QUESTIONS PRESENTED
- Whether Appellant’s Guilty Plea Constitutes a Waiver of His Right To Appeal the Lower Court’s Adverse Ruling in His Motion to Suppress Evidence?
Answer of the Court Below: None
- Whether Appellant Was Lawfully Stopped by Police?
Answer of the Court Below: Yes
- Whether the Appellant Was Lawfully Pursued by Police?
Answer: Yes
- Whether, Because Appellant was Unlawful Stopped and Pursued, Appellant Can Be Found Guilty of Assault in the Second Degree Pursuant to Penal Law §120.05(3)?
Answer of the Court Below: None
- Whether, Because Appellant was Unlawful Stopped and Pursued , Any Evidence Recovered from Appellant Should Be Suppressed?
Answer of the Court Below: None
- Whether, Because Appellant was Unlawful Stopped and Pursued, Appellant Can Be Found Guilty of Resisting Arrest?
Answer of the Court Below: None
STATEMENT OF ESSENTIAL FACTS
On May 11, 2010, a preliminary suppression hearing was held for Appellant before the Hon. William Wetzel, County Court Judge, at the County Court of Westchester. The hearing concerned Dunaway, Mapp and Huntley issues stemming from Appellant’s arrest on September 28, 2009. Police Officer Sean Fogarty (PO Fogarty), and Police Officer Martin Geary (PO Geary), of the Yonkers Police Department were the only witnesses who testified.
On September 28, 2009, at approximately 3:50 p.m., in the vicinity of 55 School Street, in the City of Yonkers, a high crime area with gang violence and drug activity, Appellant was congregating with a friend of his named Vance Redacted (Redacted) in a parking lot near a flag pole (T8-10)[1]. It was a clear, moderately warm day (T13). Appellant was wearing a blue shirt and a beige hat, while Vance Redacteds was wearing a red shirt (T9-10).
PO Fogarty (PO Fogarty), and his partner Police Officer Sean Drain (PO Drain), were on routine patrol in a marked police vehicle (T6-7). PO Drain was driving the vehicle, and PO Fogarty was in the front passenger seat (T9)
At the above time and place, PO’s Fogarty and Drain drove past 55 School Street, and observed the Appellant and Redacted (T9-10). PO Fogarty testified that he recognized the Appellant and Redacted from having previously arrested them for narcotics activity (T10-11). PO Fogarty testified that he knew Appellant did not reside in any of the public housing projects in the area (T12).
PO Fogarty testified that he passed by Appellant and Redacted two times: The first time PO Fogarty only had the opportunity to see Appellant for “a few seconds” (T20). According to PO Fogarty, Appellant and Redacted were merely engaged in conversation (T12). The second time, moments later, according to his testimony, PO Fogarty observed Redacted handing money to Appellant, and Appellant handing Redacted a “gold watch” (T12-13, 23). According to Fogarty, there were no efforts to conceal this transaction, “It was a big gold watch. You could see it clearly,” “and there were no efforts to conceal the money that was being handed either” (T26). PO Fogarty also testified that he didn’t see any drugs handed (T26-27). Nonetheless, based solely upon this observation, according to PO Fogarty, he exited his police vehicle, and approached Appellant and Redacted to “investigate further” (T14).
According to PO Fogarty, as he approached Redacted, “Mr. Redacted threw the watch to the ground” (T14). PO Fogarty then asked Redacted for identification”, and Redacted told PO Fogarty to “get the fuck away from him, he didn’t have to give me shit” (T14). PO Fogarty then told Redacted “he wasn’t supposed to be loitering around the flag pole, (and) to give me his ID” (T14).
According to PO Fogarty, Appellant “began to walk away originally, and I told him to come back, at which time he did” (T27). PO Fogarty next asked Appellant for identification, and Appellant complied and handed his identification to the officer (T14). According to PO Fogarty, the identification seemed valid (T28). PO Fogarty testified that he asked Appellant “what he was doing in the area,” told Appellant that “he didn’t belong there,” and told Appellant that “he didn’t live there” (T14). According to PO Fogarty, he next asked Appellant “if he had anything on him that he wasn’t supposed to have” (T14), in response to which Appellant began to “back pedal” (T14), and stated, “You’re not searching me” (T14, 29). At this point, PO Fogarty testified that he ”took a step towards Appellant” (T29), that his purpose for approaching Appellant was to “frisk him” (T30), and if he “felt something of a nature that was in his pocket” his intention was to search him (T30).
