2025 NY Slip Op 51247(U)
N.Y. Sup. Ct., Bronx Cty.2025Background
- Kenneth Colon was indicted in Bronx County for criminal possession of a weapon and related offenses.
- The court previously ordered a suppression hearing under Dunaway/Huntley/Mapp/Boodle.
- At the suppression hearing, the People's primary arresting officer (AO) was unavailable to testify due to injury, so only his partner, Officer Clairet Cordero Lantigua (PO), testified, along with body-worn camera and surveillance footage.
- Officer Lantigua testified that the defendant was observed carrying a "heavy" black shopping bag around 1:21 a.m.; this bag was not visible in the video evidence, and nothing else about defendant was described as suspicious.
- The People, after realizing the legal insufficiency of the testimony, moved to reopen the hearing to allow the AO to testify once available.
Issues
| Issue | People's Argument | Colon's Argument | Held |
|---|---|---|---|
| Whether the PO's observations justified the AO's questioning as a lawful police intrusion under De Bour | PO's testimony and circumstances support at least a level-one or -two De Bour inquiry | PO's observations do not establish legal grounds for even a level-one De Bour encounter | Court: Current evidence insufficient even for level-one; AO's questioning was an unauthorized level-two inquiry |
| Whether to grant the People’s motion to reopen the suppression hearing for AO’s testimony | Strong public policy and interest in full fact-finding justifies reopening; no undue prejudice because of existing records | People should not be allowed to fix their strategic mistake after the court's legal analysis; risk of tailored testimony if AO testifies now | Court: Grants motion to reopen, subject to documentary protections; public interest in complete record outweighs prejudice concerns |
Key Cases Cited
- People v. De Bour, 40 NY2d 210 (N.Y. 1976) (Establishes four levels of permissible police intrusion of privacy in street encounters)
- People v. Hollman, 79 NY2d 181 (N.Y. 1992) (Details differences between De Bour levels, especially on nonthreatening encounters and requests to search bags)
- People v. Cook, 34 NY3d 412 (N.Y. 2019) (Court can reopen suppression hearing before a decision if interests of justice require)
- People v. Whipple, 97 NY2d 1 (N.Y. 2001) (Insufficient reason for initial omission doesn't preclude reopening suppression hearing if justice requires)
- People v. Kevin W., 22 NY3d 287 (N.Y. 2013) (Suppression hearings are about lawfulness of police conduct, not guilt or innocence)