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Criminal Possession of a Weapon - Suppressed

New York Criminal Defendant obtains suppression of a weapon - Criminal Motion to suppress a firearm was granted. In this case, Defendants, "charged with Criminal Possession of a Weapon in the Second Degree (Penal Law §265.03(3)) and other related charges, move to suppress a recovered firearm" and, based upon New York, the DeBour standard (below), the Court suppresses the evidence because law enforcement violated the New York State law.

The case comes by way of a Dunaway Mapp Ingle Huntley hearing. The Defendant moves to suppress the firearm evidence that will be utilized against him to show guilt of Criminal Possession of a Weapon.

The Defendant did not testify, and the hearing showed "the recovered firearm; and a disc containing Lieutenant Maldonado’s body worn camera footage." The case comes by way of car chase, that one of the Defendants was arrested for "not stopping," that it was "obstructi[on] governmental adminisrtation" and that there was probable cause for an arrest. There was about two minutes before the arrest, the detention, and the possession of the firearm being taken by law enforcement. Indeed, during the search of the person arrested, a “ black firearm” was recovered. There was no testimony as to anything else being recovered, inventoried or vouchered.

New York Criminal Defense Attorneys typically file motions pretrial to suppress evidence that was taken unlawfully, as fruit of the poisonous tree. In New York State Criminal Defense Motions

"to suppress evidence, the prosecution has the initial burden of going forward to demonstrate the legality of the police actions and must introduce credible evidence to meet this burden (People v. Hernandez, 40 AD3d 777 [2d Dept, 2007]; see People v. Berrios, 28 NY2d 361, 369 [1971]). The Court makes the following conclusions of law: A. Dunaway/Mapp/Ingle For the Dunaway/Mapp/Ingle prong of this hearing, the initial burden of proof rests with the People to put forward credible evidence tending to show that law enforcement acted lawfully, and the defendant has the burden of proving by a preponderance of the evidence that the police acted unlawfully (see People v. Baldwin, 25 NY2d 66 [1969]; see People v. Parker, 180 AD3d 1072 [2d Dept, 2020]).

The Court must determine whether the police action was “justified at its inception and whether it was reasonably related in scope to the circumstances which justified the interference in the first place” (People v. Wheeler, 2 NY3d 370, 374 [2004]). To assess the propriety of a street encounter with police, the Court must employ the four-tiered framework set forth in People v. DeBour (40 NY2d 210 [1976]) and reaffirmed in People v. Hollman (79 NY2d 181 [1992]). Each progressive level under this framework “authorizes a separate degree of police interference with the liberty of the person approached and consequently requires escalating suspicion on the part of the investigating officer” (id. at 185). “The justification for each escalation is based on the totality of the circumstances at the moment the escalation occurs, building on the officer’s prior observations and actions of both the officer and the private individual” (People v. Johnson, 40 NY3d 172, 179 [2023]).

Criminal Defense Attorneys who do NY Criminal Hearings and NY Criminal Motions know the four levels of "DeBour," and the Court recites the same:

Level One — Request for Information: Law enforcement may engage in minimally intrusive questioning to request information....Level Two — Common Law Right of Inquiry: Law enforcement is permitted “to gain explanatory information…short of forcible seizures” upon a “founded suspicion that criminal activity is afoot”...Level Three — Reasonable Suspicion: Permits “a forcible stop and detention” but requires the officer to have “a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor” (DeBour, 40 NY2d at 223)... Level Four — Reasonable Cause: Law enforcement may arrest and take a person into custody when that officer “has reasonable cause to believe that person has committed a crime, or offense in [the officer's] presence” (id.).

The framework set forth in De Bour “for evaluating the constitutionality of police-initiated encounters with private citizens applies with equal force to traffic stops,” whether the vehicle is moving or parked (People v. Garcia, 20 NY3d 317[2012]; see People v. Hinshaw, 35 NY3d 427[2020]; see People v. Harrison, 57 NY2d 470[1982]). While “valid traffic related issues are widely regarded as the less intrusive level-one inquiry,” “interference with a moving vehicle is a seizure requiring, at a minimum, reasonable suspicion” (People v. Perez-Lopez, 29 Misc3d 1218(A)[Sup. Ct. Bx. Co, 2010]; see People v. May, 81 NY2d 725[1992]). It is well settled that the police may lawfully stop a vehicle where the officer has reasonable suspicion to believe that the driver violated the Vehicle and Traffic Law (see People v. Ingle, 36 NY2d 413, 415 [1975](“A single automobile traveling on a public highway may be stopped for a ‘routine traffic check’ when a police officer reasonably suspects a violation of the Vehicle and Traffic Law”)). This is true even if the stop is made by officers not assigned to traffic duty (see e.g., People v. Woods, 64 NY2d 736 [1984](traffic stop for expired registration made by anti-crime unit)). Additionally, “a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car” (People v. Garcia, 20 NY3d 317 [2012]). However, unless there is reasonable suspicion to detain the passenger of a vehicle stopped for a violation of the Vehicle and Traffic Law, a passenger is permitted to leave the scene of such a stop (see People v. Antelmi, 196 AD2d 658 [1993]). Moreover, Courts have recognized that a passenger’s flight or attempted flight from the scene, without more, carries no indicia of criminality. “Reasonable suspicion is created only when a passenger engages in conduct in addition to flight and that additional conduct coupled with flight enables the police to pursue and stop him” (People. Lopez, 20 Misc3d 737 [Sup. Ct. King Co. 2008](passenger on bicycle fled after bicycle was stopped for traveling the wrong way on a one way street; no reasonable suspicion to pursue passenger without other suspicious conduct); see People v. Miller, 212 AD3d 735 [2d Dept, 2023](no reasonable suspicion that defendant was involved in criminal activity solely because he attempted to flee the backseat of vehicle stopped for a traffic infraction); see People v. Perez, 149 AD2d 344 [1st Dept, 1989](passenger of vehicle stopped for traffic infraction walked away while appearing fidgety and holding a plastic bag later discovered to contain cocaine, pursuit not justified)).

Here the Court notes that the stop was authorized (by "speeding, failing to stop at a traffic control device, reckless driving") but The Court notes that "There was no reasonable suspicion to believe the defendants were committing, had committed or were about to commit a crime":

While flight “accompanied by the deliberate discarding of incriminating evidence justifies reasonable suspicion that a crime has been or is about to be committed” the testimony as to the black bag alleged by Officer Orellana to have been tossed was equivocal: there was no testimony as to who threw the bag, either one of the defendants or the driver, or what window it was thrown from, either the driver side or passenger side (People v. Campbell, 245 AD2d 191 [1st Dept, 1997]). There was also no testimony at the hearing, such as a clinking sound, or the appearance of a heavy or L shaped object, that would suggest that the bag, even if actually thrown from the car, contained any contraband. Additionally, Lieutenant Maldonado said that she did not see anything tossed. Under these circumstances, the officers lacked reasonable suspicion to pursue the defendants and the pursuit and subsequent detainer of the defendants was unlawful. As the firearm recovered from the vehicle was a direct consequence of unlawful police conduct, it must be suppressed (see People v. Broodle, 47 NY 398 [1979]).

The case is People v. Peters, (People v. Peters, 2024 N.Y. Slip Op 50323 (Sup. Ct. 2024)); Motion to Suppress the Firearm Granted.

Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954)-745-4592 (FLA)

Call 631-450-2515 or E-Mail to arrange for an evaluation of your traffic matter, criminal matter or appellate matter.


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