PO Fogarty testified that when he took a step towards Appellant, Appellant “swung with his right hand” (T30), and “would have hit me if I didn’t block it” (T30). PO Fogarty testified that he then “took (Appellant) to the ground” (T15), and placed Appellant under arrest for taking a swing at him, at which time Appellant resisted arrest (T31). According to PO Fogarty, both he and his partner incurred bite marks to their hands from Appellant (T17).
PO Fogarty testified that once Appellant was subdued, he recovered the “gold watch” and one glassine envelope of heroin labeled “Michael Jackson” on the ground near the flag pole, approximately “one to two feet apart” (T18). Although PO Fogarty testified that he searched Appellant at the scene and only recovered “a cell phone and $32 U.S. Currency” (T18-19), PO Geary testified that he transported Appellant to a hospital, that he conducted a search of Appellant, and that he recovered two glassine envelopes of heroin labeled “Michael Jackson” from Appellant’s “right front pocket” (T47-48).
In addition to the testimony of PO’s Fogarty and Geary, defense counsel submitted into evidence a surveillance video of the confrontation between Appellant and the officers (People’s Exhibit 6, T59). Contrary to the testimony of PO Fogarty, the video does not show Appellant throw a punch at PO Fogarty, but instead shows PO Fogarty push Appellant up against a parked car, and then put Appellant down to the ground and arrest him.
At the conclusion of the evidence, Judge Wetzel made the following record (T61-62):
I’ll put a detailed decision on the record, but I would deny the motion. Basically I would tell you that based upon the Officer’s experience, the location, the Defendants were known to the Officer, and the fact that they were engaged in some form of a hand-to-hand transaction provides sufficient indicia of criminality to allow him to make that inquiry and to allow him to pat down the Defendant. Once he went to pat down the Defendant, things escalated, and therefore there was a basis for the arrest which justifies the subsequent search.
The Court then took a recess. Upon the parties’ return from said recess,
Appellant entered a guilty plea as follows (T63-64):
THE COURT: Do you have an application?
DEFENSE COUNSEL: Yes, your Honor. After having the opportunity to speak to Mr. Redacted both at the conclusion of the hearing and then again after lunch, he’s indicated to me that he’s going to be entering a guilty plea to the entire indictment with the understanding that your Honor’s sentence promise here is going to be six years on count three to run concurrent to five years on counts one and two, and then obviously the misdemeanors will merge.
THE COURT: Those being the minimum sentences for which he’s eligible.
DEFENSE COUNSEL: Yes, your Honor.
THE COURT: And in return he’s going to plead guilty. In view of the fact that the People have made no concession, I would not require that he waive his right to appeal should that situation change, and of course we can revisit that.
* * * *
Mr. Redacted, is that your understanding, sir:?
THE DEFENDANT: Yes, sir, your Honor.
Thereafter, Appellant pled guilty to two (2) counts of assault in the second degree, criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the seventh degree, and resisting arrest.
On July 9, 2010, the parties returned to Court, and the Appellant was sentenced to five years incarceration with five years Post Release Supervision on counts 1 and 2 (the assault charges), six years of incarceration with three years (3) of Post Release Supervision on count 3 (the narcotics possession), and one year on counts 4 and 5, all to run concurrent (July 9, 2010 Transcript, page 3).
ARGUMENT
Point One
Appellant’s Guilty Plea Does Not Constitute a Waiver of
His Right To Appeal the Lower Court’s Adverse
Ruling on His Motion to Suppress Evidence:
Pursuant to CPL §710.70 (2), “An order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty.” See People v. Fernandez, 67 NY2d 686 (1986). In the case at bar, as part of Appellant’s plea, it was specifically noted by the judge that Appellant was “not (required to) waive his right to appeal” (T63-64).
Point One: Conclusion
Appellant’s guilty plea is not a bar to appellate review of the lawfulness of the stop and arrest of Appellant.
