In re Michael F.

May 5, 2011
Versions:84 A.D.3d 468
923 N.Y.S.2d 61

Order of disposition, Family Court, Bronx County (Allen G. Alpert, J.), entered on or about April 8, 2010, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed an act that, if committed by an adult, would constitute criminal possession of a weapon in the second degree, and placed him on probation for a period of 24 months, unanimously reversed, on the law and the facts, without costs, appellant‘s suppression motion granted, and the petition dismissed.

Other than stating that it was late at night (a night that happened to be New Year‘s Eve) and that the neighborhood was a high-crime area, the testifying officer did not provide any basis for the police to stop their car and approach a group of young men, including appellant, that was congregating on a street corner. These circumstances did not provide an objective credible reason for a level one request for information (see generally People v McIntosh, 96 NY2d 521 [2001]; People v Mobley, 48 AD3d 374 [2008]). When two uniformed officers got out of the marked car and approached appellant, he turned around, walked quickly away and looked back several times over the course of two minutes. This did not justify the subsequent level one encounter, in which the testifying officer followed appellant in his police car, stopped the car, asked appellant to stop and asked him what he was doing. Appellant‘s conduct was ambiguous, and, in the circumstances presented, was no more than an exercise of his “right to be let alone” in response to the initial approach of the other officers, rather than flight (People v Moore, 6 NY3d 496, 500-501 [2006]; People v Holmes, 81 NY2d 1056 [1993]; People v Howard, 50 NY2d 583 [1980]). While the officer subsequently made observations that led to the recovery of a loaded revolver from appellant‘s jacket, those observations were the result of the unauthorized encounter.

Concur—Tom, J.P., Mazzarelli, Acosta, DeGrasse and Román, JJ.