguments made in Respondent’s brief (“RB”), received by appellate counsel on March 25, 2015. As to Respondent’s arguments not addressed herein, appellant relies on his main brief (“MB”). REPLY ARGUMENT (replying to Respondent’s Point I) THE OFFICERS DID NOT HAVE SUFFICIENT CAUSE TO STOP, CHASE OR SEARCH APPELLANT. U.S. CONST., AMENDS. IV & XIV; N.Y. CONST. ART. I, § 12. The Officers Had Insufficient Cause to Stop or Chase Appellant. Contrary to Respondent’s contention, the information the officers possessed before stopping appellant was insufficient to justify a level-two common 1 law inquiry. Nor could it—when combined with appellant’s flight—justify the ensuing pursuit. Faced with nearly identical facts, this Court in People v. Trevino, — N.Y.S.3d —, 2015 N.Y. Slip Op 02561, at *1 (March 26, 2015) concluded that the police had sufficient information to conduct only a level-one request for information. There, like here, the police responded to a radio run of a robbery in progress at a specific building. See id. The call included no description of the assailants. On arrival, the officers saw the “defendant hurriedly leaving the building.” See id. Under these circumstances, this Court concluded only that the officers had sufficient information to support a level one request for information. Here, the information the officers had before stopping appellant was even more lacking. All they knew was that a burglary had been in progress at the semi- public country club whose driveway appellant was exiting. The radio run included no description of the suspects, nor were there any details about the number of individuals involved, or the identity or reliability of the 911 caller. When the officers first saw appellant and co-defendant Frazier, the two men were walking “casually” out of the driveway (PD: H.22; MF: H.84, 102). As in Trevino, that information was sufficient to justify only a level one request for information. It 2 could not, as the court below concluded and as the prosecution continues to insist (see RB: 25-27), support a level two common-law inquiry.1 Even if it did meet the minimum threshold for a level two stop, it did not, when combined with appellant’s flight, justify the level three pursuit that followed. To be sure, under certain circumstances a defendant’s flight will raise the suspicion level from a level two to a level three (see RB: 27-28). But as this Court held in Reyes, where the circumstances supporting a level two stop are inherently equivocal, flight will not justify police pursuit. People v Reyes, 69 A.D.3d 523 (1st Dept. 2010). Reyes’s rationale applies with equal force here. That the equivocal circumstance in this case was appellant’s presence on the semi-public driveway of the address in the radio run—rather than the point out that occurred in the vicinity of the addressed relayed in Reyes—is, contrary to the People’s insistence (see RB: 28-29), a distinction without a material difference. Here, as in Reyes, the information supporting the initial stop was too tenuous to justify pursuing appellant, notwithstanding the elevated suspicion arising from his flight. 1The People’s reliance on People v. Benjamin, 51 N.Y.2d 267, 269 (1980) and People v. Cintron, 304 A.D.2d 454 (1st Dept. 2003) is misplaced. In Benjamin, the Court concluded that there was reasonable suspicion where the officers responded to a radio run advising them of men with guns at a specific location and, after arriving there, the officers saw the defendant reach towards the rear of his waistband. 51 N.Y.2d at 269. In Cintron, the radio run there included a description that was similar to the that of the defendant, who was “in close and spatial proximity to a reported robbery.” 304 A.D.2d 454. Here, by contrast, the radio run did not include a description of the suspects. Nor was there evidence that appellant and Frazier were doing anything suspicious when the officers first saw them. 3 The Officers Did Not Have Probable Cause to Search Appellant’s Person and Bag. Even assuming there was reasonable suspicion to pursue, the evidence recovered from appellant must still be suppressed because Respondent has conceded that the officers searched his person and backpack without a warrant, without an arrest, and without even probable cause. Officer Delaney (“Delaney”) testified that the officers tackled appellant after apprehending him about 150 yards from the country club (PD: H.54, 57). Delaney then handcuffed appellant and, according to Delaney, placed him “under arrest” (PD: H.54). After that the officers searched appellant’s backpack and person, and