Point Two
Appellant was Unlawfully Stopped by Police:
- Introduction
The Court of Appeals, in People v. DeBour, 40 NY2d 210 (1976), set out a two part initial inquiry that must be made when reviewing any search or seizure: “we must consider first whether or not the police action was justified in its inception and secondly whether or not that action was reasonably related in scope to the circumstances which rendered its initiation permissible. Id. at 215. In other words, the reviewing court must first look at the appropriateness of the police doing anything, and then look at the appropriateness of what the police did.
In reviewing the first prong, “the appropriateness of the police doing anything,” the Court in DeBour noted a distinction between the latitude to be given to police when they are performing “public service functions, not related to law enforcement,” like “mak(ing) inquiry of passers-by to find the parents of a lost child”…and their “criminal law enforcement function.” Id., at 218. Essentially, while the police will be given wide latitude and discretion when interfering with individuals in the course of their “public service functions,” that latitude and discretion will be significantly scrutinized and curtailed when they are performing their “criminal law enforcement function.” Id, at 219-220.
In the case of People v. La Pene, decided in conjunction with DeBour (40 NY2d 210, 221-226), the Court explained that “The minimal intrusion of approaching to request information is permissible when there is some objective credible reason for that interference not necessarily indicative of criminality (cite omitted). The next degree, the common-law right to inquire, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure (citations omitted).” Id, at 223.
In this case, from the very beginning of the Appellant’s encounter with the police, the police were engaged in their “criminal law enforcement function,” were intruding to a greater degree than that allowable under a “mere request for information,” and were seeking to “gain explanatory information,” as indicated in the testimony of PO Fogarty:
- Appellant “began to walk away originally, and I told him to come back, at which time he did” (T27).
- PO Fogarty next asked Appellant for identification, and Appellant complied and handed his identification to the officer (T14).
- According to PO Fogarty, the identification seemed valid (T28).
- PO Fogarty testified that he asked Appellant “what he was doing in the area,” told Appellant that “he didn’t belong there,” and told Appellant that “he didn’t live there” (T14).
- According to PO Fogarty, he next asked Appellant “if he had anything on him that he wasn’t supposed to have” (T14).
As revealed by the testimony of this officer, his encounter with the Appellant was at the level of a “Common Law Right of Inquiry” which required that there exist “at that moment a founded suspicion that criminal activity is present.” People v. DeBour, 40 NY2d 210, at 215 (1976).
With regard to what constitutes a “founded suspicion that criminal activity is present,” the Court offered the following analysis:
To validate (a) stop under the common-law power to inquire, we must examine the knowledge possessed at that moment and any reasonable inferences. Although this analysis involves a less stringent degree of belief than probable cause, it should be approached in the same manner so as to permit the use of familiar signposts as points of reference.
We have frequently rejected the notion that behavior which is susceptible of innocent as well as culpable interpretation, will constitute probable cause (citations omitted). It is equally true that innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand (citations omitted).
- The Video Tape
The only truly objective evidence is the surveillance tape, offered into evidence by Defense Counsel. At 1:13 according to the timer on the video, Appellant and his friend Redacted can be seen facing each other near a pole in a parking lot, possibly examining something in their hands as a police cruiser glides by. Neither Appellant nor Redacteds show any visible reaction to the presence of the uniform police cruiser other than Redacted possibly looking in its direction. At the same time, two other unidentified individuals are congregating, one of whom is sitting on the hood of a car, about one and a half car lengths away from Appellant and Redacted.
The police cruiser disappears from view, and then returns at 1:27 from the same direction to which it had previously disappeared. Appellant and Redacted are standing exactly as they were when the cruiser first went by, and only start to move apart when the officers have stopped and are seen exiting their cruiser. Although the aforementioned unidentified individuals are still congregating nearby, the officers ignore them, and immediately approach Appellant and Redacted. The officers appear to engage Appellant and Redacted in conversation. Suddenly, at 1:32, the officers can be seen pushing Appellant up against a parked car while Redacted stands by the pole watching. Redacted then approaches Appellant as the two officers clearly put Appellant onto the ground and affect an arrest of him.
Although PO Fogarty testified that when he took a step towards Appellant, Appellant “swung with his right hand” (T30), and “would have hit me if I didn’t block it” (T30), there is no sign of Appellant’s right hand being swung at either of the officers evident on the video tape. There is nothing revealed in the video tape to suggest that prior to the police arresting Appellant there was “a founded suspicion that criminal activity is present.” Id., at 215.
- The Gold Watch
During his direct testimony, Po Fogarty was asked the following questions, and gave the following responses (T13-14):
Question: When you went back around the flag pole, can you tell the Court what you observed at that point?
Answer: We observed Mr. Redacted was handing money to Mr. Redacted and Mr. Redacted handed Mr. Redacted a gold watch.
Question: How far away were you from those two persons when you saw this happen?
Answer: Approximately a car length; maybe ten feet.
Question: And from your vantage point were you still in the police car?
Answer: Yes, we were.
Question: 3:53 in the afternoon; fair to say it was still light out in September?
Answer: That’s correct.
Question: What was the weather like that day if you recall?
Answer: It was clear. It was moderately warm.
Question: And from your vantage point, was anything obstructing your view of Mr. Redacted here or Mr. Redacted?
Answer: No, not at that time.
Question: Now, Officer, upon seeing this exchange of the watch for money, what police action, if any, did you take at that point?
Answer: I exited the vehicle and got out to investigate further.
Question: And what happened from there?
Answer: Mr. Redacted threw the watch to the ground, at which time I asked him for identification. He told me to get the fuck away from him, he didn’t have to give me shit. Basically I continued to tell him that he wasn’t supposed to be loitering around the flag pole, to give me his ID. I turned to Mr. Redacted. I asked him for identification, and he complied and handed me his ID.
Question: Did you have a further conversation with Mr. Redacted during this asking for ID?
Answer: I asked Mr. Redacted what he was doing in the area. He didn’t belong there, told him he didn’t live there. At which time I asked him if he had anything on him that he wasn’t supposed to have, and he began to back pedal.
During cross examination, PO Fogarty added the following (T26):
Question: And was…from what you could tell, was there any efforts that you saw in your training as a police officer to try and conceal this transaction?
Answer: Any efforts to conceal it? No. It was a big, gold watch. You could see it clearly.
Question: And there were no efforts to conceal the money that was being handed either, correct officer?
Answer: That’s correct.
Thus, according to the officer’s testimony, the only predicate for the police intrusion upon Appellant and Redacted, and the interrogatory questions imposed upon Appellant and Redacted by the police, was an exchange of a gold watch for money during the mid afternoon on a clear and moderately warm day. However, this exchange is clearly innocuous behavior, and is susceptible of an innocent interpretation: Appellant may have actually been selling or trading a gold watch. Additionally, there is nothing in the officer’s testimony to indicate that the behavior of Appellant or his companion was in any way “furtive or suspicious” (see People v. Terracciano, 35 A.D.2d 849, 851). As already indicated, DeBour, “innocuous behavior alone will not generate a founded suspicion that a crime is at hand,” and accordingly, will not justify the extent of the intrusion, and the extent of the questioning, imposed upon Appellant by the police in this case (People v. DeBour, 40 NY2d 210, at 216 [1976], see also People v. Stevenson, 7 A.D.3d 820 [2nd Dept. 2004]).
- The High Crime Area, Appellant’s Prior Contact with the Police
During his direct testimony, PO Fogarty had the following to say regarding his knowledge of the area where Appellant was arrested (T8):
Question: And how would you characterize that area relative to crime activity?
Answer: It’s very, very active crime wise, gang violence, and a lot of drug activity.
Question: When you say a lot of drug activity, can you be a little more specific as to what you mean by that?
Answer: The area in and around School Street is – I personally have made numerous arrests in regards to narcotics.
Question: Narcotics as far as possession and sales?
Answer: Yes.
As to his prior contact with both Appellant and Redacted, PO Fogarty testified as follows (T9-12):
Question: Upon seeing those persons, did you recognize either of those two people?
Answer: Yes. I recognized both.
Question: First let’s take the person in the red shirt that you described. What’s the name of that individual?