walked him back to the police vehicle because, according to Delaney, appellant was “under arrest” (PD: H.30, 57). Only after the officers arrested and searched appellant did the complainant identify him (PD: H.38). Appellant argued below (H.116-17,124-25) and on appeal (see MB: 35-37) that the officers did not have probable cause before handcuffing him and searching his person and bag. Respondent correctly concedes that the officers only had reasonable suspicion before the search and identification (see RB: 29-31).2 2While the prosecution argued after the hearing that there was probable cause to arrest for assault and resisting arrest (H.133-34), it later abandoned that argument in its post-hearing memorandum, where it asserted that probable cause was established, and the arrest effectuated, after the complainant’s identification (see ROA, Prosecution’s post-hearing memorandum). The court agreed with the arguments set forth in the memorandum and concluded that probable cause was not established until the complainant had identified appellant (see ROA. Decision and Order, dated April 15, 2010, at 15). As such, any claim that there was probable cause earlier is beyond this Court’s review. See People v. Concepcion, 17 N.Y.3d 192, 194-95 (2011). 4 But Respondent wrongly insists that the police actions were lawful on the ground that appellant was not arrested until after the identification. First, there is no question that appellant was arrested when he was initially apprehended because any reasonable person “would have believed he was arrested” after being tackled, handcuffed and subjected to a full search. People v Robinson, 282 A.D.2d 75, 79 (1st Dept 2001). The officers themselves testified that appellant was “under arrest.” See In re Victor M., 9 N.Y.3d 84, 88 (2007) (fact that “[police officer] testified to an ‘arrest,’ not a temporary detention” warranted treating detention as “an arrest,” not “a stop based on reasonable suspicion”). While the application of handcuffs is not dispositive on the issue of whether a detainee is under arrest, in none of the cases cited by Respondent (see RB: 30-31) was the detainee handcuffed and subjected to a full search. Simply put, once appellant was searched, he was under arrest as a matter of law. See People v. McCree, 113 A.D.3d 557 (1st Dept. 2014). More important, even assuming the arrest did not happen until after the identification, the preceding search was still illegal because—as appellant argued below and as Respondent concedes—there was no probable cause until after the identification. A search of a detainee’s person may only be conducted incident to a valid arrest supported by probable cause. See United States v. Robinson, 414 U.S. 218, 235 (1973). Absent a warrant, the search of a closed container, such as a 5 backpack or envelope, must be supported by both a valid arrest and exigent circumstances. See People v. Diaz, 107 A.D.3d 401 (1st Dept. 2013) (finding that “there were no exigent circumstances justifying [a] warrantless search of defendant’s backpack following arrest”). Here, there was no probable cause to support the search, and Respondent can cite to no authority (see RB: 30, note 18) to support that the officers could search appellant on mere reasonable suspicion. Absent a valid arrest supported by probable cause, the search was illegal. See People v. Torres, 74 N.Y.2d 224 (1989). Since it is undisputed that there was no probable cause before the search, the fruits of that search—which included the weapons and money recovered from appellant as well as the identification that followed––should have been suppressed. See Diaz, 107 A.D.3d at 401; McCree, 113 A.D.3d at 557. Because Respondent has made no claim that the admission of that evidence was harmless, or contested that any of these claims are preserved, appellant’s conviction must be reversed and a new trial ordered. That trial must be preceded by an independent source hearing to determine if there is a lawful basis for the complainant’s in-court identification of appellant. See People v. Gethers, 86 N.Y.2d 159 (1995). 6 CONCLUSION FOR THE REASONS STATED ABOVE AND IN THE MAIN BRIEF, THIS COURT SHOULD GRANT THE RELIEF REQUESTED IN APPELLANT’S MAIN BRIEF. Respectfully submitted, Robert S. Dean Attorney for Defendant-Appellant Of Counsel Nicolas Schumann-Ortega April 2, 2015 7 PRINTING SPECIFICATIONS STATEMENT The brief was prepared in Wordperfect®, using a 14-point Garamond font, in the text and headings, and 12-point Garamond font in the footnotes. The word count is 1425, excluding the Table of Contents and Table of Authorities. 1A