Answer: Mr. Vance Redacted.
Question: And do you have any prior knowledge of Mr. Redacted? Have you had any interaction with him in the past?
Answer: Yes, I have.
Question: And in what capacity?
Answer: I’ve locked him up with narcotics.
Question: Do you recall specifically what kind of narcotics?
Answer: Heroin.
Question: Now to the guy who had I believe you said the blue shirt and the beige hat?
Answer: Yes.
Question: Did you recognize that person?
Answer: Yes.
Question: And who did you recognize that person to be?
Answer: Mr. Richard Redacted.
* * * * * * * * * *
Question: Now, prior to that day, in your professional capacity as a police officer, have you had any interaction with Mr. Redacted in the past?
Answer: Yes I have.
Question: And when and where?
Answer: Right in the same vicinity, School and Brook Street. Approximately February of “09, conducted an observation with a narcotics unit, and we arrested him for narcotics also.
Question: And do you recall what kind of narcotics Mr. Redacted was arrested with that day?
* * * * * * * * * * *
Answer: Heroin.
Clearly, the officer’s testimony as to his knowledge of the area of arrest, and both the Appellant and his companion, was to bolster the officer’s basis for initiating the interference with the Appellant, and the basis for the officer’s questioning. However, while the Court of Appeals has indicated that “the nature and location of the area where a suspect is detained may be one of the factors considered in determining whether, in a given case, the police acted reasonably,” (People v. Bronston, 67 NY2d 880, 881[1986]), that factor, without more, will not be enough to justify a police intrusion beyond the mere request for information. In fact, in Bronston, the Court affirmed the suppression of evidence based upon an unlawful police intrusion, despite the facts that the intrusion occurred in the early morning hours, in response to a 911 report of a burglary in progress, the defendant was found on a fire escape and was wearing clothing both consistent with the 911 report.
In the case of People v. Boulware, 130 A.D.2d 370 (1st Dept. 1987), the testifying officers stated that they were on patrol in an area “having a high incidence of drug-related and weapons arrests.” One of the officers testified that he observed a group of 10 to 15 people on the corner, and believed he recognized the defendant as a person who had a lengthy arrest record for gun possession offenses. The officers intended to disperse the crowd and isolate the defendant. As he approached the defendant, one of the officers called out to him and stated that he wished to speak to him. As defendant turned to face the officer, he placed his hand into his pocket, prompting the officer to order him to remove his hand from the pocket. As the officer took another step towards the defendant, the defendant fled. The officers pursued defendant and apprehended him with a gun in his possession.
The Court ruled that the initial approach and inquiry were unlawful (Id. at 371). In so doing, the court stated:
In spotting defendant Boulware in a high-crime area and believing him to be a person they knew had been previously arrested for gun possession offenses, the three officers, on those two grounds alone, decided to alight from their car…segregate defendant and question him “to see what he was doing.” It is clear from their own testimony that the officers were bent on conducting a law enforcement investigation of defendant’s conduct. The propriety of such an investigation must be measured against the standard of a founded suspicion that criminal activity is afoot, and that standard was most certainly not met here.
* * * * * * * * *
Even though the Court of Appeals has most recently clarified that “the nature and location of the area where a suspect is detained may be one of the factors considered in determining whether, in a given case, the police acted reasonably” (citation omitted), that factor must nevertheless exist in combination with objective factors specific to the incident which together support a founded suspicion that some particular criminal activity may be afoot.
* * * * * * * * *
Similarly futile, as far as sustaining this police encounter, is any reliance on the police officers’ belief that defendant was a person know to them to have (a criminal record).
* * * * * * * * *
Knowledge of a person’s past record may, like the high-crime area factor, be relevant in determining whether a police officer’s conduct during a lawful encounter is reasonable. But a founded suspicion of criminal activity arises only when there is some present indication of criminality based on observable conduct or reliable hearsay information.
Id, at 372-373.
The facts of the instant case are nearly identical to the facts of Boulware. Like Boulware, the Appellant and Redacted were congregating in a high crime area, and were known to the officers to be criminals.[2] However, this information, coupled only by the innocuous behavior of exchanging a gold watch for money, does not justify the extent of the intrusion imposed upon Appellant by the police in this case (see also People v. Brogdon, 8 A.D.3d 290 [2nd Dept. 2004]).
Point Two Conclusion
The combined weight of the video tape and the testimony of PO Fogarty amounts to nothing more than a “mere hunch” on the part of the police to justify their initial intrusion upon Appellant which ultimately led to his arrest. PO Fogarty utterly failed to articulate a sufficient reason to justify his or his colleagues police action vis a vis Appellant (see People v. Terracciano, 35 A.D.2d 849, 850 [2nd Dept. 1987]). Accordingly, any evidence recovered from Appellant subsequent to the initial unlawful intrusion upon him must be suppressed as “fruit of the poisonous tree,” and his conviction must be vacated as the product of said unlawful police conduct (see Nardone v. United States, 308 U.S. 338 [1939]).
Point Three
Assuming Arguendo that the Initial
Intrusion Upon Appellant Was Lawful
The Police Nonetheless Had No Right
To Pursue Him
- Appellant’s Flight
According to PO Fogarty, as he approached, Appellant “began to walk away originally, and I told him to come back, at which time he did” (T27). PO Fogarty next asked for identification, to which Appellant complied and handed his identification to the officer (T14). According to PO Fogarty, the identification seemed valid (T28). PO Fogarty testified that he asked Appellant “what he was doing in the area,” told Appellant that “he didn’t belong there,” and told Appellant that “he didn’t live there” (T14). According to PO Fogarty, he next asked Appellant “if he had anything on him that he wasn’t supposed to have” (T14). At this point, Appellant began to “back pedal” (T14), and stated, “You’re not searching me” (T14, 29). PO Fogarty testified that he then ”took a step towards Appellant” (T29), that his purpose was to “frisk him” (T30), and if he “felt something of a nature that was in his pocket” his intention was to search him (T30).
Once Appellant “backpedaled” and PO Fogarty took a step towards him, PO Fogarty was in pursuit of Appellant. A pursuit is a greater level of intrusion then the Common Right of Inquiry, and cannot be found to be lawful, unless the intruding officer has “reasonable suspicion that (Appellant) has committed or is about to commit a crime. People v. Brogdon, 8 A.D.3d 290, 292 (2nd Dept. 204). However, as the Court in Brogdon went on to state, “Flight, together with other specific circumstances indicating that the suspect may be engaged in criminal activity can provide reasonable suspicion (citation omitted). However, flight alone or in conjunction with equivocal circumstances that might permit a request for information is insufficient to justify pursuit (Id., at 292, citing People v. Howard, 50 NY2d 583, 592[1980]).
- Appellant Exclamation “You’re Not Searching Me!”
As indicated by the caselaw cited above, Appellant’s exchange of a gold watch for money is susceptible to innocent explanation, and the fact that he was a known to have a criminal past, and was observed in an allegedly high crime area, was not enough to justify the level of intrusion authorized under a Common Law Right of Inquiry. This set of facts certainly did not amount to reasonable suspicion that Appellant had committed or was about to commit a crime. Other than his statement that Appellant had begun to “backpedal,” PO Fogarty offers nothing additional to justify his pursuit except the following exclamation allegedly made by Appellant: “You’re not searching me!” (T14, 29).
However, the Court of Appeals, in the case of People v. Howard, 50 NY2d 583, 590 (1980), quoting Justice Brandeis in the decision of Olmstead v. United States, 277 US 438, 478 (1928), stated very clearly that “defendant had the right to be let alone.”
Point Three Conclusion
The combined weight of Appellant’s exchange of a gold watch for money, his known criminal history, the fact that he was observed in a high crime area, his exclamation “You’re not searching me,” and his “backpedaling,” does not justify the pursuit that the police officer initiated when he “took a step” towards Appellant.
Point Four
Because the Initial Stop, and
Subsequent Pursuit of Appellant
Were Unlawful, Appellant Cannot
Be Guilty of Assault in the Second
Degree Pursuant to Penal Law
Section 120.05(3)
In the case of People v. Milhouse, 246 AD2d 119, 123 (First Dept. 1998), the Court ruled, “One of the necessary elements of second-degree assault under Penal Law §120.05(3) is that the officer was performing a ‘lawful duty.’ (See People v. Martin, 36 A.D.3d 717 [Second Dept. 2007], citing People v. Milhouse).
In the case of People v. Rivera, 46 AD3d 349, 350 (First Dept. 2007), the Court stated, “(a)n essential element of assault in the second degree is that a defendant’s acts were committed with intent to prevent an officer from performing a lawful duty (citations omitted). The People were thus required to prove that the police had been acting lawfully, i.e. that they had probable cause when they arrested defendant during the course of this confrontation.”
For all of the reasons set out above, the arrest of Appellant was unlawful. Therefore, the People could not have proven all of the elements of Assault in the second degree under Penal Law §120.05(3).
Point Four Conclusion
Because the arrest of Appellant was unlawful, Appellant cannot be guilty of Assault in the second degree under Penal Law §120.05(3).
Point Five
Because the Initial Stop, and
Subsequent Pursuit of Appellant
Were Unlawful, Any Evidence
Seized from Appellant Must
Be Suppressed as Fruit of the
Poisonous Tree
In the case of People v. Beckett, 88 A.D.3d 898 at 900 (Second Dept. 2011), the Court held as follows: “As a result, the pursuit of the defendant and his seizure were unlawful. Consequently, the physical evidence, identification testimony, and the defendant’s statement to law enforcement officials should have been suppressed as ‘fruit of the poisonous tree’ (Wong Sun v. United States, 371 US 471, 488 [1963]).” Consistent with People v. Beckett and Wong Sun v. United States, because the pursuit and seizure of this Appellant were likewise unlawful, any evidence seized from the Appellant’s person, and the narcotics seized from Appellant in particular, must be suppressed as “fruit of the poisonous tree.”
Point Five Conclusion
Because the pursuit and arrest of Appellant was unlawful, any and all evidence seized from him must be suppressed.
Point Six
Because the Initial Stop, and
Subsequent Pursuit of Appellant
Were Unlawful, Appellant Cannot
Be Guilty of Resisting Arrest
In the case of People v. Peacock, 68 NY2d 675, 676-677 (1986), the Court of Appeals ruled as follows:
Penal Law § 205.30 defines resisting arrest as intentionally preventing or attempting to prevent a police officer “from effecting an authorized arrest”. The People concede that the officer did not have any ground to believe that defendant was committing, had committed or was about to commit an offense. That being the case, defendant’s arrest was not “authorized,” nor did her striking (the police officer’s) arm in reaction to the officer’s attempt to detain her constitute harassment.
There being no probable cause that authorized defendant’s arrest, she cannot be guilty of resisting arrest.
For all of the reasons set out above, because the pursuit and arrest of Appellant was unlawful, the arrest of the Appellant, like the arrest of the defendant in Peacock, was unauthorized. Therefore, the People could not have proven all of the elements of Resisting Arrest under Penal Law § 205.30.
Point Six Conclusion
Because the arrest of Appellant was unauthorized, Appellant cannot be guilty of Resisting Arrest under Penal Law § 205.30.
ULTIMATE CONCLUSION
For all of the reasons set out above, Appellant’s conviction should be vacated, the indictment dismissed, the record sealed, and Appellant should immediately be released from custody.
CERTIFICATION
Pursuant to Rule 670.10.3(f)
MICHAEL F. DAILEY, an attorney duly licensed to practice under the laws of the State of New York, does hereby certify, pursuant to the rules of this Court, that the heretofore produced Brief was prepared on a computer, the typeface is Times New Roman, the point size is 14, the line spacing is double except for quotations and headings, and the word count as per my processing system used to prepare the brief is 5,999.
Dated: February 3, 2012
___________________________
Michael F. Dailey
Attorney for Appellant
[1] The letter “T” followed by page numbers refer to the relevant pages of the Suppression Hearing (Dunaway, Mapp & Huntley) held on May 11, 2010.
[2] However, an examination of Appellant’s Pre-Sentence Investigation Report reveals that Appellant resided at 135 Waverly Street, Yonkers, New York, a short distance from the location of his arrest, which the officers should have been aware of in light of their prior contact with him.
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